SECOND DIVISION [G.R. No. 135657. January 17, 2001] JOSE V. LAGON, petitioner, vs.

HOOVEN COMALCO INDUSTRIES, INC., respondent. DECISION BELLOSILLO, J.: This petition for review on certiorari seeks to set aside the Decision of the Court of Appeals of 28 April 1997 which in turn set aside the decision of the Regional Trial Court of Davao City and ordered petitioner Jose V. Lagon to pay respondent Hooven Comalco Industries, Inc. (HOOVEN) the amount of P69,329.00 with interest at twelve percent (12%) per annum computed from the filing of the complaint until fully paid, plus attorneys fees and costs, [1] as well as the Resolution of the appellate court denying reconsideration thereof.[2] Petitioner Jose V. Lagon is a businessman and owner of a commercial building in Tacurong, Sultan Kudarat. Respondent HOOVEN on the other hand is a domestic corporation known to be the biggest manufacturer and installer of aluminum materials in the country with branch office at E. Quirino Avenue, Davao City. Sometime in April 1981 Lagon and HOOVEN entered into two (2) contracts, both denominated Proposal, whereby for a total consideration of P104,870.00 HOOVEN agreed to sell and install various aluminum materials in Lagons commercial building in Tacurong, Sultan Kudarat.[3] Upon execution of the contracts, Lagon paid HOOVEN P48,00.00 in advance.[4] On 24 February 1987 respondent HOOVEN commenced an action for s um of money with damages and attorneys fees against petitioner Lagon before the Regional Trial Court of Davao City. HOOVEN alleged in its complaint that on different occasions, it delivered and installed several construction materials in the commercial building of Lagon pursuant to their contracts; that the total cost of the labor and materials amounted toP117,329.00 out of which P69,329.00 remained unpaid even after the completion of the project; and, despite repeated demands, Lagon failed and refused to liquidate his indebtedness. HOOVEN also prayed for attorneys fees and litigation expenses, and in support thereof, presented its OIC, Alberto Villanueva, and its em ployee, Ernesto Argente, and other witnesses, as well as several documentary evidence consisting mainly of the two (2) proposals, invoices and delivery receipts. Lagon, in his answer, denied liability and averred that HOOVEN was the party guilty of breach of contract by failing to deliver and install some of the materials specified in the proposals; that as a consequence he was compelled to procure the undelivered materials from other sources; that as regards the materials duly delivered and installed by HOOVEN, they were fully paid. He counterclaimed for actual, moral, exemplary, temperate and nominal damages, as well as for attorneys fees and expenses of litigation. On 9 October 1987, upon request of both parties, the trial court conducted an ocular inspection of Lagons commercial building to determine whether the items alleged in the complaint and appearing in the invoices and delivery receipts had been delivered and installed on the premises. The result of the ocular inspection was 1) with respect to the items covered by Exhibit A and submarkings that there are only seventeen (17) lig ht diffusers, 13 in the ceiling of the ground and 4 on the mezzanine (Ocular Inspection, TSN, pp. 5 to 6); 2) on Exhibit B and submarkings, there a re only twenty-three (23) light aluminum boxes, 14 aluminum boxes in the ceiling of the mezzanine and 9 on the ceiling of the ground floor (Ocular Inspection, TSN, p. 7); 3) on Exhibit C -1, the items are missing in the area where they were supposed to be installed; 4) on Exhibit C-2, admitted by defendant Lagon when he stated that I will admit that these were installed by the plaintiff but I do not know exactly the materials, but I really accept that these were installed sometime in 1981, before the occupation of the DBP. But I have paid that already in 1981. I could not identify the materials delivered in 1981 because I do not know the exact names of those materials. (Ocular Inspection, TSN, p. 12); 5) on Exhibit C -2, the glasses are not tinted but plain white; on Exhibit C-3, the materials cannot be formed (sic) in the place where they are supposed to be (Ocular Inspection, TSN, p.7); 6) Exhibit D and D-1, that the materials were supplied by plaintiff but they did not install them. It was the defendant who caused the installation thereof (Ocular Inspection, TSN, p. 13.); and 7) Exhibit E -1, as NU- Main and CrossRunners and supplied by plaintiff but plaintiff did not install. They had it installed (Ocular Inspection, TSN, p. 14). In due course the trial court rendered a decision partly on the basis of the result of the ocular inspection finding that the total actual deliveries and installations made by HOOVEN cost P87,140.00. Deducting therefromP48,000.00 which Lagon paid in advance upon execution of their contracts with no further payments appearing to have been made thereafter, only P39,140.00 remained unpaid and where Lagon incurred in delay. The trial court also awarded HOOVEN P3,255.00 as attorneys fees, but sustained Lagons counterclaims and awarded him P26,120.00 as actual damages representing the value of the undelivered and uninstalled materials, andP30,000.00 as attorneys fees in addition to litigation expenses of P45,534.50. According to the court a quo[5] As a result of the partial breach of contract on plaintiff's (Hooven Comalco) part, the defendant is entitled to actual damages only to the extent of the undelivered materials and undone labor or to the amount of P26,120.00. This P26,120.00 will be partially offsetted (sic) to the P39,140.00 unpaid balance of the defendant (Lagon), so that the difference that remain (sic) payable to plaintiff is P13,020.00. Evidence is insufficient to show that bad faith existed in the filing of the instant complaint for collection against the defendant. Plaintiff's obstinate conduct in prosecuting its claim spending for litigation expenses and for its lawyers negate the existence of bad faith. The fact alone that the findings of fact show an unpaid account of the defendant is proof that the complaint is not completely unfounded though evidence shows also that plaintiff is guilty of partial breach of contract by reason of failure to completely deliver and install the materials defendant ordered pursuant to the contract so that plaintiff is liable for damages. As plaintiff acted in good faith in the filing of the instant complaint in the belief that it has a valid cause of action against the defendant to enforce its claim, engaging a lawyer to prosecute it, plaintiff is entitled to a reasonable attorn eys fees equivalent to 25% of the collectible amount of P13,020.00 or the amount of P3,225.00. Defendant's claim of attorneys fees in the amount of P152,629.15 is in the opinion of the court clearly unreasonable and unconscionable considering the nature of the action and the amount involved. The court has the power to reduce it to render it reasonable and conscionable whether the contract for attorney's fees is written or oral. The attorneys fees is fixed at P30,000.00. The defendant presented evidence of litigation expenses incurred in the course of the trial for plane fare of its lawyer in coming to Davao City from Manila from 1987 up to July

1990 in the total amount of P34,730.50 as evidenced by Exhibit 11 to 11 -E. The records show that the defendants counsel came to Davao City from Manila to attend eleven (11) hearings of the case and the plane fare from 1987 up to August, 1989 is P2,524.50 and from August 1989 to June 1990 is P3,007.50. Hotel expenses of defendants counsel at the Maguindanao Hotel where he was billeted everytime he came to Davao City to attend the trial amounted to P11,824.00 as evidenced by Exhibit 17, the certification issued by the said hotel management. So that the total amount of the actual damage suffered by defendant is P45,534.50. Said amount of P45,534.50 is partially offsetted (sic) by the amount of P13,020.00 representing the unpaid obligation of the defendant to the plaintiff so that the plaintiff is still liable to pay the defendant the difference in the amount of P32,514.50. Both parties appealed to the Court of Appeals. In its Decision of 28 April 1997, the appellate court set aside the judgment of the trial court and resolved the case in favor of HOOVEN. It held that the trial court erred in relying solely on the results of the ocular inspection since the delivery and installation of the materials in question started as early as 1981, while the ocular inspection was conducted only in 1987 or six (6) years later, after the entire mezzanine was altered and the whole building renovated. The appellate court also stressed that the testimonies of HOOVEN's witnesses were straightforward, categorical and supported by documentary evidence of the disputed transactions, and that all Lagon could offer was a mere denial, uncorroborated and self-serving statements regarding his transactions with HOOVEN. The decretal portion of the assailed decision of the Court of Appeals reads ACCORDINGLY, finding the decision of August 26, 1991 appealed from afflicted by reversible errors, the same is hereby SET ASIDE, and a new one entered ordering the defendant-appellant (Lagon) to pay plaintiff-appellant (Hooven Comalco): The amount of P69,329.00 plus interest of 12% per annum computed from the date of the filing of the complaint, until fully paid. Fifteen percent (15%) of the amount due, as and by way of attorneys fees. Defendant-appellant to pay costs. Petitioner's motion for reconsideration having been denied he now hopes to secure relief from this Court by contending that: (a) The Court of Appeals erred in holding that the trial court could not rely on the results of the ocular inspection conducted on his commercial building in Tacurong, Sultan Kudarat; and, (b) The assailed decision of the appellate court is based on speculations and contrary to the evidence adduced during the trial. The arguments in the petition ultimately boil down to the sole issue of whether all the materials specified in the contracts had been delivered and installed by respondent in petitioners commercia l building in Tacurong, Sultan Kudarat. The question is basically factual involving as it does an evaluation of the conflicting evidence presented by the contending parties, including the existence and relevance of specific surrounding circumstances, to determine the truth or falsity of alleged facts. While factual issues are not within the province of this Court, as it is not a trier of facts and is not required to examine or contrast the oral and documentary evidence de novo,[6] nevertheless, the Court has the authority to review and, in proper cases, reverse the factual findings of lower courts in these instances: (a) when the findings of fact of the trial court are in conflict with those of the appellate court; (b) when the judgment of the appellate court is based on misapprehension of facts; and, (c) when the appellate court manifestly overlooked certain relevant facts which, if properly considered, would justify a different conclusion.[7] This case falls squarely within the foregoing exceptions. Before delving into the merits of this case, we find it necessary to describe and detail the nature and contents of the vital documentary exhibits upon which respondent HOOVEN based its claims, thus Exhibit F - Undated Proposal: I. For the supply of materials and installation of suspended aluminum ceiling runners: Area: 2,290 sq. ft. Materials: NU- Main & Cross runners NU-5 Perimeter mouldings G.I. wire hangers Aluminum straps stiffeners Blind Rivets and Screws P14,110.00 Labor charge 4,230.00 18,440.00 II. One (1) set: 65 x 68 YP aluminum cladding 1,150.00 P19,590.00 Delivery and Installation charge 1,860.00 P21,450.00 Exhibit F-1 Proposal dated 3 April 1981 Hooven Aluminum Casement Windows Anolok Finish Manually Operated, with 6.0 mm Bronzepane Tinted Glass Five (5) sets: 65 x 126-1/2 (w/ transom) One (1) set: 65 x 126-1/2 (w/ AC provision) Two (2) sets: 39-1/2 x 125-1/2 -doOne (1) set: 39-1/2 x 87 -doOne (1) set: 39-1/2 x 223 -doOne (1) set: 65 x 57-1/2 (w/ transom) One (1) set: 65 x 4 -doHooven Aluminum Entrances and Fixed Windows Anolok Finish, with 6.0 mm Bronzepane Tinted Glass One (1) set: 100-1/2 x 76-1/2, double sash, double acting swing door, with transom. Two (2) sets: 80 x 278, fixed panels 21,740.00 Hooven Aluminum Sliding Windows Fabricated From SD -Sections, Anolok Finish, with 6.0 mm Bronzepane Tinted Glass One (1) set: 54 x 191

One (1) set: 45 x 302 75,920.00 Add: Delivery and Installation charge

11,650.00 7,500.00

P83,420.00 Exhibit A Invoice No. 11094 dated 29 December 1982 Eighty Six (86) Pieces, 2.0 mm Hishilite P3,440.00 Diffusers Exhibit B Invoice No. 11095 dated 29 December 1982 Forty-Three Pieces: For the Supply and Installation of Light Boxes Fabricated from GA. 032 Aluminum Plain Sheet Delivery and Installers subsistence P5,718.50 Exhibit C Invoice No. 14349 dated 29 December 1984 Five (5) sets 1.651m 3.213m Hooven Aluminum Casement windows, Anolok finish, manually operated with 6.0 Bronzepane tinted glass. One (1) set 1.651 m 3.367m - do - with a/c provision Two (2) sets 1.00 m 3.188m - do - do One (1) set 1.00 m 2.210 m - do - do One (1) set 1.00 m 5.664 m - do - do One (1) set 1.651m 1.461 m - do - do - with transom One (1) set 1.651m 1.880 m - do with transom One (1) set 1.651m 1.524 m - do - do One (1) set 2.553m 1.943 m Hooven aluminum double sash, double acting swing door, with transom, with 6.0 mm Bronze-pane tinted glass. Two (2) sets 2.032m 7.061 m Fixed windows, Anolok finish. One (1) set .737 m 7.061 m Aluminum tubulars with aluminum YP-100 cladding, Anolok finish. One (1) set 1.143m 4.851m Hooven aluminum sliding windows fabricated from SD sections, Anolok finish, with 6.0 mm Bronzepane tinted glass, with 1.88 m tubular posts. One (1) set 1.143m 7.671m - do P75,291.83 4% tax 3,011.67 78,303.50 Delivery & Subs. 7,500.00 P85,803.50 Exhibit D Invoice No. 14265 dated 29 September 1984 For the supply of materials and installation of aluminum stucco embossed sheet on spiral staircase P5,310.00 Exhibit E Invoice No. 14264 dated 29 November 1984 For the supply of materials and installation of suspended aluminum ceiling system. Materials: NU-4 main and cross runners NU-5 perimeter mouldings GI wire hangers Alum strap stiffeners Blind rivets and screws P17,057.00 Exhibit A-1 Delivery Receipt dated 9 June 1981 Twenty (20) pieces Light boxes fabricated from aluminum sheets Forty (40) pieces 2.0 mm x 24 x 24 Hishilite Diffusers Lump sum cost including discount and Delivery and Installer Subsistence P4,340.00 Exhibit A-2 Delivery Receipt dated 8 August 1981 Twenty (20) pieces Light boxes fabricated from .032 aluminum plain sheet Twenty Seven (27) 2.0 mm x 24 x 24 Hishilite Diffusers Add: Delivery & Installers Subsistence P180.00 Exhibit A-3 Delivery Receipt, dated 8 December 1981 19 pcs. 2.0 mm x 2 x2 Hishilite Diffusers P40.00 Exhibit B-1 Delivery Receipt dated 25 June 1981 Additional three (3) pcs. Light boxes fabricated from .032 Aluminum sheets P140.00 Exhibit C-1 Delivery Receipt dated 25 August 1983 To change alum tubular frames for sliding windows (item 10 & 11) from 45 L x to 94 x 74. To change width of one (1) set: item 1 from 126-1/2 to 132-1/2. To add: one (1) set 65H x 60 aluminum casement windows with 6.0 mm tinted glass. To extend alum tubulars of fixed windows on 2nd floor by 29L and installation of YP -aluminum cladding P8,640.00 Exhibit C-2 Delivery Receipt dated 25 August 1983 Hooven Alum Casement Windows Anolok Finish Manually Operated with 6.0 mm Bronzepane Tinted Glass:

Five (5) sets: One (1) set: Two (2) sets: One (1) set: One (1) set: One (1) set: One (1) set:

65 x 65 x 39-1/2 x 39-1/2 x 39-1/2 x 65 x 65 x

126-1/2 with transom 126-1/2 with AC provision 125-1/2 - do 87 - do 223 - do 57-1/2 with transom 74 - do -

P42,530.00 Hooven Alum Entrances & Fixed Windows Anolok Finish with 6.0 mm Bronzepane Tinted Glass: One (1) set: 100-1/2 x 76-1/2, double sash, double acting swing door, with transom Two (2) sets: 80 x 278 fixed panels P21,740.00 Exhibit C-3 Delivery Receipt dated 25 August 1983 Hoven Alum Sliding Windows Fabricated from SD Sections Anolok Finish with 6.0 mm Bronzepane Tinted Glass: One (1) set: 45 x 191 One (1) set: 45 x 302 P11,650.00 Add: Delivery and Installation 7,500.00 Less: 7% Discount 6,256.50 P77,163.50 Exhibit D-1 Delivery Receipt dated 25 August 1983 For the supply of materials and installation of aluminum stucco embos sed sheet on spiral staircase: One (1) set 32 H x 304 WL P5,310.00 Exhibit E-1 Delivery Receipt dated 25 August 1983 NU- main and cross runners NU-5 Perimeter mouldings G.I. Wire Hangers Aluminum straps stiffeners Blind rivets and screws P17,057.00 We have carefully and diligently considered the foregoing exhibits and we are fully convinced that the mass of documentary evidence adduced by respondent suffers from patent irregularities and material inconsistencies on their faces, raising serious questions requiring cogent explanations. These flaws inevitably deplete the weight of its evidence, with the result that for lack of the requisite quantum of evidence, respondent dismally failed in the lower court to discharge its burden necessary to prevail in this case. Firstly, the quantity of materials and the amounts stated in the delivery receipts do not tally with those in the invoices covering them, notwithstanding that, according to HOOVEN OIC Alberto Villanueva, the invoices were based merely on the delivery receipts.[8] For instance, only eleven (11) items were listed in Exhs. "C-2" and "C-3" with a total worth of P77,163.50. But in Exh. "C," which was the invoice for Exhs. "C-2" and "C-3," there were thirteen (13) items enumerated for a total worth of P85,803.50. If Exh. "C" is supposed to be based on Exhs. "C-2" and "C-3," we cannot understand the apparent discrepancy in the items listed in those documents when they all referred to the same materials. Secondly, the total value of the materials as reflected in all the invoices is P117,329.00 while under the delivery receipts it is only P112,870.50, or a difference of P4,458.00. Moreover, the materials listed in the two (2) Proposals, upon which HOOVEN based its claims, is only for the total sum of P104,870.00. Curiously then, why would the materials supposedly delivered by HOOVEN be more than what was contracted and purchased by Lagon? This circumstance underscores the need to reexamine the strength, if not weakness, of respondents cause. Thirdly, under the Proposals HOOVEN bound itself to invoice the materials "when complete and ready for shipment." Oddly, the records show that the invoices were prepared several years after the materials were allegedly delivered and installed completely on petitioners building. Alberto Villanueva testified that their project with petitioner was completed sometime in August 1981 and that thereafter no further installation was done in the building. [9] But the disputed invoices marked Exhs. "A" and "B" were prepared only on 29 December 1982; Exhs. "C" and "D" were prepared only on 29 December 1984; and, Exh. "E" was prepared only on 29 November 1984. As for the delivery receipts, Exhs. "C-1," "C-2," "C-3" and "E-1" were prepared only on 25 August 1983 or two (2) years after the completion of the project, while Exh. "A-3" was prepared only on 8 December 1981 or some four (4) months after the date of completion. Even more strange is the fact that HOOVEN instituted the present action for collection of sum of money against Lagon only on 24 February 1987, or more than five (5) years after the supposed completion of the project. Indeed, it is contrary to common experience that a creditor would take its own sweet time in collecting its credit, more so in this case when the amount involved is not miniscule but substantial. Fourthly, the demand letter of 25 August 1983 [10] sent to petitioner by respondent further betrays the falsity of its claims Dear Mr. Lagon: The bearer, Mr. Fermin Piero, is an authorized representative of this company. He will arrange for your acceptance of the complete aluminum and glass installation we have undertaken for your building. He has with him the delivery receipts for your signature so with a statement of account showing your balance. Kindly favor us with a partial payment to cover our operation costs. Also kindly relay to him all other installations you wish us to undertake. Hoping for your favorable action, we shall remain. Very Truly Yours, Hooven Comalco Industries, Inc. Davao Branch (Sgd.) Alberto P. Villanueva

If, as claimed by HOOVEN, all the materials were completely delivered and installed in petitioners building as ea rly as August 1981, why then would it demand partial payment only two (2) years later? This circumstance is very significant especially considering that under the Proposals the terms of payment should be 50% down "and the balance to be paid in full" upon completion. Moreover, it is surprising that the partial payment demanded was only "to cover operation costs." As correctly observed by petitioner, demand for payment of operation costs is typical of a still on-going project where the contractor needs funds to defray his expenses. If there was complete installation, why would respondent demand payment for operation costs only? Why not enforce the whole amount of indebtedness? All these clearly suggest that there was no full and complete delivery and installation of materials ordered by petitioner. Fifthly, all the delivery receipts did not appear to have been signed by petitioner or his duly authorized representative acknowledging receipt of the materials listed therein. A closer examination of the receipts clearly showed that the deliveries were made to a certain Jose Rubin, claimed to be petitioners driver, Armando Lagon, and a certain bookkeeper. Unfortunately for HOOVEN, the identities of these persons were never been established, and there is no way of determining now whether they were indeed authorized representatives of petitioner. Paragraph 3 of each Proposal is explicit on this point 3. x x x the sellers responsibility ends with delivery of the merchandise to carrier in good condition, to buyer, or to buyers authorized "Receiver/Depository" named on the face of this proposal (underscoring supplied). As above specifically stated, deliveries must be made to the buyer or his duly authorized representative named in the contracts. In other words, unless the buyer specifically designated someone to receive the delivery of materials and his name is written on the Proposals opposite the words "Authorized Receiver/Depository," the seller is under obligation to deliver to the buyer only and to no other person; otherwise, the delivery would be invalid and the seller would not be discharged from liability. In the present case, petitioner did not name any person in the Proposals who would receive the deliveries in his behalf, which meant that HOOVEN was bound to deliver exclusively to petitioner. Sixthly, it is also obvious from the contested delivery receipts that some important details were not supplied or were left in blank, i.e., truck numbers, persons who delivered the materials, invoice and s. o. numbers. The persons who delivered the materials were potential witnesses who could shed light on the circumstances surrounding the alleged deliveries of the materials to petitioner. Moreover, it could have been easier for HOOVEN to pinpoint responsibility to any of its employees for the nondelivery of the materials. We are not unaware of the slipshod manner of preparing receipts, order slips and invoices, which unfortunately has become a common business practice of traders and businessmen. In most cases, these commercial forms are not always fully accomplished to contain all the necessary information describing the whole business transaction. The sales clerks merely indicate a description and the price of each item sold without bothering to fill up all the available spaces in the particular receipt or invoice, and without proper regard for any legal repercussion for such neglect. Certainly, it would not hurt if businessmen and traders would strive to make the receipts and invoices they issue complete, as far as practicable, in material particulars. These documents are not mere scraps of paper bereft of probative value but vital pieces of evidence of commercial transactions. They are written memorials of the details of the consummation of contracts. Given this pathetic state of respondent's evidence, how could it be said that respondent had satisfactorily proved its case? Essentially, respondent has the burden of establishing its affirmative allegations of complete delivery and installation of the materials, and petitioners failure to pay therefor. In this regard, its evidence on its discharge of that duty is grossly anemic. We emphasize that litigations cannot be properly resolved by suppositions, deductions, or even presumptions, with no basis in evidence, for the truth must have to be determined by the hard rules of admissibility and proof. The Court of Appeals however faulted the trial court for supposedly relying solely on the results of the ocular inspection on the premises, which were not conclusive since the inspection was conducted several years after the disputed materials were allegedly installed therein. We disagree. The ocular inspection was made by the judge himself, at the request of both petitioner and respondent, for the exclusive purpose of determining whether the materials subject of this case were actually delivered and installed. There is therefore no basis to give little evidentiary value on the results of the ocular inspection, as the Court of Appeals would, and charge the trial court with error for relying thereon. It is now rather late for any of the parties to disclaim them, especially when they are not in his or its favor. Furthermore, a cursory reading of the decision of the court a quo will at once show that it was not premised solely on the results of the ocular inspection but was likewise predicated on other evidence presented by the parties and wellconsidered facts and circumstances discussed by the trial court in its ratio decidendi. We cannot ignore the factual findings of the trial court, which must carry great weight in the evaluation of evidentiary facts, and in the absence of any indication showing grave error committed by trial court, the appellate court is bound to respect such findings of fact. We hasten to add however that petitioner is not entirely free from any liability to respondent. Petitioner admitted the delivery of materials under Exhs. "A" and its submarkings, "B" and its submarkings, "D," "D-1" and "E." With respect to Exh. "C2," petitioner acknowledged his obligation under the first heading, Items Nos. 3, 4 and 5, and the second heading, and denied the rest. Consequently, he should be made liable therefor in the total amount of P58,786.65. From this amount, petitioners down payment of P48,000.00 should be deducted. It is insisted by petitioner in his appeal brief filed before the Court of Appeals that the second item under the second heading of Exh. "C-2" should be excluded in the computation since he never admitted liability therefor. We are not persuaded. The transcript of stenographic notes shows that during the ocular inspection counsel for respondent manifested in effect that petitioner admitted the delivery and installation of the second item in his building, and petitioner did not interpose any objection to respondent's manifestation ATTY. QUIONES: We would like to make of record that defendant (Lagon) admits that plaintiff (Hooven Comalco) delivered and installed Item No. 1 under the second column of Exhibit C-2 which is the front door of the ground floor. ATTY. RICO: Defendant however adds that these were installed in 1981 and had already paid for the said item.

ATTY. QUIONES: I would like to make of record also that defendant admits the delivery and installation of Item No. 2 under the second column of Exhibit C-2 as having been delivered and installed by the plaintiff in 1981 with the qualification, however, that he had already paid the same. COURT: Are you stating that all these installed items on the ground floor were all paid by you? MR. LAGON: Yes, Your Honor.[11] Petitioner cannot now be heard to complain against its inclusion in the computation of his liability since his silence virtually amounted to acquiescence. The silence of one of the contracting parties and his failure to protest against the claims of the other party, when he is chargeable with the duty to do so, strongly suggest an admission of the ve racity and validity of the other partys claims. In sum, petitioners total liability to respondent may be computed as follows: (1) Items under Exh. A, consisting of 17 light diffusers at P40.00 each P 680.00 (2) Items under Exh. B, consisting of 23 light boxes at P40.00 each 3,220.00 (3) Third, fourth and fifth items under the first heading of Exh. "C-2" which on the basis of their measurements constitute only 1/3 of the total costs of materials listed therein 14,176.65 (4) Items under the second heading of Exh. C-2 21,740.00 (5) Items under Exhs. D and D-1 4,860.00 (6) Items under Exh. E -1 14,110.00 P58,786.65 Less: Stipulated 7% discount 4,408.99 P54,377.66 Less: Advance payment made by petitioner to Hooven Comalco 48,000.00 Unpaid Balance of petitioner P6,377.66 Notwithstanding the breach of contract by respondent in failing to deliver and install in the premises of petitioner all the stipulated materials, we nevertheless accede to the right of respondent to recover the unpaid balance from petitioner for the materials actually delivered. The next point of inquiry is the propriety of awarding damages, attorneys fees and litigation expenses. We are not in accord with the trial courts ruling that petitioner is entitled to actual damages to the extent of the undeliv ered materials and undone labor in the amount of P26,120.00. There is no proof that petitioner already paid for the value of the undelivered and uninstalled materials to respondent. Therefore, petitioner may not be deemed to have suffered any such damage. We have declared in no uncertain terms that actual or compensatory damages cannot be presumed but must be proved with reasonable degree of certainty. [12] A court cannot rely on speculations, conjectures or guesswork as to the fact of damage but must depend upon competent proof that they have indeed been suffered by the injured party and on the basis of the best evidence obtainable as to the actual amount thereof.[13] It must point out specific facts that could provide the gauge for measuring whatever compensatory or actual damages were borne. But we agree with petitioner that he is entitled to moral damages. HOOVEN's bad faith lies not so much on its breach of contract - as there was no showing that its failure to comply with its part of the bargain was motivated by ill will or done with fraudulent intent - but rather on its appalling temerity to sue petitioner for payment of an alleged unpaid balance of the purchase price notwithstanding knowledge of its failure to make complete delivery and installation of all the materials under their contracts. It is immaterial that, after the trial, petitioner was found to be liable to respondent to the extent of P6,377.66. Petitioner's right to withhold full payment of the purchase price prior to the delivery and installation of all the merchandise cannot be denied since under the contracts the balance of the purchase price became due and demandable only upon the completion of the project. Consequently, the resulting social humiliation and damage to petitioner's reputation as a respected businessman in the community, occasioned by the filing of this suit provide sufficient grounds for the award ofP50,000.00 as moral damages. Moreover, considering the fact that petitioner was drawn into this litigation by respondent and was compelled to hire an attorney to protect and defend his interest, and taking into account the work done by said attorney throughout the proceedings, as reflected in the record, we deem it just and equitable to award attorney's fees for petitioner in the amount of P30,000.00.[14] In addition, we agree with the trial court that petitioner is entitled to recover P46,554.50 as actual damages including litigation expenses as this amount is sufficiently supported by the evidence. [15] WHEREFORE, the assailed Decision of the Court of Appeals dated 28 April 1997 is MODIFIED. Petitioner Jose V. Lagon is ordered to pay respondent Hooven Comalco Industries, Inc., P6,377.66 representing the value of the unpaid materials admittedly delivered to him. On the other hand, respondent is ordered to pay petitioner P50,000.00 as moral damages, P30,000.00 as attorney's fees and P46,554.50 as actual damages and litigation expenses. SO ORDERED. EN BANC [G.R. No. 140079. March 31, 2005] AUGUSTO R. SAMALIO, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, DEPARTMENT OF JUSTICE and BUREAU OF IMMIGRATION, respondents. DECISION

CORONA, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the May 24, 1999 decision,[1] as well as the September 1, 1999 resolution, of the Court of Appeals (CA) in CA-G.R. SP No. 48723 which in turn affirmed the November 26, 1997 resolution of the Civil Service Commission (CSC). The aforementioned CSC resolution upheld the August 30, 1996 1st Indorsement of then Justice Secretary Teofisto T. Guingona confirming the penalty of dismissal from service imposed by the Bureau of Immigration upon petitioner on the ground of dishonesty, oppression, misconduct and conduct grossly prejudicial to the best interest of the service in connection with his act of extorting money from Ms. Weng Sai Qin, a foreign national. The facts, as found by the CA and adopted by petitioner himself, are as follows: Petitioner Augusto R. Samalio was formerly an Intelligence Officer of the Bureau of Immigration and Deportation. In Resolution No. 0-93-0224 dated February 4, 1993, the City Prosecutors office of Pasay City recommended that petitioner Samalio be prosecuted for the crimes of Robbery and Violation of Section 46 of the Immigration Law before the Sandiganbayan under the following facts: x x x that on 2 February 1993, Ms. Weng Sai Qin arrived at the NAIA from Saipan. While waiting for her turn at the arrival immigration counter, her passport was examined by Immigration Officer Juliet Pajarillaga. Noting that Ms. Weng, a Chinese, was holding a Uruguayan passport, Ms. Pajarillaga suspected that the formers passport was fake. Ms. Weng was taken out of the queue and brought to Respondent who was the duty intelligence officer. Ms. Weng, who could only speak in Chinese, asked respondent by sign language that she wanted to meet a friend who was waiting at the NAIA arrival area. Respondent approved the request and accompanied Ms. Weng to the arrival area. Thereafter, Respondent, with Ms. Weng and her male friend in tow, returned to the immigration area. While inside the office of Respondent, Ms. Weng asked that her passport be returned. Sensing a demand for money in exchange for her passport, Ms. Weng flashed $500.00 in front of Respondent. The money was grabbed by Respondent. Shortly, her passport was returned ans [ sic] she was allowed to leave. When Ms. Weng checked her passport later, she discovered that it did not bear an immigration arrival stamp. Thereafter, Ms. Weng complained against Respondent. In a later Indorsement communication dated February 9, 1993 to the Bureau of Immigration and Deportation (BID), former NAIA General Manager Gen. Guillermo G. Cunanan enclosed a copy of the aforesaid City Prosecutors Resolution. Reacting, then BID Commissioner, Zafiro L. Respicio, issued Personnel Order No. 93-179-93 commencing an administrative case against petitioner Augusto R. Samalio for Violation of CSMC No. 46, Rule 2, Section 1, for dishonesty, oppression, misconduct, disgraceful and immoral conduct, inefficiency and incompetence in the performance of official duties, violation of reasonable office rules and regulations and conduct prejudicial to the best interest of the service, requiring petitioner to submit his answer to the charges together with supporting statements and documents, and whether or not he elects a formal investigation if his answer is not considered satisfactory. In the same Personnel Order, Samalio was preventively suspended for a period of ninety (90) days as the charge sheet against him involves dishonesty, oppression and misconduct. Forthwith, petitioner attempted the lifting of his preventive suspension. It was struck down. Later on, petitioner submitted an answer denying the charges and expressly electing a formal investigation if such answer be not found to be satisfactory. Attached thereto are the affidavits of his witnesses Rodrigo C. Pedrealba, Dante Aquino, Florencio B. Austria and Winston C. Vitan. The answer was found to be unsatisfactory so the case was set for formal hearing before the Board of Discipline of BID. The case suffered several postponed hearings due to the requests and non-availability of the parties but mostly due to the absence of complainants witnesses until on September 7, 1993, respondent was allowed to file a motion to dismiss with the Special Prosecutor designated given time to comment thereon. When the dismissal motion was filed, assigned Special Prosecutor Edmund F. Macaraig interposed no objection thereto. Notwithstanding, the case was not dismissed and instead, the Special Prosecutor was given five (5) days to inform the Board whether or not he intends to present additional witnesses. On December 16, 1993, the DID Commissioner issued Personnel Order No. 93-428 reorganizing the Board of Discipline and this case was assigned to a new Board presided by Atty. Kalaw. Subpoenas were again sent and hearings were scheduled several times before the new Board until on February 6, 1995, Special Prosecutor assigned, Edmund F. Macaraig, moved that Samalios Motion to Dismiss be denied and that the case be considered submitted for resolution based on the records. On February 16, 1995, the hearing officer denied Samalios Motion to Dismiss but granted his Comment/Manifestation explaining his absence during the February 6, 1995 hearing and requesting that the case be set anew on February 22, 1995. Finally, on July 25, 1996, BID Acting Commissioner Ramon J. Liwag, issued the decision finding Augusto R. Samalio guilty of the charges and was ordered dismissed from service. In the 1st Indorsement dated August 30, 1996, former Justice Secretary Teofisto T. Guingona, Jr. confirmed the penalty of dismissal from service of Augusto R. Samalio. Soon after, the Motion for Reconsideration was denied in a Resolution dated June 2, 1997. Guingonas decision was appealed to the Civil Service Commission wh ich issued Resolution No. 974501 dated November 26, 1997 dismissing the appeal for lack of merit and affirming the decisions of Acting Commissioner Liwag and Secretary Guingona. Similarly, the attempt for a reconsideration was likewise dismissed in Civil Service Resolution No. 981925. In the meantime, on June 13, 1994, during the pendency of the instant administrative case, Augusto R. Samalio was convicted (in Sandiganbayan Criminal Case No. 18679) of the crime of Robbery, as defined in Articles 293 and 294, paragraph 5 of the Revised Penal Code and was sentenced to suffer indeterminate penalty of Four (4) Months and One (1) Day of Arresto Mayor to Four (4) Years, Two (2) Months and Eleven (11) Days of Prision Correccional and to indemnify complainant Weng Sai Qin the amount of US $500.00 and to pay the costs. Samalio did not appeal the conviction and instead applied for and was granted probation by the Sandiganbayan for two (2) years in an Order dated December 12, 1994. [2] (Citations omitted) Petitioner assailed before the CA, in a petition for review, the correctness and validity of CSC Resolution Nos. 974501 and 981925. The CA, however, dismissed the petition for review and subsequently denied the motion for reconsideration.

Petitioner now comes before us to challenge the CA decision dismissing his petition for review as well as the resolution denying his motion for reconsideration. Petitioner claims he was not accorded due process and the CA failed to consider the proper effects of his discharge under probation. In support of his contention that he was deprived of due process, petitioner alleges that no witness or evidence was presented against him, that the CA erred in the interpretation of Section 47, Rule 130 of the Rules of Court and that there was no hearing conducted on his case. Petitioners contention is without merit. The CSC decision and resolution which upheld the resolution of the Secretary of Justice confirming the decision of the Commissioner of the BID are supported by substantial evidence. The CSC, as well as the Secretary of Justice and the Commissioner of the BID, decided the case on the basis of the pleadings and papers submitted by the parties, and relied on the records of the proceedings taken. In particular, the decision was based on the criminal complaint filed by Weng Sai Qin against petitioner before the City Prosecutors Office of Pasay City, as well as Resolution No. 0 -93-0224 dated February 4, 1993 of the same office recommending the prosecution of petitioner at the Sandiganbayan for the crimes of robbery and violation of Section 46 of the Immigration Law. The CSC, as well as the Secretary of Justice, also took cognizance of the testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 and the fact of petitioners conviction in that case. Thus, there was ample evidence which satisfied the burden of proof required in administrative proceedings substantial evidence or that quantum of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion[3] to support the decision of the CSC. The CSC and the Secretary of Justice did not err in applying Section 47, Rule 130 of the Revised Rules of Court, otherwise known as the rule on former testimony, in deciding petitioners administrative case. The provisions of the Rules of Court m ay be applied suppletorily to the rules of procedure of administrative bodies exercising quasi-judicial powers, unless otherwise provided by law or the rules of procedure of the administrative agency concerned. The Rules of Court, which are meant to secure to every litigant the adjective phase of due process of law, may be applied to proceedings before an administrative body with quasi-judicial powers in the absence of different and valid statutory or administrative provisions prescribing the ground rules for the investigation, hearing and adjudication of cases before it.[4] For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case and (e) the adverse party had an opportunity to cross-examine the witness in the former case.[5] In this case, Weng Sai Qin was unable to testify in the administrative proceedings before the BID because she left the country on February 6, 1993,[6] or even before the administrative complaint against petitioner was instituted. Petitioner does not deny that the testimony of Weng Sai Qin was given in Sandiganbayan Criminal Case No. 18679, a case which sprang from the information filed pursuant to Resolution No. 0-93-0224 dated February 4, 1993 of the City Prosecutors Office of Pasay City, the very same resolution used by Commissioner Respicio as basis for filing the administrative complaint. Hence, the issue testified to by Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 was the same issue in the administrative case, that is, whether petitioner extorted money from Weng Sai Qin. Petitioner also had the opportunity to face and cross-examine his accuser Weng Sai Qin, and to defend and vindicate his cause before the Sandiganbayan. Clearly, all the requisites for the proper application of the rule on former testimony, as embodied in Section 47, Rule 130, were satisfied. Thus, the CSC and the Secretary of Justice committed no error when they applied it and took cognizance of the former testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 where petitioner was convicted. Petitioner contends that the CA, as well as the CSC and the Secretary of Justice, should not have applied Section 47, Rule 130 because there was failure to lay the basis or predicate for the rule. The argument is specious and deserves scant consideration. The records of this case reveal that even in the early stages of the proceedings before the Board of Discipline of the BID, Weng Sai Qins departure from the country and consequent inability to testify in the proceedings had already been disclosed to the parties.[7] Further, administrative bodies are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law.[8] Administrative tribunals exercising quasi-judicial powers are unfettered by the rigidity of certain procedural requirements, subject to the observance of fundamental and essential requirements of due process in justiciable cases presented before them.[9]In administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense.[10] The Uniform Rules of Procedure in the Conduct of Administrative Investigations in the CSC [11] which were applicable to petitioners case provided that administrative investigations shall be conducted without necessarily adhering to technical ru les applicable in judicial proceedings.[12] The Uniform Rules further provided that evidence having materiality and relevance to the administrative case shall be accepted.[13] Not only was petitioners objection to the application of Section 47, Rule 130 a technicality that could be disregarded; the testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 was also material and relevant to the administrative case. Hence, the CSC was correct in applying Section 47, Rule 130 when it took cognizance of the former testimony of Weng Sai Qin in the aforementioned criminal case. Petitioners assertion that there was no hearing (that he was deprived of the opportunity to be heard) is likewise without merit. Apparently, petitioners concept of the opportunity to be heard is the opportunity to ventilate ones side in a formal hearin g where he can have a face-to-face confrontation with the complainant. However, it is well-settled that, in administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings. [14] Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of procedural due process.[15] A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. [16] The standard of due process

that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. [17] In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, afidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of their direct testimony.[18] In this case, petitioner was heard through the various pleadings which he filed with the Board of Discipline of the BID when he filed his answer[19] and two motions to dismiss,[20] as well as other motions and papers. He was also able to participate in all stages of the administrative proceeding. He was able to elevate his case to the Secretary of Justice and, subsequently, to the CSC by way of appeal. We have consistently held that the essence of due process is simply the opportunity to be heard or, as applied to administrative proceedings, the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of.[21] And any seeming defect in its observance is cured by the filing of a motion for reconsideration. [22] Denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration.[23] Petitioner himself admits that he filed a motion for reconsideration[24] of the decision of the BID which was confirmed by the Secretary of Justice. He also admits that he filed a motion for reconsideration [25] with the CSC. Hence, by his own admission, petitioners protestations that he had been deprived of due process must necessarily fail. Petitioner claims that when the Sandiganbayan approved his probation in the criminal case, it restored him to all civil rights lost or suspended as a result of his conviction, including the right to remain in government service. Petitioner cites the case of Baclayon v. Mutia, et al.[26] where the grant of probation suspended the imposition not only of the principal penalties but of the accessory penalties as well. Petitioners contention is misplaced. First, the Baclayon case is not in point. In that case, no administrative complaint was instituted against the public officer, a public school teacher, during the pendency of the criminal case against her and even after her conviction. There being no administrative case instituted against the public officer and no administrative liability having been imposed, there was no administrative sanction that could have been suspended by the grant of probation. Second, dismissal is not an accessory penalty either of prision correccional [27] or arresto mayor,[28] the range of penalty imposed upon petitioner in Sandiganbayan Criminal Case No. 18679. Hence, even assuming arguendo that petitioners contention was correct, the grant of probation could not have resulted in the suspension of an accessory penalty like dismissal that does not even exist. Third, to suspend means to stop temporarily; to discontinue [29] or to cause to be intermitted or interrupted.[30] The records of this case show that petitioner was granted probation in an order dated December 12, 1992 [31] of the Second Division of the Sandiganbayan. He was dismissed from the service in the decision dated July 25, 1996 [32] of the BID Commissioner. Since the grant of probation was granted long before the administrative case was decided, the probation could not have possibly suspended the imposition of the penalty of dismissal from the service in the administrative case since there was no administrative penalty that could have been interrupted by the probation at the time it was granted. Indeed, petitioners discharge on probation could not have restored or reinstated him to his employment in government service since he had not been yet been dismissed therefrom at the time of his discharge. Finally, even if dismissal had been one of the accessory penalties of the principal penalty imposed upon petitioner in the criminal case, and even if the administrative case had been decided earlier than the criminal case, still the imposition of the penalty of dismissal could not have been suspended by the grant of probation. As petitioner himself contends, the criminal action is separate and distinct from the administrative case. And, if only for that reason, so is administrative liability separate and distinct from penal liability.[33] Hence, probation affects only the criminal aspect of the case, [34] not its administrative dimension. WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals in CA-G.R. SP No. 48723 dated May 24, 1999, affirming the decision and resolution of the Civil Service Commission is AFFIRMED. Costs against petitioner. SO ORDERED. THIRD DIVISION

EL GRECO SHIP MANNING MANAGEMENT CORPORATION, Petitioner,

AND

G.R. No. 177188 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated:

- versus -

December 4, 2008 COMMISSIONER OF CUSTOMS, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, filed by petitioner El Greco Ship Manning and Management Corporation (El Greco), seeking to reverse and set aside the Decision [1] of the Court of Tax Appeals (CTA) En Banc dated 14 March 2007 in C.T.A. EB No. 162. In its assailed Decision, the CTA En Banc affirmed the Decision[2] dated 17 October 2005 of the CTA Second Division in CTA Case No. 6618, ordering the forfeiture of the vessel M/V Criston, also known as M/V Neptune Breeze, for having been involved in the smuggling of 35,000 bags of imported rice. The factual and procedural antecedents of this case are as follows: On 23 September 2001, the vessel M/V Criston docked at the Port of Tabaco, Albay, carrying a shipment of 35,000 bags of imported rice, consigned to Antonio Chua, Jr. (Chua) and Carlos Carillo (Carillo), payable upon its delivery to Albay. Glucer Shipping Company, Inc. (Glucer Shipping) is the operator of M/V Criston. [3] Upon the directive of then Commissioner Titus Villanueva of the Bureau of Customs (BOC), a Warrant of Seizure and Detention, Seizure Identification No. 06-2001, was issued by the Legaspi District Collector, on 23 September 2001 for the 35,000 bags of imported rice shipped by M/V Criston, on the ground that it left the Port of Manila without the necessary clearance from the Philippine Coast Guard. Since the earlier Warrant covered only the cargo, but not M/V Criston which transported it, a subsequent Warrant of Seizure and Detention, Seizure Identification No. 06-2001-A, was issued on 18 October 2001 particularly for the said vessel. The BOC District Collector of the Port of Legaspithereafter commenced proceedings for the forfeiture of M/V Criston and its cargo under Seizure Identification No. 06-2001-A and Seizure Identification No. 06-2001, respectively.[4] To protect their property rights over the cargo, consignees Chua and Carillo filed before the Regional Trial Court (RTC) of Tabaco, Albay, a Petition for Prohibition with Prayer for the Issuance of Preliminary Injunction and Temporary Restraining Order (TRO) assailing the authority of the Legaspi District Collectors to issue the Warrants of Seizure and Detention and praying for a permanent injunction against the implementation of the said Warrants. Their Petition was docketed as Civil Case No. T-2170.[5] After finding the Petition sufficient in form and substance and considering the extreme urgency of the matter involved, the RTC issued a 72-hour TRO conditioned upon the filing by Chua and Carillo of a bond in the amount of P31,450,000.00, representing the value of the goods. After Chua and Carillo posted the required bond, the 35,000 bags of rice were released to them.[6] The Legaspi District Collector held in abeyance the proceedings for the forfeiture of M/V Criston and its cargo under Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A pending the resolution by the RTC of Civil Case No. T-2170. When the RTC granted the Motion to Dismiss Civil Case No. T-2170 filed by the BOC, the Legaspi District Collector set the hearing of Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A. A notice of the scheduled hearing of the aforementioned seizure cases was sent to Glucer Shipping but it failed to appear at the hearing so set. After a second notice of hearing was ignored by Glucer Shipping, the prosecutor was allowed to present his witnesses. [7] In the meantime, while M/V Criston was berthing at the Port of Tabaco under the custody of the BOC, the Province of Albay was hit by typhoon Manang. In order to avert any damage which could be caused by the typhoon, the vessel was allowed to proceed to another anchorage area to temporarily seek shelter. After typhoon Manang had passed through Albay province, M/V Criston, however, failed to return to the Port of Tabaco and was nowhere to be found.[8] Alarmed, the BOC and the Philippine Coast Guard coordinated with the Philippine Air Force to find the missing vessel. On 8 November 2001, the BOC received information that M/V Criston was found in the waters of Bataan sporting the name of M/V Neptune Breeze.[9] Based on the above information and for failure of M/V Neptune Breeze to present a clearance from its last port of call, a Warrant of Seizure and Detention under Seizure Identification No. 2001-208 was issued against the vessel by the BOC District Collector of the Port of Manila.[10] For the same reasons, the Legaspi District Collector rendered a Decision on 27 June 2002 in Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A ordering the forfeiture of the M/V Criston, also known as M/V Neptune Breeze, and its cargo, for violating Section 2530 (a), (f) and (k) of the Tariff and Customs Code. [11] In the meantime, El Greco, the duly authorized local agent of the registered owner of M/V Neptune Breeze, Atlantic Pacific Corporation, Inc. (Atlantic Pacific), filed with the Manila District Collector, in Seizure Identification No. 2001-208, a Motion for Intervention and Motion to Quash Warrant of Seizure Detention with Urgent Prayer for the Immediate Release of M/V

Neptune Breeze. El Greco claimed that M/V Neptune Breeze was a foreign registered vessel owned by Atlantic Pacific, and different from M/V Criston which had been involved in smuggling activities in Legaspi, Albay. [12] Acting favorably on the motion of El Greco, the Manila District Collector issued an Order[13] dated 11 March 2002 quashing the Warrant of Seizure and Detention it issued against M/V Neptune Breeze in Seizure Identification No. 2001-208 for lack of probable cause that the said vessel was the same one known as M/V Criston which fled from the jurisdiction of the BOC Legaspi District after being seized and detained therein for allegedly engaging in smuggling activities. According to the decretal part of the Manila District Collectors Order: WHEREFORE, pursuant to the authority vested in me by law, it is hereby ordered and decreed that the Warrant of Seizure and Detention issued thereof be Quashed for want of factual or legal basis, and that the vessel M/V Neptune Brreze be released to [El Greco] after clearance with the Commissioner of Customs, proper identification and compliance with existing rules and regulations pertinent in the premises.

On automatic review by BOC Commissioner Antonio Bernardo, the Order dated 11 March 2002 of the District Collector of the Port of Manila was reversed after finding that M/V Neptune Breeze and M/V Criston were one and the same and that the Legaspi District Collector had already acquired prior jurisdiction over the vessel. The Decision dated 15 January 2003 of the BOC Commissioner, contained in his 2nd Indorsement[14] to the Manila District Collector, decreed: Respectfully returned to the District Collector, POM, the within case folders in POM S. I. No. 2001-208, EL GRECO SHIP MANNING AND MANAGEMENT CORPORATION, Claimant/Intervenor, with the information that the Decision of that Port in the aforesaid case is hereby REVERSED in view of the following reasons: 1. Subject vessel MV NEPTUNE BREEZE and MV CRISTON are one and the same as shown by the vessels documents retrieved by the elements of the Philippine Coast Guard from MV CRISTON during the search conducted on board thereof when the same was apprehended in Tabaco, Albay, indicating therein the name of the vessel MV NEPTUNE BREEZE, the name of the master of the vessel a certain YU SHAWU AWUDU, etc. These facts were corroborated by the footage of ABS-CBN taken on board the vessel when the same was subjected to search. Hence, prior jurisdiction over the said vessel was already acquired by the Port of Legaspi when the said Port issued WSD S.I. No. 06-2001-A and therefore, the Decision of the latter Port forfeiting the subject vessel supercedes the Decision of that Port ordering its release.

2.

Seeking the reversal of the Decision dated 15 January 2003 of the BOC Commissioner, El Greco filed a Petition for Review with the CTA which was lodged before its Second Division as CTA Case No. 6618. El Greco averred that the BOC Commissioner committed grave abuse of discretion in ordering the forfeiture of the M/V Neptune Breeze in the absence of proof that M/V Neptune Breeze and M/V Criston were one and the same vessel. [15] According to El Greco, it was highly improbable that M/V Criston was merely assuming the identity of M/V Neptune Breeze in order to evade liability since these were distinct and separate vessels as evidenced by their Certificates of Registry. While M/V Neptune Breeze was registered in St. Vincent and the Grenadines[16] as shown in its Certificate of Registry No. 7298/N, M/V Criston was registered in the Philippines. Additionally, El Greco argued that the Order dated 11 March 2002 of the Manila District Collector already became final and executory for failure of the BOC Commissioner to act thereon within a period of 30 days in accordance with Section 2313 of the Tariff and Customs Code. On 17 October 2005, the CTA Second Division rendered a Decision[17] in CTA Case No. 6618 sustaining the 15 January 2003 Decision of the BOC Commissioner ordering the forfeiture of M/V Neptune Breeze. Referring to the crime laboratory report submitted by the Philippine National Police (PNP) stating that the serial numbers of the engines and the generators of both M/V Criston and M/V Neptune Breeze were identical, the CTA Second Division concluded that both vessels were indeed one and the same vessel. The CTA Second Division further ruled that nothing in the provisions of Section 2313 of the Tariff and Customs Code could buttress El Grecos contention that the Order dated 11 March 2002 of the Manila District Collector already became final and executory. The dispositive portion of the Decision of the CTA Second Division reads: WHEREFORE, premises considered, the present Petition for Review is hereby DISMISSED. The Decision in the 2nd Indorsement dated January 15, 2003 of then Commissioner Bernardo is hereby AFFIRMED.[18] In a Resolution[19] dated 7 February 2006, the CTA Second Division denied the Motion for Reconsideration of El Greco for failure to present issues that had not been previously threshed out in its earlier Decision.

Undaunted, El Greco elevated its case to the CTA En Banc through a Petition for Review, docketed as C.T.A. EB No. 162, this time lamenting that it was being deprived of its property without due process of law. El Greco asserted that the CTA Second Division violated its constitutional right to due process when it upheld the forfeiture of M/V Neptune Breeze on the basis of the evidence presented before the Legaspi District Collector in Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A, of which El Greco was not notified and in which it was not able to participate. [20] In its Decision[21] promulgated on 14 March 2007, the CTA En Banc declared that the CTA Second Division did not commit any error in its disquisition, and dismissed the Petition of El Greco in C.T.A. EB No. 162 for lack of merit. According to the CTA En Banc, the appreciation and calibration of evidence on appeal (from the ruling of the BOC) lies within the sound discretion of its Division, and the latters findings and conclus ions cannot be set aside unless it has been sufficiently shown that they are not supported by evidence on record. The CTA En Banc thus disposed: WHEREFORE, the instant petition is hereby DISMISSED. Accordingly, the assailed Decision promulgated on October 17, 2005 and Resolution dated February 7, 2006 of the Second Division of this Court, are hereby AFFIRMED.[22]

Without filing a Motion for Reconsideration with the CTA, El Greco already sought recourse before this Court via this Petition for Review on Certiorari, raising the following issues: I. WHETHER OR NOT EL GRECO WAS DENIED OF ITS RIGHT TO DUE PROCESS.

II. WHETHER OR NOT M/V NEPTUNE BREEZE AND M/V CRISTON ARE ONE AND THE SAME VESSEL.

III. WHETHER OR NOT M/V NEPTUNE BREEZE IS QUALIFIED TO BE THE SUBJECT OF FORFEITURE UNDER SECTION 2531 OF THE TARIFF AND CUSTOMS CODE.

The primordial issue to be determined by this Court is whether M/V Neptune Breeze is one and the same as M/V Criston which had been detained at the Port of Tabaco, Albay, for carrying smuggled imported rice and had fled the custody of the customs authorities to evade its liabilities. El Greco insists that M/V Neptune Breeze and M/V Criston are not the same vessel. In support of its position, El Greco again presents the foreign registration of its vessel as opposed to the local registration of M/V Criston. The CTA En Banc, however, affirming the findings of the CTA Second Division, as well as the Legaspi District Collector, concluded otherwise. We sustain the determination of the CTA En Banc on this matter. Well-entrenched is the rule that findings of facts of the CTA are binding on this Court and can only be disturbed on appeal if not supported by substantial evidence.[23] Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.[24] A review of the records of the present case unveils the overwhelming and utterly significant pieces of evidence that more than meets the quantum of evidence necessary to establish that M/V Neptune Breeze is the very same vessel as M/V Criston, which left the anchorage area at Legaspi, Albay, without the consent of the customs authorities therein while under detention for smuggling 35,000 bags of imported rice. The crime laboratory report of the PNP shows that the serial numbers of the engines and generators of the two vessels are identical. El Greco failed to rebut this piece of evidence that decisively identified M/V Neptune Breeze as the same as M/V Criston. We take judicial notice that along with gross tonnage, net tonnage, length and breadth of the vessel, the serial numbers of its engine and generator are the necessary information identifying a vessel. In much the same way, the identity of a land motor vehicle is established by its unique motor and chassis numbers. It is, thus, highly improbable that two totally different vessels would have engines and generators bearing the very same serial numbers; and the only logical conclusion is that they must be one and the same vessel.

Equally significant is the finding of the Legaspi District Collector that all the documents submitted by M/V Criston were spurious, including its supposed registration in thePhilippines. In a letter dated 14 March 2002, Marina Administrator Oscar M. Sevilla attested that M/V Criston was not registered with the Marina. Finally, Customs Guard Adolfo Capistrano testified that the features of M/V Criston and M/V Neptune Breeze were similar; while Coast Guard Commander Cirilo Ortiz narrated that he found documents inside M/V Criston bearing the name M/V Neptune Breeze. These testimonies further fortified the conclusion reached by the Legaspi District Collector that M/V Criston and M/V Neptune Breeze were one and the same. We also take note that the purported operator of M/V Criston, Glucer Shipping, was a total no-show at the hearings held in Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A before the Legaspi District Collector. Despite being sent several notices of hearing to its supposed address, Glucer Shipping still failed to appear in the said proceedings. It becomes highly unfathomable for an owner to ignore proceedings for the seizure of its vessel, risking the loss of a property of enormous value. From the foregoing, we can only deduce that there is actually no Glucer Shipping and no M/V Criston. M/V Criston appears to be a mere fictional identity assumed by M/V Neptune Breeze so it may conduct its smuggling activities with little risk of being identified and held liable therefor. We cannot give much credence to the self-serving denial by El Greco that M/V Neptune Breeze is not the same as M/V Criston in light of the substantial evidence on record to the contrary. The foreign registration of M/V Neptune Breeze proves only that it was registered in a foreign country; but it does not render impossible the conclusions consistently reached by the Legaspi District Collector, the CTA Second Division and the CTA en banc, and presently by this Court, that M/V Neptune Breeze was the very same vessel used in the conduct of smuggling activities in the name M/V Criston. Neither can we permit El Greco to evade the forfeiture of its vessel, as a consequence of its being used in smuggling activities, by decrying denial of due process. In administrative proceedings, such as those before the BOC, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. [25] The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of. [26] Although it was not able to participate in the proceedings in Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A before the Legaspi District Collector, it had ample opportunity to present its side of the controversy in Seizure Identification No. 2001-208 before the Manila District Collector. To recall, full proceedings were held before the Manila District Collector in Seizure Identification No. 2001-208. Even the evidence presented by El Greco in the latter proceedings fails to persuade. The only vital evidence it presented before the Manila District Collector in Seizure Identification No. 2001-208 was the foreign registration of M/V Neptune Breeze. It was still the same piece of evidence which El Greco submitted to this Court. Even when taken into consideration and weighed against each other, the considerably sparse evidence of El Greco in Seizure Identification No. 2001-208 could not successfully refute the substantial evidence in Seizure Identification No. 06-2001 and Seizure Identification No. 06-2001-A that M/V Neptune Breeze is the same as M/V Criston. Moreover, the claim of El Greco that it was denied due process flounders in light of its ample opportunity to rebut the findings of the Legaspi District Collector in Seizure Identification No. 06-2001 and No. 06-2001-A before the CTA Second Division in CTA Case No. 6618 and the CTA En Banc in C.T.A. EB No. 162, and now before this Court in the Petition at bar. Unfortunately, El Greco was unable to make full use to its advantage of these repeated opportunities by offering all possible evidence in support of its case. For example, evidence that could establish that M/V Neptune Breeze was somewhere else at the time when M/V Criston was being held by customs authority at the Port of Legaspi, Albay, would have been helpful to El Grecos cause and very easy to secure, but is glaringly absent herein. After having established that M/V Neptune Breeze is one and the same as M/V Criston, we come to another crucial issue in the case at bar, that is, whether the order of forfeiture of the M/V Neptune Breeze is valid. The pertinent provisions of the Tariff and Customs Code read: SEC. 2530. Property Subject to Forfeiture Under Tariff and Customs Law. Any vehicle, vessel or aircraft, cargo, articles and other objects shall, under the following conditions, be subject to forfeiture: a. Any vehicle, vessel or aircraft, including cargo, which shall be used unlawfully in the importation or exportation of articles or in conveying and/or transporting contraband or smuggled articles in commercial quantities into or from any Philippine port or place. The mere carrying or holding on board of contraband or smuggled articles in commercial quantities shall subject such vessel, vehicle, aircraft or any other craft to forfeiture; Provided, That the vessel, or aircraft or any other craft is not used as duly authorized common carrier and as such a carrier it is not chartered or leased;

xxxx f. Any article, the importation or exportation of which is effected or attempted contrary to law, or any article of prohibited importation or exportation, and all other articles which, in the opinion of the Collector, have been used, are or were intended to be used as instruments in the importation or exportation of the former; xxxx k. Any conveyance actually being used for the transport of articles subject to forfeiture under the tariff and customs laws, with its equipage or trappings, and any vehicle similarly used, together with its equipage and appurtenances including the beast, steam or other motive power drawing or propelling the same. The mere conveyance of contraband or smuggled articles by such beast or vehicle shall be sufficient cause for the outright seizure and confiscation of such beast or vehicle, but the forfeiture shall not be effected if it is established that the owner of the means of conveyance used as aforesaid, is engaged as common carrier and not chartered or leased, or his agent in charge thereof at the time has no knowledge of the unlawful act.

The penalty of forfeiture is imposed on any vessel engaged in smuggling, provided that the following conditions are present: (1) The vessel is used unlawfully in the importation or exportation of articles into or from the Philippines; (2) The articles are imported to or exported from any Philippine port or place, except a port of entry; or (3) If the vessel has a capacity of less than 30 tons and is used in the importation of articles into any Philippine port or place other than a port of the Sulu Sea, where importation in such vessel may be authorized by the Commissioner, with the approval of the department head." [27] There is no question that M/V Neptune Breeze, then known as M/V Criston, was carrying 35,000 bags of imported rice without the necessary papers showing that they were entered lawfully through a Philippine port after the payment of appropriate taxes and duties thereon. This gives rise to the presumption that such importation was illegal. Consequently, the rice subject of the importation, as well as the vessel M/V Neptune Breeze used in importation are subject to forfeiture. The burden is on El Greco, as the owner of M/V Neptune Breeze, to show that its conveyance of the rice was actually legal. Unfortunately, its claim that the cargo was not of foreign origin but was merely loaded at North Harbor, Manila, was belied by the following evidence the Incoming Journal of the Philippine Coast Guard, Certification issued by the Department of Transportation and Communications (DOTC) Port State Control Center of Manila, and the letter dated 4 October 2001 issued by the Sub-Port of North Harbor Collector Edward de la Cuesta, confirming that there was no such loading of rice or calling of vessel occurring at North Harbor, Manila. It is, therefore, uncontroverted that the 35,000 bags of imported rice were smuggled into the Philippines using M/V Neptune Breeze. We cannot give credence to the argument of El Greco that the Order dated 11 March 2002 of the Manila District Collector, finding no probable cause that M/V Neptune Breeze is the same as M/V Criston, has already become final and executory, thus, irreversible, pursuant to Section 2313 of the Tariff and Customs Code. According to said provision: SEC. 2313. Review of Commissioner. The person aggrieved by the decision or action of the Collector in any matter presented upon protest or by his action in any case of seizure may, within fifteen (15) days after notification in writing by the Collector of his action or decision, file a written notice to the Collector with a copy furnished to the Commissioner of his intention to appeal the action or decision of the Collector to the Commissioner. Thereupon the Collector shall forthwith transmit all the records of the proceedings to the Commissioner, who shall approve, modify or reverse the action or decision of the Collector and take such steps and make such orders as may be necessary to give effect to his decision: Provided, That when an appeal is filed beyond the period herein prescribed, the same shall be deemed dismissed. If in any seizure proceedings, the Collector renders a decision adverse to the Government, such decision shall be automatically reviewed by the Commissioner and the records of the case elevated within five (5) days from the promulgation of the decision of the Collector. The Commissioner shall render a decision on the automatic appeal within thirty (30) days from receipts of the records of the case. If the Collectors decision is reversed by the Commissioner, the decision of the Commissioner shall be final and executory. However, if the Collectors decision is affirmed, or if within thirty (30) days from receipt of the record of the case by the Commissioner no decision is rendered or the decision involves imported articles whose published value is five million pesos (P5,000,000.00) or more,such decision shall be deemed automatically appealed to the Secretary of Finance and the records of the proceedings shall be elevated within five (5) days from the promulgation of the decision of the Commissioner or of the Collector under appeal, as the case may be: Provided, further, That if the decision of the Commissioner or of the Collector under appeal as the case may

be, is affirmed by the Secretary of Finance or if within thirty (30) days from receipt of the records of the proceedings by the Secretary of Finance, no decision is rendered, the decision of the Secretary of Finance, or of the Commissioner, or of the Collector under appeal, as the case may be, shall become final and executory. In any seizure proceeding, the release of imported articles shall not be allowed unless and until a decision of the Collector has been confirmed in writing by the Commissioner of Customs. (Emphasis ours.)

There is nothing in Section 2313 of the Tariff and Customs Code to support the position of El Greco. As the CTA en banc explained, in case the BOC Commissioner fails to decide on the automatic appeal of the Collectors Decision within 30 days from receipt of the records thereof, the case shall again be deemed automatically appealed to the Secretary of Finance. Also working against El Greco is the fact that jurisdiction over M/V Neptune Breeze, otherwise known as M/V Criston, was first acquired by the Legaspi District Collector; thus, the Manila District Collector cannot validly acquire jurisdiction over the same vessel. Judgment rendered without jurisdiction is null and void, and void judgment cannot be the source of any right whatsoever.[28] Finally, we strongly condemn the ploy used by M/V Neptune Breeze, assuming a different identity to smuggle goods into the country in a brazen attempt to defraud the government and the Filipino public and deprive them of much needed monetary resources. We further laud the efforts of the Commissioner of the Customs Bureau and the other executive officials in his department to curb the proliferation of smuggling syndicates in the country which deserves no less than our full support. WHEREFORE, in view of the foregoing, the instant Petition is DENIED. The Decision dated 17 October 2005 and Resolution dated 7 February 2006 of the Court of Tax Appeals En Banc in CTA EB No. 172 are AFFIRMED. Costs against the petitioner. SO ORDERED.

MAYON HOTEL & RESTAURANT, PACITA O. PO and/or JOSEFA PO LAM, petitioners, vs. ROLANDO ADANA, CHONA BUMALAY, ROGER BURCE, EDUARDO ALAMARES, AMADO ALAMARES, EDGARDO TORREFRANCA, LOURDES CAMIGLA, TEODORO LAURENARIA, WENEFREDO LOVERES, LUIS GUADES, AMADO MACANDOG, PATERNO LLARENA, GREGORIO NICERIO, JOSE ATRACTIVO, MIGUEL TORREFRANCA, and SANTOS BROOLA, respondents. DECISION PUNO, J.: This is a petition for certiorari to reverse and set aside the Decision issued by the Court of Appeals (CA) [1] in CA-G.R. SP No. 68642, entitled Rolando Adana, Wenefredo Loveres, et. al. vs. National Labor Relations Commission (NLRC), Mayon Hotel & Restaurant/Pacita O. Po, et al., and the Resolution[2] denying petitioners motion for reconsideration. The assailed CA decision reversed the NLRC Decision which had dismissed all of respondents complaints,[3] and reinstated the Joint Decision of the Labor Arbiter[4] which ruled that respondents were illegally dismissed and entitled to their money claims. The facts, culled from the records, are as follows:[5] Petitioner Mayon Hotel & Restaurant is a single proprietor business registered in the name of petitioner Pacita O. Po,[6] whose mother, petitioner Josefa Po Lam, manages the establishment. [7] The hotel and restaurant employed about sixteen (16) employees. Records show that on various dates starting in 1981, petitioner hotel and restaurant hired the following people, all respondents in this case, with the following jobs:[8] 1. Wenefredo Loveres Accountant and Officer-in-charge 2. Paterno Llarena Front Desk Clerk 3. Gregorio Nicerio Supervisory Waiter 4. Amado Macandog Roomboy 5. Luis Guades Utility/Maintenance Worker 6. Santos Broola Roomboy 7. Teodoro Laurenaria Waiter 8. Eduardo Alamares Roomboy/Waiter 9. Lourdes Camigla Cashier 10. Chona Bumalay Cashier 11. Jose Atractivo Technician 12. Amado Alamares Dishwasher and Kitchen Helper 13. Roger Burce Cook 14. Rolando Adana Waiter 15. Miguel Torrefranca Cook 16. Edgardo Torrefranca Cook

Due to the expiration and non-renewal of the lease contract for the rented space occupied by the said hotel and restaurant at Rizal Street, the hotel operations of the business were suspended on March 31, 1997.[9] The operation of the restaurant was continued in its new location at Elizondo Street, Legazpi City, while waiting for the construction of a new Mayon Hotel & Restaurant at Pearanda Street, Legazpi City.[10] Only nine (9) of the sixteen (16) employees continued working in the Mayon Restaurant at its new site.[11] On various dates of April and May 1997, the 16 employees filed complaints for underpayment of wages and other money claims against petitioners, as follows:[12] Wenefredo Loveres, Luis Guades, Amado Macandog and Jose Atractivo for illegal dismissal, underpayment of wages, nonpayment of holiday and rest day pay; service incentive leave pay (SILP) and claims for separation pay plus damages; Paterno Llarena and Gregorio Nicerio for illegal dismissal with claims for underpayment of wages; nonpayment of cost of living allowance (COLA) and overtime pay; premium pay for holiday and rest day; SILP; nightshift differential pay and separation pay plus damages; Miguel Torrefranca, Chona Bumalay and Lourdes Camigla for underpayment of wages; nonpayment of holiday and rest day pay and SILP; Rolando Adana, Roger Burce and Amado Alamares for underpayment of wages; nonpayment of COLA, overtime, holiday, rest day, SILP and nightshift differential pay; Eduardo Alamares for underpayment of wages, nonpayment of holiday, rest day and SILP and night shift differential pay; Santos Broola for illegal dismissal, underpayment of wages, overtime pay, rest day pay, holiday pay, SILP, and damages; [13] and Teodoro Laurenaria for underpayment of wages; nonpayment of COLA and overtime pay; premium pay for holiday and rest day, and SILP. On July 14, 2000, Executive Labor Arbiter Gelacio L. Rivera, Jr. rendered a Joint Decision in favor of the employees. The Labor Arbiter awarded substantially all of respondents money claims, and held that respondents Loveres, Macandog and Llarena were entitled to separation pay, while respondents Guades, Nicerio and Alamares were entitled to their retirement pay. The Labor Arbiter also held that based on the evidence presented, Josefa Po Lam is the owner/proprietor of Mayon Hotel & Restaurant and the proper respondent in these cases. On appeal to the NLRC, the decision of the Labor Arbiter was reversed, and all the complaints were dismissed. Respondents filed a motion for reconsideration with the NLRC and when this was denied, they filed a petition for certiorari with the CA which rendered the now assailed decision. After their motion for reconsideration was denied, petitioners now come to this Court, seeking the reversal of the CA decision on the following grounds: I. THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION) BY HOLDING THAT THE FINDINGS OF FACT OF THE NLRC WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE DESPITE AMPLE AND SUFFICIENT EVIDENCE SHOWING THAT THE NLRC DECISION IS INDEED SUPPORTED BY SUBSTANTIAL EVIDENCE; II. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE JOINT DECISION OF THE LABOR ARBITER WHICH RULED THAT PRIVATE RESPONDENTS WERE ILLEGALLY DISMISSED FROM THEIR EMPLOYMENT, DESPITE THE FACT THAT THE REASON WHY PRIVATE RESPONDENTS WERE OUT OF WORK WAS NOT DUE TO THE FAULT OF PETITIONERS BUT TO CAUSES BEYOND THE CONTROL OF PETITIONERS. III. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE AWARD OF MONETARY BENEFITS BY THE LABOR ARBITER IN HIS JOINT DECISION IN FAVOR OF THE PRIVATE RESPONDENTS, INCLUDING THE AWARD OF DAMAGES TO SIX (6) OF THE PRIVATE RESPONDENTS, DESPITE THE FACT THAT THE PRIVATE RESPONDENTS HAVE NOT PROVEN BY SUBSTANTIAL EVIDENCE THEIR ENTITLEMENT THERETO AND ESPECIALLY THE FACT THAT THEY WERE NOT ILLEGALLY DISMISSED BY THE PETITIONERS. IV. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PACITA ONG PO IS THE OWNER OF THE BUSINESS ESTABLISHMENT, PETITIONER MAYON HOTEL AND RESTAURANT, THUS DISREGARDING THE CERTIFICATE OF REGISTRATION OF THE BUSINESS ESTABLISHMENT ISSUED BY THE LOCAL GOVERNMENT, WHICH IS A PUBLIC DOCUMENT, AND THE UNQUALIFIED ADMISSIONS OF COMPLAINANTS-PRIVATE RESPONDENTS.[14] In essence, the petition calls for a review of the following issues: 1. Was it correct for petitioner Josefa Po Lam to be held liable as the owner of petitioner Mayon Hotel & Restaurant, and the proper respondent in this case? 2. Were respondents Loveres, Guades, Macandog, Atractivo, Llarena and Nicerio illegally dismissed? 3. Are respondents entitled to their money claims due to underpayment of wages, and nonpayment of holiday pay, rest day premium, SILP, COLA, overtime pay, and night shift differential pay? It is petitioners contention that the above issues have already been threshed out sufficiently and definitively by the NLRC. They therefore assail the CAs reversal of the NLRC decision, claiming that based on the ruling in Castillo v. NLRC,[15] it is non sequitur that the CA should re-examine the factual findings of both the NLRC and the Labor Arbiter, especially as in this case the NLRCs findings are allegedly supported by substantial evidence. We do not agree. There is no denying that it is within the NLRCs competence, as an appellate agency reviewing decisions of Labor Arbiters, to disagree with and set aside the latters findings.[16] But it stands to reason that the NLRC should state an acceptable cause therefore, otherwise it would be a whimsical, capricious, oppressive, illogical, unreasonable exercise of quasi-judicial prerogative, subject to invalidation by the extraordinary writ of certiorari.[17] And when the factual findings of the Labor Arbiter and the

NLRC are diametrically opposed and this disparity of findings is called into question, there is, necessarily, a re-examination of the factual findings to ascertain which opinion should be sustained. [18] As ruled in Asuncion v. NLRC,[19] Although, it is a legal tenet that factual findings of administrative bodies are entitled to great weight and respect, we are constrained to take a second look at the facts before us because of the diversity in the opinions of the Labor Arbiter and the NLRC. A disharmony between the factual findings of the Labor Arbiter and those of the NLRC opens the door to a review thereof by this Court.[20] The CA, therefore, did not err in reviewing the records to determine which opinion was supported by substantial evidence. Moreover, it is explicit in Castillo v. NLRC[21] that factual findings of administrative bodies like the NLRC are affirmed only if they are supported by substantial evidence that is manifest in the decision and on the records. As stated in Castillo: [A]buse of discretion does not necessarily follow from a reversal by the NLRC of a decision of a Labor Arbiter. Mere variance in evidentiary assessment between the NLRC and the Labor Arbiter does not automatically call for a full review of the facts by this Court. The NLRCs decision, so long as it is not bereft of substantial support from the records, deserves respect from this Court. As a rule, the original and exclusive jurisdiction to review a decision or resolution of respondent NLRC in a petition for certiorari under Rule 65 of the Rules of Court does not include a correction of its evaluation of the evidence but is confined to issues of jurisdiction or grave abuse of discretion. Thus, the NLRCs factual findings, if supported by substantial evidence, are entitled to great respect and even finality, unless petitioner is able to show that it simply and arbitrarily disregarded the evidence before it or had misappreciated the evidence to such an extent as to compel a contrary conclusion if such evidence had been properly appreciated. (citations omitted)[22] After careful review, we find that the reversal of the NLRCs decision was in order precisely because it was not supported by substantial evidence. 1. Ownership by Josefa Po Lam The Labor Arbiter ruled that as regards the claims of the employees, petitioner Josefa Po Lam is, in fact, the owner of Mayon Hotel & Restaurant. Although the NLRC reversed this decision, the CA, on review, agreed with the Labor Arbiter that notwithstanding the certificate of registration in the name of Pacita Po, it is Josefa Po Lam who is the owner/proprietor of Mayon Hotel & Restaurant, and the proper respondent in the complaints filed by the employees. The CA decision states in part: [Despite] the existence of the Certificate of Registration in the name of Pacita Po, we cannot fault the labor arbiter in ruling that Josefa Po Lam is the owner of the subject hotel and restaurant. There were conflicting documents submitted by Josefa herself. She was ordered to submit additional documents to clearly establish ownership of the hotel and restaurant, considering the testimonies given by the [respondents] and the non-appearance and failure to submit her own position paper by Pacita Po. But Josefa did not comply with the directive of the Labor Arbiter. The ruling of the Supreme Court in Metropolitan Bank and Trust Company v. Court of Appeals applies to Josefa Po Lam which is stated in this wise: When the evidence tends to prove a material fact which imposes a liability on a party, and he has it in his power to produce evidence which from its very nature must overthrow the case made against him if it is not founded on fact, and he refuses to produce such evidence, the presumption arises that the evidence[,] if produced, would operate to his prejudice, and support the case of his adversary. Furthermore, in ruling that Josefa Po Lam is the real owner of the hotel and restaurant, the labor arbiter relied also on the testimonies of the witnesses, during the hearing of the instant case. When the conclusions of the labor arbiter are sufficiently corroborated by evidence on record, the same should be respected by appellate tribunals, since he is in a better position to assess and evaluate the credibility of the contending parties.[23] (citations omitted) Petitioners insist that it was error for the Labor Arbiter and the CA to have ruled that petitioner Josefa Po Lam is the owner of Mayon Hotel & Restaurant. They allege that the documents they submitted to the Labor Arbiter sufficiently and clearly establish the fact of ownership by petitioner Pacita Po, and not her mother, petitioner Josefa Po Lam. They contend that petitioner Josefa Po Lams participation was limited to merely (a) being the overseer; (b) receiving the month -to-month and/or year-to-year financial reports prepared and submitted by respondent Loveres; and (c) visitation of the premises.[24] They also put emphasis on the admission of the respondents in their position paper submitted to the Labor Arbiter, identifying petitioner Josefa Po Lam as the manager, and Pacita Po as the owner.[25] This, they claim, is a judicial admission and is binding on respondents. They protest the reliance the Labor Arbiter and the CA placed on their failure to submit additional documents to clearly establish ownership of the hotel and restaurant, claiming that there was no need for petitioner Josefa Po Lam to submit additional documents considering that the Certificate of Registration is the best and primary evidence of ownership. We disagree with petitioners. We have scrutinized the records and find the claim that petitioner Josefa Po Lam is merely the overseer is not borne out by the evidence. First. It is significant that only Josefa Po Lam appeared in the proceedings with the Labor Arbiter. Despite receipt of the Labor Arbiters notice and summons, other notices and Orders, petitioner Pacita Po failed to appear in any of the proceedings with the Labor Arbiter in these cases, nor file her position paper. [26] It was only on appeal with the NLRC that Pacita Po signed the pleadings.[27] The apathy shown by petitioner Pacita Po is contrary to human experience as one would think that the owner of an establishment would naturally be concerned when ALL her employees file complaints against her. Second. The records of the case belie petitioner Josefa Po Lams claim that she is merely an overseer. The findings of the Labor Arbiter on this question were based on credible, competent and substantial evidence. We again quote the Joint Decision on this matter: Mayon Hotel and Restaurant is a [business name] of an enterprise. While [petitioner] Josefa Po Lam claims that it is her daughter, Pacita Po, who owns the hotel and restaurant when the latter purchased the same from one Palanos in 1981, Josefa failed to submit the document of sale from said Palanos to Pacita as allegedly the sale was only verbal although the license to operate said hotel and restaurant is in the name of Pacita which, despite our Order to Josefa to present the same, she failed to comply (p. 38, tsn. August 13, 1998). While several documentary evidences were submitted by Josefa wherein Pacita was named therein as owner of the hotel and restaurant (pp. 64, 65, 67 to 69; vol. I, rollo)[,] there were documentary evidences also that were submitted

by Josefa showing her ownership of said enterprise (pp. 468 to 469; vol. II, rollo). While Josefa explained her participation and interest in the business as merely to help and assist her d aughter as the hotel and restaurant was near the formers store, the testimonies of [respondents] and Josefa as well as her demeanor during the trial in these cases proves (sic) that Josefa Po Lam owns Mayon Hotel and Restaurant. [Respondents] testified that it was Josefa who exercises all the acts and manifestation of ownership of the hotel and restaurant like transferring employees from the Greatwall Palace Restaurant which she and her husband Roy Po Lam previously owned; it is Josefa to whom the employees submits (sic) reports, draws money for payment of payables and for marketing, attending (sic) to Labor Inspectors during ocular inspections. Except for documents whereby Pacita Po appears as the owner of Mayon Hotel and Restaurant, nothing in the record shows any circumstance or manifestation that Pacita Po is the owner of Mayon Hotel and Restaurant. The least that can be said is that it is absurd for a person to purchase a hotel and restaurant in the very heart of the City of Legazpi verbally. Assuming this to be true, when [petitioners], particularly Josefa, was directed to submit evidence as to the ownership of Pacita of the hotel and restaurant, considering the testimonies of [respondents], the former should [have] submitted the lease contract between the owner of the building where Mayon Hotel and Restaurant was located at Rizal St., Legazpi City and Pacita Po to clearly establish ownership by the latter of said enterprise. Josefa failed. We are not surprised why some employers employ schemes to mislead Us in order to evade liabilities. We therefore consider and hold Josefa Po Lam as the owner/proprietor of Mayon Hotel and Restaurant and the proper respondent in these cases.[28] Petitioners reliance on the rules of evidence, i.e., the certificate of registration being the best proof of ownership, is misplaced. Notwithstanding the certificate of registration, doubts were cast as to the true nature of petitioner Josefa Po Lams involvement in the enterprise, and the Labor Arbiter had the authority to resolve this issue. It was therefore within his jurisdiction to require the additional documents to ascertain who was the real owner of petitioner Mayon Hotel & Restaurant. Article 221 of the Labor Code is clear: technical rules are not binding, and the application of technical rules of procedure may be relaxed in labor cases to serve the demand of substantial justice. [29] The rule of evidence prevailing in court of law or equity shall not be controlling in labor cases and it is the spirit and intention of the Labor Code that the Labor Arbiter shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. [30] Labor laws mandate the speedy administration of justice, with least attention to technicalities but without sacrificing the fundamental requisites of due process. [31] Similarly, the fact that the respondents complaints contained no allegation that petitioner Josefa Po Lam is the owner is of no moment. To apply the concept of judicial admissions to respondents who are but lowly employees - would be to exact compliance with technicalities of law that is contrary to the demands of substantial justice. Moreover, the issue of ownership was an issue that arose only during the course of the proceedings with the Labor Arbiter, as an inciden t of determining respondents claims, and was well within his jurisdiction.[32] Petitioners were also not denied due process, as they were given sufficient opportunity to be heard on the issue of ownership.[33] The essence of due process in administrative proceedings is simply an opportunity to explain ones sid e or an opportunity to seek reconsideration of the action or ruling complained of. [34] And there is nothing in the records which would suggest that petitioners had absolute lack of opportunity to be heard. [35] Obviously, the choice not to present evidence was made by petitioners themselves.[36] But more significantly, we sustain the Labor Arbiter and the CA because even when the case was on appeal with the NLRC, nothing was submitted to negate the Labor Arbiters fin ding that Pacita Po is not the real owner of the subject hotel and restaurant. Indeed, no such evidence was submitted in the proceedings with the CA nor with this Court. Considering that petitioners vehemently deny ownership by petitioner Josefa Po Lam, it is most telling that they continue to withhold evidence which would shed more light on this issue. We therefore agree with the CA that the failure to submit could only mean that if produced, it would have been adverse to petitioners case. [37] Thus, we find that there is substantial evidence to rule that petitioner Josefa Po Lam is the owner of petitioner Mayon Hotel & Restaurant. 2. Illegal Dismissal: claim for separation pay Of the sixteen employees, only the following filed a case for illegal dismissal: respondents Loveres, Llarena, Nicerio, Macandog, Guades, Atractivo and Broola.[38] The Labor Arbiter found that there was illegal dismissal, and granted separation pay to respondents Loveres, Macandog and Llarena. As respondents Guades, Nicerio and Alamares were already 79, 66 and 65 years old respectively at the time of the dismissal, the Labor Arbiter granted retirement benefits pursuant to Article 287 of the Labor Code as amended. [39] The Labor Arbiter ruled that respondent Atractivo was not entitled to separation pay because he had been transferred to work in the restaurant operations in Elizondo Street, but awarded him damages. Respondents Loveres, Llarena, Nicerio, Macandog and Guades were also awarded damages.[40] The NLRC reversed the Labor Arbiter, finding that no clear act of termination is attendant in the case at bar and that respondents did not submit any evidence to that effect, but the finding and conclusion of the Labor Arbiter [are] merely based on his own surmises and conjectures.[41] In turn, the NLRC was reversed by the CA. It is petitioners contention that the CA should have sustained the NLRC finding that none of the above-named respondents were illegally dismissed, or entitled to separation or retirement pay. According to petitioners, even the Labor Arbiter and the CA admit that when the illegal dismissal case was filed by respondents on April 1997, they had as yet no cause of action. Petitioners therefore conclude that the filing by respondents of the illegal dismissal case was premature and should have been dismissed outright by the Labor Arbiter.[42] Petitioners also claim that since the validity of respondents dismissal is a factual question, it is not for the reviewing court to weigh the conflicting evidence. [43] We do not agree. Whether respondents are still working for petitioners IS a factual question. And the records are unequivocal that since April 1997, when petitioner Mayon Hotel & Restaurant suspended its hotel operations and transferred its restaurant operations in Elizondo Street, respondents Loveres, Macandog, Llarena, Guades and Nicerio have not been permitted to work for petitioners. Respondent Alamares, on the other hand, was also laid-off when the Elizondo Street operations closed, as

were all the other respondents. Since then, respondents have not been permitted to work nor recalled, even after the construction of the new premises at Pearanda Street and the reopening of the hotel operations with the restaurant in this new site. As stated by the Joint Decision of the Labor Arbiter on July 2000, or more than three (3) years after the complaint was filed:[44] [F]rom the records, more than six months had lapsed without [petitioner] having resumed operation of the hotel. After more than one year from the temporary closure of Mayon Hotel and the temporary transfer to another site of Mayon Restaurant, the building which [petitioner] Josefa allege[d] w[h]ere the hotel and restaurant will be transferred has been finally constructed and the same is operated as a hotel with bar and restaurant nevertheless, none of [respondents] herein who were employed at Mayon Hotel and Restaurant which was also closed on April 30, 1998 was/were recalled by [petitioner] to continue their services... Parenthetically, the Labor Arbiter did not grant separation pay to the other respondents as they had not filed an amended complaint to question the cessation of their employment after the closure of Mayon Hotel & Restaurant on March 31, 1997.[45] The above factual finding of the Labor Arbiter was never refuted by petitioners in their appeal with the NLRC. It confounds us, therefore, how the NLRC could have so cavalierly treated this uncontroverted factual finding by ruling that respondents have not introduced any evidence to show that they were illegally dismissed, and that the Labor Arbiters finding was based on conjecture.[46] It was a serious error that the NLRC did not inquire as to the legality of the cessation of employment. Article 286 of the Labor Code is clear there is termination of employment when an otherwise bona fide suspension of work exceeds six (6) months.[47] The cessation of employment for more than six months was patent and the employer has the burden of proving that the termination was for a just or authorized cause.[48] Moreover, we are not impressed by any of petitioners attempts to exculpate them selves from the charges. First, in the proceedings with the Labor Arbiter, they claimed that it could not be illegal dismissal because the lay-off was merely temporary (and due to the expiration of the lease contract over the old premises of the hotel). They specifically invoked Article 286 of the Labor Code to argue that the claim for separation pay was premature and without legal and factual basis. [49] Then, because the Labor Arbiter had ruled that there was already illegal dismissal when the lay-off had exceeded the six-month period provided for in Article 286, petitioners raise this novel argument, to wit: It is the firm but respectful submission of petitioners that reliance on Article 286 of the Labor Code is misplaced, considering that the reason why private respondents were out of work was not due to the fault of petitioners. The failure of petitioners to reinstate the private respondents to their former positions should not likewise be attributable to said petitioners as the private respondents did not submit any evidence to prove their alleged illegal dismissal. The petitioners cannot discern why they should be made liable to the private respondents for their failure to be reinstated considering that the fact that they were out of work was not due to the fault of petitioners but due to circumstances beyond the control of petitioners, which are the termination and non-renewal of the lease contract over the subject premises. Private respondents, however, argue in their Comment that petitioners themselves sought the application of Article 286 of the Labor Code in their case in their Position Paper filed before the Labor Arbiter. In refutation, petitioners humbly submit that even if they invoke Article 286 of the Labor Code, still the fact remains, and this bears stress and emphasis, that the temporary suspension of the operations of the establishment arising from the non-renewal of the lease contract did not result in the termination of employment of private respondents and, therefore, the petitioners cannot be faulted if said private respondents were out of work, and consequently, they are not entitled to their money claims against the petitioners.[50] It is confounding how petitioners have fashioned their arguments. After having admitted, in effect, that respondents have been laid-off since April 1997, they would have this Court excuse their refusal to reinstate respondents or grant them separation pay because these same respondents purportedly have not proven the illegality of their dismissal. Petitioners arguments reflect their lack of candor and the blatant attempt to use technicalities to muddle the issues and defeat the lawful claims of their employees. First, petitioners admit that since April 1997, when hotel operations were suspended due to the termination of the lease of the old premises, respondents Loveres, Macandog, Llarena, Nicerio and Guades have not been permitted to work. Second, even after six months of what should have been just a temporary lay-off, the same respondents were still not recalled to work. As a matter of fact, the Labor Arbiter even found that as of the time when he rendered his Joint Decision on July 2000 or more than three (3) years after the supposed temporary lay-off, the employment of all of the respondents with petitioners had ceased, notwithstanding that the new premises had been completed and the same operated as a hotel with bar and restaurant. This is clearlydismissal or the permanent severance or complete separation of the worker from the service on the initiative of the employer regardless of the reasons therefor.[51] On this point, we note that the Labor Arbiter and the CA are in accord that at the time of the filing of the complaint, respondents had no cause of action to file the case for illegal dismissal. According to the CA and the Labor Arbiter, the lay-off of the respondents was merely temporary, pending construction of the new building at Pearanda Street.[52] While the closure of the hotel operations in April of 1997 may have been temporary, we hold that the evidence on record belie any claim of petitioners that the lay-off of respondents on that same date was merely temporary. On the contrary, we find substantial evidence that petitioners intended the termination to be permanent. First, respondents Loveres, Macandog, Llarena, Guades, Nicerio and Alamares filed the complaint for illegal dismissal immediately after the closure of the hotel operations in Rizal Street, notwithstanding the alleged temporary nature of the closure of the hotel operations, and petitioners allegatio ns that the employees assigned to the hotel operations knew about this beforehand. Second, in their position paper submitted to the Labor Arbiter, petitioners invoked Article 286 of the Labor Code to assert that the employer-employee relationship was merely suspended, and therefore the claim for separation pay was premature and without legal or factual basis.[53] But they made no mention of any intent to recall these respondents to work upon completion of the new premises. Third, the various pleadings on record show that petitioners held respondents, particularly Loveres, as responsible for mismanagement of the establishment and for abuse of trust and confidence. Petitioner Josefa Po Lams affidavit on July 21, 1998, for example, squarely blamed respondents, specifically Loveres, Bumalay and Camigla, for abusing her leniency and causing petitioner Mayon Hotel & Restaurant to sustain continuous losses until it is closed. She then asserts that respondents are not entitled to separa tion pay for they were not terminated and if ever the business ceased to operate it was because of losses. [54] Again, petitioners make the same allegation in their memorandum on appeal with the NLRC, where they alleged that three (3) years prior to the expiration of the lease in 1997, the operation of the Hotel had been sustaining consistent losses, and these were solely attributed to respondents, but

most especially due to Loveress mismanagement and abuse of petitioners trust and confidence. [55] Even the petition filed in this court made reference to the separation of the respondents due to severe financial losses and reverses, again imputing it to respondents mismanagement.[56] The vehemence of petitioners accusation of mismanagement against respondents, especially against Loveres, is inconsistent with the desire to recall them to work. Fourth, petitioners memorandum on appeal also averred that the case was filed not because of the business being operated b y them or that they were supposedly not receiving benefits from the Labor Code which is true, but because of the fact that the source of their livelihood, whether legal or immoral, was stopped on March 31, 1997, when the owner of the building terminated the Lease Contract.[57] Fifth, petitioners had inconsistencies in their pleadings (with the NLRC, CA and with this Court) in referring to the closure, [58] i.e., in the petition filed with this court, they assert that there is no illegal dismissal because there was only a temporary cessation or suspension o f operations of the hotel and restaurant due to circumstances beyond the control of petitioners, and that is, the non-renewal of the lease contract...[59] And yet, in the same petition, they also assert that: (a) the separation of respondents was due to severe financial losses and reverses leading to the closure of the business; and (b) petitioner Pacita Po had to close shop and was bankrupt and has no liquidity to put up her own building to house Mayon Hotel & Restaurant. [60] Sixth, and finally, the uncontroverted finding of the Labor Arbiter that petitioners terminated all the other respondents, by not employing them when the Hotel and Restaurant transferred to its new site on Pearanda Street.[61] Indeed, in this same memorandum, petitioners referred to all respondents as former employees of Mayon Hotel & Restaurant. [62] These factors may be inconclusive individually, but when taken together, they lead us to conclude that petitioners really intended to dismiss all respondents and merely used the termination of the lease (on Rizal Street premises) as a means by which they could terminate their employees. Moreover, even assuming arguendo that the cessation of employment on April 1997 was merely temporary, it became dismissal by operation of law when petitioners failed to reinstate respondents after the lapse of six (6) months, pursuant to Article 286 of the Labor Code. We are not impressed by petitioners claim that severe business losses justified their failure to reinstate respondents. The evidence to prove this fact is inconclusive. But more important, serious business losses do not excuse the employer from complying with the clearance or report required under Article 283 of the Labor Code and its implementing rules before terminating the employment of its workers.[63] In the absence of justifying circumstances, the failure of petitioners to observe the procedural requirements set out under Article 284, taints their actuations with bad faith, especially since they claimed that they have been experiencing losses in the three years before 1997. To say the least, if it were true that the lay-off was temporary but then serious business losses prevented the reinstatement of respondents, then petitioners should have complied with the requirements of written notice. The requirement of law mandating the giving of notices was intended not only to enable the employees to look for another employment and therefore ease the impact of the loss of their jobs and the corresponding income, but more importantly, to give the Department of Labor and Employment (DOLE) the opportunity to ascertain the verity of the alleged authorized cause of termination.[64] And even assuming that the closure was due to a reason beyond the control of the employer, it still has to accord its employees some relief in the form of severance pay. [65] While we recognize the right of the employer to terminate the services of an employee for a just or authorized cause, the dismissal of employees must be made within the parameters of law and pursuant to the tenets of fair play. [66] And in termination disputes, the burden of proof is always on the employer to prove that the dismissal was for a just or authorized cause. [67] Where there is no showing of a clear, valid and legal cause for termination of employment, the law considers the case a matter of illegal dismissal.[68] Under these circumstances, the award of damages was proper. As a rule, moral damages are recoverable where the dismissal of the employee was attended by bad faith or fraud or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy.[69] We believe that the dismissal of the respondents was attended with bad faith and meant to evade the lawful obligations imposed upon an employer. To rule otherwise would lead to the anomaly of respondents being terminated from employment in 1997 as a matter of fact, but without legal redress. This runs counter to notions of fair play, substantial justice and the constitutional mandate that labor rights should be respected. If doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter the employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause.[70] It is a time-honored rule that in controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the formers favor. [71] The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection of labor. [72] We therefore reinstate the Labor Arbiters decision with the following modifications: (a) Separation pay for the illegal dismissal of respondents Loveres, Macandog and Llarena; (Santos Broola cannot be granted separation pay as he made no such claim); (b) Retirement pay for respondents Guades, Nicerio, and Alamares, who at the time of dismissal were entitled to their retirement benefits pursuant to Article 287 of the Labor Code as amended;[73] and (c) Damages for respondents Loveres, Macandog, Llarena, Guades, Nicerio, Atractivo, and Broola. 3. Money claims The CA held that contrary to the NLRCs ruling, petitioners had not discharged the burden of proving that the monetary claims of the respondents have been paid.[74] The CA thus reinstated the Labor Arbiters grant of respondents monetary claims, including damages. Petitioners assail this ruling by repeating their long and convoluted argument that as there was no illegal dismissal, then respondents are not entitled to their mo netary claims or separation pay and damages. Petitioners arguments are not only tiring, repetitive and unconvincing, but confusing and confused entitlement to labor standard benefits is a separate and distinct

concept from payment of separation pay arising from illegal dismissal, and are governed by different provisions of the Labor Code. We agree with the CA and the Labor Arbiter. Respondents have set out with particularity in their complaint, position paper, affidavits and other documents the labor standard benefits they are entitled to, and which they alleged that petitioners have failed to pay them. It was therefore petitioners burden to prove that they have paid these money claims. One who pleads payment has the burden of proving it, and even where the employees must allege nonpayment, the general rule is that the burden rests on the defendant to prove nonpayment, rather than on the plaintiff to prove non payment. [75] This petitioners failed to do. We also agree with the Labor Arbiter and the CA that the documents petitioners submitted, i.e., affidavits executed by some of respondents during an ocular inspection conducted by an inspector of the DOLE; notices of inspection result and Facility Evaluation Orders issued by DOLE, are not sufficient to prove payment. [76] Despite repeated orders from the Labor Arbiter,[77]petitioners failed to submit the pertinent employee files, payrolls, records, remittances and other similar documents which would show that respondents rendered work entitling them to payment for overtime work, night shift differential, premium pay for work on holidays and rest day, and payment of these as well as the COLA and the SILP documents which are not in respondents possession but in the custody and absolute control of petitioners.[78] By choosing not to fully and completely disclose information and present the necessary documents to prove payment of labor standard benefits due to respondents, petitioners failed to discharge the burden of proof.[79] Indeed, petitioners failure to submit the necessary documents which as employers are in their possession, inspite of orders to do so, gives rise to the presumption that their presentation is prejudicial to its cause.[80] As aptly quoted by the CA: [W]hen the evidence tends to prove a material fact which imposes a liability on a party, and he has it in his power to produce evidence which from its very nature must overthrow the case made against him if it is not founded on fact, and he refuses to produce such evidence, the presumption arises that the evidence, if produced, would operate to his prejudice, and support the case of his adversary.[81] Petitioners next claim that the cost of the food and snacks provided to respondents as facilities should have been included in reckoning the payment of respondents wages. They state that although on the surface respondents appeared to receive minimal wages, petitioners had granted respondents other benefits which are considered part and parcel of their wages and are allowed under existing laws.[82] They claim that these benefits make up for whatever inadequacies there may be in compensation.[83] Specifically, they invoked Sections 5 and 6, Rule VII-A, which allow the deduction of facilities provided by the employer through an appropriate Facility Evaluation Order issued by the Regional Director of the DOLE. [84] Petitioners also aver that they give five (5) percent of the gross income each month as incentives. As proof of compliance of payment of minimum wages, petitioners submitted the Notice of Inspection Results issued in 1995 and 1997 by the DOLE Regional Office.[85] The cost of meals and snacks purportedly provided to respondents cannot be deducted as part of respondents minim um wage. As stated in the Labor Arbiters decision:[86] While [petitioners] submitted Facility Evaluation Orders (pp. 468, 469; vol. II, rollo) issued by the DOLE Regional Office whereby the cost of meals given by [petitioners] to [respondents] were specified for purposes of considering the same as part of their wages, We cannot consider the cost of meals in the Orders as applicable to [respondents]. [Respondents] were not interviewed by the DOLE as to the quality and quantity of food appearing in the applications of [petitioners] for facility evaluation prior to its approval to determine whether or not [respondents] were indeed given such kind and quantity of food. Also, there was no evidence that the quality and quantity of food in the Orders were voluntarily accepted by [respondents]. On the contrary; while some [of the respondents] admitted that they were given meals and merienda, the quality of food serve[d] to them were not what were provided for in the Orders and that it was only when they filed these cases that they came to know about said Facility Evaluation Orders (pp. 100; 379[,] vol. II, rollo; p. 40, tsn[,] June 19, 1998). [Petitioner] Josefa herself, who applied for evaluation of the facility (food) given to [respondents], testified that she did not inform [respondents] concerning said Facility Evaluation Orders (p. 34, tsn[,] August 13, 1998). Even granting that meals and snacks were provided and indeed constituted facilities, such facilities could not be deducted without compliance with certain legal requirements. As stated inMabeza v. NLRC,[87] the employer simply cannot deduct the value from the employee's wages without satisfying the following: (a) proof that such facilities are customarily furnished by the trade; (b) the provision of deductible facilities is voluntarily accepted in writing by the employee; and (c) the facilities are charged at fair and reasonable value. The records are clear that petitioners failed to comply with these requirements. There was no proof of respondents written authorization. Indeed, the Labor Arbiter found that while the respondents admitted that they were giv en meals and merienda, the quality of food served to them was not what was provided for in the Facility Evaluation Orders and it was only when they filed the cases that they came to know of this supposed Facility Evaluation Orders. [88] Petitioner Josefa Po Lam herself admitted that she did not inform the respondents of the facilities she had applied for. [89] Considering the failure to comply with the above-mentioned legal requirements, the Labor Arbiter therefore erred when he ruled that the cost of the meals actually provided to respondents should be deducted as part of their salaries, on the ground that respondents have availed themselves of the food given by petitioners.[90] The law is clear that mere availment is not sufficient to allow deductions from employees wages. More important, we note the uncontroverted testimony of respondents on record that they were required to eat in the hotel and restaurant so that they will not go home and there is no interruption in the services of Mayon Hotel & Restaurant. As ruled in Mabeza, food or snacks or other convenience provided by the employers are deemed as supplements if they are granted for the convenience of the employer. The criterion in making a distinction between a supplement and a facility does not so much lie in the kind (food, lodging) but the purpose.[91] Considering, therefore, that hotel workers are required to work different shifts and are expected to be available at various odd hours, their ready availability is a necessary matter in the operations of a small hotel, such as petitioners business.[92] The deduction of the cost of meals from respondents wages, ther efore, should be removed. We also do not agree with petitioners that the five (5) percent of the gross income of the establishment can be considered as part of the respondents wages. We quote with approval the Labor Arbiter on this matter, to wit:

While complainants, who were employed in the hotel, receive[d] various amounts as profit share, the same cannot be considered as part of their wages in determining their claims for violation of labor standard benefits. Although called profit share[,] such is in the nature of share from service charges charged by the hotel. This is more explained by [respondents] when they testified that what they received are not fixed amounts and the same are paid not on a monthly basis (pp. 55, 93, 94, 103, 104; vol. II, rollo). Also, [petitioners] failed to submit evidence that the amounts received by [respondents] as profit share are to be considered part of their wages and had been agreed by them prior to their employment. Further, how can the amounts receive[d] by [respondents] be considered as profit share when the same [are] based on the gross receipt of the hotel[?] No profit can as yet be determined out of the gross receipt of an enterprise. Profits are realized after expenses are deducted from the gross income. On the issue of the proper minimum wage applicable to respondents, we sustain the Labor Arbiter. We note that petitioners themselves have admitted that the establishment employs more or less sixteen (16) employees, [93] therefore they are estopped from claiming that the applicable minimum wage should be for service establishments employing 15 employees or less. As for petitioners repeated invocation of serious business losses, suffice to say that this is not a defense to payment of labor standard benefits. The employer cannot exempt himself from liability to pay minimum wages because of poor financial condition of the company. The payment of minimum wages is not dependent on the employers ability to pay.[94] Thus, we reinstate the award of monetary claims granted by the Labor Arbiter. 4. Conclusion There is no denying that the actuations of petitioners in this case have been reprehensible. They have terminated the respondents employment in an underhanded manner, and have used and abused the quasi -judicial and judicial processes to resist payment of their employees rightful claims, thereby protracting this case and causing the unnecessary clogging of dockets of the Court. They have also forced respondents to unnecessary hardship and financial expense. Indeed, the circumstances of this case would have called for exemplary damages, as the dismissal was effected in a wanton, oppressive or malevolent manner, [95] and public policy requires that these acts must be suppressed and discouraged.[96] Nevertheless, we cannot agree with the Labor Arbiter in granting exemplary damages of P10,000.00 each to all respondents. While it is true that other forms of damages under the Civil Code may be awarded to illegally dismissed employees, [97] any award of moral damages by the Labor Arbiter cannot be based on the Labor Code but should be grounded on the Civil Code. [98] And the law is clear that exemplary damages can only be awarded if plaintiff shows proof that he is entitled to moral, temperate or compensatory damages.[99] As only respondents Loveres, Guades, Macandog, Llarena, Nicerio, Atractivo and Broola specifically claimed damages from petitioners, then only they are entitled to exemplary damages.[sjgs1] Finally, we rule that attorneys fees in the amount to P10,000.00 should be granted to each respondent. It is settled that in actions for recovery of wages or where an employee was forced to litigate and incur expenses to protect his rights and interest, he is entitled to an award of attorney's fees.[100] This case undoubtedly falls within this rule. IN VIEW WHEREOF, the petition is hereby DENIED. The Decision of January 17, 2003 of the Court of Appeals in CAG.R. SP No. 68642 upholding the Joint Decision of July 14, 2000 of the Labor Arbiter in RAB V Case Nos. 04-00079-97 and 0400080-97 is AFFIRMED, with the following MODIFICATIONS: (1) Granting separation pay of one-half (1/2) month for every year of service to respondents Loveres, Macandog and Llarena; (2) Granting retirement pay for respondents Guades, Nicerio, and Alamares; (3) Removing the deductions for food facility from the amounts due to all respondents; (4) Awarding moral damages of P20,000.00 each for respondents Loveres, Macandog, Llarena, Guades, Nicerio, Atractivo, and Broola; (5) Deleting the award of exemplary damages of P10,000.00 from all respondents except Loveres, Macandog, Llarena, Guades, Nicerio, Atractivo, and Broola; and (6) Granting attorneys fees of P10,000.00 each to all respondents. The case is REMANDED to the Labor Arbiter for the RECOMPUTATION of the total monetary benefits awarded and due to the employees concerned in accordance with the decision. The Labor Arbiter is ORDERED to submit his compliance thereon within thirty (30) days from notice of this decision, with copies furnished to the parties. SO ORDERED.

EN BANC CIVIL SERVICE COMMISSION , Petitioner, G.R. No. 174935 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO,* AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, NACHURA, REYES, LEONARDO-DE CASTRO and BRION, JJ.

-versus-

TRISTAN C. COLANGGO,* Respondent. Promulgated: April 30, 2008 x--------------------------------------------------x DECISION CORONA, J.: This petition for review on certiorari[1] seeks to set aside the February 22, 2006 decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 79047 and its resolution denying reconsideration. [3] On October 25, 1992, respondent Tristan C. Colanggo took the Professional Board Examination for Teachers (PBET) and obtained a passing rate of 75.98%. On October 1, 1993, he was appointed Teacher I and was assigned to Don Ruben E. Ecleo, Sr. Memorial National High School in San Jose, Surigao del Norte. Subsequently, a complaint questioning the eligibility of teachers in Surigao del Norte was filed in the Civil Service Commission (CSC) CARAGA Regional Office No. XIII (CSC-CARAGA) in Butuan City. The CSC-CARAGA immediately investigated the matter. In the course of its investigation, the CSC-CARAGA discovered significant irregularities in respondents documents. The photographs of Tristan C. Colanggo attached respectively to the PBET application form and to the October 25, 1992 picture seat plan did not resemble respondent. Furthermore, the signature found in the PBET application form was markedly different from that affixed on respondents personal data sheet (PDS). It appeared that someone other than respondent filed his PBET application and still another person took the exam on his behalf. Thus, the CSC-CARAGA filed a formal charge for dishonesty and conduct prejudicial to the best interest of service against respondent on January 13, 1999. [4] On September 27, 2000, respondent filed an answer denying the charges against him and moved for a formal hearing and investigation. The CSC granted the motion and scheduled a hearing on October 31, 2000. Respondent failed to appear on the said date but subsequently filed an omnibus motion for the production of original documents relative to the charges against him and the presentation of persons who supervised the October 25, 1992 PBET. His motion was granted and the concerned proctor and examiners were subpoenaed. After evaluating the evidence, the CSC found:

On the basis of the photographs attached [to] the PBET application form and the picture seat plan, it is evident that the person who filed the application form for the PBET is not the same person who actually took the said examination on October 25, 1992. This disparity of physical features of the former and latter are evident. The person who filed the PBET has fuller cheekbones and slanted eyes, thinner lips and has a different hairstyle from that of the John Doe who took the said examination. On the other hand, the latter has thinner cheekbones, elongated chin, full lips with a moustache and round eyes. Also, the signatures appearing of the PBET applicant and that of the PBET examinee are also in different strokes, curves and slants. Comparing the signatures on the [PBET application form] and [picture seat plan] vis--vis those affixed on the PDS of respondent more evidently reveals that the three are different persons. The photographs and signatures appearing on the [PBET application form] and [picture seat plan] are far and different from the facial features and signatures from both John Does. Respondent looks older, has full cheekbones, flatter nose and thin lips. In other words, the picture and signatures affixed on the PBET application form, picture seat plan and PDS undoubtedly belong to three different persons which clearly serve a ground to establish a just cause for CSC-CARAGA to issue a formal charge on January 13, 1999 against respondent.[5] (emphasis supplied) The CSC concluded that respondent did not apply for and take the PBET exam. Thus, in Resolution No. 021412, the CSC found respondent guilty of dishonesty and conduct prejudicial to the best interest of service and ordered his dismissal. [6] Respondent moved for reconsideration but his motion was denied. [7] Aggrieved, respondent filed a petition for certiorari in the CA alleging that the CSC committed grave abuse of discretion in issuing Resolution No. 021412.[8] He pointed out that the pieces of evidence against him were inadmissible as they were unauthenticated photocopies of the PBET application form, picture seat plan and PDS. On February 22, 2006, the CA granted the petition.[9] It ruled that the photocopies of the PBET application form, picture seat plan and PDS should have been authenticated.[10] Only documents or public records duly acknowledged or certified as such in accordance with law could be presented in evidence without further proof. [11] Consequently, the CA annulled and set aside Resolution No. 021412 and ordered the dismissal of charges against respondent.[12] The CSC moved for reconsideration[13] but was denied.[14] Hence, this petition. The CSC essentially avers that the CA erred in finding that it committed grave abuse of discretion in rendering Resolution No. 021412.[15] The Uniform Rules on Administrative Cases in the Civil Service [16] (Uniform Rules) does not require strict adherence to technical rules of evidence. Thus, it validly considered the photocopies of the PBET application form, picture seat plan and PDS in resolving the formal charge against respondent in spite of the fact that they were not duly authenticated. The petition is meritorious. Administrative rules of procedure are construed liberally to promote their objective and to assist parties in obtaining just, speedy and inexpensive determination of their respective claims and defenses.[17] Section 39 of the Uniform Rules provides: Section 39. The direct evidence for the complainant and the respondent consist of the sworn statement and documents submitted in support of the complaint or answer as the case may be, without prejudice to the presentation of additional evidence deemed necessary but was unavailable at the time of the filing of the complaint and the answer upon which the cross-examination, by the respondent and the complainant respectively, shall be based. Following the cross-examination, there may be re-direct or re-cross examination. Either party may avail himself of the services of counsel and may require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process ofsubpoena or subpoena duces tecum. The investigation shall be conducted for the purpose of ascertaining the truth without necessarily adhering to technical rules applicable in judicial proceedings. It shall be conducted by the disciplining authority concerned or his authorized representatives. (emphasis supplied) The provision above clearly states that the CSC, in investigating complaints against civil servants, is not bound by technical rules of procedure and evidence applicable in judicial proceedings. The CSC correctly appreciated the photocopies of PBET application form, picture seat plan and PDS (though not duly authenticated) in determining whether there was sufficient evidence to substantiate the charges against the respondent. Worth noting was that respondent never objected to the veracity of their contents. He merely disputed their admissibility on the ground that they were not authenticated. As a general rule, a finding of guilt in administrative cases, if supported by substantial evidence (or that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion), [18] will be sustained by this Court.[19]

The CSC graciously granted respondents motions to ensure that he was accorded procedural due process. Moreover, it exhaustively discussed the differences in appearances of respondent and the persons whose photographs were attached to the PBET application form and the picture seat plan. It likewise compared the various signatures on the said documents. Resolution No. 021412 reveals that the CSC carefully evaluated the allegations against respondent and thoroughly examined and weighed the evidence submitted for its consideration. The penalty (of dismissal) imposed on respondent was therefore fully in accord with law[20] and jurisprudence.[21] We find no grave abuse of discretion on the part of the CSC. ACCORDINGLY, the petition is hereby GRANTED. The February 22, 2006 decision and August 17, 2006 resolution of the Court of Appeals in CA-S.P. No. 79047 areREVERSED and SET ASIDE. Resolution No. 021412 dated October 22, 2002 and the May 19, 2003 resolution of the Civil Service Commission finding respondent Tristan C. Colanggo GUILTY of dishonesty and conduct prejudicial to the best interest of service and dismissing him from the service with forfeiture of leave credits and retirement benefits and disqualifying him from reemployment in the government service are REINSTATED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 127240 March 27, 2000 ONG CHIA, petitioner, vs. REPUBLIC OF THE PHILIPPINES and THE COURT OF APPEALS, respondents. MENDOZA, J.: This is a petition for review of the decision1 of the Court of Appeals reversing the decision of the Regional Trial Court, Branch 24, Koronadal, South Cotabato2 admitting petitioner Ong Chia to Philippine citizenship. The facts are as follows: Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year old boy, he arrived at the port of Manila on board the vessel "Angking." Since then, he has stayed in the Philippines where he found employment and eventually started his own business, married a Filipina, with whom he had four children. On July 4, 1989, at the age of 66, he filed a verified petition to be admitted as a Filipino citizen under C.A. No. 473, otherwise known as the Revised Naturalization Law, as amended. Petitioner, after stating his qualifications as required in 2, and lack of the disqualifications enumerated in 3 of the law, stated 17. That he has heretofore made (a) petition for citizenship under the provisions of Letter of Instruction No. 270 with the Special Committee on Naturalization, Office of the Solicitor General, Manila, docketed as SCN Case No. 031776, but the same was not acted upon owing to the fact that the said Special Committee on Naturalization was not reconstituted after the February, 1986 revolution such that processing of petitions for naturalization by administrative process was suspended; During the hearings, petitioner testified as to his qualifications and presented three witnesses to corroborate his testimony. So impressed was Prosecutor Isaac Alvero V. Moran with the testimony of petitioner that, upon being asked by the court whether the State intended to present any witness present any witness against him, he remarked: Actually, Your Honor, with the testimony of the petitioner himself which is rather surprising, in the sense that he seems to be well-versed with the major portion of the history of the Philippines, so, on our part, we are convinced, Your Honor Please, that petitioner really deserves to be admitted as a citizen of the Philippines .And for this reason, we do not wish to present any evidence to counteract or refute the testimony of the witnesses for the petitioner, as well as the petitioner himself.3 Accordingly, on August 25, 1999, the trial court granted the petition and admitted petitioner to Philippine citizenship. The State, however, through the Office of the Solicitor General, appealed all the names by which he is or had been known; (2) failed to state all his former placer of residence in violation of C.A. No. 473, 7; (3) failed to conduct himself in a proper and irreproachable manner during his entire stay in the Philippines, in violation of 2; (4) has no known lucrative trade or occupation and his previous incomes have been insufficient or misdeclared, also in contravention of 2; and (5) failed to support his petition with the appropriate documentary evidence.4 Annexed to the State's appellant's brief was a copy of a 1977 petition for naturalization filed by petitioner with the Special Committee on Naturalization in SCN Case No. 031767,5 in which petitioner stated that in addition to his name of "Ong Chia," he had likewise been known since childhood as "Loreto Chia Ong." As petitioner, however, failed to state this other name in his 1989 petition for naturalization, it was contended that his petition must fail. 6The state also annexed income tax returns7 allegedly filed by petitioner from 1973 to 1977 to show that his net income could hardly support himself and his family. To prove that petitioner failed to conduct himself in a proper and irreproachable manner during his stay in the Philippines, the State contended that, although petitioner claimed that he and Ramona Villaruel had been married twice, once before a judge in 1953, and then again in church in 1977, petitioner actually lived with his wife without the benefit of marriage from 1953 until they were married in 1977. It was alleged that petitioner failed to present his 1953 marriage contract, if there be any. The State also annexed a copy of petitioner's 1977 marriage contract8 and a Joint-Affidavit9 executed by petitioner and his wife. These documents show that when petitioner married Ramona Villaruel on February 23, 1977, no marriage license had been required in accordance with Art. 76 of

the Civil Code because petitioner and Ramona Villaruel had been living together as husband and wife since 1953 without the benefit of marriage. This, according to the State, belies his claim that when he started living with his wife in 1953, they had already been married. The State also argued that, as shown by petitioner's Immigrant Certificate of Residence, 10 petitioner resided at "J.M. Basa Street, Iloilo," but he did not include said address in the petition. On November 15, 1996, the Court of Appeals rendered its decision which, as already noted, reversed the trial court and denied petitioner's application for naturalization. It ruled that due to the importance naturalization cases, the State is not precluded from raising questions not presented in the lower court and brought up for the first time on appeal. 11 The appellate court held: As correctly observed by the Office of the Solicitor General, petitioner Ong Chia failed to state in this present petition for naturalization his other name, "LORETO CHIA ONG," which name appeared in his previous application under Letter of Instruction No. 270. Names and pseudonyms must be stated in the petition for naturalization and failure to include the same militates against a decision in his favor. . . This is a mandatory requirement to allow those persons who know (petitioner) by those other names to come forward and inform the authorities of any legal objection which might adversely affect his application for citizenship. Furthermore, Ong Chia failed to disclose in his petition for naturalization that he formerly resided in "J.M. Basa St., Iloilo" and "Alimodian, Iloilo." Section 7 of the Revised Naturalization Law requires the applicant to state in his petition "his present and former places of residence." This requirement is mandatory and failure of the petitioner to comply with it is fatal to the petition. As explained by the Court, the reason for the provision is to give the public, as well as the investigating agencies of the government, upon the publication of the petition, an opportunity to be informed thereof and voice their objections against the petitioner. By failing to comply with this provision, the petitioner is depriving the public and said agencies of such opportunity, thus defeating the purpose of the law. . . Ong Chia had not also conducted himself in a proper and irreproachable manner when he lived-in with his wife for several years, and sired four children out of wedlock. It has been the consistent ruling that the "applicant's 8-year cohabitation with his wife without the benefit of clergy and begetting by her three children out of wedlock is a conduct far from being proper and irreproachable as required by the Revised Naturalization Law", and therefore disqualifies him from becoming a citizen of the Philippines by naturalization . . . Lastly, petitioner Ong Chia's alleged annual income in 1961 of P5,000.00, exclusive of bonuses, commissions and allowances, is not lucrative income. His failure to file an income tax return "because he is not liable for income tax yet" confirms that his income is low. . . "It is not only that the person having the employment gets enough for his ordinary necessities in life. It must be shown that the employment gives one an income such that there is an appreciable margin of his income over expenses as to be able to provide for an adequate support in the event of unemployment, sickness, or disability to work and thus avoid one's becoming the object of charity or public charge." . . . Now that they are in their old age, petitioner Ong Chia and his wife are living on the allowance given to them by their children. The monthly pension given by the elder children of the applicant cannot be added to his income to make it lucrative because like bonuses, commissions and allowances, said pensions are contingent, speculative and precarious. . . Hence, this petition based on the following assignment of errors: I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN RULING THAT IN NATURALIZATION CASES, THE APPELLATE COURT CAN DENY AN APPLICATION FOR PHILIPPINE CITIZENSHIP ON THE BASIS OF DOCUMENTS NOT PRESENTED BEFORE THE TRIAL COURT AND NOT FORMING PART OF THE RECORDS OF THE CASE. II. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER HAS BEEN KNOWN BY SOME OTHER NAME NOT STATED IN HIS PETITION IS NOT SUPPORTED BY THE EVIDENCE ON RECORD. III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE PETITIONER STATED IN HIS PETITION AND ITS ANNEXES HIS PRESENT AND FORMER PLACES OF RESIDENCE. IV. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER FAILED TO CONDUCT HIMSELF IN A PROPER AND IRREPROACHABLE MANNER IS NOT SUPPORTED BY THE EVIDENCE ON RECORD. Petitioner's principal contention is that the appellate court erred in considering the documents which had merely been annexed by the State to its appellant's brief and, on the basis of which, justified the reversal of the trial court's decision. Not having been presented and formally offered as evidence, they are mere "scrap(s) of paper devoid of any evidentiary value," 12 so it was argued, because under Rule 132, 34 of the Revised Rules on Evidence, the court shall consider no evidence which has not been formally offered. The contention has no merit. Petitioner failed to note Rule 143 13 of the Rules of Court which provides that These rules shall not apply to land registration, cadastral and election cases, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (Emphasis added). Prescinding from the above, the rule on formal offer of evidence (Rule 132, 34) now being invoked by petitioner is clearly not applicable to the present case involving a petition for naturalization. The only instance when said rules may be applied by analogy or suppletorily in such cases is when it is "practicable and convenient." That is not the case here, since reliance upon the documents presented by the State for the first time on appeal, in fact, appears to be the more practical and convenient course of action considering that decisions in naturalization proceedings are not covered by the rule on res judicata. 14 Consequently, a final favorable judgment does not preclude the State from later on moving for a revocation of the grant of naturalization on the basis of the same documents. Petitioner claims that as a result of the failure of the State to present and formally offer its documentary evidence before the trial court, he was denied the right to object against their authenticity, effectively depriving him of his fundamental right to procedural due process. 15 We are not persuaded. Indeed, the reason for the rule prohibiting the admission of evidence which has not been formally offered is to afford the opposite party the chance to object to their admissibility. 16 Petitioner cannot claim that he was

deprived of the right to object to the authenticity of the documents submitted to the appellate court by the State. He could have included his objections, as he, in fact, did, in the brief he filed with the Court of Appeals. thus: The authenticity of the alleged petition for naturalization (SCN Case No. 031767) which was supposedly filed by Ong Chia under LOI 270 has not been established. In fact, the case number of the alleged petition for naturalization. . . is 031767 while the case number of the petition actually filed by the appellee is 031776. Thus, said document is totally unreliable and should not be considered by the Honorable Court in resolving the instant appeal. 17 Indeed, the objection is flimsy as the alleged discrepancy is trivial, and, at most, can be accounted for as a typographical error on the part of petitioner himself. That "SCN Case No. 031767," a copy of which was annexed to the petition, is the correct case number is confirmed by the Evaluation Sheet 18 of the Special Committee on Naturalization which was also docketed as "SCN Case No. 031767." Other than this, petitioner offered no evidence to disprove the authenticity of the documents presented by the State. Furthermore, the Court notes that these documents namely, the petition in SCN Case No. 031767, petitioner's marriage contract, the joint affidavit executed by him and his wife, and petitioner's income tax returns are all public documents. As such, they have been executed under oath. They are thus reliable. Since petitioner failed to make a satisfactory showing of any flaw or irregularity that may cast doubt on the authenticity of these documents, it is our conclusion that the appellate court did not err in relying upon them. One last point. The above discussion would have been enough to dispose of this case, but to settle all the issues raised, we shall briefly discuss the effect of petitioner's failure to include the address "J.M. Basa St., Iloilo" in his petition, in accordance with 7, C.A. No. 473. This address appears on petitioner's Immigrant Certificate of Residence, a document which forms part of the records as Annex A of his 1989 petition for naturalization. Petitioner admits that he failed to mention said address in his petition, but argues that since the Immigrant Certificate of Residence containing it had been fully published, 19 with the petition and the other annexes, such publication constitutes substantial compliance with 7. 20 This is allegedly because the publication effectively satisfied the objective sought to be achieved by such requirement, i.e., to give investigating agencies of the government the opportunity to check on the background of the applicant and prevent suppression of information regarding any possible misbehavior on his part in any community where he may have lived at one time or another. 21 It is settled, however, that naturalization laws should be rigidly enforced and strictly construed in favor of the government and against the applicant. 22 As noted by the State, C.A. No. 473, 7 clearly provides that the applicant for naturalization shall set forth in the petition his present and former places of residence. 23 This provision and the rule of strict application of the law in naturalization cases defeat petitioner's argument of "substantial compliance" with the requirement under the Revised Naturalization Law. On this ground alone, the instant petition ought to be denied.1wphi1.nt WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the instant petition is hereby DENIED. SO ORDERED.

THIRD DIVISION

ROLANDO SASAN, SR., LEONILO DAYDAY, MODESTO AGUIRRE, ALEJANDRO ARDIMER, ELEUTERIO SACIL, WILFREDO JUEGOS, PETRONILO CARCEDO and CESAR PACIENCIA, Petitioners, - versus NATIONAL LABOR RELATIONS COMMISSION 4TH DIVISION, EQUITABLE-PCI BANK and HELPMATE, INC., Respondents.

G.R. No. 176240 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, AZCUNA,* CHICO-NAZARIO, and NACHURA, JJ.

Promulgated:

October 17, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.: Assailed in this Petition for Review under Rule 45 of the Rules of Court are the Decision[1] dated 24 April 2006 of the Court of Appeals in CA-G.R. SP No. 79912, which affirmed the Decision dated 22 January 2003 of the National Labor Relations Commission (NLRC) in NLRC Case No. V-000241-2002 finding that Helpmate, Inc. (HI) is a legitimate independent job

contractor and that the petitioners were not illegally dismissed from work; and the Resolution [2] dated 31 October 2006 of the same court denying the Motion for Reconsideration filed by the petitioners. Respondent Equitable-PCI Bank (E-PCIBank),[3] a banking entity duly organized and existing under and by virtue of Philippine laws, entered into a Contract for Services[4]with HI, a domestic corporation primarily engaged in the business of providing janitorial and messengerial services. Pursuant to their contract, HI shall hire and assign workers to E-PCIBank to perform janitorial/messengerial and maintenance services. The contract was impliedly renewed year after year. Petitioners Rolando Sasan, Sr.,[5] Leonilo Dayday,[6] Modesto Aguirre,[7] Alejandro Ardimer,[8] Eleuterio Sacil,[9] Wilfredo [10] [11] [12] Juegos, Petronilo Carcedo, and Cesar Peciencia were among those employed and assigned to E-PCIBank at its branch along Gorordo Avenue, Lahug, Cebu City, as well as to its other branches in the Visayas.[13] O 23 July 2001, petitioners filed with the Arbitration Branch of the NLRC in Cebu City separate complaints [14] against EPCIBank and HI for illegal dismissal, with claims for separation pay, service incentive leave pay, allowances, damages, attorneys fees and costs. Their complaints were docketed as NLRC RAB-VII Case No. 07-1381-2001 and raffled to Labor Arbiter Jose G. Gutierrez (Labor Arbiter Gutierrez) for their proper disposition. Subsequently, on 22 August 2001, the petitioners[15] amended their complaints to include a claim for 13 th month-pay. Several conciliation hearings were scheduled by Labor Arbiter Gutierrez but the parties still failed to arrive at a mutually beneficial settlement; hence, Labor Arbiter Gutierrez ordered that they submit their respective position papers. In their position papers, petitioners claimed that they had become regular employees of E-PCIBank with respect to the activities for which they were employed, having continuously rendered janitorial and messengerial services to the bank for more than one year; that E-PCIBank had direct control and supervision over the means and methods by which they were to perform their jobs; and that their dismissal by HI was null and void because the latter had no power to do so since they had become regular employees of E-PCIBank. For its part, E-PCIBank averred that it entered into a Contract for Services with HI, an independent job contractor which hired and assigned petitioners to the bank to perform janitorial and messengerial services thereat. It was HI that paid petitioners wages, monitored petitioners daily time records (DTR) and uniforms, and exercised direct control and supervision over the petitioners and that therefore HI has every right to terminate their services legally. E-PCIBank could not be held liable for whatever misdeed HI had committed against its employees. HI, on the other hand, asserted that it was an independent job contractor engaged in the business of providing janitorial and related services to business establishments, and E-PCIBank was one of its clients. Petitioners were its employees, part of its pool of janitors/messengers assigned to E-PCIBank. The Contract for Services between HI and E-PCIBank expired on 15 July 2000. E-PCIBank no longer renewed said contract with HI and, instead, bidded out its janitorial requirements to two other job contractors, Able Services and Puritan. HI designated petitioners to new work assignments, but the latter refused to comply with the same. Petitioners were not dismissed by HI, whether actually or constructively, thus, petitioners complaints before the NLRC were without basis. Labor Arbiter Gutierrez focused on the following issues: (a) whether petitioners were regular employees of HI; (b) whether petitioners were illegally dismissed from their employment; and (c) whether petitioners were entitled to their money claims. On 7 January 2002, on the basis of the parties position papers and documentary evidence, Labor Arbiter Gutierrez rendered a Decision finding that HI was not a legitimate job contractor on the ground that it did not possess the required substantial capital or investment to actually perform the job, work, or service under its own account and responsibility as required under the Labor Code.[16] HI is therefore a labor-only contractor and the real employer of petitioners is E-PCIBank which is held liable to petitioners. According to Labor Arbiter Gutierrez: [T]he undisputed facts show that the [herein petitioners] were made to perform not only as janitors but also as messengers, drivers and one of them even worked as an electrician. For us, these jobs are not only directly related to the main business of the principal but are, likewise deemed necessary in the conduct of respondent Equitable-PCI Banks principal business. Thus, based on the above, we so declare that the [petitioners] are employees of respondent Equitable-PCI Bank. And having worked with respondent Equitable-PCI Bank for more than one (1) year, they are deemed regular employees. They cannot, therefore, be removed from employment without cause and without due process, which is wanting in this case. Hence, the severance of their employment in the guise of termination of contract is illegal.[17]

In the dispositive portion of his 7 January 2002 Decision, Labor Arbiter Gutierrez awarded to petitioners the following amounts: I. CESAR PACIENCIA a) Backwages

July 15, 2001 to January 8, 2002 = P190.00 per day = 5 months and 6 days = 136 days x P190.00 b) Separation Pay June 10, 1996 to July 15, 2001 = 5 years =P190.00 x 26 days x 5 years / 2 c) 13th Month Pay = P190.00 x 26 days Total II Dominador Suico, Jr. (did not file Amended Complaint) a) Backwages July 15, 2001 to January 15, 2002 same as Paciencia b) Separation Pay Feb. 2, 1999 to July 15, 2001 = P190.00 x 26 days x 2.5 years / 2 Total III Roland Mosquera (did not file Amended Complaint) a) Backwages (same as Paciencia) b) Separation Pay March 8, 1998 to July 15, 2001 = P190.00 x 26 days x 3 yrs. / 2 Total IV Petronillo Carcedo a) Backwages (same as Paciencia) b) Separation Pay Sept. 16, 1984 to July 15, 2001 = P190.00 x 26 days x 17 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total V Rolando Sasan, Sr. a) Backwages (same as Paciencia) b) Separation Pay October 1989 to July 15, 2001 = P190.00 x 26 days x 12 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total VI Leonilo Dayday a) Backwages

= P25,840.00

=P12,350.00

= P4,940.00 P43,130.00

= P25,840.00

= P6,175.00 = P32,015.00

= P25,840.00

= P7,410.00 = P33,250.00

= P25,840.00

= P41,990.00

= P4,940.00 = P72,770.00

= P25,840.00

= P29,640.00

= P4,940.00 = P60,420.00

(same as Paciencia) b) Separation Pay Feb. 8, 1983 to July 15, 2001 = P190.00 x 26 days x 18 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total VII Eleuterio Sacil a) Backwages (same as Paciencia) b) Separation Pay June 2, 1992 to July 15, 2001 = P190.00 x 26 days x 9 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total VIII Mario Juntilla a) Backwages (same as Pacencia) b) Separation Pay October 7, 1987 to July 15, 2001 = P190.00 x 26 days x 14 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total IX Wilfredo Juegos a) Backwages (same as Pacencia) b) Separation Pay July 23, 1990 to July 15, 2001 = P190.00 x 26 days x 11 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total X Modesto Aguirre a) Backwages (same as Paciencia) b) Separation Pay = Jan. 5, 1992 to July 15, 2001 = P190.00 x 26 days x 9.5 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total XI Alejandro Ardimer a) Backwages (same as Paciencia)

= P25,840.00

= P44,460.00

= P4,940.00 = P75,240.00

= P25,840.00

= P22,230.00

= P4,940.00 = P53,010.00

= P25,840.00

= P34,580.00

= P4,940.00 = P65,360.00

= P25,840.00

= P27,170.00

= P4,840.00 = P57,950.00

= P25,840.00

= P23,465.00

= P4,940.00 = P54,245.00

= P25,840.00

b) Separation Pay = Jan. 20, 1990 to July 15, 2001 = P190.00 x 26 days x 11.5 yrs. / 2 c) 13th Month Pay = P190.00 x 26 days Total xxxx

= P28,405.00

= P4,940.00 = P59,185.00

WHEREFORE, the foregoing premises considered, judgment is hereby rendered directing the respondents Equitable PCI Bank and Helpmate, Inc. to pay jointly and solidarily the complainants as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Cesar Paciencia Dominador Suico, Jr. Roland Mosquera Petronilo Carceda Roland Sasan, Sr. Leonilo Dayday Eleuterio Sacil Mario Juntilla Wilfredo Juegos Modesto Aguirre Alejandro Ardimer TOTAL P43,130.00 32,015.00 33,250.00 72,770.00 60,420.00 75,240.00 53,010.00 65,360.00 57,950.00 54,245.00 59,185.00 P606,575.00[18]

Aggrieved by the decision of Labor Arbiter Gutierrez, respondents E-PCIBank and HI appealed the same to the NLRC, 4th Division, stationed in Cebu City. Their appeals were docketed as NLRC Case No. V-000241-2002. In support of its allegation that it was a legitimate job contractor, HI submitted before the NLRC several documents which it did not present before Labor Arbiter Gutierrez. These are:

1. Certificate of Filing of Certificate of Increase of Capital Stock, Certificate of Filing Amended Articles of Incorporation, and General Information Sheet Stock Corporation of HI showing therein that it increased its authorized capital stock from P1,500,000.00 to P20,000,000.00 on 12 March 1999 with the Securities and Exchange Commission; 2. Audited Financial Statement of HI showing therein that it has Total Assets of P20,939,935.72 as of 31 December 2000; 3. Transfer Certificate of Title No. 110173 and Tax Declaration No. GR2K-09-063-00582 registered under the name of HI showing that it has a parcel of land with Market Value of P1,168,860.00 located along Rizal Avenue (now Bacalso Avenue), Cebu City, and 4. Tax Declaration No. GR2K-09-063-00583 registered under the name of HI showing that it has a commercial building constructed on the preceding lot located along Bacalso Avenue, Cebu City with market value of P2,515,170.00.[19]

The NLRC promulgated its Decision on 22 January 2003 modifying the ruling of Labor Arbiter Gutierrez. The NLRC took into consideration the documentary evidence presented by HI for the first time on appeal and, on the basis thereof, declared HI as a highly capitalized venture with sufficient capitalization, which cannot be considered engaged in labor -only contracting. On the charge of illegal dismissal, the NLRC ruled that: The charge of illegal dismissal was prematurely filed. The record shows that barely eight (8) days from 15 July 2001 when the complainants were placed on a temporary off -detail, they filed their complaints on 23 July 2001 and amended their complaints on 22 August 2001 against the respondents on the presumption that their services were already terminated. Temporary off-detail is not equivalent to dismissal. x x x.[20] The NLRC deleted Labor Arbiter Gutierrezs award of backwages and separation pay, but affirmed his award for 13th month pay and attorneys fees equivalent to ten percent (10%) of the 13 th month pay, to the petitioners.[21] Thus, the NLRC decreed in its 22 January 2003 Decision, the payment of the following reduced amounts to petitioners:

WHEREFORE, premises considered, the decision of Labor Arbiter Jose G. Gutierrez dated 7 January 2002 is MODIFIED, to wit: Ordering respondents Helpmate, Inc. and Equitable PCI Bank to jointly and severally [22] pay the complainants of their 13th month pay and attorneys fees in the aggregate amount of Forty-Three Thousand Four Hundred Seventy-Two and 00/100 (P43,472.00), broken down as follows: 1. 2. 3. 4. 5. 6. 7. 8. Aguirre, Modesto Ardimer, Alejandro Carcedo, Petronilo Dayday, Leonilo Juegos, Wilfredo Juntilla, Mario Paciencia, Cesar Sacil, Eleuterio TOTAL P5,434.00 5,434.00 5,434.00 5,434.00 5,434.00 5,434.00 5,434.00 5,434.00 P43,472.00[23]

Petitioners Motion for Reconsideration was denied by the NLRC in its Resolution dated 1 July 2003.[24] Distressed by the decision of the NLRC, petitioners sought recourse with the Court of Appeals by filing a Petition for Certiorari[25] under Rule 65 of the 1997 Rules of Civil Procedure docketed as CA-G.R. SP No. 79912. In its Decision dated 24 April 2006, the Court of Appeals affirmed the findings of the NLRC that HI was a legitimate job contractor and that it did not illegally dismiss petitioners: As to the question of whether or not, as a legitimate independent job contractor, respondent HI illegally dismissed the petitioners. We rule in the negative. It is undisputed that the contract between respondent HI and its client E-PCIBank expired on July 15, 2000. The record shows that after said expiration, respondent HI offered the petitioners new work assignments to various establishments which are HIs clients. The petitioners, therefore, were not even placed on floating status. They simply refused, without justifiable reason, to assume their new work assignments which refusal was tantamount to abandonment. There being no illegal dismissal, petitioners are not entitled to backwages or separation pay.[26]

The fallo of the 24 April 2006 Decision of the appellate court reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DENYING the petition filed in this case and AFFIRMING the decision of the NLRC, Fourth Division, in NLRC Case No. V000145-2003 promulgated on June 22, 2003.[27]

Petitioners now come before us via the instant Petition raising the following issues: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED IN EXCESS OF THEIR JURISDICTION AND/OR COMMITTED GRAVE ABUSE OF DISCRETION IN UPHOLDING THE NLRC 4TH DIVISIONS DECISION AND GRAVELY ERRED IN: I. ACCEPTING AND APPRECIATING THE PIECES OF EVIDENCE SUBMITTED BY RESPONDENTS DURING APPEAL, ALL EXISTING DURING THE TIME THE NLRC RAB 7S TRIAL, CONTRARY TO THIS HONORABLE COURTS PREVIOUS ESTABLISHED DECISIONS. II. REVERSING, WITHOUT ANY LEGAL BASIS, THE FACTUAL FINDING OF NLRC RAB 7 THAT THE RESPONDENT HI WAS LABOR ONLY CONTRACTOR. III. RULING, WITHOUT ANY LEGAL BASIS, THAT THE ILLEGAL DISMISSAL COMPLAINTS WERE PREMATURELY FILED.[28]

Before proceeding to the substantive issues, we first address the procedural issues raised by petitioners. Petitioners object to the acceptance and consideration by the NLRC of the evidence presented by HI for the first time on appeal. This is not a novel procedural issue, however, and our jurisprudence is already replete with cases[29] allowing the NLRC

to admit evidence, not presented before the Labor Arbiter, and submitted to the NLRC for the first time on appeal. Technical rules of evidence are not binding in labor cases. Labor officials should use every reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process.[30] The submission of additional evidence before the NLRC is not prohibited by its New Rules of Procedure. After all, rules of evidence prevailing in courts of law or equity are not controlling in labor cases. The NLRC and labor arbiters are directed to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law and procedure all in the interest of substantial justice. In keeping with this directive, it has been held that the NLRC may consider evidence, such as documents and affidavits, submitted by the parties for the first time on appeal. The submission of additional evidence on appeal does not prejudice the other party for the latter could submit counter-evidence.[31] In Clarion Printing House, Inc. v. National Labor Relations Commission,[32] we again emphasized that: [T]he NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not binding in labor cases. The settled rule is that the NLRC is not precluded from receiving evidence on appeal as technical rules of evidence are not binding in labor cases. In fact, labor officials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. Thus, in Lawin Security Services v. NLRC, and Bristol Laboratories Employees Association-DFA v. NLRC, we held that even if the evidence was not submitted to the labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal. Certainly, the first course of action would be more consistent with equity and the basic notions of fairness. For the same reasons, we cannot find merit in petitioners protestations against the documentary evidence submitted by HI because they were mere photocopies. Evidently, petitioners are invoking the best evidence rule, espoused in Section 3, Rule130 of the Rules of Court. It provides that: Section 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself x x x. The above provision explicitly mandates that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. Notably, certified true copies of these documents, acceptable under the Rules of Court[33] were furnished to the petitioners. Even assuming that petitioners were given mere photocopies, again, we stress that proceedings before the NLRC are not covered by the technical rules of evidence and procedure as observed in the regular courts. Technical rules of evidence do not apply if the decision to grant the petition proceeds from an examination of its sufficiency as well as a careful look into the arguments contained in position papers and other documents. [34] Petitioners had more than adequate opportunity when they filed their motion for reconsideration before the NLRC, their Petition to the Court of Appeals and even to this Court, to refute or present their counter-evidence to the documentary evidence presented by HI. Having failed in this respect, petitioners cannot now be heard to complain about these documentary evidences presented by HI upon which the NLRC and the Court of Appeals based its finding that HI is a legitimate job contractor. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, a fair and reasonable opportunity to explain one's side. It is also an opportunity to seek a reconsideration of the action or ruling complained of. It is not the denial of the right to be heard but denial of the opportunity to be heard that constitutes violation of due process of law. Petitioners herein were afforded every opportunity to be heard and to seek reconsideration of the adverse judgment against them. They had every opportunity to strengthen their positions by presenting their own substantial evidence to controvert those submitted by E-PCIBank and HI before the NLRC, and even before the Court of Appeals. It cannot win its case by merely raising unsubstantiated doubt or relying on the weakness of the adverse parties evidence. We now proceed to the resolution of the substantive issues submitted by petitioners for our consideration, particularly, whether HI is a labor-only contactor and E-PCIBank should be deemed petitioners principal employer; and whether petitioners were illegally dismissed from their employment. Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out to a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal.[35] A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur: (a) The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own

manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; (b) The contractor or subcontractor has substantial capital or investment; and (c) The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to selforganization, security of tenure, and social and welfare benefits. [36]

In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal. [37] In labor-only contracting, the following elements are present: (a) The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account and responsibility; and (b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal. [38] In distinguishing between permissible job contracting and prohibited labor-only contracting,[39] we elucidated in Vinoya v. National Labor Relations Commission,[40] that it is not enough to show substantial capitalization or investment in the form of tools, equipment, etc. Other facts that may be considered include the following: whether or not the contractor is carrying on an independent business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of specified pieces of work; the control and supervision of the work to another; the employers power with respect to the hiring, firing and payment of the contractors workers; the control of the premises; the duty to supply premis es, tools, appliances, materials and labor; and the mode and manner or terms of payment. [41] Simply put, the totality of the facts and the surrounding circumstances of the case are to be considered.[42] Each case must be determined by its own facts and all the features of the relationship are to be considered. [43] In the case at bar, we find substantial evidence to support the finding of the NLRC, affirmed by the Court of Appeals, that HI is a legitimate job contractor. We take note that HI has been issued by the Department of Labor and Employment (DOLE) Certificate of Registration[44] Numbered VII-859-1297-048. The said certificate states among other things: CERTIFICATE OF REGISTRATION Numbered VII-859-1297-048 is issued to HELPMATE, INCORPORATED 330 N. Bacalso Avenue, Cebu City for having complied with the requirements as provided for under the Labor Code, as amended, and its Implementing Rules and having paid the registration fee in the amount of ONE HUNDRED PESOS (P100.00) per Official Receipt Number 9042769, dated October 16, 1997. In witness whereof, and by authority vested in me by the Labor Code, as amended, and its Implementing Rules specifically Department Order No. 10 series of 1997, I have hereunto set my hand and affixed the Official on this 23rd day of December 1997.[45]

Having been issued by a public officer, this certification carries with it the presumption that it was issued in the regular performance of official duty.[46] In the absence of proof, petitioners bare assertion cannot prevail over this presumption. Moreover, the DOLE being the agency primarily responsible for regulating the business of independent job contractors, we can presume in the absence of evidence to the contrary that it thoroughly evaluated the requirements submitted by HI as a precondition to the issuance of the Cerificate of Registration. The evidence on record also shows that HI is carrying on a distinct and independent business from E-PCIBank. The employees of HI are assigned to clients to perform janitorial and messengerial services, clearly distinguishable from the banking services in which E-PCIBank is engaged. Despite the afore-mentioned compliance by HI with the requisites for permissible job contracting, Labor Arbiter Gutierrez still declared that HI was engaged in prohibited labor-only contracting because it did not possess substantial capital or

investment to actually perform the job, work or service under its own account or responsibility. Both the NLRC and the Court of Appeals ruled to the contrary, and we agree. Substantial capital or investment refers to capital stocks and subscribed capitalization in the case of corporations, tools , equipments, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out. [47] An independent contractor must have either substantial capital or investment in the form of tools, equipment, machineries, work premises, among others. The law does not require both substantial capital and investment in the form of tools, equipment, machineries, etc.[48] It is enough that it has substantial capital. In the case of HI, it has proven both. We have expostulated that once it is established that an entity such as in this case, HI has substantial capital, it was no longer necessary to adduce further evidence to prove that it does not fall within the purview of labor -only contracting.[49] There is even no need for HI to refute the contention of petitioners that some of the activities they performed such as those of messengerial services are directly related to the principal business of E- PCIBank. In any event, we have earlier declared that while these services rendered by the petitioners as janitors, messengers and drivers are considered directly related to the principal business of a bank, in this case E-PCIBank, nevertheless, they are not necessary in the conduct of its (E-PCIBANKs) principal business.[50] HI has substantial capital in the amount of P20,939,935.72. It has its own building where it holds office and it has been engaged in business for more than a decade now.[51] As observed by the Court of Appeals, surely, such a well-established business entity cannot be considered a labor-only contractor. Etched in an unending stream of cases are four standards in determining the existence of an employer-employee relationship, namely: (a) the manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or absence of power of dismissal; and, (d) the presence or absence of control of the putative employees conduct. Most determinative among these factors is the so-called control test.[52] The presence of the first requisite for the existence of an employer-employee relationship to wit, the selection and engagement of the employee is shown by the fact that it was HI which selected and engaged the services of petitioners as its employees. This is fortified by the provision in the contract of services between HI and E-PCIBank which states: Selection, Engagement, Discharge. [HI] shall have exclusive discretion in the selection, engagement, investigation, discipline and discharge of its employees.[53]

On the second requisite regarding the payment of wages, it was HI who paid petitioners their wages and who provided their daily time records and uniforms and other materials necessary for the work they performed. Therefore, it is HI who is responsible for petitioners claims for wages and other employees benefits. Precisely, the contract of services between HI and EPCIBank reveals the following: Indemnity for Salaries and Benefits, etc. [HI] shall be responsible for the salaries, allowances, overtime and holiday pay, and other benefits of its personnel including withholding taxes. [54] As to the third requisite on the power to control the employees conduct, and the fourth requisite regarding the power of dismissal, again E-PCIBank did not have the power to control petitioners with respect to the means and methods by which their work was to be accomplished. It likewise had no power of dismissal over the petitioners. All that E-PCIBank could do was to report to HI any untoward act, negligence, misconduct or malfeasance of any employee assigned to the premises. The contract of services between E-PCIBank and HI is noteworthy. It states: [HI] shall have the entire charge, control and supervision over all its employees who may be fielded to [E-PCIBank]. For this purpose, [HI] shall assign a regular supervisor of its employees who may be fielded to the Bank and which regular supervisor shall exclusively supervise and control the activities and functions defined in Section 1 hereof. x x x.[55]

All these circumstances establish that HI undertook said contract on its account, under its own responsibility, according to its own manner and method, and free from the control and direction of E-PCIBank. Where the control of the principal is limited only to the result of the work, independent job contracting exists. The janitorial service agreement between E-PCIBank and HI is definitely a case of permissible job contracting. Considering the foregoing, plus taking judicial notice of the general practice in private, as well as in government institutions and industries, of hiring an independent contractor to perform special services, [56] ranging from janitorial, security and even technical services, we can only conclude that HI is a legitimate job contractor. As such legitimate job contractor, the law creates an employer-employee relationship between HI and petitioners[57] which renders HI liable for the latters claims.

In view of the preceding conclusions, petitioners will never become regular employees of E-PCIBank regardless of how long they were working for the latter.[58] We further rule that petitioners were not illegally dismissed by HI. Upon the termination of the Contract of Service between HI and E-PCIBank, petitioners cannot insist to continue to work for the latter. Their pull-out from E-PCIBank did not constitute illegal dismissal since, first, petitioners were not employees of E-PCIBank; and second, they were pulled out from said assignment due to the non-renewal of the Contract of Service between HI and E-PCIBank. At the time they filed their complaints with the Labor Arbiter, petitioners were not even dismissed by HI; they were only off-detail pending their re-assignment by HI to another client. And when they were actually given new assignments by HI with other clients, [59] petitioners even refused the same. As the NLRC pronounced, petitioners complaint for illegal dismissal is apparently premature. WHEREFORE, premises considered, the Petition is DENIED for lack of merit. The Decision dated 24 April 2006 and Resolution dated 31 October 2006 of the Court of Appeals are AFFIRMED. Costs against petitioners. SO ORDERED.

THIRD DIVISION [G.R. No. 148372. June 27, 2005] CLARION PRINTING HOUSE, INC., and EULOGIO YUTINGCO, petitioners, vs. THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION (Third Division) and MICHELLE MICLAT, respondents. DECISION CARPIO-MORALES, J.: Respondent Michelle Miclat (Miclat) was employed on April 21, 1997 on a probationary basis as marketing assistant with a monthly salary of P6,500.00 by petitioner Clarion Printing House (CLARION) owned by its co-petitioner Eulogio Yutingco. At the time of her employment, she was not informed of the standards that would qualify her as a regular employee. On September 16, 1997, the EYCO Group of Companies of which CLARION formed part filed with the Securities and Exchange Commission (SEC) a Petition for the Declaration of Suspension of Payment, Formation and Appointment of Rehabilitation Receiver/ Committee, Approval of Rehabilitation Plan with Alternative Prayer for Liquidation and Dissolution of Corporation[1] the pertinent allegations of which read: xxx 5. The situation was that since all these companies were sister companies and were operating under a unified and centralized management team, the financial requirements of one company would normally be backed up or supported by one of the available fundings from the other companies. 6. The expansion exhausted the cash availability of Nikon, NKI, and 2000 because those fundings were absorbed by the requirements of NPI and EYCO Properties, Inc. which were placed on real estate investments. However, at the time that those investments and expansions were made, there was no cause for alarm because the market situation was very bright and very promising, hence, the decision of the management to implement the expansion. 7. The situation resulted in the cash position being spread thin. However, despite the thin cash positioning, the management still was very positive and saw a very viable proposition since the expansion and the additional investments would result in a

bigger real estate base which would be very credible collateral for further expansions. It was envisioned that in the end, there would be bigger cash procurement which would result in greater volume of production, profitability and other good results based on the expectations and projections of the team itself. 8. Unfortunately, factors beyond the control and anticipation of the management came into play which caught the petitioners flat-footed, such as: a) The glut in the real estate market which has resulted in the bubble economy for the real estate demand which right now has resulted in a severe slow down in the sales of properties; b) The economic interplay consisting of the inflation and the erratic changes in the pesodollar exchange rate which precipitated a soaring banking interest. c) Labor problems that has precipitated adverse company effect on the media and in the financial circuit. d) Liberalization of the industry (GATT) which has resulted in flooding the market with imported goods; e) Other related adverse matters. 9. The inability of the EYCO Group of Companies to meet the obligations as they fall due on the schedule agreed with the bank has now become a stark reality. The situation therefore is that since the obligations would not be met within the scheduled due date, complications and problems would definitely arise that would impair and affect the operations of the entire conglomerate comprising the EYCO Group of Companies. xxx 12. By virtue of this development, there is a need for suspension of all accounts o[r] obligations incurred by the petitioners in their separate and combined capacities in the meantime that they are working for the rehabilitation of the companies that would eventually redound to the benefit of these creditors. 13. The foregoing notwithstanding, however, the present combined financial condition of the petitioners clearly indicates that their assets are more than enough to pay off the credits. x x x (Emphasis and underscoring supplied)[2] On September 19, 1997, the SEC issued an Order [3] the pertinent portions of which read: xxx It appearing that the petition is sufficient in form and substance, the corporate petitioners prayer for the creation of management or receivership committee and creditors approval of t he proposed Rehabilitation Plan ishereby set for hearing on October 22, 1997 at 2:00 oclock in the afternoon at the SICD, SEC Bldg., EDSA, Greenhills, Mandaluyong City. xxx Finally, the petitioners are hereby enjoined from disposing any and all of their properties in any manner, whatsoever, except in the ordinary course of business and from making any payment outside of the legitimate business expenses during the pendency of the proceedings and as a consequence of the filing of the Petition, all actions, claims and proceedings against herein petitioners pending before any court, tribunal, office board and/or commission are deemed SUSPENDED until further orders from this Hearing Panel pursuant to the rulings of the Supreme Court in the cases of RCBC v. IAC et al., 213 SCRA 830 and BPI v. CA, 229 SCRA 223. (Underscoring supplied) And on September 30, 1997, the SEC issued an Order [4] approving the creation of an interim receiver for the EYCO Group of Companies. On October 10, 1997, the EYCO Group of Companies issued to its employees the following Memorandum: [5] This is to formally announce the entry of the Interim Receiver Group represented by SGV from today until October 22, 1997 or until further formal notice from the SEC. This interim receiver groups function is to make sure that all assets of the company are secured and accounted for both for the protection of us and our creditors. Their function will involve familiarization with the different processes and controls in our organization & keeping physical track of our assets like inventories and machineries. Anything that would be required from you would need to be in writing and duly approved by the top management in order for us to maintain a clear line. We trust that this temporary inconvenience will benefit all of us in the spirit of goodwill. Lets extend our full cooperatio n to them. Thank you. (Underscoring supplied) On October 22, 1997, the Assistant Personnel Manager of CLARION informed Miclat by telephone that her employment contract had been terminated effective October 23, 1997. No reason was given for the termination. The following day or on October 23, 1997, on reporting for work, Miclat was informed by the General Sales Manager that her termination was part of CLARIONs cost -cutting measures. On November 17, 1997, Miclat filed a complaint[6] for illegal dismissal against CLARION and Yutingco (petitioners) before the National Labor Relations Commission (NLRC). In the meantime, or on January 7, 1998, the EYCO Group of Companies issued a Memorandum [7] addressed to company managers advising them of a temporary partial shutdown of some operations of the Company commencing on January 12, 1998 up to February 28, 1998: In view of the numerous external factors such as slowdown in business and consumer demand and consistent with Art. 286 of the Revised Labor Code of the Philippines, we are constrained to go on a temporary partial shutdown of some operations of the Company. To implement this measure, please submit to my office through your local HRAD the list of those whom you will require to report for work and their specific schedules. Upon revalidation and approval of this list, all those not in the list will not receive any pay nor will it be credited against their VL. Please submit the listing no later than the morning of Friday, January 09, 1998.

Shutdown shall commence on January 12, 1998 up to February 28, 1998, unless otherwise recalled at an earlier date. Implementation of th[ese] directives will be done through your HRAD departments. (Underscoring supplied) In her Position Paper[8] dated March 3, 1998 filed before the labor arbiter, Miclat claimed that she was never informed of the standards which would qualify her as a regular employee. She asserted, however, that she qualified as a regular employee since her immediate supervisor even submitted a written recommendation in her favor before she was terminated without just or authorized cause. Respecting the alleged financial losses cited by petitioners as basis for her termination, Miclat disputed the same, she contending that as marketing assistant tasked to receive sales calls, produce sales reports and conduct market surveys, a credible assessment on production and sales showed otherwise. In any event, Miclat claimed that assuming that her termination was necessary, the manner in which it was carried out was illegal, no written notice thereof having been served on her, and she merely learned of it only a day before it became effective. Additionally, Miclat claimed that she did not receive separation pay, 13 th month pay and salaries for October 21, 22 and 23, 1997. On the other hand, petitioners claimed that they could not be faulted for retrenching some of its employees including Miclat, they drawing attention to the EYCO Group of Companies being placed under receivership, notice of which was sent to its supervisors and rank and file employees via a Memorandum of July 21, 1997; that in the same memorandum, the EYCO Group of Companies advised them of a scheme for voluntary separation from employment with payment of severance pay; and that CLARION was only adopting the LAST IN, FIRST OUT PRINCIPLE when it terminated Miclat who was relatively new in the company. Contending that Miclats termination was made with due process, petitioners referred to the EYCO Group of Companies abovesaid July 21, 1997 Memorandum which, so they claimed, substantially complied with the notice requirement, it having been issued more than one month before Miclat was terminated on October 23, 1997. By Decision[9] of November 23, 1998, the labor arbiter found that Miclat was illegally dismissed and directed her reinstatement. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered ordering the respondent to reinstate complainant to her former or equivalent position without loss of seniority rights and benefits and to payher backwages, from the time of dismissal to actual reinstatement, proportionate 13th month pay and two (2) days salary computed as follows: a.1) Backwages 10/23/97 to 11/30/98 P6,500.00 x 13.25 months = P86,125.00 a.2) Proportionate 13th month pay 1/12 of P86,125 = 7,177.08 b) 13th month pay - 1997 =P6,500 x 9.75 months/12 = 5,281.25 c) Two days salary =P6,500/26 x 2 days = 500.00 TOTAL P 99,083.33 (Emphasis and underscoring supplied). Before the National Labor Relations Commission (NLRC) to which petitioners appealed, they argued that:[10] 1. [CLARION] was placed under receivership thereby evidencing the fact that it sustained business losses to warrant the termination of [Miclat] from her employment. 2. The dismissal of [Miclat] from her employment having been effected in accordance with the law and in good faith, [Miclat] does not deserve to be reinstated and paid backwages, 13 th month pay and two (2) days salary. And petitioners pointed out that CLARION had expressed its decision to shutdown its operations by Memorandum [11] of January 7, 1998 to its company managers. Appended to petitioners appeal before the NLRC were photocopies of their balance sheets from 1997 to November 1998 which they claimed to unanimously show that x x x [petitioner] company experienced business reverses which were made the basis x x x in retrenching x x x.[12] By Resolution[13] of June 17, 1999, the NLRC affirmed the labor arbiters decision. The pertinent portion of the NLRC Resolution reads: There are three (3) valid requisites for valid retrenchment: (1) the retrenchment is necessary to prevent losses and such losses are proven; (2) written notices to the employees and to the Department of Labor and Employment at least one (1) month prior to the intended date of retrenchment; and (3) payment of separation pay equivalent to one (1) month pay or at least month pay for every year of service, whichever is higher. The two notices are mandatory. If the notice to the workers is later than the notices sent to DOLE, the date of termination should be at least one month from the date of notice to the workers. In Lopez Sugar Corporation v. Federation of Free Workers Philippine Labor Union Association (PLUA-NACUSIP) and National Labor Relations Commission, the Supreme Court had the occasion to set forth four standards which would justify retrenchment, being, firstly, - the losses expected should be substantial and not merely de minimis in extent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bona fide nature of the retrenchment would appear to be seriously in question; secondly, - the substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. There should, in other words, be a certain degree of urgency for the retrenchment, which is after all a drastic course with serious consequences for the livelihood of the employees retired or otherwise laid-off; thirdly, - because of the consequential nature of retrenchment, it must be reasonably necessary and likely to effectively prevent the expected losses. The employer should have taken other measures prior or parallel to retrenchment to forestall losses, i.e., cut other cost than labor costs; and lastly, - the alleged losses if already realized and the expected imminent losses sought to be forestalled, must be proven by sufficient and convincing evidence.

The records show that these requirements were not substantially complied with. And proofs presented by respondents-appellants were short of being sufficient and convincing to justify valid retrenchment. Their position must therefore fail. The reason is simple. Evidences on record presented fall short of the requirement of substantial, sufficient and convincing evidence to persuade this Commission to declare the validity of retrenchment espoused by respondents-appellants. The petition before the Securit[ies] and Exchange Commission for suspension of payment does not prove anything to come within the bounds of justifying retrenchment. In fact, the petition itself lends credence to the fact that retrenchment was not actually reinstated under the circumstances prevailing when it stated, The foregoing notwithstanding, however, the present combined financial condition of the petitioners clearly indicates that their assets are more than enough to pay off the credits. Verily, reading further into the petition, We are not ready to disregard the fact that the petition merely seeks to suspend payments of their obligation from creditor banks and other financing institutions, and not because of imminent substantial financial loss. On this account, We take note of paragraph 7 of the petition which stated: The situation resulted in cash position being spread thin. However, despite the thin cash positioning, the management was very positive and saw a very viable proposition since the expansion and the additional investments would result in a bigger real estate base which would be a very credible collateral for further expansions. It was envisioned that in the end, there would a bigger cash procurement which would result in greater volume of production, profitability and other good results based on the expectations and projections of the team itself. Admittedly, this does not create a picture of retrenchable business atmosphere pursuant to Article 283 of the Labor Code. We cannot disregard the fact that respondent-appellants failed in almost all of the criteria set by law and jurisprudence in justifying valid retrenchment. The two (2) mandatory notices were violated . The supposed notice to the DOLE (Annex 4, List of Employees on Shutdown) is of no moment, the same having no bearing in this case. Herein complainant-appellee was not even listed therein and the date of receipt by DOLE, that is, January 18, 1999, was way out of time in relation to this case. And no proof was adduced to evidence cost cutting measures, to say the least. Nor was there proof shown that separation pay had been awarded to complainant-appellee. WHEREFORE, premises considered, and finding no grave abuse of discretion on the findings of Labor Arbiter Nieves V. De Castro, the appeal is DENIED for lack of merit. The decision appealed from is AFFIRMED in toto. (Italics in the original; underscoring supplied; citations omitted) Petitioners Motion for Reconsideration of the NLRC resolution having bee n denied by Resolution[14] of July 29, 1999, petitioners filed a petition for certiorari[15] before the Court of Appeals (CA) raising the following arguments: 1. PETITIONER CLARION WAS PLACED UNDER RECEIVERSHIP THEREBY EVIDENCING THE FACT THAT IT SUSTAINED BUSINESS LOSSES TO WARRANT THE TERMINATION OF PRIVATE RESPONDENT MICLAT FROM HER EMPLOYMENT. 2. THE DISMISSAL OF PRIVATE RESPONDENT MICLAT FROM HER EMPLOYMENT HAVING BEEN EFFECTED IN ACCORDANCE WITH THE LAW AND IN GOOD FAITH, PRIVATE RESPONDENT DOES NOT DESERVE TO BE REINSTATED AND PAID BACKWAGES, 13 TH MONTH PAY AND TWO (2) DAYS SALARY. (Underscoring supplied) By Decision[16] of November 24, 2000, the CA sustained the resolutions of the NLRC in this wise: In the instant case, Clarion failed to prove its ground for retrenchment as well as compliance with the mandated procedure of furnishing the employee and the Department of Labor and Employment (hereafter, DOLE) with one (1) month written notice and payment of separation pay to the employee. Clarions failure to discharge its burden of proof is evident from the following instances: First, Clarion presented no evidence whatsoever before the Labor Arbiter. To prove serious business losses, Clarion presented its 1997 and 1998 financial statements and the SEC Order for the Creation of an Interim Receiver, for the first time on appeal before the NLRC. The Supreme Court has consistently disallowed such practice unless the party making the belated submission of evidence had satisfactorily explained the delay. In the instant case, said financial statements are not admissible in evidence due to Clarions failure to explain the delay. Second, even if such financial statements were admitted in evidence, they would not alter the outcome of the case as statements have weak probative value. The required method of proof in such case is the presentation of financial statements prepared by independent auditors and not merely by company accountants. Again, petitioner failed in this regard. Third, even audited financial statements are not enough. The employer must present the statement for the year immediately preceding the year the employee was retrenched, which Clarion failed to do in the instant case, to prove not only the fact of business losses but more importantly, the fact that such losses were substantial, continuing and without immediate prospect of abatement. Hence, neither the NLRC nor the courts must blindly accept such audited financial statements. They must examine and make inferences from the data presented to establish business losses. Furthermore, they must be cautioned by the fact that sliding incomes or decreasing gross revenues alone are not necessarily business losses within the meaning of Art. 283 since in the nature of things, the possibility of incurring losses is constantly present in business operations. Last, even if business losses were indeed sufficiently proven, the employer must still prove that retrenchment was resorted to only after less drastic measures such as the reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiency, reduction of marketing and advertising costs, faster collection of customer accounts, reduction of raw materials investment and others, have been tried and found wanting. Again, petitioner failed to prove the exhaustion of less drastic measures short of retrenchment as it had failed with the other requisites. It is interesting to note that Miclat started as a probationary employee on 21 April 1997. There being no stipulation to the contrary, her probation period had a duration of six (6) months from her date of employment. Thus,after the end of the probation period on 22 October 1997, she became a regular employee as of 23 October 1997 since she was allowed to work after the end of said period. It is also clear that her probationary employment was not terminated at the end of the probation period on the ground that the employee failed to qualify in accordance with reasonable standards made known to her at the time of engagement. However, 23 October 1997 was also the day of Miclats termination from employment on the ground of retrenchment. Thus, we have a bizarre situation when the first day of an employees regular employment was also t he day of her

termination. However, this is entirely possible, as had in fact happened in the instant case, where the employers basis for termination is Art. 288, instead of Art. 281 of the Labor Code. If petitioner terminated Miclat with Art. 281 in mind, it would have been too late to present such theory at this stage and it would have been equally devastating for petitioner had it done so because no evidence exists to show that Miclat failed to qualify with petitioners standards for regularization. Fai lure to discharge its burden of proof would still be petitioners undoing. Whichever way We examine the case, the conclusion is the same Miclat was illegally dismissed. Consequently, reinstatement without loss of seniority rights and full backwages from date of dismissal on 23 October 1997 until actual reinstatement is in order. WHEREFORE, the instant petition is hereby DISMISSED and the 29 July 1999 and 7 June 1999 resolutions of the NLRC are SUSTAINED. (Emphasis and underscoring supplied) By Resolution[17] of May 23, 2001, the CA denied petitioners motion for reconsideration of the decision. Hence, the present petition for review on certiorari, petitioners contending that: WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE ASSAILED DECISIONS OF HONORABLE PUBLIC RESPONDENT COMMISSION: A. HOLDING THAT PRIVATE RESPONDENT MICLAT WAS ILLEGALLY DISMISSED; and B. ORDERING THE REINSTATEMENT OF PRIVATE RESPONDENT MICLAT TO HER FORMER OR EQUIVALENT POSITION WITHOUT LOSS OF SENIORITY RIGHTS AND BENEFITS AND PAYMENT OF BACKWAGES, 1[3]TH MONTH PAY AND TWO (2) DAYS SALARY.[18] Petitioners argue that the conclusion of the CA that no sufficient proof of financial losses on the part of CLARION was adduced is patently erroneous, given the serious business reverses it had gravely suffered as reflected in its financial statements/balance sheets, thereby leaving as its only option the retrenchment of its employees including Miclat. [19] Petitioners further argue that when a company is under receivership and a receiver is appointed to take control of its management and corporate affairs, one of the evident reasons is to prevent further losses of said company and protect its remaining assets from being dissipated; and that the submission of financial reports/statements prepared by independent auditors had been rendered moot and academic, the company having shutdown its operations and having been placed under receivership by the SEC due to its inability to pay or comply with its obligations.[20] Respecting the CAs holding that the financial statements CLARION submitted for the first time on appeal before the NLRC are inadmissible in evidence due to its failure to explain the delay in the submission thereof, petitioners lament the CAs failure to consider that technical rules on evidence prevailing in the courts are not controlling in proceedings before the NLRC which may consider evidence such as documents and affidavits submitted by the parties for the first time on appeal. [21] As to the CAs holding that CLARION failed to prove the e xhaustion of less drastic measures short of retrenching, petitioners advance that prior to the termination of Miclat, CLARION, together with the other companies under the EYCO Group of Companies, was placed under receivership during which drastic measures to continue business operations of the company and eventually rehabilitate itself were implemented.[22] Denying Miclats entitlement to backwages, petitioners proffer that her dismissal rested upon a valid and authorized cause. And petitioners assail as grossly erroneous the award of 13 thmonth pay to Miclat, she not having sought it and, therefore, there was no jurisdiction to award the same.[23] The petition is partly meritorious. Contrary to the CAs ruling, petitioners could present evidence for the first time on appeal to the NLRC. It is well -settled that the NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not binding in labor cases. The settled rule is that the NLRC is not precluded from receiving evidence on appeal as technical rules of evidence are not binding in labor cases. In fact, labor officials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. Thus, in Lawin Security Services v. NLRC, andBristol Laboratories Employees Association-DFA v. NLRC, we held that even if the evidence was not submitted to the labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal. Certainly, the first course of action would be more consistent with equity and the basic notions of fairness. (Italics in the original; citations omitted)[24] It is likewise well-settled that for retrenchment to be justified, any claim of actual or potential business losses must satisfy the following standards: (1) the losses are substantial and not de minimis; (2) the losses are actual or reasonably imminent; (3) the retrenchment is reasonably necessary and is likely to be effective in preventing expected losses; and (4) the alleged losses, if already incurred, or the expected imminent losses sought to be forestalled, are proven by sufficient and convincing evidence.[25] And it is the employer who has the onus of proving the presence of these standards. Sections 5 and 6 of Presidential Decree No. 902-A (P.D. 902-A) (REORGANIZATION OF THE SECURITIES AND EXCHANGE COMMISSION WITH ADDITIONAL POWERS AND PLACING SAID AGENCY UNDER THE ADMINISTRATIVE SUPERVISION OF THE OFFICE OF THE PRESIDENT),[26] as amended, read: SEC. 5 In addition to the regulatory and adjudicative functions of THE SECURITIES AND EXCHANGE COMMISSION over corporations, partnerships and other forms of associations registered with it as expressly granted under existing laws and decrees, it shall have original and exclusive jurisdiction to hear and decide cases involving: xxx (d) Petitions of corporations, partnerships or associations declared in the state of suspension of payments in cases where the corporation, partnership or association possesses sufficient property to cover all debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership, association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee created pursuant to this Decree.

SEC. 6. In order to effectively exercise such jurisdiction, the Commission shall possess the following powers: xxx (c) To appoint one or more receivers of the property, real and personal, which is the subject of the action pending before the Commission in accordance with the provisions of the Rules of Court in such other cases whenever necessary in order to preserve the rights of the parties-litigants and/or protect the interest of the investing public and creditors: Provided, however, That the Commission may in appropriate cases, appoint a rehabilitation receiver of corporations, partnerships or other associations not supervised or regulated by other government agencies who shall have, in addition to powers of the regular receiver under the provisions of the Rules of Court, such functions and powers as are provided for in the succeeding paragraph (d) hereof: x x x (d) To create and appoint a management committee, board or body upon petition or motu propio to undertake the management of corporations, partnership or other associations not supervised or regulated by other government agencies in appropriate cases when there is imminent danger of dissipation, loss, wastage or destruction of assets or other properties or paralization of business operations of such corporations or entities which may be prejudicial to the interest of minority stockholders, parties-litigants of the general public: x x x (Emphasis and underscoring supplied). From the above-quoted provisions of P.D. No. 902-A, as amended, the appointment of a receiver or management committee by the SEC presupposes a finding that, inter alia, a company possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due and there is imminent danger of dissipation, loss, wastage or destruction of assets of other properties or paralization of business operations. That the SEC, mandated by law to have regulatory functions over corporations, partnerships or associations,[27] appointed an interim receiver for the EYCO Group of Companies on its petition in light of, as quoted above, the ther ein enumerated factors beyond the control and anticipation of the management rendering it unable to meet its obligation as they fall due, and thus resulting to complications and problems . . . to arise that would impair and affect [its] operations . . . shows that CLARION, together with the other member-companies of the EYCO Group of Companies, was suffering business reverses justifying, among other things, the retrenchment of its employees. This Court in fact takes judicial notice of the Decision[28] of the Court of Appeals dated June 11, 2000 in CA-G.R. SP No. 55208, Nikon Industrial Corp., Nikolite Industrial Corp., et al.[including CLARION], otherwise known as the EYCO Group of Companies v. Philippine National Bank, Solidbank Corporation, et al., collectively known and referred as the Consortium of Creditor Banks, which was elevated to this Court via Petition for Certiorari and docketed as G.R. No. 145977, but which petition this Court dismissed by Resolution dated May 3, 2005: Considering the joint manifestation and motion to dismiss of petitioners and respondents dated February 24, 2003, stating that the parties have reached a final and comprehensive settlement of all the claims and counterclaims subject matter of the case and accordingly, agreed to the dismissal of the petition for certiorari, the Court Resolved to DISMISS the petition for certiorari (Underscoring supplied). The parties in G.R. No. 145977 having sought, and this Court having granted, the dismissal of the appeal of the therein petitioners including CLARION, the CA decision which affirmed in totothe September 14, 1999 Order of the SEC, the dispositive portion of which SEC Order reads: WHEREFORE, premises considered, the appeal is as it is hereby, granted and the Order dated 18 December 1998 is set aside. The Petition to be Declared in State of Suspension of payments is hereby disapproved and the SAC Plan terminated. Consequently, all committee, conservator/ receivers created pursuant to said Order are dissolved and discharged and all acts and orders issued therein are vacated. The Commission, likewise, orders the liquidation and dissolution of the appellee corporations. The case is hereby remanded to the hearing panel below for that purpose. x x x (Emphasis and underscoring supplied), has now become final and executory. Ergo, the SECs disapproval of the EYCO Group of Companies Petition for the Declaration of Suspension of Payment . . . and the order for the liquidation and dissolution of these companies including CLARION, must be deemed to have been unassailed. That judicial notice can be taken of the above-said case of Nikon Industrial Corp. et al. v. PNB et al., there should be no doubt. As provided in Section 1, Rule 129 of the Rules of Court: SECTION 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicialdepartments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (Emphasis and underscoring supplied) which Mr. Justice Edgardo L. Paras interpreted as follows: A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court. In addition judicial notice will be taken of the record, pleadings or judgment of a case in another court between the same parties or involving one of the same parties, as well as of the record of another case between different parties in the same court. Judicial notice will also be taken of court personnel. (Emphasis and underscoring supplied)[29] In fine, CLARIONs claim that at the time it terminated Miclat it was experiencing business reverses gains more light from the SECs disapproval of the EYCO Group of Companies petition to be declared in state of suspension of payment , filed before Miclats termination, and of the SECs consequent order for the group of companies dissolution and liquidation.

This Courts finding that Miclats termination was justified notwithstanding, since at the time she was hired on probationary basis she was not informed of the standards that would qualify her as a regular employee, under Section 6, Rule I of the Implementing Rules of Book VI of the Labor Code which reads: SEC. 6. Probationary employment. There is probationary employment where the employee, upon his engagement, is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement. Probationary employment shall be governed by the following rules: xxx (d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee (Emphasis and underscoring supplied), she was deemed to have been hired from day one as a regular employee. [30] CLARION, however, failed to comply with the notice requirement provided for in Article 283 of the Labor Code, to wit: ART. 283. CLOSURE OF ESTABLISHMENT AND REDUCTION OF PERSONNEL. The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy,retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. x x x (Emphasis and underscoring supplied) This Court thus deems it proper to award the amount equivalent to Miclats one (1) month salary of P6,500.00 as nominal damages to deter employers from future violations of the statutory due process rights of employees. [31] Since Article 283 of the Labor Code also provides that [i] n case of retrenchment to prevent losses, . . . the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. . . , [a] fraction of at least six (6) months [being] considere d one (1) whole year, this Court holds that Miclat is entitled to separation pay equivalent to one (1) month salary. As to Miclats entitlement to 13th month pay, paragraph 6 of the Revised Guidelines on the 13 th Month Pay Law provides: 6. 13th Month Pay of Resigned or Separated Employee An employee x x x whose services were terminated any time before the time for payment of the 13 th month pay is entitled to this monetary benefit in proportion to the length of time he worked during the calendar year up to the time of his resignation or termination from the service. Thus if he worked only from January up to September his proportionate 13 th month pay shall be equivalent to 1/12 of his total basic salary he earned during that period. xxx Having worked at CLARION for six months, Miclats 13th month pay should be computed as follows: (Monthly Salary x 6 ) / 12 = Proportionate 13 th month pay (P6,500.00 x 6) / 12 = P3,250.00 With the appointment of a management receiver in September 1997, however, all claims and proceedings against CLARION, including labor claims,[32] were deemed suspended during the existence of the receivership. [33] The labor arbiter, the NLRC, as well as the CA should not have proceeded to resolve respondents complaint for illegal dismissal and should instead have directed respondent to lodge her claim before the then duly-appointed receiver of CLARION. To still require respondent, however, at this time to refile her labor claim against CLARION under the peculiar circumstances of the case that 8 years have lapsed since her termination and that all the arguments and defenses of both parties were already ventilated before the labor arbiter, NLRC and the CA; and that CLARION is already in the course of liquidation this Court deems it most expedient and advantageous for both parties that CLARIONs liability be determined with finality, instead of still requiring respondent to lodge her claim at this time before the liquidators of CLARION which would just entail a mere reiteration of what has been already argued and pleaded. Furthermore, it would be in the best interest of the other creditors of CLARION that claims against the company be finally settled and determined so as to further expedite the liquidation proceedings. For the lesser number of claims to be proved, the sooner the claims of all creditors of CLARION are processed and settled. WHEREFORE, the Court of Appeals November 24, 2000 Decision, together with its May 23, 2001 Resolution, is SET ASIDE and another rendered declaring the legality of the dismissal of respondent, Michelle Miclat. Petitioners are ORDERED, however, to PAY her the following in accordance with the foregoing discussions: 1) P6,500.00 as nominal damages for non-compliance with statutory due process; 2) P6,500.00 as separation pay; and 3) P3,250.00 as 13th month pay. Let a copy of this Decision be furnished the SEC Hearing Panel charged with the liquidation and dissolution of petitioner corporation for inclusion, in the list of claims of its creditors, respondent Michelle Miclats claims, to be satisfied in ac cordance with Article 110 of the Labor Code in relation to the Civil Code provisions on Concurrence and Preference of Credits. Costs against petitioners. SO ORDERED.

SECOND DIVISION [G.R. No. 153660. June 10, 2003] PRUDENCIO BANTOLINO, NESTOR ROMERO, NILO ESPINA, EDDIE LADICA, ARMAN QUELING, ROLANDO NIETO, RICARDO BARTOLOME, ELUVER GARCIA, EDUARDO GARCIA and NELSON MANALASTAS, petitioners, vs. COCA-COLA BOTTLERS PHILS., INC., respondent. DECISION BELLOSILLO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision of the Court of Appeals[1] dated 21 December 2001 which affirmed with modification the decision of the National Labor Relations Commission promulgated 30 March 2001.[2] On 15 February 1995 sixty-two (62) employees of respondent Coca-Cola Bottlers, Inc., and its officers, Lipercon Services, Inc., Peoples Specialist Services, Inc., and Interim Services, Inc., filed a complaint against respondents for unfair labor practice through illegal dismissal, violation of their security of tenure and the perpet uation of the Cabo System. They thus prayed for reinstatement with full back wages, and the declaration of their regular employment status. For failure to prosecute as they failed to either attend the scheduled mandatory conferences or submit their respective affidavits, the claims of fifty-two (52) complainant-employees were dismissed. Thereafter, Labor Arbiter Jose De Vera conducted clarificatory hearings to elicit information from the ten (10) remaining complainants (petitioners herein) relative to their alleged employment with respondent firm. In substance, the complainants averred that in the performance of their duties as route helpers, bottle segregators, and others, they were employees of respondent Coca-Cola Bottlers, Inc. They further maintained that when respondent company replaced them and prevented them from entering the company premises, they were deemed to have been illegally dismissed. In lieu of a position paper, respondent company filed a motion to dismiss complaint for lack of jurisdiction and cause of action, there being no employer-employee relationship between complainants and Coca-Cola Bottlers, Inc., and that respondents Lipercon Services, Peoples Specialist Services and Interim Services being bona fide independent contractors, were the real employers of the complainants.[3] As regards the corporate officers, respondent insisted that they could not be faulted and be held liable for damages as they only acted in their official capacities while performing their respective duties. On 29 May 1998 Labor Arbiter Jose De Vera rendered a decision ordering respondent company to reinstate complainants to their former positions with all the rights, privileges and benefits due regular employees, and to pay their full back wages which, with the exception of Prudencio Bantolino whose back wages must be computed upon proof of his dismissal as of 31 May 1998, already amounted to an aggregate of P1,810,244.00. [4] In finding for the complainants, the Labor Arbiter ruled that in contrast with the negative declarations of respondent companys witnesses who, as district sales supervisors of respondent company denied knowing the complainants personally, the testimonies of the complainants were more credible as they sufficiently supplied every detail of their employment, specifically identifying who their salesmen/drivers were, their places of assignment, aside from their dates of engagement and dismissal. On appeal, the NLRC sustained the finding of the Labor Arbiter that there was indeed an employer-employee relationship between the complainants and respondent company when it affirmed in toto the latters decision. In a resolution dated 17 July 2001 the NLRC subsequently denied for lack of merit respondents motion for consideration. Respondent Coca-Cola Bottlers appealed to the Court of Appeals which, although affirming the finding of the NLRC that an employer-employee relationship existed between the contending parties, nonetheless agreed with respondent that the affidavits of some of the complainants, namely, Prudencio Bantolino, Nestor Romero, Nilo Espina, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and Nelson Manalastas, should not have been given probative value for their failure to affirm the contents thereof and to undergo cross-examination. As a consequence, the appellate court dismissed their complaints for lack of sufficient

evidence. In the same Decision however, complainants Eddie Ladica, Arman Queling and Rolando Nieto were declared regular employees since they were the only ones subjected to cross-examination.[5] Thus x x x (T)he labor arbiter conducted clarificatory hearings to ferret out the truth between the opposing claims of the parties thereto. He did not submit the case based on position papers and their accompanying documentary evidence as a full-blown trial was imperative to establish the parties claims. As their allegations were poles apart, it was necessary to give them ample opportunity to rebut each others statements through cross-examination. In fact, private respondents Ladica, Quelling and Nieto were subjected to rigid cross-examination by petitioners counsel. However, the testimonies of private respondents Ro mero, Espina, and Bantolino were not subjected to cross-examination, as should have been the case, and no explanation was offered by them or by the labor arbiter as to why this was dispensed with. Since they were represented by counsel, the latter should have taken steps so as not to squander their testimonies. But nothing was done by their counsel to that effect. [6] Petitioners now pray for relief from the adverse Decision of the Court of Appeals; that, instead, the favorable judgment of the NLRC be reinstated. In essence, petitioners argue that the Court of Appeals should not have given weight to respondents claim of failure to cross-examine them. They insist that, unlike regular courts, labor cases are decided based merely on the parties position papers and affidavits in support of their allegations and subsequent pleadings that may be filed thereto. As such, according to petitioners, the Rules of Court should not be strictly applied in this case specifically by putting them on the witness stand to be crossexamined because the NLRC has its own rules of procedure which were applied by the Labor Arbiter in coming up with a decision in their favor. In its disavowal of liability, respondent commented that since the other alleged affiants were not presented in court to affirm their statements, much less to be cross-examined, their affidavits should, as the Court of Appeals rightly held, be stricken off the records for being self-serving, hearsay and inadmissible in evidence. With respect to Nestor Romero, respondent points out that he should not have been impleaded in the instant petition since he already voluntarily executed a Compromise Agreement, Waiver and Quitclaim in consideration of P450,000.00. Finally, respondent argues that the instant petition should be dismissed in view of the failure of petitioners[7] to sign the petition as well as the verification and certification of non-forum shopping, in clear violation of the principle laid down in Loquias v. Office of the Ombudsman.[8] The crux of the controversy revolves around the propriety of giving evidentiary value to the affidavits despite the failure of the affiants to affirm their contents and undergo the test of cross-examination. The petition is impressed with merit. The issue confronting the Court is not without precedent in jurisprudence. The oft-cited case of Rabago v. NLRC[9] squarely grapples a similar challenge involving the propriety of the use of affidavits without the presentation of affiants for cross-examination. In that case, we held that the argument that the affidavit is hearsay because the affiants were not presented for cross-examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only. In Rase v. NLRC,[10] this Court likewise sidelined a similar challenge when it ruled that it was not necessary for the affiants to appear and testify and be cross-examined by counsel for the adverse party. To require otherwise would be to negate the rationale and purpose of the summary nature of the proceedings mandated by the Rules and to make mandatory the application of the technical rules of evidence. Southern Cotabato Dev. and Construction Co. v. NLRC [11] succinctly states that under Art. 221 of the Labor Code, the rules of evidence prevailing in courts of law do not control proceedings before the Labor Arbiter and the NLRC. Further, it notes that the Labor Arbiter and the NLRC are authorized to adopt reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law and procedure, all in the interest of due process. We find no compelling reason to deviate therefrom. To reiterate, administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect. The submission by respondent, citing People v. Sorrel,[12] that an affidavit not testified to in a trial, is mere hearsay evidence and has no real evidentiary value, cannot find relevance in the present case considering that a criminal prosecution requires a quantum of evidence different from that of an administrative proceeding. Under the Rules of the Commission, the Labor Arbiter is given the discretion to determine the necessity of a formal trial or hearing. Hence, trial-type hearings are not even required as the cases may be decided based on verified position papers, with supporting documents and their affidavits. As to whether petitioner Nestor Romero should be properly impleaded in the instant case, we only need to follow the doctrinal guidance set by Periquet v. NLRC[13] which outlines the parameters for valid compromise agreements, waivers and quitclaims Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. In closely examining the subject agreements, we find that on their face the Compromise Agreement[14] and Release, Waiver and Quitclaim[15] are devoid of any palpable inequity as the terms of settlement therein are fair and just. Neither can we glean from the records any attempt by the parties to renege on their contractual agreements, or to disavow or disown their due execution. Consequently, the same must be recognized as valid and binding transactions and, accordingly, the instant case should be dismissed and finally terminated insofar as concerns petitioner Nestor Romero. We cannot likewise accommodate respondents contention that the failure of all the petitioners to sign the petition as well a s the Verification and Certification of Non-Forum Shopping in contravention of Sec. 5, Rule 7, of the Rules of Court will cause the

dismissal of the present appeal. While the Loquias case requires the strict observance of the Rules, it however provides an escape hatch for the transgressor to avoid the harsh consequences of non-observance. Thus x x x x We find that substantial compliance will not suffice in a matter involving strict observance of the rules. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. Petitioners must show reasonable cause for failure to personally sign the certification. Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction(underscoring supplied). In their Ex Parte Motion to Litigate as Pauper Litigants, petitioners made a request for a fifteen (15)-day extension, i.e., from 24 April 2002 to 8 May 2002, within which to file their petition for review in view of the absence of a counsel to represent them.[16] The records also reveal that it was only on 10 July 2002 that Atty. Arnold Cacho, through the UST Legal Aid Clinic, made his formal entry of appearance as counsel for herein petitioners. Clearly, at the time the instant petition was filed on 7 May 2002 petitioners were not yet represented by counsel. Surely, petitioners who are non-lawyers could not be faulted for the procedural lapse since they could not be expected to be conversant with the nuances of the law, much less knowledgeable with the esoteric technicalities of procedure. For this reason alone, the procedural infirmity in the filing of the present petition may be overlooked and should not be taken against petitioners. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the NLRC dated 30 March 2001 which affirmed in totothe decision of the Labor Arbiter dated 29 May 1998 ordering respondent Coca-Cola Bottlers Phils., Inc., to reinstate Prudencio Bantolino, Nilo Espina, Eddie Ladica, Arman Queling, Rolando Nieto, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and Nelson Manalastas to their former positions as regular employees, and to pay them their full back wages, with the exception of Prudencio Bantolino whose back wages are yet to be computed upon proof of his dismissal, is REINSTATED, with the MODIFICATION that herein petition is DENIED insofar as it concerns Nestor Romero who entered into a valid and binding Compromise Agreement and Release, Waiver and Quitclaim with respondent company. SO ORDERED.

EN BANC

EUGENIO R. AVENIDO, Petitioner,

G. R. No . 1 7 7 6 6 6 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA,* CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, DE CASTRO, and BRION, JJ. Promulgated:

- versus -

CIVIL SERVICE COMMISSION, R esp o nd e n t.

Promulgated:

April 30, 2008 x---------------------------- ---------------------x

DECISION

PER CURIAM

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision dated 18 January 2007, rendered by the Court of Appeals in C.A. G.R. SP No. 93210, [1] affirming the Resolution[2] dated 6 August 2004, issued by the Civil Service Commission (CSC), finding petitioner Eugenio Avenido guilty of Dishonesty and Conduct Prejudicial to the Best Interest of the Service, which warranted his dismissal. While petitioner was employed as an Administrative Officer at the National Telecommunications Commission (NTC), he was approached by a town mate, Pablo Daz (Daz), who was a representative of Animus International Inc. (Animus International), a corporation engaged in the business of importing mobile telephone units and Subscriber Identity Module (SIM) cards. During this visit from Daz, petitioner personally prepared an Order of Payment for a Permit to Import Cellular Phones in favor of Animus International. Thereafter, petitioner accompanied Daz to the office of Marcelo M. Bunag, Jr. (Bunag), the acting assessor and processor of the Amateur, Dealer and Manufacturer Service of the NTC licensing unit. Since petitioner formerly served as an assessor, and is now Bunags superior, Bunag relied on petitioners judgment and approved the Order of Payment prepared by th e petitioner, which by itself, appeared regular. Petitioner then personally delivered the Order of Payment, together with the payment for the assessed fees of Two Hundred Forty Pesos (P240.00), to the Cashier. Ivy Daban (Daban), Clerk I and acting cashier, received the payment and issued an Official Receipt for the Permit to Import Cellular Phones. [3] In a facsimile letter dated 21 February 2001, Fernandino A. Tuazon, the Officer-in-Charge of the Customs Intelligence and Investigation Service of the Bureau of Customs, sought verification from Onofre de Galindo (Galindo), the Chief of Equipment Standards Division, NTC-NCR, whether Animus International was authorized to import Motorola cellular phones in commercial qualities. Attached to the said letter was a copy of the Permit to Import, which appears to have been signed by petitioner with the title ECE, Attorney III. After examining the records of the NTC-NCR, Galindo discovered that Animus International was not an accredited distributors supplier of Motorola Philippines.[4] Further investigation conducted by Arnold P. Barcelona (Barcelona), Engineer V and Chief of the Enforcement & Monitoring Section of the NTC, showed that Animus International did not even file any application for a Permit to Import, an important requisite before the preparation of an Order of Payment and the issuance of a Permit to Import. Animus International, however, was able to import approximately P40,000,000.00 worth of cellular phone SIM cards. Bunag and Barcelona confronted the petitioner regarding the irregularity of the issuance of the Permit to Import in favor of Animus International. Thereafter, Bunag filed an administrative complaint against petitioner.[5] On 6 April 2001, the NTC issued a Show Cause Order,[6] wherein the above-mentioned incidents were recounted in detail, and petitioner was formally charged with Dishonesty, Usurpation of Official Function and Falsification of Public Document. During the formal investigation conducted by the NTC, petitioner was given an opportunity to present his defense. He submitted a certification by the National Bureau of Investigation (NBI) stating that the signature appearing in the Permit to Import was not his. Petitioner averred that the signature was forged by his town mate, Daz. He only admitted to preparing the Order of Payment for the Permit to Import and personally delivered the payment therefor to the Cashier; and he did so merely to accommodate one of his townsmate(s), an act of hospitality, which is very much characteristic of the Filipino culture. [7] In its Decision dated 23 May 2003, the NTC found petitioner liable for Conduct Grossly Prejudicial to the Best Interest of the Service. The NTC gave credence to the testimonies of Bunag and Daban. Bunag testified that petitioner prepared the Order of Payment in the name of Animus International by making the assessment of the required fees. Daban testified that, as cashier, she received from petitioner the assessment fee of P240.00. The NTC underscored the following irregularities in petitioners acts: (1) the preparation of an Order of Payment without having been presented with an application for Permit to Import and other requirements, and (2) personally delivering the Order of Payment to the Cashier, instead of turning over the documents to Bunag, who should deliver the same to the Cashier. By acting in such manner, petitioner evinced a special interest in the issuance of a Permit to Import in favor of Animus International and a lack of concern for the proper procedure imposed by the government in the issuance of permits and licenses. The NTC also took note of the unusual fact that petitioner did not take any legal action against Daz who had falsified his signature, and caused grave damage to his reputation. The NTC suspended petitioner from service for ten (10) months.[8] The dispositive part of the Decision stated that: WHEREFORE, in light of all the foregoing, the Commission finds respondent EUGENIO R. AVENIDO guilty of the lighter offense of conduct prejudicial to the best interest of service and hereby imposes upon him the penalty, for the 1st Offense, of Suspension for Ten (10) months, effective upon notice, during which period respondent shall not be entitled to all money benefits including leave credits, with a warning that a repetition of the same or similar offense shall be dealt with more severely. [9]

On appeal, the CSC affirmed the findings of the NTC in its Decision dated 23 May 2003, with modification. In its Resolution dated 6 August 2004, the CSC found petitioner guilty of Dishonesty, in addition to Conduct Grossly Prejudicial to the

Best Interest of the Service, which merits the penalty of dismissal. The CSC declared that Dishonesty involves the distortion of truth. By preparing the Order of Payment and delivering the same to the Cashier, petitioner made it appear that Animus International complied with an application for Permit to Import and other requirements; thus, petitioner acted with Dishonesty. Moreover, petitioners gross disregard for the established procedures in the issuance of a Permit to Import is unquestionably Conduct Prejudicial to the Best Interest of the Service. Lastly, the CSC pronounced that the NTC observed due process for although the Show Cause Order failed to designate any of the offenses as Conduct Prejudicial to the Best Interest of the Service, the acts described therein constituted the said offense. [10] The dispositive part of the CSC Resolution reads:[11] WHEREFORE, the appeal of Eugenio R. Avenido is hereby DISMISSED. However, the Decision of the National Telecommunications Company dated May 23, 2003 is hereby modified to the effect that Avenido is additionally found liable for Dishonesty. Thus, Eugenio R. Avenido is hereby meted out the penalty of dismissal from the service with the accessory penalties of cancellation of his Civil Service Eligibility, forfeiture of retirement benefits and perpetual disqualification from reemployment in the government service.

In the Decision dated 18 January 2007 in CA G.R. SP No. 93210, the Court of Appeals affirmed the 6 August 2004 Resolution of the CSC. It sustained the findings of the CSC that the Show Cause Order sufficiently described the irregularities committed by the petitioner, even if one of the offenses for which petitioner was found guilty, Conduct Prejudicial to the Best Interest of the Service, was not specified therein. Furthermore, the appellate court decreed that substantial evidence supports the finding that petitioner is guilty of both Dishonesty and Conduct Prejudicial to the Best Interest of the Service.[12] Petitioner filed a Motion for Reconsideration of the afore-mentioned Decision of the Court of Appeals, which was denied in a Resolution dated 24 April 2007.[13] Hence, in the present Petition, the following issues are being raised: [14] I WHETHER OR NOT THE PETITIONER WAS AFFORDED AMPLE DUE PROCESS OF LAW; II WHETHER OR NOT SUBSTANTIAL EVIDENCE OBTAINS TO SUPPORT CHARGES AGAINST THE PETITIONER. The petition is bereft of merit. Petitioner claims that he was deprived of due process of law when the NTC, thru a Show Cause Order, charged him with Dishonesty, Falsification of Public Documents and Usurpation of Authority, and then found him guilty of Conduct Prejudicial to the Best Interest of the Service, an offense which he avers is so different from the offenses with which he was earlier charged. [15] This Court has already ruled in Dadubo v. Civil Service Commission, that the designation of the offense or offenses with which a person is charged in an administrative case is not controlling and one may be found guilty of another offense, where the substance of the allegations and evidence presented sufficiently proves ones guilt: It is true that the petitioner was formally charged with conduct prejudicial to the best interest of the bank and not specifically with embezzlement. Nevertheless, the allegations and the evidence presented sufficiently proved her guilt of embezzlement of bank funds, which is unquestionably prejudicial to the best interest of the bank. The charge against the respondent in an administrative case need not be drafted with the precision of an information in a criminal prosecution. It is sufficient that he is apprised of the substance of the charge against him; what is controlling is the allegation of the acts complained of, not the designation of the offense. [16] Due process mandates that a party be afforded reasonable opportunity to be heard and to submit any evidence he may have in support of his defense. In administrative proceedings such as the one at bench, due process simply means the opportunity to explain one's side or the opportunity to seek a reconsideration of the action or ruling complained of. [17] In the instant case, petitioner was furnished a copy of the charges against him and he was able to file an answer and present evidence in his defense. Consequently, a decision was rendered by the NTC finding him guilty of an offense which was not specifically designated in the Show Cause Order, but was still based on acts that were alleged therein, specifically, making an assessment for the Order of Payment for an applicant who had not even complied with the requirements; and personally delivering the Order of Payment to the Cashier, instead of turning over the documents to the authorized officer, who should deliver the same to the Cashier. Clearly, therefore, due process was observed in this case. Acts may constitute Conduct Prejudicial to the Best Interest of the Service as long as they tarnish the image and integrity of his/her public office. The Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713) enunciates, inter alia, the State policy of promoting a high standard of ethics and utmost responsibility in the public service. Section 4(c) of the Code commands that [public officials and employees] shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest.[18] By showing undue interest in securing for Animus International a Permit to Import, even if it had not complied with

the requirements, petitioner compromised the image and integrity of his public office. Dishonesty and Conduct Prejudicial to the Best Interest of the Service are intrinsically connected since acts of dishonesty would indubitably tarnish the integrity of a public official. Petitioner asserts that the finding of guilt against him is not supported by substantial evidence. While he insists that his act of making the assessment in the Order of Payment is a commendable act of an accommodating civil servant, it was not his duty to evaluate whether Animus International was a qualified applicant for a Permit to Import. [19] Such assertion is absurd. Common sense dictates that any officer who takes it upon himself to make an assessment of the fees for the issuance of a permit or license should also take it upon himself to ensure that the applicant is qualified. To permit a government official to prepare assessments for the issuance of permits or licenses and not place upon him or her the concurrent duty of examining the requirements would not only be inefficient, but would also open the floodgates of corruption. Petitioners act of making the assessment implies that he had already examined the required documents and had found them sufficient. Bunag, the acting assessor of the licensing unit concerned, had in fact been misled by this same presumption when petitioner personally delivered to him the Order of Payment. As it turned out, Animus International had not even applied for a Permit to Import and was not an accredited dealer for Motorola, but was nevertheless able to illegally import P40,000,000.00 worth of SIM cards and Motorola cellular phones. By willfully turning a blind eye to Animus Internationals failure to comply with legal requisites and misleading his NTC colleagues, petitioner had not acted as a diligent civil servant as he claimed, but rather a dishonest and dishonorable public official. Petitioner also makes much of the findings made by the NBI that his signature in the Permit to Import was forged. Such fact, however, does not negate a finding of guilt on the part of petitioner, who himself admitted that he prepared and made the assessment in the Order of Payment without examining the documents required of Animus International. It was by his own act that left room for Animus International to perpetuate the use of a false permit. Public service requires utmost integrity and discipline. A public servant must exhibit at all times the highest sense of honesty and integrity for no less than the Constitution mandates the principle that a public office is a public trust and al l public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.[20] The Courts cannot overemphasize the need for honesty and accountability in the acts of government officials. In all, the consistent findings of the NTC, the CSC and the Court of Appeals on the petitioners guilt deserve utmost respect, where their conclusions are supported by the admissions made by petitioner, as well as the testimonies of Bunag and Daban. Well-settled in our jurisdiction is the doctrine that findings of fact of administrative agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant. The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[21] Findings of fact of administrative bodies, if based on substantial evidence, are controlling on the reviewing authority. It is not for the appellate court to substitute its own judgment for that of the administrative agency on the sufficiency of the evidence and the credibility of the witnesses. Administrative decisions on matters within their jurisdiction are entitled to respect and can only be set aside on proof of grave abuse of discretion, fraud or error of law. [22] IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the Court of Appeals in C.A.-G.R. SP No. 93210, promulgated on 18 January 2007, is AFFIRMED. Costs against the petitioner.

SO ORDERED.

THIRD DIVISION

HONORABLE OMBUDSMAN SIMEON V. MARCELO, Petitioner,

G. R. No . 1 7 5 2 0 1 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO,

- versus -

NACHURA, and REYES, JJ. L EO PO L DO F. B U N GUB UN G H O N. CO U R T O F AP P EA L S, R esp o nd e n t s. and Promulgated:

April 23, 2008 x---------------------------- -----------------x

DECISION

CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, whereby petitioner Office of the Ombudsman (Ombudsman) prays for the reversal of the Decision [1] dated 30 June 2006 and Resolution[2] dated 26 October 2006 of the Court of Appeals in CA-G.R. SP No. 89689 which, in turn, reversed and set aside the Ombudsmans Orders dated 11 January 2005 and 28 April 2005 in OMB-ADM-0-01-0502. The Ombudsman found respondent Leopoldo F. Bungubung (Bungubung) administratively liable for grave misconduct, dismissing him from the service and imposing the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and his perpetual disqualification from reemployment in government service. The Hon. Simeon V. Marcelo represented the Ombudsman, with powers and functions provided under Article XI, Section 13 of the 1987 Constitution and the provisions of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989. Bungubung is the Manager of the Port District Office (PDO) of Manila, Philippine Ports Authority (PPA), South Harbor, Port Area, Manila. He is also the Chairman of the Ports District Security Bids and Awards Committee (PDSBAC) of the PPA. On 24 September 2001, Roberto C. Doromal (Doromal), the President of Combat Security & Executive Protection Agency (CSEPA), a security agency that participated in the bidding for security services for the PPA, filed a ComplaintAffidavit[3] dated 7 September 2001 against Bungubung before PPA Resident Ombudsman Manolo M. Mabini, alleging as follows: 3. That sometime in June 1995, my aforesaid wife was instrumental in negotiating and concluding a contract for Security Services with the Philippine Ports Authority (PPA), more particularly at the Port District of Manila (PDO-Manila) for two (2) years starting August 1, 1995; xxxx 6. That after a service contract was signed by PPA and this agency on January 28, 1999, the Port District Manager of PDO-Manila, Mr. Leopoldo Bungubung and other PPA officials asked for certain amounts from my said wife as balato for winning the award where (sic) the latter obliged herself to give; 7. That initially, Mr. Leopoldo Bungubung and other PPA officials demanded amounts ranging from P10,000 a month down to P2,000 for him (Bungubung) and his subordinates, respectively; and my wife directed our staff, particularly the Billing and Collection Clerk and Cashier to include in our records and books of account these disbursements as Representation expense; 8. That when my late wife died on May 3, 2000, the same arrangement was pursued and carried over through the period that I was already the one dealing with PPA, and that, sometime in late April 2000, when the security force was increased to 184 Security guards at North Harbor-Special Take-Over Unit (STU), the amount demanded by Mr. Bungubung was also increased to P40,000 a month and sometimes P50,000; xxxx 10. That sometime in late February, 2001, one of office staff received a telephone call from a certain Capt. Valenzuela of the Port Police Dept. of PPA and because I was not around, said Capt. Valenzuela left a message advising me to see Mr. Leopoldo Bungubung for some important matters; 11. That upon receipt of the advise (sic) from my office staff, I went to PPA, with my secretary, Ms. Evalyn Cruz, to see Mr. Leopoldo Bungubung at his office located at old PNR Bldg., South Harbor, Port Area, Manila and at the same time personally delivered a sum of money amounting to P50,000 as earlier requested by him (Bungubung). 12. That during the course of my conversation with Mr. Leopoldo Bungubung after giving the P50,000, he asked from me a vehicle, Mitsubishi Pajero (late model) van, to be due and delivered supposedly to him in the middle

part of March 2001 while there is no award of the winning bidder yet; and that I asked the said Bid Committee Chairman, Mr. Bungubung to give me a grace period of two (2) months to produce what he was asking from me. Unfortunately, however, due to the expensive value of the said Pajero van, I was not able to deliver. Hence, on March 30, 2001, I was served a Notice of Award of the winning bidder which is STAR SPECIAL WATCHMAN & DETECTIVE AGENCY, INC. an agency comparatively smaller than mine; 13. That taking a cue from the Pajero van being asked, I instructed my men to conduct an investigation and there, they found a late model Pajero van with Plate No. WLA-674 parked in from of the residence of Mr. Leopoldo Bungubung and later verified to have been registered and transferred on 12 March 2001 under the name of Mr. Norman Vincent Bungubung, son of Chairman Bungubung at #45 Buencamino St., BF Homes, Paranaque City.[4] In support of the allegations in his Complaint-Affidavit, Doromal submitted an affidavit of his secretary Evalyn Cruz (Cruz) and an alleged blue book of CSEPA. Cruz recounted in her affidavit another incident wherein she personally handed over the amount of P50,000.00 cash to Bungubung at his office on 16 January 2001. The CSEPA blue book purportedly detailed monthly balato or payola paid to PPA officials from July 2000 to February 2001, recorded therein as representation expenses. It was allegedly prepared by a certain Evalyn M. Ebora (Ebora), and approved by Doromal. Thereafter, PPA Resident Ombudsman Mabini released a Memorandum/Investigation Report [5] dated 25 September 2001, recommending the following: a. That criminal complaint be filed against Mr. Leopoldo F. Bungubung for violation of Section 3(b) of R.A. 3019; Section 7(d) of R.A. 6713 and Art. 211 of the RPC for demanding and receiving balato from COMBAT in the total amount of P320,000 more or less; That likewise, an administrative complaint be filed against Mr. Leopoldo F. Bungubung for Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service arising from the above criminal act; That Mr. Leopoldo F. Bungubung be placed under Preventive Suspension for a period of six (6) months without pay pursuant to Section 24 of R.A. 6770.

b. c.

From the foregoing, the following complaints were filed against Bungubung before the Ombudsman: (1) an administrative complaint for Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service, docketed as OMBADM-0-01-0502 (OMB-0-01-0793); and (2) a criminal complaint for violation of Section 3(b) of the Anti-Graft and Corrupt Practices Act, docketed as OMB-0-01-0793. After the parties submitted the required pleadings, a preliminary conference was held on 21 February 2002 in OMBADM-0-01-0502, the administrative case. Bungubung manifested therein that he was submitting the case for resolution. Doromal, however, was still undecided on whether to opt for the conduct of a formal investigation or to submit the case for resolution at once. In a Manifestation filed on 25 February 2002, Doromal informed the Ombudsman that he was opting instead for the conduct of a formal investigation for purposes of submission of evidence and affidavits of witnesses. [6] Doromals aforecited manifestation notwithstanding, the Ombuds man, in an Order dated 6 March 2002, through Graft Investigation Officer II Joselito P. Fangon, ordered the submission of the case for resolution. The parties were then required to submit their respective Memoranda. On 28 November 2002, Graft Investigation Officer II Fangon drafted a Decision[7] which recommended the dismissal of the administrative case against Bungubung, without prejudice to its re-filing. However, Ombudsman Marcelo disapproved Graft Investigation Officer II Fangons 28 November 2002 Decision, and issued another Order[8] dated 11 January 2005 finding Bungubung liable for grave misconduct (which absorbed the lesser offense of conduct prejudicial to the best interest of the service) and ordering Bungubungs dismissal from service, together with the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and respondents perpetual disqualification from reemployment in government service. The dispositive part of Ombudsman Marcelos 11 January 2005 Order reads:

WHEREFORE, the 28 November 2002 Decision prepared by the former Administrative Adjudication Bureau (AAB), this Office, recommending the dismissal (without prejudice to its re-filing) of the administrative complaint against [Bungubung] is hereby DISAPPROVED. Respondent LEOPOLDO F. BUNGUBUNG, Port District Manager, Manila Port District, Philippine Ports Authority, is hereby found liable for Grave Misconduct and, as such, is DISMISSED from the service. The penalty of dismissal shall carry with it the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and [Bungubungs] perpetual disqualification from reemployment in the government service.

In the interim, the Ombudsman issued an Order[9] dated 10 September 2003 in OMB-0-01-0793, for the filing of the criminal complaint against Bungubung, after finding that there was probable cause to indict him for violation of Section 3(b) of the Anti-Graft and Corrupt Practices Act.[10] The Ombudsman took into consideration its aforementioned 10 September 2003 Order in OMB-0-01-0793, when it found in OMB-ADM-0-01-0502 that Bungubung took advantage of his position as Chairman of the PDSBAC of the PPA, using it as leverage in soliciting cash and a Mitsubishi Pajero van from the bidders as consideration for the award of the security contract. According to the Ombudsman, such actuations constitute conduct grossly prejudicial to the best interest of the service. It rejected Bungubungs denial and instead gave credence to the attestation of Cruz that she personally delivered the P50,000.00 to Bungubung. Bungubung filed a Motion for Reconsideration[11] of the 11 January 2005 Order of the Ombudsman in OMB-ADM-0-010502, but it was denied by the Ombudsman in another Order [12] dated 28 April 2005, to wit: WHEREFORE, the Motion for Reconsideration dated 21 January 2005 filed by respondent Leopoldo F. Bungubung is DENIED. The Order dated 11 January 2005 finding him liable for Grave Misconduct thereby ordering him dismissed from the service, together with its accessory penalties, is hereby AFFIRMED. Bungubung then sought recourse to the Court of Appeals via a Petition for Review under Rule 43 of the 1997 Rules of Civil Procedure, docketed as CA-G.R. SP No. 89689. He asserted therein that the Ombudsman erred in (a) holding that there was substantial evidence to make him liable for grave misconduct, resulting in his dismissal from service and imposition upon him of the accessory penalties; and (b) ordering him dismissed from the service, when the Constitution merely empowered said office to make a recommendation of dismissal. Pending resolution of CA-G.R. SP No. 89689 by the Court of Appeals, Bungubung filed therein a Motion for Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction to enjoin the Ombudsman and the PPA General Manager from implementing the Order dated 11 January 2005 which dismissed him from service.[13] The Court of Appeals granted the TRO on 3 June 2005.[14] In the meantime, Doromal executed an Ex-Parte Manifestation and Motion to Withdraw Complaint[15] dated 18 August 2005 and an Affidavit of Desistance[16] dated 23 August 2005, which he filed before the Ombudsman. In his ExParte Manifestation and Motion to Withdraw Complaint and Affidavit of Desistance, Doromal expressed his desire to withdraw his Complaint-Affidavit against Bungubung and desist from the continuance of both OMB-ADM-0-01-0502 and OMB-0-010793. Doromal explicitly admitted in said documents that his allegations in the administrative and criminal complaints against Bungubung were all fabricated. He further confessed that Bungubung never demanded or received any balato from him or his wife in exchange for the award of the PPA security service contract; nor did Bungubung ask for a Mitsubishi Pajero van from him. On 30 June 2006, the Court of Appeals issued a Decision in CA-G.R. SP No. 89689 ruling in Bungubungs favor, and reversing and setting aside the Orders dated 11 January 2005 and 28 April 2005 of the Ombudsman. It further absolved Bungubung from liability for the charge of grave misconduct, finding no substantial evidence that Bungubung committed the same. According to the appellate court: There is merit in the petition. Indeed, there is absence of substantial evidence to hold [Bungubung] liable for grave misconduct. To begin with, [Doromal] and his witness failed to appear at the preliminary conference on February 21, 2005 to attest to the truth of the contents of their affidavits. For such failure, their affidavits are inadmissible as they are hearsay evidence. xxxx By not appearing at the preliminary conference and affirming their affidavits, We can not readily conclude that the contents thereof are true. It is highly probable that [Doromal] is only sour graping for losing the PPA 2001 service contract. As early as January 18, 2001, the bids for the 2001 service contract were already opened and authenticated. Thus, it can not be said that the bids were manipulated or rigged to favour somebody. While rules of procedure do not strictly apply to administrative cases as long as defendants right to due process is not violated, its liberal application in administrative cases does not allow admission of hearsay evidence, i.e. affidavits not identified by affiants, as this would violate the constitutional right of petitioner to due process and his substantive right not to be adjudged guilty on the basis of hearsay evidence. xxxx In the instant case, [Bungubung], in denying the assertion of Evalyn Cruz in her affidavit that she gave him P50,000.00, and in describing her claim as a self-serving fabrication, is positive evidence that what she

claimed did not occur. This holds true with respect to [Bungubungs] positive denial of [Doromals] assertion that he gave [Bungubung] another P50,000.00 in late February 2001 and that he also demanded a late model Pajero from [Doromal]. [The Ombudsman] accepted as credible [Doromals] claim that [Bungubung] asked for a late model Pajero in exchange for the 2001 security service contract. x x x The following must, however, be considered: 1. The rule on positive and negative testimonies do not apply where a person who is in a position to know if a fact occurred denies that it did. This is positive denial which has the same weight as a contrary assertion. The finding that the van was acquired after the failed solicitation and before the award readily assumes as true private respondents bare assertion that petitioner asked him for a van.

2.

Allegedly taking cue from his failure to deliver a Pajero van, [Doromal] had [Bungubungs] home cased and saw a Pajero in front of his house. If this is the case, why was this not mentioned by [Doromal] when he filed a civil case to stop the award of the security service contract on ground of irregularities in the bidding? Neither was this matter brought up during the hearing on the application for a TRO. [Doromal] only brought up this matter about a Pajero in his affidavit-complaint of September 7, 2001 after hearing that [Bungubungs] son has a newly-bought Pajero. 1. [Bungubung] presented proof that on May 4, 2001, [Doromal] filed a false hit -and-run report involving the Pajero with plate WLA 674 of [Bungubungs] son. This shows the extent that [Doromal] would go just to spite [Bungubung]. The President of Star Security Agency declared under oath that he did not give [Bungubung] any Pajero; The Pajero was acquired by [Bungubungs] son from a certain Teresito Uy as evidenced by a notarized deed of sale; It is unfair to assume that [Bungubungs] son could not afford the price of a used Pajero. He put up a glass and aluminum business after getting married.

2. 3. 4.

From the foregoing, [the Ombudsman] should have dismissed the complaint for lack of substantial evidence to support it. The fallo of the Court of Appeals 30 June 2006 Decision reads: WHEREFORE, the petition for review is GRANTED and GIVEN DUE COURSE. The Orders [17] of the Ombudsman dated January 11, 200[5] and April 28, 200[5] are reversed and set aside and a new one issued absolving petitioner from liability for the charge of grave misconduct. [18] The Ombudsman filed a Motion for Reconsideration of the afore-quoted Decision, which the appellate court denied in its Resolution dated 26 October 2006 for lack of merit, thus: Notably, the issues raised in the motion have already been thoroughly threshed out and passed upon in the assailed decision. No novel or new matters were introduced therein. The disquisition made by the Supreme Court in Dela Cruz vs. Department of Education, Culture and Sports-Cordillera Administrative Region is most helpful, We have long held that affidavits are deemed hearsay evidence because the adverse party is deprived of the opportunity to cross-examine the affiants. Hence, affidavits are generally deemed inadmissible or rejected outright unless the affiants themselves are placed on the witness stand to testify thereon. WHEREFORE, in view of the foregoing, the instant Motion for Reconsideration is DENIED for lack of merit.[19]

Consequently, the Ombudsman filed this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court based on the following grounds: I. THE RELIANCE BY THE OMBUDSMAN ON THE AFFIDAVITS OF ROBERTO DOROMAL AND HIS WITNESS IN DETERMINING [BUNGUBUNG]S ADMINISTRATIVE LIABILITY WAS PROPER. IT DID NOT DEPRIVE [BUNGUBUNG] OF DUE PROCESS;

II. THE FINDING OF ADMINISTRATIVE OFFENSE FOR GRAVE [BUNGUBUNG] IS SUPPORTED BY SUBSTANTIAL EVIDENCE;

MISCONDUCT

AGAINST

III. AS CONSEQUENTLY HELD BY THE SUPREME COURT, THE FINDINGS OF THE OMBUDSMAN DESERVE GREAT WEIGHT, AND MUST BE ACCORDED FULL RESPECT AND CREDIT.

The Ombudsman prays that this Court render a Decision nullifying and setting aside the Decision dated 30 June 2006 and Resolution dated 26 October 2006 of the Court of Appeals in CA-G.R. SP No. 89689, and affirming the Ombudsmans Orders dated 11 January 2005 and 28 April 2005 in OMB-ADM-0-01-0502 which found Bungubung guilty of Grave Misconduct and dismissing him from service with all the accessory penalties incident thereto. Bungubung counters that the Court of Appeals correctly held that there was no substantial evidence to hold him liable for grave misconduct; and that the reliance by the Ombudsman on the affidavits of Doromal and Cruz in determining his administrative liability, despite the fact that the contents thereof were not personally attested to by the affiants before the Ombudsman, was a clear violation of his right to due process. He also avers that the Court of Appeals was correct in giving credence to the Ex-Parte Manifestation and Motion to Withdraw the Complaint and Affidavit of Desistance, filed by Doromal with the Ombudsman in August 2005, as proof of Bungubungs lack of culpability. The present Petition must fail. Before proceeding to the merits of the instant Petition, this Court deems it necessary to first address the allegation of Bungubung that he was denied due process by the Ombudsman. The fact that no formal hearing took place is not sufficient ground to say that due process was not afforded Bungubung. It is well-settled that in administrative proceedings, including those before the Ombudsman, cases may be submitted for resolution on the basis of affidavits and pleadings. The standard of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. It is, therefore, not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of their direct testimonies.[20] Undoubtedly, due process in administrative proceedings is an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of, [21] which requirement was afforded Bungubung.[22] In Manggagawa ng Komunikasyon sa Pilipinas v. National Labor Relations Commission ,[23] this Court held that: [A]ctual adversarial proceeding becomes necessary only for clarification or when there is a need to propound searching questions to unclear witnesses. This is a procedural right which the employee must, however, ask for it is not an inherent right, and summary proceedings may be conducted. This is to correct the common but mistaken perception that procedural due process entails lengthy oral arguments. Hearings in administrative proceedings and before quasi-judicial agencies are neither oratorical contests nor debating skirmishes where cross examination skills are displayed. Non-verbal devices such as written explanations, affidavits, positions papers or other pleadings can establish just as clearly and concisely aggrieved parties predicament or defense. What is essential is ample opportunity to be heard, meaning, every kind of assistance that management must accord the employee to prepare adequately for his defense. After the filing of the Complaint, Bungubung was allowed by the Ombudsman to submit the following: (a) a counteraffidavit refuting the charges against him; (b) a rejoinder-affidavit; and (c) a Motion for Reconsideration of the 11 January 2005 Order of the Ombudsman. Moreover, Bungubung had the option to subject the case to a formal investigation, but his Manifestation dated 21 February 2002 before the Ombudsman was evidence that he did not choose to do so and, instead, agreed to submit the case for resolution on the basis of the affidavits on record. These facts establish that Bungubung was not deprived of his right to due process, having ample opportunity to present his side before the Ombudsman. In fact, it was only later on in a Manifestation filed on 25 February 2002 that Doromal changed his mind and informed the Ombudsman that he was opting instead for the conduct of a formal investigation. That point having been settled, this Court moves on to determine the merits of the Petition at bar. The Petition primarily involves questions of fact, pitting against each other the findings of fact of the Court of Appeals and those of the Ombudsman, both of which depended on the probative weight to be given to the affidavits of Doromal, Cruz, and the alleged CSEPA blue book. We stress the procedural tenet that a petition for review on certiorari filed with this Court under Rule 45 of the Revised Rules of Court shall raise only questions of law.[24]A question of law has been defined as one that does not call for any examination of the probative value of the evidence presented by the parties;[25] a question of fact arises when the doubt or difference pertains to the truth or falsehood of alleged facts or when the query necessarily solicits calibration of the whole evidence considering mostly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their

relation to one another and to the whole and probabilities of the situation.[26] We have consistently held that in a petition for review on certiorari, this Court does not sit as an arbiter of facts for it is not the function of the Supreme Court to analyze or weigh all over again the evidence already considered in the proceedings below. [27] Such factual findings can be questioned only if, among other exceptions,[28] the findings of fact are conflicting and the findings of the Court of Appeals are contrary to those of the lower court and/or administrative agency, which exceptional circumstances are present herein, thus, justifying the review by this Court of the factual findings of the Ombudsman and the Court of Appeals. In Montemayor v. Bundalian,[29] this Court laid down the following guidelines for the judicial review of decisions rendered by administrative agencies in the exercise of their quasi-judicial power: First, the burden is on the complainant to prove by substantial evidence the allegations in his complaint. Substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise. Second, in reviewing administrative decisions of the executive branch of the government, the findings of facts made therein are to be respected so long as they are supported by substantial evidence. Hence, it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence. Third, administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law. These principles negate the power of the reviewing court to re-examine the sufficiency of the evidence in an administrative case as if originally instituted therein, and do not authorize the court to receive additional evidence that was not submitted to the administrative agency concerned. As stated above, the fundamental rule in administrative proceedings is that the complainant has the burden of proving, by substantial evidence, the allegations in his complaint. Section 27 of the Ombudsman Act is unequivocal: Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Conversely, therefore, when the findings of fact by the Ombudsman are not adequately supported by substantial evidence, they shall not be binding upon the courts. Such is the case in the present Petition. Substantial evidence, which is more than a mere scintilla but is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, would suffice to hold one administratively liable. [30] The standard of substantial evidence is satisfied when there is reasonable ground to believe that respondent is responsible for the misconduct complained of, [31] even if such evidence might not be overwhelming or even preponderant. [32] While substantial evidence does not necessarily import preponderance of evidence as is required in an ordinary civil case, [33] or evidence beyond reasonable doubt as is required in criminal cases,[34] it should be enough for a reasonable mind to support a conclusion. There is none here. Bungubung is being charged with the administrative offense of Grave Misconduct, which has been authoritatively defined in Amosco v. Judge Magro[35] as: Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer x x x. It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer, must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office. x x x. In In re: Impeachment of Horilleno,[36] this Court authoritatively defined serious misconduct -[S]ufficient cause must exist in the judgment of the Supreme Court involving serious misconduct. The adjective is serious; that is, important, weighty, momentous, and not trifling. The noun is misconduct; that is, a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. x x x. Being guided accordingly by the aforementioned evidentiary rules and jurisprudence, this Court finds that the evidence on record in the present case does not constitute substantial evidence of Bungubungs administrative culpability for grave misconduct. Within the field of administrative law, while strict rules of evidence are not applicable to quasi-judicial proceedings, nevertheless, in adducing evidence constitutive of substantial evidence, the basic rule that mere allegation is not evidence cannot be disregarded.[37] In his Affidavit-Complaint, Doromal accused Bungubung of soliciting and receiving P100,000.00 from him and a Mitsubishi Pajero van from another bidder in exchange for the award of the security services contract of the PPA. Doromal also accused Bungubung and other PPA employees of demanding and receiving balato in consideration of the award of the PPA Security Service Contract.

In addition to his Complaint-Affidavit, Doromal submitted a Reply-Affidavit, as well as the following supporting documents: (a) (b) Affidavit of Evalyn Cruz, his secretary; CSEPA blue book detailing the monthly balato or payola paid to PPA officials and employees, referred to therein as representation expenses.

On the other hand, Bungubung filed his Counter-Affidavit and Rejoinder-Affidavit. In his defense, Bungubung further submitted the following evidence: (a) (b) (c) Affidavit of Celso A. Fernandez, President and Chairman of Star Special Watchman and Detective Agency, Inc., the winning bidder, who denied giving any money or a Pajero to Bungubung; Affidavit of a certain Rufino Valenzuela, who denied giving instructions for Doromal to go to Bungubungs office; A copy of the petition in Civil Case No. 01-100678, entitled Roberto C. Doromal, etc. v. Philippine Ports Authority, et al., questioning the legality of the case filed by Doromal against Bungubung before the RTC to show that Doromal never mentioned therein that Bungubung requested for a Pajero from him; A copy of the Deed of Sale of the Pajero executed by Teresito Uy in favor of Norman Vincent Bungubung, as proof that the said vehicle was bought and is now owned by Bungubungs son; A copy of the Traffic Incident Report of the Central Police Traffic Enforcement Office to evidence the fabricated hit and run charge made by an employee of CSEPA agains t the Pajero owned by Bungubungs son; and PSBAC Resolutions establishing that the award of the PPA Security Contracts was made by public bidding.

(d) (e)

(f)

The Ombudsman chose to give more credence to Doromals allegations and evidence when it found that Bungubung took advantage of his position as Chairman of the PSBAC and used it as leverage in soliciting cash and a Mitsubishi Pajero van from the bidders as a consideration for the award of the PPA security service contract. However,Doromals evidence is hardly substantive. First, Doromals allegation that Bungubung acquired the Mitsubishi Pajero van from another bidder after failing to successfully solicit the same from him is highly suspect, since Doromal only narrated the alleged solicitation in his AffidavitComplaint against Bungubung filed with the Ombudsman on 7 September 2001. He failed to mention such a significant circumstance in Civil Case No. 01100678, Roberto C. Doromal v. Philippine Ports Authority, before the RTC or in his petition for TRO in the same case, both of which were filed ahead of his Affidavit-Complaint before the Ombudsman. Second, little weight should be given to the CSEPA blue book allegedly detailing the monthly payola or balato paid to PPA officials and employees from July 2000 to February 2001, recorded therein as representation expenses. According to the CSEPA blue book, the following PPA key officials received monthly representation allowances: NAME Mr. Cecilio Leopoldo Bungubung Ted Alcalde Capt. Gamis Felix Barcala Alex Cruz POSITION AGM Operations Port District Manager District Manager Chief of Port Police North Harbor Chief of Port Police South Harbor PERIOD July 2000-Feb 2001 July 2000-Feb 2001 July 2000-Feb 2001 July 2000-Feb 2001 July 2000-Feb 2001 July 2000- Feb 2001 TOTAL AMOUNT P200,000.00 P300,000.00 P144,000.00 P144,000.00 P35,000.00 P144,000.00

The CSEPA blue book, however, is evidently self-serving. The entries therein were purportedly made by a certain Ebora, who was never presented to personally identify the entries she made or confirm the same. The only other person involved in the preparation of the blue book was Doromal who supposedly approved the entries therein. The blue book is not audited, nor is it subject to review by an independent party. The blue book then can easily be manufactured. Considering the seriousness of the charges which may arise against the public officers named therein, the entries in the blue book must not be accepted at face value when the entries therein are uncorroborated by any other evidence. Third, while the Ombudsman gave much weight and credit to Doromals evidence, it lightly brushed aside that submitted by Bungubung. Among Bungubungs evidence which the Ombudsman failed to consider was a copy of the Traffic Accident Incident Report prepared by the Central Police Traffic Enforcement Office, stating that on 4 May 2001, Doromal filed a false report of a hit-and-run incident which supposedly occurred on 1 May 2001 involving the Mitsubishi Pajero van of Bungubungs son. The report was made by the police investigator in his official capacity; thus, it enjoys the presumption of regularity and is

a prima facie evidence of the facts therein stated. The filing of the false report establishes ill motive on the part of Doromal specifically directed against Bungubung. Fourth, the main defense put up by Bungubung is complete denial, a defense which is said to be the weakest, seldom believed or given weight, as it is easy to fabricate. Nonetheless, Bungubungs denial of -- (a) Cruzs allegation in her affidavit that she personally gave Bungubung P50,000.00 on 16 January 2001; (b) Doromals assertion in his affidavit that he gave Bungubung another P50,000.00 in late February 2001; and (c) Doromals assertion that Bungubung demanded from him a late model Mitsubishi Pajero van -- is given weight in this instance. In the absence of corroborative evidence, the Court would not be prepared to accept the usual lame defense of denial over the straightforward and positive declaration of a witness since denials constitute self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. Thus, in the case of contradictory declarations and statements, greater weight is generally given to positive testimonies than to mere denials. [38] In this instance, however, Bungubungs denial of the allegations against him are supported by his own controverting evidence. In contrast, Doromals Complaint-Affidavit and Cruzs Affidavit support only each other. Finally, this Court cannot ignore Doromals Ex-Parte Manifestation and Motion to Withdraw Complaint dated 18 August 2005 and Affidavit of Desistance dated 23 August 2005, which he filed with the Ombudsman. In both documents, Doromal expressed his desire to withdraw his Complaint-Affidavit filed with the Ombudsman and desist from the continuance of the criminal and administrative complaints against Bungubung. Doromal explicitly admitted therein that he merely fabricated all his allegations against Bungubung. While this Court looks with disfavor on affidavits of desistance, still, its effect on the instant case cannot be ignored. Doromals Affidavit of Desistance includes an explicit admission that he fabricated the charges against Bungubung. Therefore, Doromals Affidavit of Desistance is an express repudiation o f the material points alleged in his Complaint-Affidavit, and not a mere expression of his lack of interest to pursue his complaints against Bungubung. Since Doromal willfully and knowingly executed his Affidavit of Desistance, there being no showing that he was made to do so fraudulently or under duress, then it may be admitted and considered as evidence which considerably puts into question the probative value of the AffidavitComplaint he executed earlier and he now repudiates. In Gaviola v. Salcedo,[39] which involved an administrative case for suspension or disbarment against a lawyer, this Court gave probative value to the Affidavit of Desistance of the complainant, pronouncing that while the filing of an Affidavit of Desistance by the complainant for lack of interest does not ipso facto result in the termination of the administrative case, it was constrained to dismiss the charges since such charges cannot be proven without the evidence of the complainant and her witnesses. Such is the case at bar. Essentially, the administrative case against Bungubung was based on the allegations made by Doromal in his Affidavit-Complaint, without which, the case against Bungubung collapses. The Court of Appeals therefore took proper notice of Doromals Ex-Parte Motion to Withdraw the Affidavit-Complaint and Affidavit of Desistance since they cast a different light on the evidence previously considered by the Ombudsman. After evaluating the totality of evidence on record, this Court reaches the inescapable conclusion that complainant Doromal failed to present substantial evidence that Bungubung is administratively liable for grave misconduct. As this Court declared in Ang Tibay v. Court of Industrial Relations, [40] the assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. WHEREFORE, premises considered, the Petition for Review on Certiorari is DENIED. The Decision dated 30 June 2006 and Order dated 26 October 2006 of the Court of Appeals in CA-G.R. SP No. 89689 are AFFIRMED. No Costs. SO ORDERED. PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee, G.R. No. 177223 Present: YNARES-SANTIAGO, J., Acting Chief Justice, AUSTRIA-MARTINEZ, CORONA, CHICO-NAZARIO, and NACHURA, JJ. Promulgated: November 28, 2007

- versus -

CASTOR BATIN, Accused-Appellant.

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

DECISION

CHICO-NAZARIO, J.: We are reviewing herein the Decision[1] of the Court of Appeals dated 6 February 2007, in CA-G.R. CR HC No. 01396, affirming the Decision of the Regional Trial Court (RTC) of Quezon City, convicting father and son, Castor and Neil Batin, of the crime of murder. The conviction was for the killing of one Eugenio Refugio, who was shot in the afternoon of 21 October 1994, while he was leaning against a mango tree near his house on St. Peter Street, San Paolo Subdivision, Nagkakaisang Nayon, Novaliches, Quezon City. The Information[2] against Castor and Neil Batin was filed by the Office of the City Prosecutor of Quezon City on 11 April 1995, alleging as follows: That on or about the 21st day of October, 1994, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously, with intent to kill, with treachery, taking advantage of superior strength, and with evident premeditation, attack, assault and employ personal violence upon the person of one EUGENIO REFUGIO y ZOSA, by then and there shooting him with a handgun, hitting him on the right side of his stomach, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of said Eugenio Refugio y Zosa, in such amount as may be awarded under the provisions of the Civil Code.

Castor and Neil Batin entered pleas of not guilty. The prosecution, presented as its witnesses Eusebio Farrales, Vilma Juadinez Rodriguez, Florante Baltazar, Josephine Refugio, PO3 Marifor Segundo and Police Inspector Solomon Segundo, offered the following version of the facts, as summarized by the trial court: Eugenios wife, Josephine Refugio, was with him when he was shot, facing him as he leaned against the mango tree and, in fact, had her arms resting on his shoulders. She recalled that before the shooting, she was at home at No. 4-A St. Peter Street that afternoon when, looking out of the window, she caught sight of Castor Batin washing his feet at a nearby faucet. Castor was angrily muttering, and she distinctly heard him say, among the other things he said: Mga matatandang kunsintidor, dapat manahimik na . Then, being through with washing himself, Castor moved towards the street. Seeing this, she went down and also went to the street because of a feeling of uneasiness (Para po akong kinakabahan, kasi, ganoon naman ang ginagawa nila lagi, eh, pag nalalasing). Finding her husband leaning against the mango tree on the side of St. Peter Street, she went to him. She tried to talk Eugenio into going home with her because Castor was again into one of his wild ways (Nagwawala na naman, daldal ng daldal). As he was talking with Eugenio, she glanced to her left and saw Neil Batin standing at the gate to their (Batins) compound, looking towards her and her husband. A few moments later, Neil went to one of the parked cars, opened its door, and took a gun from inside. She next noticed Castor going towards Neil as the latter stood at the side of the car and shouting: Huwag! Castor grabbed the gun from Neil. After the gun was taken from him, Neil just proceeded towards the right rear of the car. Castor followed Neil and handed the gun back to him. When she shifted her glance from the Batins, Josephine heard Castor ordering his son: Sige, banatan mo na. Neil responded by drawing the gun from his waistline, raising and aiming it at her and her husband, and firing twice from his eye-level. Both Josephine and Eugenio fell to the ground, the former, backwards, and the latter landing on top of her. As they tried to get up, Eugenio uttered to her: Nanay, may tama ako. She then pulled her husband by the shoulder of his shirt so that she could take him to their house as he was already slumped to the right. She later rushed her husband to theQuezon City General Hospital, where he underwent surgery, but later expired. Other eyewitnesses from the neighborhood were presented and they substantially corroborated her testimonial account. One of them, Eusebio Farrales, a resident of No. 7 St. Paul Street, in relation to which St. Peter Street was perpendicular, recalled being at the barangay outpost near the corner of St. Peter Street and St. Paul Street between 3:00 and 3:30 pm of the afternoon of October 21, 1994 engaged in the clearing of the debris of the recent typhoon when he heard someone cursing and challenging to a fight. Walking towards St. Peter Street where the voice came, he saw that it was Castor. He also saw other neighbors, namely, Eugenio,

Josephine, and Eugenios mother, Emilia Refugio. According to Farrales, Castor was moving aimlessly for around five minutes (Walang direktion at pa-ikot ikot lang siya doon) while cussing: Putang ina ninyo, sino ang matapang lumabas. Farrales stated that a white car and a white-and-yellow colored taxicab were parked on the side portion of the street fronting the gate to the compound of the Batins and near where Eugenio and Josephine stood. Emilia, the mother of Eugenio, then came towards him, but he advised her to seek assistance from the barangay tanod. After Emilia proceeded towards St. Paul Street to do so, Neil came out through the gate, opened the door of the white car, took out a gun from inside, and handed the gun to Castor, but the latter returned the gun to Neil. Upon getting back the gun, Neil reentered the yard through the gate. Farrales asserted that in the meanwhile Eugenio remained leaning against the mango tree with Josephine facing him and her arms resting on his shoulders. They were in this position when Neil again came out through the gate a few moments later and proceeded to the right side of the car, still holding the handgun. From there, Neil fired twice at the Refugios. The Refugios both fell to the left of the mango tree. Farrales saw both Castor and Neil quickly enter the compound. At that point, Farrales decided to run home in order to summon Alfredo Dizon, his tenant, who was a police officer because he feared that the Batins might escape from the scene by car. Farrales and Dizon lost no time in going to the place of the Batins. After Dizon talked with Castor at the gate of the latters compound, the latter entered the house of his nephe w, Ricky Basilio, which was beside Castors own house. A few moments later, Castor came out of Basilios house to let Dizon in through the gate. It was about this time that the responding police officers arrived at the scene. The victim had been rushed to the hospital immediately. Another neighbor, Vilma Juadines Rodriguez, resident of No. 7-A St. Peter Street, declared that while she was at home taking care of her baby at between 3:00 and 3:30 pm of October 21, 1994, she heard someone challenging others to a fight; that looking out of her window (dungaw), she saw that it was Boy Batin Castor and he was then walking about on St. Peter Street; that just then, her child cried, and so she went to him; that upon returning to the window to call her other child, she saw Castor hand over a handgun to Neil, and the latter thereafter entered through their gate; that she next saw Neil load bullets into the gun and then tucking it in his right waistline; that after loading, Neil went out to the street, went between the parked white car and yellow taxicab, aimed the gun at Eugenio and Josephine who were at the mango tree, and then asked Castor: Tay, banatan ko na?; that Castor replied: Sige, anak, banatan mo na. that, at that instant, Neil fired two shots; that as she went down to get her other child upon hearing the gunshots, she heard Josephine say: Tay, may tama ka; that she later reentered her house; and that she knew that Eugenio died afterwards. Although Eugenio was rushed to the Quezon City General Hospital right after the shooting and was operated on, he expired the next day. His remains were properly identified in writing by his brother, Tito Eugenio.[3]

The medico-legal officer of the PNP Crime Laboratory Service, Dr. Florante Baltazar, conducted an autopsy on Eugenios remains. In his Medico-Legal Report No. M-1715-94,[4] he indicated that Eugenio sustained one gunshot wound, which was, however, fatal, because it went slightly upward, slightly anteriorward from the right to t he left of the body, fracturing the right to [the] left [of the] thoracic region, lacerating the right lumbar region. Dr. Baltazar made the certification as to the cause of death in the death certificate.[5] Upon a written request[6] from the Novaliches Police Station, Quezon City, Police Inspector Solomon Segundo, Chief of the Firearms Identification Branch of the Central Crime Laboratory, Northern Police District Command, Quezon City, conducted the ballistics examination to ascertain whether or not the bullet recovered from the victim was fired from the specimen firearm submitted for examination. P/Insp. Segundo prepared Ballistics Report No. B-042-94,[7] wherein he certified that the bullet from the recovery box[8]and the bullet recovered from the victims body[9] were fired from the same specimen firearm.[10] This conclusion was arrived at after a test fire and a comparison under the bullet comparison microscope. The defense, on the other hand, presented accused Neil Batin, Castors common -law wife Maricon Pantoja, and one Restituto Paller. Neil Batins testimony is summarized by the trial court as follows: Neil substantially claimed that it was his responsibility to conduct his younger brothers to school and fetch them by car; that he also drove their taxicab; that it was about 7:00 oclock in morning of October 21, 1994, while he was cleaning the family-owned taxicab, that he found a short gun (de bola) underneath it beside the right rear wheel; that he picked the gun and concealed it in the compartment of the taxicab; that he continued with his chore of cleaning; that as soon as he finished cleaning the taxicab, he drove the white Datsun car to Tondo to fetch his six-year old brother Mark, the son of his father with Maricon Pantoja; that Mark was a pupil at the Magat Salamat Elementary School in Tondo; that after picking up Mark, they drove to the house of his uncle, Domingo Batin, in Marulas, Valenzuela, to get his clothes from his cousin; that they arrived there at

11:00 am, and spent around two hours there; that from Marulas, they went home, arriving at St. Peter Street at around 2:30 pm; that he parked the car on the road in front of their fence; that he and Mark first entered the house to deposit Marks school things and later went outside to await the arrival of Marks mother; that his other brothers were outside; that Castor was also outside talking with a man whose name he did not know but whom he had seen thrice before as well as with Boy Iigo in front of the latters house; that Iigos house was 15 meters from their gate; that Pantoja soon arrived at around 2:45 pm; that he continued talking and playing with his brothers; and that at that point he decided to take the gun from the compartment of the taxicab then parked around 2 meters away from where he and his brothers were and tucked it in his waistline. Having thus tucked the gun, Neil went to stand at the right rear side of the Datsun car which was parked facing the mango tree (halos magkatapat lang po). Maricon came out to the street at that point to ask him about the time he had fetched Mark. It was while he was standing there with the others that, according to Neil, he suddenly felt the impulse of drawing the gun from his waistline (Bigla kong naisipang bunutin ang baril). He thus drew the gun and turned around, but, as he did so, he accidentally pulled the trigger, causing the gun to fire twice (Tumalikod po ako, tapos nakalabit ko, pumutok ng dalawang beses). Neil admitted knowing the late Eugenio Refugio and his wife Josephine because they were his neighbors with only a high wall separating their houses; but denied seeing them that afternoon beside the mango tree. At the sound of gunfire, Castor rushed towards Neil from where he was in front of Iigos house, shouting twice to his son: Huwag! Pantoja, for her part, forced Neil to enter the compound, where she brought him inside the house of his aunt. Neil concealed the gun in the ceiling of the aunts house. Neil said that he and his father did not grapple inside the Datsun car for possession of the gun; that his father did not wrest the gun from him; that he did not enter the compound to put bullets in the gun; that his father did not order him to shoot Eugenio; and that his father was not drunk and challenging others to a fight. He insisted that he and the Refugios, with whom he was acquainted since 1987, had no misunderstandings, for he even had shared drinks with the late Eugenio before October 21, 1994.[11] As regards the testimonies of the defenses two other witnesses, the trial court could not make an intelligible narrative of the version of the facts presented by them, considering the contradictions it found in their testimonies. The trial court found glaring Maricon Pantojas self-contradiction as to where she and the accused were when Eugenio was shot. During the trial, Maricon testified that she, Neil and Castor were outside their house when Neil drew the gun and accidentally fired. However, in her affidavit,[12] she alleged that they went outside their house upon hearing a gun explosion and saw Eugenio Refugio alone holding his stomach x x x we have no any knowledge whether he was hit by a bullet. [13] On 8 June 1998, the trial court rendered its Decision finding both accused guilty of murder, qualified by treachery, to wit: WHEREFORE, judgment is hereby rendered finding the accused CASTOR BATIN and NEIL BATIN guilty beyond reasonable doubt of the crime of MURDER as defined and penalized under Art. 248, Revised Penal Code, as amended, and they are hereby each sentenced to suffer reclusion perpetua; and ordered to pay the heirs of EUGENIO REFUGIO, through his wife, JOSEPHINE REFUGIO, as follows: 1] 2] 3] 4] 5] P50,000.00, as death indemnity; P61,500.00, as actual damages; P500,000.00, as moral damages; P307,920.00, as indemnity for lost of earning capacity; and The costs of suit.[14]

Neil and Castor Batin filed an appeal with the Court of Appeals. However, on 13 November 2000, accused Neil Batin filed an Urgent Motion to Withdraw Appeal. ThePeople interposed no objection to the Motion, which was granted. On 6 February 2007, the Court of Appeals rendered the assailed Decision affirming, with modification, the Decision of the trial court, to wit: WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Quezon City, Metro Manila in Criminal Case No. Q-95-61003 is hereby AFFIRMED with MODIFICATION as to civil liabilities. With the exception of the award of moral damages which is reduced to P100,000.00 and the

indemnity for loss of earning capacity which is increased to P723,840.00, the awards for death indemnity and actual damages are retained.[15]

Castor Batin now comes before this Court, assigning the following errors: I THE HONORABLE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT AS PRINCIPAL FOR INDUCEMENT FOR THE CRIME CHARGED. II THE HONORABLE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF TRACHERY. [16]

Castor Batin prays that the Decision of the Court of Appeals be reversed and set aside and a new one entered acquitting him of the crime charged. In the alternative, he prays that he be held liable for the crime of homicide only, arguing that the qualifying circumstance of treachery was not sufficiently stated in the Information. Whether there was conspiracy in the killing of Eugenio Refugio It is evident from Castors Supplemental Brief and all his other issuances after the withdrawal of Neils appeal that he had already discarded Neils theory of accidental shooting. Instead, his arguments are geared toward his distancing himself from the act of Neil in shooting Eugenio Refugio. We cannot, however, dispose of the discussion of Neils theory of accidental shooting. As Neils testimony had been the only evidence presented by the defense to rebut the prosecutions evidence concerning the acts of Castor during the incident, we should carefully scrutinize Neils testimony to determine his credibility. Neil claims that while his back was still turned against the Refugios, he suddenly felt the impulse to draw the gun from his waistline. He drew the gun, turned around with the gun in hand, and accidentally fired it twice without aiming it at anyone. As held by the trial court, this account is plainly far-fetched and incredible. As observed by the trial court, The revolver involved herein was a mechanical firearm which belonged to the so-called double-action type of guns. This type has a firing mechanism which permits two methods of firing the first is by manually cocking or retracting the hammer and then pressing the trigger to release the hammer; the second is by applying continuous pressure on the trigger in order to cock the hammer and then releasing the trigger. The drop of the hammer by either method propels the firing pin forward so that its other end strikes the primer cap to explode the propellant charge inside the shell which then forces out the bullet through the gun barrel. From the nature of the firing mechanism of Exhibit O, and there being no evidence showing that the hammer was manually cocked before the gun fired, it was absolutely physically impossible for the gun to fire accidentally. In order to determine for himself how much pressure was necessary to cock the hammer into firing position, the undersigned presiding judge personally tested the trigger pull of Exhibit O. Even assuming that the passage of time from the date of the shooting caused some change on the efficiency of the firing mechanism, such change can only show up by way of a weakening of the hammer spring. Nonetheless, it was not surprising for the undersigned presiding judge to find heavy resistance at each trigger pull, such that he exerted some force to cock the hammer. This actual testing easily validated the conclusion that firing the gun accidentally and unintentionally was impossible.[17] Neils claim that he accidentally fired the gun twice in quick succession is, thus, even more incredible. Given the difficulty of pulling the trigger to cock the hammer into firing position, it is inconceivable how the gun could have been fired by Neil twice in quick succession except by a deliberate and intentional pulling of the trigger. Given the physical attributes and condition of the gun involved in the case at bar, the testimony of Eusebio Farrales is likewise observed to be much more credible than that of Neil. Whereas Neil claims that he accidentally fired the gun twice using only one hand, Eusebio Farrales testified that Neil fired at the Refugios while holding the gun with both hands and from a standing position.

While the maxim falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern jurisprudence,[18] Neils credibility has been severely tarnished by the fore going portion of his testimony. Thus, we should likewise take with a grain of salt the following parts of his testimony which tend to refute the account of the prosecution concerning the acts of Castor during the incident: (1) that Neil and Castor did not grapple inside the Datsun car for possession of the gun; (2) that Castor did not wrest the gun from him; (3) that Neil did not enter the compound to put bullets in the gun; (4) that Castor did not order Neil to shoot Eugenio; and (5) that Castor was not drunk and challenging others to a fight. As stated above, Castor has already discarded Neils theory of accidental shooting and, instead, focuses on distancing himself from the act of Neil in shooting Eugenio Refugio. Castors principal defense in this appeal is that the conviction of a person as a principal by inducement requires (1) that the inducement be made with the intention of procuring the commission of the crime; and (2) that such inducement be the determining cause of the commission by the material executor.[19] Castor claims that there is no conclusive proof that he participated in the shooting, and that (h)is alleged utterance of th e words Sige, banatan mo na cannot be considered as the moving cause of the shooting. According to Castor, if he had wanted his son to shoot Eusebio Refugio, he would not have shouted Huwag and struggled for possession of the gun. We are not persuaded. First of all, the theory presented by the prosecution in both the Information and in their arguments before the courts is not Castors being a principal by inducement, but rather his being a co -conspirator. If conspiracy is proven, the act of one is the act of all. As stated above, the widow, Josephine Refugio, and the neighbors -- Eusebio Farrales and Vilma Juadinez Rodriguez -testified to the fact that Castor handed the gun to Neil and urged the latter to fire at the Refugio spouses. The trial court, whose assessment of the credibility of witnesses deserves great respect, since it had the important opportunity to observe first-hand the expression and demeanor of the witnesses at the trial, [20] found these witnesses credible, thus: From its careful and thorough evaluation of the record, the Court finds that Castor and Neil conspired in shooting Eugenio. This finding is inexorable because the testimonies of the Prosecution witnesses that Castor returned the gun back to Neil; that he instigated Neil to shoot by shouting: Sige, banatan mo na; and that Neil then fired his gun twice were credible and sufficed to prove Castors indispensable cooperation in the killing of Eugenio. Accordingly, Castor was as much liable criminally for the death of Eugenio as Neil, the direct participant in the killing, was. The reliability of witnesses Farrales and Rodriguez, for one, cannot be doubted. Being the neighbors of both the Batins and the Refugios, their claim of witnessing the events that culminated into the shooting of Eugenio was unassailable. The accused, in fact, could not provide any reason or motive for them to testify against the Batins unless it was upon the truth.[21] While Castor was indeed heard to have shouted Huwag, this cannot be considered as reliable evidence that he tried to dissuade Neil from firing the gun. It was established by credible testimony that he handed back the gun to Neil and urged him to shoot the Refugio spouses. Josephine Refugio plainly stated on cross-examination that Castor shouted Huwag while inside the car grappling for possession of the gun, and not when Neil was aiming the gun at the spouses. Thus: (Atty. Siobal Cross-examining) Q A Q The second time around that you saw him was when he moved towards the right rear of the car? I did not remove my sight at Neil Batin as he moved towards this car, sir. Also, without moving your glance or gaze at Neil Batin, you saw him proceed to the right rear portion of the car and open the right rear door of said car, is it not? Yes, sir. And without also removing your gaze or sight at Neil Batin, you saw him open and get a gun inside the car? I saw Neil Batin opened the right rear door, as if he is putting all his body inside the car, when Mang Boy took hold of Neil, they were grappling for possession of the gun, and raised it above, and that was the time when my husband saw the gun raised, and I also saw the gun.

A Q

Court So they were both inside the car, their arms were both inside the car and the gun was inside the car when you and your husband saw this particular scene?

Yes, your Honor.

Atty. Siobal So you saw Castor Batin and Neil Batin grappling for the gun when they were inside the car? A Q Yes, sir, and then Castor Batin shouted huwag. And at that time they were grappling for the gun inside the car and Castor Batin shouted huwag, after that, you and your husband saw the gun atop the roof of the car, is that what you want to convey to the Court? The gun was still inside the car, only we saw it through the glass window, sir. And what happened after that? Neil Batin got out of the car, followed by Castor Batin and then Castor gave the gun to Neil, and after receiving the gun, Neil placed the gun at his waist, sir. You said Neil Batin got out of the car ahead of Castor Batin, where did Neil Batin go or proceed, to what direction? He proceeded to that place labeled as Exhibit G-7, sir. And you said Castor Batin followed Neil Batin to the place where he proceeded here at Exhibit G-7? Yes, sir. Of course, when Neil Batin got out of the car ahead, his back, he must have turned his back from you? He was sidewise in relation to me, sir. How about Castor Batin, when he got out of the car, he must have turned his back from you? Yes, sir. And where was Castor Batin facing when you said he gave the gun to Neil Batin? He was facing Neil, sir.[22]

A Q A

A Q A Q A Q A Q A

As concluded by the trial court, the circumstances surrounding Castors utterance of Huwag! shows beyond doubt that Castor shouted the same, not to stop Neil from firing the gun, but to force him to leave the use of the gun to Castor. These circumstances only confirm the conspiracy between the Batins in committing the crime: after the Batins grappled for the gun and Castor shouted Huwag, Castor finally decided to give the gun to Neil a crystal-clear expression of the agreement of the Batins concerning the commission of a felony. Conspiracy may also be deduced from the acts of the appellants before, during, and after the commission of the crime which are indicative of a joint purpose, concerted action, and concurrence of sentiments. [23] Prosecution witnesses Josephine Refugio and Eusebio Farrales positively indicated in their testimonies that prior to the shooting of Eugenio Refugio, Castor was drunk, was openly challenging others to a fight, and was uttering angry words. It was at this juncture that witnesses saw Neil retrieve his gun from the parked car, after which Castor grabbed the gun from his son, grappled with it, returned it to his son, and ordered the latter to shoot the Refugios. Secondly, even if we pursue the theory that the defense is trying to stir us to, the results would be the same. Castors argument is that (h)is alleged utterance of the words Sige, banatan mo na cannot be considered as the moving cause of the shooting and, therefore, he cannot be considered a principal by inducement. Inducement may be by acts of command, advice or through influence or agreement for consideration. The words of advice or the influence must have actually moved the hands of the principal by direct participation. We have held that words of command of a father may induce his son to commit a crime. In People v. Tamayo,[24] we held that the moral influence of the words of the father may determine the course of conduct of a son in cases in which the same words coming from a stranger would make no impression. There is no doubt in our minds that Castors words were the determining cause of the commission of the crime. As stated above, Vilma Juadines Rodriguez testified that the eighteen-year-old Neil Batin asked his father before shooting: Tay,

banatan ko na? Neil Batin was clearly seeking the consent of his father before proceeding with the act, and it was Castors words Sige, banatan mo na[25] that sealed Eugenio Refugios fate. Whether treachery was specifically alleged in the Information

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 the defense which the offended party might make.[26] According to the trial court, treachery was attendant in the killing of Eugenio because Castor ordered Neil to fire at Eugenio after they clearly saw that he was still leaning against the mango tree and being restrained by Josephine who had her arms on his shoulders. Thereby, the accused insured their safety from any defensive or retaliatory act of Eugenio who, in that position of helplessness and unpreparedness, obviously had no opportunity to defend himself or to retaliate even if he wanted to. The accused thus consciously used the firearm to assault from a distance, all the more to enhance the chances of killing the victim without risk to themselves.[27] Castor does not refute the above findings of the trial court that treachery was sufficiently proven during the trial. All that Castor claims before us is that the qualifying circumstance of treachery was not specifically alleged in the Information. The Information filed against the Batins states that the accused, conspiring together, confederating with and mutually helping e ach other, did, then and there, wilfully, unlawfully and feloniously, with intent to kill, with treachery, taking advantage of superior strength, and with evident premeditation, attack, assault and employ personal violence upon the person of one EUGENIO REFUGIO y ZOSA, by then and there shooting him with a handgun, hitting him on the right side of his stomach, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death. [28] Castor claims that this charge does not allege the specific treacherous acts of the accused. According to Castor, the allegation therein that the accused with treachery x x x, attack, assault and employ personal violence is a mere concl usion of law by the one who drafted the said Information. Hence, it did not satisfy the test of sufficiency of Information as provided in Sections 8 and 9 of Rule 110 of the Rules of Court. Sections 8 and 9 of Rule 110 provides: SEC. 8. Designation of the offense.The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. SEC. 9. Cause of the accusation.The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. Pertinently, we have held in Balitaan v. Court of First Instance of Batangas [29] that the main purpose of requiring the various elements of a crime to be set forth in an Information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. We added in said case that [I]t is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be stated in order to render the information sufficiently certain to identify the offense. As a general rule, matters of evidence, as distinguished from facts essential to the description of the offense, need not be averred. For instance, it is not necessary to show on the face of an information for forgery in what manner a person is to be defrauded, as that is a matter of evidence at the trial.

We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is replete with cases wherein we found the allegation of treachery sufficient without any further explanation as to the circumstances surrounding it. Here are some of the cases: In People v. Lab-eo,[30] Wilson Lab-eo was indicted for murder under the following Information: That on or about October 21, 1996, at the Barangay Hall, Poblacion, Tadian, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with the use of a sharp knife, did then and there willfully, unlawfully and feloniously attack, assault, strike and stab Segundina Cay-no with a well-honed and pointed knife and thereby inflicting a mortal stab wound upon the victim as reflected in that medico-legal certificate, to wit:

Stab wound infrascapular area left, penetrating with massive hemathorax, which caused the death of the victim thereafter. That the aggravating circumstances of evident premeditation, treachery, abuse of superior strength and craft attended the commission of the offense. The accused in this case argued that the Information above, while captioned as Murder, only charged him with homicide as written. This Court found nothing wrong with the Information, and ruled that the Information sufficiently charged the accused with murder, not even considering the absence of an explanation of the treachery stated therein, thus: The fact that the qualifying circumstances were recited in the second paragraph and not in the first paragraph of the Information, as commonly done, is a matter of form or style for which the prosecution should not be faulted. That the Provincial Prosecutor decided to write the Information differently did not impair its sufficiency. Nothing in the law prohibits the prosecutor from adopting such a form or style. As long as the requirements of the law are observed, the Information will pass judicial scrutiny. xxxx The test of sufficiency of Information is whether it enables a person of common understanding to know the charge against him, and the court to render judgment properly. The rule is that qualifying circumstances must be properly pleaded in the Information in order not to violate the accuseds constitutional right to be properly informed of the nature and cause of the accusation against him. The purpose is to allow the accused to fully prepare for his defense, precluding surprises during the trial. Significantly, the appellant never claimed that he was deprived of his right to be fully apprised of the nature of the charges against him because of the style or form adopted in the Information.[31]

This Court went on to affirm the conviction of the accused therein with murder qualified by treachery. The allegation in the Information of treachery as a qualifying circumstance was similarly assailed in People v. Opuran,[32] wherein the charge was as follows: Criminal Case No. 4693 That on or about November 19, 1998, at nighttime, at Km. 1, South Road, Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said accused, with deliberate intent to kill and treachery, did, then and there willfully, unlawfully, and feloniously attack, assault and stab Demetrio Patrimonio, Jr., with the use of a bladed weapon (5 long from tip to handle with scabbard), thereby inflicting upon the victim fatal stab wounds on the back of his body, which wounds resulted to his instantaneous death. All contrary to law, and with attendant qualifying circumstance of treachery.

This Court again rejected the argument of the defense by finding the allegation of treachery sufficient, and later on finding the accused therein guilty of murder qualified by treachery: We do not find merit in appellants contention that he cannot be convicted of murder for the death of Demetrio, Jr. because treachery was not alleged with specificity as a qualifying circumstance in the information. Such contention is belied by the information itself, which alleged: All contrary to law, and with the attendant qualifying circumstance of treachery. In any event, even after the recent amendments to the Rules of Criminal Procedure, qualifying circumstances need not be preceded by descriptive words such as qualifying or qualified by to properly qualify an offense. [33] Finally, the following constitutes the Information in People v. Bajar[34]: That on or about the 16th day of August 1999, at about 8:00 oclock in the evening, at sitio Mohon, Barangay Mambayaan, Municipality of Balingasag, Province of Misamis Oriental, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused, then armed with a sharp bolo, with intent to kill, and with evident premeditation, and treachery, did then and there willfully, unlawfully and feloniously stab one 85 year old Aquilio Tiwanak, accuseds father -in-law, hitting him on the different parts of his body, which caused his instantaneous death, to the damage and prejudice of the heirs of Aquilio Tiwanak in such amounts as may be allowed by law. The aggravating circumstances of dwelling, taking advantage of superior strength, disregard of the respect due the victim on account of his age, habitual intoxication and relationship attended the commission of the crime.

CONTRARY to Article 248 of the Revised Penal Code, in relation [to] Article 14, paragraph 3 and 15, and Article 15 of the Revised Penal Code. Like in the previous two cases, this Court found the Information to have sufficiently alleged treachery as a qualifying circumstance. Evidentiary facts need not be alleged in the information because these are matters of defense. Informations need only state the ultimate facts; the reasons therefor could be proved during the trial.[35] Whether the civil liabilities of the accused were correctly awarded by the lower courts

The trial court ordered the accused, Neil and Castor Batin, to pay the heirs of Eugenio Refugio in the following amounts: 1) 2) 3) 4) 5) P50,000.00, as death indemnity; P61,500.00, as actual damages; P500,000.00, as moral damages; P307,920.00, as indemnity for loss of earning capacity; and the costs of suit.[36]

Jurisprudence pegs the death indemnity in the above amount (P50,000.00) pursuant to the current judicial policy on the matter. No proof thereof is required. TheP61,500.00 in actual damages consists of the expenses incurred by the family of Eugenio Refugio, which Josephine Refugio testified to and was summarized in Exhibit H: [37] (1)P25,000.00 for medicines, surgery and other expenses for the hospitalization and emergency treatment; [38] (2) P20,000.00 for funeral expenses, inclusive of the costs of coffin, funeral services, and expenses during the wake; [39] and (3) P6,500.00 as for burial expenses. The Court of Appeals also modified the trial courts computation of the indemnity for loss of earning capacity. The trial court, finding the work of Eugenio Refugio to be hazardous, reduced his life expectancy to 20 years. This modification is in accord with our ruling in Pleyto v. Lomboy.[40] Pleyto offers the following computation for the award for loss of earning capacity: Net Earning = Capacity 2/3 x (80 Age at time of death) x (Gross Annual Income Reasonable & Necessary Living Expenses)

Eugenio Refugio, who was 31 years old at the time of his death, had a daily income of P145.00. The Court of Appeals multiplied this amount by 26 worki ng days to get Eugenio Refugios monthly income of P3,770.00. The Court of Appeals thus applied the Pleyto formula as follows: Net Earning = Capacity Net Earning = Capacity Net Earning = Capacity Net Earning = Capacity 2/3 x (80 31) x [(P3770 x 12) (P3770 x 12)]

2/3

(49)

[(P45,240) (P22,620)]

32

[P22,620]

P723,840[41]

Lastly, the Court of Appeals found the award of P500,000.00 as moral damages to be excessive, and instead fixed the amount at P100,000.00. In accord with prevailing jurisprudence, however, we further reduce this amount to P50,000.00.[42] WHEREFORE, the Decision of the Court of Appeals affirming with modification the conviction of accused-appellant Castor Batin for murder is AFFIRMED withFURTHER MODIFICATION as to the amount of the moral damages, which is hereby reduced to P50,000.00.

SO ORDERED.

NORTHWEST AIRLINES, INC., Petitioner,

G.R. No. 155550 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CORONA,* NACHURA, and REYES, JJ. Promulgated:

- versus -

STEVEN P. CHIONG, Respondent. January 31, 2008

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

DECISION NACHURA, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the reversal of the Court of Appeals (CA) Decision[1] in CA-G.R. CV No. 50308[2] which affirmed in toto the Regional Trial Court (RTC) Decision[3] holding petitioner Northwest Airlines, Inc. (Northwest) liable for breach of contract of carriage. On March 14, 1989, Philimare Shipping and Seagull Maritime Corporation (Philimare), as the authorized Philippine agent of TransOcean Lines (TransOcean), hired respondent Steven Chiong as Third Engineer of TransOceans vessel M/V Elbia at the San Diego, California Port. Under the service crew agreement, Chiong was guaranteed compensation at a monthly salary of US$440.00 and a monthly overtime pay of US$220.00, or a total of US$7,920.00 for one year. Subsequently, on March 27, 1989, Philimare dispatched a Letter of Guarantee to CL Hutchins & C o., Inc., TransOceans agent at the San Diego Port, confirming Chiongs arrival thereat in time to board the M/V Elbia which was set to sail on April 1, 1989 (California, United States time). For this purpose, Philimare purchased for Chiong a Northwest plane ticket for San Diego, California with a departure date of April 1, 1989 from Manila. Ten (10) days before his scheduled departure, Chiong fetched his entire family fromSamar and brought them to Manila to see him off at the airport. On April 1, 1989, Chiong arrived at the Manila International Airport[4] (MIA), at about 6:30 a.m., three (3) hours before the scheduled time of departure. Marilyn Calvo, Philimares Liaison Officer, met Chiong at the departure gate, and the two proceeded to the Philippine Coast Guard (PCG) Counter to present Chiongs seaman service record book for clearance. Thereafter, Chiongs passport was duly stamped, after complying with governme nt requirements for departing seafarers. Calvo remained at the PCG Counter while Chiong proceeded to queue at the Northwest check-in counter. When it was Chiongs turn, the Northwest personnel[5] informed him that his name did not appear in the computers list of confirmed departing passengers. Chiong was then directed to speak to a man in barong standing outside Northwests counters from whom Chiong could allegedly obtain a boarding pass. Posthaste, Chiong approached the man in barong who demanded US$100.00 in exchange therefor. Without the said amount, and anxious to board the plane, Chiong queued a number of times at Northwests Check-in Counter and presented his ticket. However, the Northwest personnel at the counter told him to simply wait and that he was being a pest. Frustrated, Chiong went to Calvo at the PCG counter and inquired if she had money so he could obtain a boarding pass from the man in barong. Calvo, who already saw that something was amiss, insisted that Chiongs plane ticket was confirmed and as such, he could check-in smoothly and board the plane without shelling out US$100.00 for a boarding pass. Ultimately, Chiong was not allowed to board Northwest Flight No. 24 bound for San Diego that day and, consequently, was unable to work at the M/V Elbia byApril 1, 1989 (California, U.S.A. time). It appears that Chiongs name was crossed out and substituted with W. Costine in Northwests Air Passenger Manifest. [6] In a letter dated April 3, 1989, Chiongs counsel demanded as recompense: (1) the amount equivalent to Chiongs salary under the latters Crew Agreement[7] with TransOcean; (2) P15,000.00 for Chiongs expenses in fetching and bringing his family from Samar to Manila; (3) P500,000.00 as moral damages; and (4) P500,000.00 as legal fees.[8]

Northwest demurred. Thus, on May 24, 1989, Chiong filed a Complaint for breach of contract of carriage before the RTC. Northwest filed a Motion to Dismiss[9] the complaint citing the trial courts lack of jurisdiction over the sub ject matter of the case, but the trial court denied the same.[10] In its Answer,[11] Northwest contradicted the claim that it breached its contract of carriage with Chiong, reiterating that Chiong had no cause of action against it because per its records, Chiong was a no -show passenger for Northwest Flight No. 24 on April 1, 1989. In the RTCs Pre-trial Order[12] based on the parties respective Pre-trial Briefs,[13] the triable issues were limited to the following: (a) Whether [Chiong] was bumped-off by [Northwest] from Flight NW 24 or whether [Chiong] no showed for said flight. (b) If defendant is found guilty of having breached its contract of carriage with plaintiff, what damages are awardable to plaintiff and how much.

In the course of proceedings, Northwest, on September 14, 1990, filed a separate criminal complaint for False Testimony[14] against Chiong based on the latters testimony that he did not leave the Philippines after April 1, 1989 contrary to the notations in his seaman service record book that he had left the country on April 17, 1989, and returned on October 5 of the same year. Chiong did not participate in the preliminary investigation; thus, on December 14, 1990, the City Prosecutor of Manila filed an Information against Chiong with the RTC Manila, Branch 54, docketed as Criminal Case No. 90-89722. In the meantime, after a flurry of motions filed by Northwest in the civil case were denied by the RTC, Northwest filed a Petition for Certiorari before the CA imputing grave abuse of discretion to the RTC. [15] Correlatively, Northwest moved for a suspension of the proceedings before the trial court. However, both the Petition for Certiorari and Motion for Suspension of the proceedings were denied by the CA and RTC, respectively. [16] After trial, the RTC rendered a Decision finding preponderance of evidence in favor of Chiong, and holding Northwest liable for breach of contract of carriage. The RTC ruled that the evidence adduced by the parties supported the conclusion that Chiong was deliberately prevented from checking-in and his boarding pass unjustifiably withheld to accommodate an American passenger by the name of W. Costine. The dispositive portion of the RTC decision reads: WHEREFORE, premises considered, in consideration of all the foregoing, judgment is hereby rendered, ordering the defendant liable to plaintiff in damages by reason of the latters inability to take defendants NW Flight No. 24 on April 1, 1989, for the following amounts: 1) U.S.$8,447.00[17] or its peso equivalent at the time of finality of this judgment with legal interests until fully paid, representing compensatory damages due to plaintiffs loss of income for one (1) year as a direct result of defendants breach of contract of carriage; P15,000.00, Philippine Currency, representing plaintiffs actual incurred damages as a consequence of his failure to avail of defendants Flight No. 24 on April 1, 1989; P200,000.00, Philippine Currency, representing moral damages suffered and sustained by the plaintiff as a result of defendants breach of contract of carriage; P200,000.00, Philippine Currency, representing exemplary or punitive damages due to plaintiff from defendant, owing to the latters breach of contract of carriage with malice and fraud; and P200,000.00, Philippine Currency, for and as attorneys fees, plus costs of suit.

2)

3)

4)

5)

SO ORDERED. On appeal, the CA affirmed in toto the ruling of the RTC. Identical to the RTCs findings, those of the CA were as follows: on April 1, 1989, Chiong was at the MIA three hours before the 10:15 a.m. departure time for Northwest Flight No. 24. Contrary to Northwests claim that Chiong was a no-show passenger, the CA likewise concluded, as the RTC did, that Chiong was not allowed to check-in and was not issued a boarding pass at the Northwest check-in counter to accommodate a certain W. Costine. As for Northwests defense that Chiong had left the country after April 1, 1989 and worked for M/V Elbia, the CA ruled that Northwests failure to raise this defense in its Answer or Motion to Dismiss is equivalent to a waiver thereof. The CA declared that, in any event, Northwest failed to present any evidence to prove that Chiong had worked under the original crew agreement.

Hence, this recourse. Northwest ascribes grievous errors to the CA when the appellate court ruled that: (1) Northwest breached the contract of carriage with Chiong who was present at the MIA on April 1, 1989 to board Northwests Flight No. 24; (2) As a result of the breach, Northwest is liable to Chiong for compensatory, actual, moral and exemplary damages, attorneys fees, and costs of su it; and (3) Northwests Exhibits 2 and 3, the Flight Manifest and the Passenger Name Record, respectively, were hearsay evidence and ought to be excluded from the records. The petition must fail. We are in complete accord with the common ruling of the lower courts that Northwest breached the contract of carriage with Chiong, and as such, he is entitled to compensatory, actual, moral and exemplary damages, attorneys fees and costs of s uit. Northwest contends that Chiong, as a no -show passenger on April 1, 1989, already defaulted in his obligation to abide by the terms and conditions of the contract of carriage;[18] and thus, Northwest could not have been in breach of its reciprocal obligation to transport Chiong. In sum, Northwest insists that Chiongs testimony is a complete fabrication, supposedly demonstrated by the following: (1) Chiongs seaman service record book reflects that he left the Phi lippines after April 1, 1989, specifically on April 17, 1989, to board the M/V Elbia, and was discharged therefrom upon his personal request; (2) the Information filed against Chiong for False Testimony; and (3) the Flight Manifest and the Passenger Name Record both indicate that he was a no-show passenger. We are not convinced. The records reveal that Chiong, as plaintiff in the trial court, satisfied the burden of proof required in civil cases, i.e., preponderance of evidence. Section 1 of Rule 133 provides: 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 circumstance of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though preponderance is not necessarily with the greater number. In this regard, the Court notes that, in addition to his testimony, Chiongs evidence consisted of a Northwest ticket for the April 1, 1989 Flight No. 24, Chiongs passport and seaman service record book duly stamped at the PCG counter, and the testimonies of Calvo, Florencio Gomez,[19] and Philippine Overseas Employment and Administration (POEA) personnel who all identified the signature and stamp of the PCG on Chiongs passport. We have scoured the records, and found no reason to depart from the well-settled rule that factual findings of the lower courts deserve the utmost respect and are not to be disturbed on appeal. [20] Indeed, Chiongs Northwest ticket for Flight No. 24 on April 1, 1989, coupled with the PCG stamps on his passport showing the same date, is direct evidence that he was present at MIA on said date as he intended to fly to the United States on board that flight. As testified to by POEA personnel and officers, the PCG stamp indicates that a departing seaman has passed through the PCG counter at the airport, surrendered the exit pass, and complied with government requirements for departing seafarers. Calvo, Philimares liaison officer tasked to assist Chiong at the airport, corroborated Chiongs testimony on the latters presence at the MIA and his check-in at the PCG counter without a hitch. Calvo further testified that she purposely stayed at the PCG counter to confirm that Chiong was able to board the plane, as it was part of her duties as Philimares liaison officer, to confirm with their principal, TransOcean in this case, that the seafarer had left the country and commenced travel to the designated port where the vessel is docked. [21] Thus, she had observed that Chiong was unable to check-in and board Northwest Flight No. 24, and was actually being given the run-around by Northwest personnel. It is of no moment that Chiongs witnesses who all corroborated his testimony on his presence at the airport on, and flight details for, April 1, 1989, and that he was subsequently bumped-off are, likewise, employees of Philimare which may have an interest in the outcome of this case. We intoned in Philippine Airlines, Inc. v. Court of Appeals,[22] thus: (T)his Court has repeatedly held that a witness relationship to the victim does not automatically affect the veracity of his or her testimony. While this principle is often applied in criminal cases, we deem that the same principle may apply in this case, albeit civil in nature. If a witness relationship with a party does not ipso facto render him a biased witness in criminal cases where the quantum of evidence required is proof beyond reasonable doubt, there is no reason why the same principle should not apply in civil cases where the quantum of evidence is only preponderance of evidence.

The foregoing documentary and testimonial evidence, taken together, amply establish the fact that Chiong was present at MIA on April 1, 1989, passed through the PCG counter without delay, proceeded to the Northwest check-in counter, but when he presented his confirmed ticket thereat, he was not issued a boarding pass, and ultimately barred from boarding Northwest Flight No. 24 on that day. In stark contrast is Northwests bare-faced claim that Chiong was a no-show passenger, and was scheduled to leave the country only on April 17, 1989. As previously discussed, the records belie this assertion. It is also noteworthy that Northwest did not present any evidence to support its belated defense that Chiong departed from thePhilippines on April 17, 1989 to work as Third Engineer on board M/V Elbia under the original crew agreement. It is true that Chiongs passport and seaman service record book indicate that he had left the country on April 17, 1989 and come back on October 5 of the same year. However, this evidence fails to debunk the facts established to have transpired on April 1, 1989, more particularly, Chiongs presence at the airport and his subsequent bumping -off by Northwest despite a confirmed ticket. Although initially, the burden of proof was with Chiong to prove that there was a breach of contract of carriage, the burden of evidence shifted to Northwest when Chiong adduced sufficient evidence to prove the facts he had alleged. At that point, Northwest had the burden of going forward[23] to controvert Chiongs prima facie case. As the party asserting that Chiong was a no-show passenger, Northwest then had the burden of evidence to establish its claim. Regrettably, Northwest failed to do so. Furthermore, it has not escaped our attention that Northwest, despite the declaration in its Pre-Trial Brief, did not present as a witness their check-in agent on that contentious date.[24] This omission was detrimental to Northwests case considering its claim that Chiong did not check-in at their counters on said date. It simply insisted that Chiong was a no-show passenger and totally relied on the Flight Manifest, which, curiously, showed a horizontal line drawn across Chiongs name, and the name W. Costine written above it. The reason for the insertion, or for Chiongs allegedly being a n o-show passenger, is not even recorded on the remarks column of the Flight Manifest beside the Passenger Name column. Clearly, the categorical declaration of Chiong and his other witnesses, coupled with the PCG stamp on his passport and seaman service rec ord book, prevails over Northwests evidence, particularly the Flight Manifest. Thus, we are perplexed why, despite the evidence presented by Chiong, and the RTCs specific order to Northwests counsel to present the person(s) who prepared the Flight Mani fest and Passenger Name Record for a proper identification of, and to testify on, those documents, Northwest still insisted on presenting Gonofredo Mendoza and Amelia Meris who were, admittedly, not competent to testify thereon. [25] In its desperate attempt to evade liability for the breach, Northwest claims that Chiong worked at M/V Elbia when he left the Philippines on April 17, 1989. The argument was not only belatedly raised, as we have repeatedly stated, but is off-tangent. On this point, we uphold the RTCs and CAs ruling that the failure of Northwest to raise the foregoing defense in its Motion to Dismiss or Answer constituted a waiver thereof. Section 1, Rule 9 of the Rules of Court provides: SECTION 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (Emphasis supplied)

Similarly, Section 8, Rule 15 of the Rules of Court reads: SECTION 8. Omnibus Motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

Moreover, Northwest paints a scenario that ostensibly transpired on a different date. Even if Chiong left the Philippines on April 17, 1989, it would not necessarily prove that Chiong was a no -show on April 1, 1989. Neither does it negate the already established fact that Chiong had a confirmed ticket for April 1, 1989, and first passed through the PCG counter without delay, then reached and was at the Northwest check-in counters on time for the scheduled flight. Essentially, Northwest argues that Chiong was a no -show passenger on two (2) separate occasions, March 28 and April 1, 1989 because he was actually scheduled to depart for the US on April 17, 1989 as ostensibly evidenced by his passport and seaman record book. Had this new matter alleged been proven by Northwest, it would prevent or bar recovery by Chiong. Unfortunately, Northwest was unsuccessful in proving not only the no -show claim, but that Chiong, likewise, worked under the original crew agreement. Northwest likewise insists now that there is a pending criminal case for False Testimony against Chiong that a falsified part of Chiongs testimony would indicate the falsity of his entire testimony, consistent with the falsus in uno, falsus in omnibus[26] doctrine. Following Northwests flawed logic, this would invariably lead to the conclusion that the corroborating testimonies of Chiongs witnesses are also false.

The legal maxim falsus in uno, falsus in omnibus, cited by Northwest, is not a positive rule of law and is not strictly applied in this jurisdiction. Before this maxim can be applied, the witness must be shown to have willfully falsified the truth on one or more material points. The principle presupposes the existence of a positive testimony on a material point contrary to subsequent declarations in the testimony. However, the records show that Chiongs testimony did not contain inconsistencies on what occurred on April 1, 1989. Yet, Northwest never even attempted to explain or impugn the evidence that Chiong passed through the PCG counter on April 1, 1989, and that his passport was accordingly stamped, obviously for purposes of his departure on that day. As to the criminal case, it is well to note that there is no final determination, as yet, of Chiongs guil t by the courts. But even if Chiong is adjudged guilty, it will have little effect on the outcome of this case. As we held in Leyson v. Lawa:[27] The testimony of a witness must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered. It must be stressed that facts imperfectly or erroneously stated in answer to one question may be supplied or explained as qualified by his answer to other question. The principle falsus in uno, falsus in omnibus is not strictly applied in this jurisdiction. The doctrine deals only with the weight of evidence and is not a positive rule of law, and the same is not an inflexible one of universal application. The testimony of a witness can be believed as to some facts and disbelieved as to others: xxxx Professor Wigmore gives the following enlightening commentary: It may be said, once for all, that the maxim is in itself worthless first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others, it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in themselves.

From the foregoing disquisition, the ineluctable conclusion is that Northwest breached its contract of carriage with Chiong. Time and again, we have declared that a contract of carriage, in this case, air transport, is primarily intended to serve the traveling public and thus, imbued with public interest. The law governing common carriers consequently imposes an exacting standard of conduct. As the aggrieved party, Chiong only had to prove the existence of the contract and the fact of its nonperformance by Northwest, as carrier, in order to be awarded compensatory and actual damages. We reiterate that Northwest failed to prove its claim that Chiong worked on M/V Elbia from April 17 to October 5, 1989 under the original crew agreement. Accordingly, we affirm the lower courts finding on Chiongs entitlement to actual and compensatory damages. We, likewise, uphold the findings of both courts on Northwests liability for moral and exemplary damages, and attorneys fees. Under Article 2220 of the Civil Code of the Philippines, an award of moral damages, in breaches of contract, is in order upon a showing that the defendant acted fraudulently or in bad faith. Bad faith does not simply connote bad judgment or negligence.[28] It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong. [29] It means breach of a known duty through some motive, interest or ill will that partakes of the nature of fraud. [30] Bad faith is in essence a question of intention.[31] In the case at bench, the courts carefully examined the evidence as to the conduct and outward acts of Northwest indicative of its inward motive. It is borne out by the records that Chiong was given the run-around at the Northwest check-in counter, instructed to deal with a man in barong to obtain a boarding pass, and eventually barred from boarding Northwest Flight No. 24 to accommodate an American, W. Costine, whose name was merely inserted in the Flight Manifest, and did not even personally check-in at the counter.[32] Under the foregoing circumstances, the award of exemplary damages is also correct given the evidence that Northwest acted in an oppressive manner towards Chiong.[33]

As for the award of attorneys fees, while we recognize that it is sound policy not to set a premium on the right to litigate,[34] we sustain the lower courts award thereof. Attorneys fees may be awarded when a party is compelled to litigate or incur expenses to protect his interest, [35] or where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim.[36] In the case at bench, Northwest deliberately breached its contract of carriage with Chiong and then repeatedly refused to satisfy Chiongs valid, just and demandable claim. This unjustified refusal constrained Chiong to not only lose income under the crew agreement, but to further incur expenses and exert effort for almost two (2) decades in order to protect his interests and vindicate his right. Therefore, this Court deems it just and equitable to grant Chiong P200,000.00 as attorneys fees. The award is reasonable in view of the time it has taken for this case to be resolved. [37] Finally, the issue of the exclusion of Northwests Exhibits 2 and 3 need not detain us long. Suffice it to state that the RTC and CA correctly excluded these documents as hearsay evidence. We quote with favor the CAs holding thereon, thus: As a rule, entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of a duty and in the ordinary or regular course of business or duty. [Rule 130, Section 43, Revised Rules of Court] Otherwise stated, in order to be admissible as entries in the course of business, it is necessary that: (a) the person who made the entry must be dead or unable to testify; (b) the entries were made at or near the time of the transactions to which they refer; (c) the entrant was in a position to know the facts stated in the entries; (d) the entries were made in his professional capacity or in the performance of a duty; and (e) the entries were made in the ordinary or regular course of business or duty. Tested by these requirements, we find the manifest and passenger name record to be mere hearsay evidence. While there is no necessity to bring into court all the employees who individually made the entries, it is sufficient that the person who supervised them while they were making the entries testify that the account was prepared under his supervision and that the entries were regularly entered in the ordinary course of business. In the case at bench, while MENDOZA was the supervisor on-duty on April 1, 1989, he has no personal knowledge of the entries in the manifest since he did not supervise the preparation thereof. More importantly, no evidence was presented to prove that the employee who made the entries was dead nor did the defendant-appellant set forth the circumstances that would show the employees inability to testify.[38]

WHEREFORE, premises considered, the petition is hereby DENIED. The ruling of the Court of Appeals in CA-G.R. CV No. 50308 is hereby AFFIRMED. Costs against the petitioner. SO ORDERED.

[G.R. No. 112968. February 13, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARSENIO LETIGIO, TEDDY NEMENZO and AMAY RAVANES, defendant. ARSENIO LETIGIO,accused-appellant. DECISION KAPUNAN, J.: In an Information filed on June 2, 1989, Arsenio Letigio, Teddy Nemenzo and Amay Ravanes (Rabanes) were charged before the Regional Trial Court of Toledo City in Criminal Case No. TCS-1092 with the crime of murder allegedly committed as follows: That on or about 1:15 o'clock dawn of the 23rd day of May, 1989 at barangay Don Andres Soriano (DAS), Toledo City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually

helping one another, all armed with firearms and a knife, with intent to kill and with evident premeditation, treachery and abuse of superior strength, did then and there, wilfully, unlawfully and feloniously, shoot one JIMMY REPUNTE, hitting him in his body and while the victim fell down accused AMAY RAVANES, hack(ed) his neck and stab(bed) him, which cause(d) his instantaneous death. That the crime was committed with nighttime as an aggravating circumstance, same being purposely sought by accused to facilitate and insure its commission.[1] Only accused Letigio was arrested. Nemenzo and Ravanes have remained at large. At his arraignment on July 4, 1989, Letigio pleaded not guilty to the crime charged. The prosecution thereafter presented evidence proving the following: May 22, 1989 was the barangay fiesta of DASUNA, Toledo City. The Repunte family took the event as a fitting occasion for a family reunion. The family, including the 26-year-old victim, Jimmy, gathered for supper at their parents' home. Thereafter, at around 7:30 that evening, 24-year-old Felix Repunte, Jr. went to his own home fifty (50) meters uphill from his parents' home. Not long after, Felix went to bed. Felix was awakened by the sound of plates being dropped. Then he heard his brother Jimmy who was behind the house calling for help, saying that he was being chased by three persons. [2] Looking out of the window, Felix saw Amay Ravanes, Arsenio Letigio and Teddy Nemenzo. They appeared to be "looking for something." [3] Felix went downstairs and told Jimmy to just stay where he was, or if he had the chance, to run to their parents' house some fifty meters away while he (Felix) would rush to the PC headquarters to report the matter. As the three men were approaching him, Jimmy ran towards the house of their parents pursued by the three who passed in front of Felix's house. Felix followed them. Unfortunately, the three caught up with Jimmy opposite the school near the house of Felix and Jimmy's parents. Thereupon, Letigio shot Jimmy who fell down his face on the ground. The assailants then turned over Jimmy and shot him at the breast. This was followed by Amay Ravanes slashing Jimmy's neck with a knife. [4] Felix clearly saw the whole incident from a distance of ten (10) meters, the place being illuminated by an electric bulb. Letigio used a "Frontier" revolver while the two others used .38 caliber revolvers. Like Ravanes and Nemenzo, Letigio used to be the comrades of Felix in the Kadre, called an "anti-com" group. When they noticed Felix, they fired at him three (3) times but missed. Felix ran towards the PC headquarters inside the compound of the Atlas Consolidated Mining and Development Company (ACMDC). He reported the incident to Sgt. Repollo who told a soldier to accompany Felix to the crime scene. Pedro Taneo, 37, was on his way home from work at ACMDC at around midnight on May 22, 1989 when he heard a gun burst. Instinctively, he hid behind the new elementary school building of Landing at DASUNA, Toledo City. By the moonlight and the light coming from the houses around, Taneo saw from a distance of around fifteen (15) meters three (3) armed men whom he recognized as Letigio, Ravanes and Nemenzo, his neighbors. He identified the person shot as Jimmy Repunte. [5] Thereafter, the three assailants passed by the place where Taneo was hiding. When they were gone, Taneo ran to the PC headquarters and informed the soldiers of the shooting incident. Together with PC men, Taneo went to the crime scene and found the victim, already dead. They then reported the incident to the police for the latter to conduct the appropriate investigation. Jimmy Repunte sustained contused abrasions on the clavicular region and the right knee; an abrasion on the right anterior thoracic region; a lacerated wound on the right forehead; a gaping hack wound on the left side of the chin, and three (3) gunshot wounds on the thoraco-abdominal region.[6] Dr. Jesus P. Cerna, a medico-legal officer at the PNP (formerly the PC-INP of the Cebu Metrodiscom), concluded that Jimmy died of multiple gunshot wounds and hack wound on the chin. He was certain that the second gunshot wound was caused by a .38 caliber revolver because of the slug he recovered. [7] Jimmy's widow, Rafoncel, was left with two (2) children to care for. When the incident happened, she was around three (3) months pregnant with her second child. She and her son were then with her mother in Luray 2, Toledo City. A cousin informed her at eight o'clock in the morning of May 23, 1989 that her husband had met an accident. In Lutopan, an aunt told her that Jimmy had died. Jimmy's body remained at the hospital morgue for two (2) days while they waited for an embalmer. An 8 to 9-day wake was held for him with the usual 9-day prayer practiced by Catholics. Around P15,000 was spent from the time the deceased was embalmed until his burial. The defense interposed a different version of the incident. Rodolfo Ginos, a 39-year old fisherman testified that he went to Letigio's house at around five o'clock in the afternoon of May 22, 1989 to inform Letigio of an assembly of the Iglesia ni Kristoto which they both belonged. After telling Letigio the purpose of his visit, Ginos was prevailed upon to stay because of a birthday celebration in honor of the child of Boknoy Nemenzo, a brother of accused Teddy. Liquor was served but he did not partake of it because drinking liquor was prohibited by his religion. At around 11:00 o'clock in the evening, Amay Ravanes arrived. Ravanes informed Nemenzo that he had been mauled by Jimmy Repunte. Reacting to the information, Nemenzo said that he and Ravanes would leave and look for Jimmy Repunte. They proceeded towards the direction of the school. Letigio, who was then playing a guitar, told his wife that he would follow the two. He left with his wife and Ginos tagging along. They were around twenty-five (25) meters away from the school when they heard three (3) gun bursts. Afraid, Letigio's wife suggested that they go home. Just then, Nemenzo and Ravanes coming from the direction of the school, approached them and told Letigio, "Bay, it actually happen(ed)," meaning that they killed Jimmy. [8] Ginos, Eugenio Letigio and his wife then went home, while Teddy Nemenzo and Amay Ravanes left towards a different direction. Ginos did not report the incident to the police thinking that the same would ultimately be known to them from other sources. He was also afraid that he might get implicated in the case.[9] Cristita Letigio, appellant's wife, testified that at five o'clock in the afternoon of May 22, 1989, her husband arrived from work at Atlas. There was then a birthday party in the neighborhood for one-year-old Anan, the daughter of Boknoy Nemenzo. Rodolfo Ginos had been waiting for Letigio to tell him about a meeting of the Iglesia ni Kristo. After telling Letigio of the purpose of his visit, Ginos stayed for the party. At the height of the merriment, Letigio handed the guitar he was playing to Cristita

who was upstairs and told her that he would follow Teddy Nemenzo and Amay Ravanes who had earlier left to look for Jimmy Repunte. Cristita went downstairs and, together with Ginos, followed her husband. They were going down towards the elementary school building in Landing Lutopan, Toledo City, when they heard three (3) gun bursts. Afraid, they crouched close to the ground. Then Nemenzo and Ravanes arrived from the lower portion of the area where the gunfire came from. Letigio asked the two what happened. Nemenzo said that "it really happen(ed) below." Ravanes told them that Jimmy was dead. Nemenzo and Ravanes then went to the upper portion of the area while the rest went home. Corroborating the story of his wife and Ginos, appellant Letigio testified that he had been working for seven (7) years at Atlas until he was charged with murder in 1989 for allegedly participating in the murder of Jimmy Repunte. Asserting that the accusation against him was untrue, Letigio narrated that he arrived home that Monday evening of May 22, 1989 to find Rodolfo Ginos, a fellow member of the Iglesia ni Kristo, waiting for him. Ginos informed him of a committee meeting of their church. Because Boknoy Nemenzo, whose house was around ten (10) meters away from his, was celebrating the first birthday of his daughter, Letigio invited Ginos to join the party. At around eleven o'clock in the evening, Letigio's neighbor, Amay Ravanes, arrived. Ravanes requested help from Teddy Nemenzo because Jimmy Repunte's group mauled him. Responding, Nemenzo said that they should go downhill near the elementary school. Ravanes in a striped T-shirt and maong pants and Nemenzo wearing a black jacket and a striped headband, both carrying revolvers, proceeded towards the school building. Having heard the conversation between the two, appellant Letigio wanted to counsel them against any rash action, but they proceeded to the school before he could do anything. Thus, he gave his guitar to his wife, Cristita, and told her that he was going to follow Nemenzo and Ravanes. Both Cristita and Ginos went with him. f could reach their destination or around 25 meters from the school, they heard three (3) gun shots. Afraid, they halted. Moments later, they saw Nemenzo and Ravanes hurriedly walking from the school house and approaching them. Appellant asked them where the gunshots came from. They replied that they killed Jimmy. [10] Then the two proceeded uphill while appellant, Cristita and Ginos went home. In the morning of May 23, 1993, Letigio was supposed to report for work but he did not do so because he and his wife had to buy things for the wedding of their son which had been scheduled for May 29. However, at 10:00 a.m., a member of the CAFGU, Mion Alegado, arrested him. Someone had reported the incident to the CAFGU. He himself did not report the matter to the police because he was afraid of Nemenzo and Ravanes who had not yet been arrested at that time. It was while he was detained at the PC detachment that Letigio revealed that Nemenzo and Ravanes were responsible for the killing of Jimmy Repunte. On September 6, 1993, the trial court[11] rendered judgment convicting Letigio of the crime of murder and imposing upon him the penalty of reclusion perpetua and the payment of civil indemnity in the amount of P50,000.00. With respect to the other co-accused, the lower court ordered the case archived pending their arrest. Hence, appellant interposed this appeal, alleging that the lower court erred in: (a) overlooking and ignoring certain facts of substance and value which, if considered, would have affected the outcome of the case; (b) totally discrediting, if not ignoring, the defense testimonial evidence, particularly that of Ginos, and; (c) not acquitting appellant upon the ground of reasonable doubt. Because of the variance between the versions of the commission of the crime as presented by the prosecution and the defense, the principal issue here is the credibility of the witnesses and their testimonies. In this respect, the time-honored rule is that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. This is so because the trial court is in a better position to decide the question having heard the witnesses and observed their deportment and manner of testifying during the trial.[12] The appellant has failed to convince us that in this appeal, there is room to apply the exceptions to the general rule of respect for the trial court's findings on the issue of credibility. Nonetheless, in the interest of justice, appellant's arguments shall be considered and resolved. Appellant assails the credibility of prosecution witnesses Pedro Taneo and Felix Repunte, Jr., especially as regards their identification of appellant as one of the perpetrators of the crime. Firstly, appellant avers that Taneo could not have seen the actual shooting incident considering his claim that he hid immediately upon hearing the first gun report. The particular portion of Taneo's testimony on the matter, however, belies this averment. Taneo testified, thus: Q: After hearing the gunburst what did you do? A I took safety of myself (sic). Q: When you placed yourself on safety what else transpired? A: I have seen three persons. Q: What did these three persons do? A: I saw these three persons not far from the place where I hid they were bringing with them arms. Q: Aside bringing arms what were they doing? A: Not far from the place where I hid that was the last gunburst that I heard that somebody shot by them (sic). Q: Do you know who were these three persons bringing firearms which you said shot somebody? A: Yes. Q: How did you come to know them? A: Because they were my neighbors. Q: About how far were you to the place where these persons shot (sic)? A: Fifteen (15) meters, more or less. Q: What was the lighting condition where the three persons shot somebody? A: It was a moonlit night and there were lights in the houses there in the place. Q: Can you tell this Honorable Court the names of those three persons? A: They were Arsenio Letigio, Amay Ravanes and Teddy Nemenzo. [13] On cross-examination, Taneo testified as follows: Q: According to you when you heard gunburst you immediately hid or sought cover and you hid?

Yes, sir. And you have not seen any object yet or any person yet you just wanted to know what you heard the gunburst (sic)? When I heard the gunburst I saw three men with arms. Now, again you only saw these three persons in a split of second because according to you your reflex told you to seek cover? A: Yes, sir. Q: And according to you, you only saw three persons meaning you did (sic) not able to identify these three persons at that particular time? A: I was able to identify. Q: You mean at that particular time you were startled at the three gunbursts were you able to identify these three persons? A: I was able to identify. Q: Who were they? A: Arsenio Letigio, Amay Ravanes and Teddy Nemenzo.[14] It is, therefore, clear that while Taneo might have hidden as soon as he heard the initial gunburst, still, he endeavored to see what was happening. Borne out of curiosity, Taneo's reaction was anything but unnatural. Not every witness to a crime can be expected to act reasonably and conformably to the expectations of everyone. While it is true that the usual reaction of people who hear a gun shot is to hide and seek shelter as an instinctive act of self-preservation, it is equally true that there are people who are emboldened, after finding a secured place, to strive to recognize the author of the crime as well as the identity of the victim. Still others might dare to personally witness a startling event, like the shooting of a person, without taking the minimum precaution for their safety. Or perhaps, the bravado is just the sudden or impulsive reaction of certain people oblivious to the peril they face. Different persons have different reactions to similar situations. There is no typical reaction to a sudden occurrence. [15] Secondly, appellant contends that at a distance of fifteen (15) meters, Taneo could not have recognized the firearm (Frontier) that appellant was carrying. To the appellant, such testimony is a "brazen lie" considering Dr. Cerna's testimony that the victim was shot by a .38 caliber revolver.[16] Obviously a futile attempt to cast a doubt on Taneo's credibility, appellant's contention deserves scant consideration for it does not change the fact that appellant was with his co-accused Nemenzo and Ravanes during the shooting incident. The pertinent testimony of Dr. Cerna states: Q: What possibly was the caliber of the firearm used in inflicting the gunshot wound number 3? A: Just like gunshot wound numbers 1, 2 and 3, caliber .38 the same caliber. Q: Are you certain of that Doctor that it was used by the same firearm (sic)? A: Considering the sizes of gunshot wounds I am not certain but I am taking (sic) of the possibility. It was only gunshot wound number 2 where I recovered the slug which I confirmed because it was inflicted by .38 caliber because I recovered the .38 slug but in gunshot wound number 1 and 3 although the sizes are approximate with gunshot wound number 2, I am not certain or accurate. Sometimes although the sizes of the wound the entrance are the same (sic) but it could be possibly inflicted by the different caliber because the shape and sizes of the wound entrance could be cause(d) by some other factors.[17] The possibility that gunshot wounds Nos. 1 and 3 were caused by the "Frontier" firearm cannot therefore be discounted. Even if no "Frontier" slugs were recovered from the victim's body, appellant's culpability was sealed by his duly proven complicity in the crime. There was conspiracy between appellant and his co-accused as shown by appellant's cooperative act of firing at the victim before the others did[18] to attain the common criminal objective of killing Jimmy Repunte. [19] Besides, contradictions or inconsistencies as to the type of firearm used and even the sequence in which it was fired refer to minor and trivial matters[20] that do not derail the fact that appellant used a firearm in the shooting incident. In an effort to impair the credibility of Felix Repunte, Jr., appellant points to his testimony suggesting that he did not allow his brother to enter his house for his safety; that Felix could not tell who of the three malefactors was ahead in chasing Jimmy, and that the first time he testified, Felix swore that it was appellant and not Ravanes who cut the neck of his brother. Felix explained his failure to open their front door for his brother he was in fear for his life and those of his wife and children who might be shot by the assailants who were in front of his house. [21] It should be noted that Felix's house was made of wood and bamboo slats so that, without the divider in the porch, he would have faced appellant who was just two (2) meters away from him. He did not have to open any door at the back simply because that "back" was still unfinished.[22] His failure to notice who of the three assailants was ahead in chasing his brother is immaterial. Besides, the matter was satisfactorily explained by Felix his attention was focused on his brother.[23] As regards the person who cut the victim's neck Felix had consistently identified Ravanes as the culprit. It is on record that the stenographer erred in placing appellant's name, instead of Ravanes, in her notes the first time Felix testified. [24] The trial court in fact ordered that the stenographer's manifestation that she was mistaken in writing the name of appellant in the transcript be placed on record. [25] Appellant further alleges that Felix could not have been at the crime scene because Taneo testified as follows: Q: In other words, you can tell this Honorable Court in all honesty that Felix Repunte was not at the scene of the crime because you only met him on the way? xxx xxx xxx A: I have not seen because I was alone.[26] That testimony, however, taken with the whole testimony of Taneo and that of Felix Repunte, Jr. means no more than that Taneo did not see Felix and that Taneo was not with anyone then. Taneo had come from work and he was walking alone. Immediately after hearing the first gun shot, he sought cover behind the school building and thereafter concentrated on the exciting event unfolding before his eyes. Moreover, he could not have seen Felix who was following Jimmy. Felix testified, thus: Q: How far were you when accused Arsenio Letigio allegedly shot your brother? A: Ten meters. Q: And what was your relative position to your brother?

A: Q: A: Q:

A: I was facing at (sic) them. Q: Were they facing you? A: They were facing to (sic) my brother and I was facing at (sic) them because their attention focused to (sic) my brother. Q: In other words you were at the same side of (sic) your brother? A: Yes, sir.[27] Thus, far from discrediting the testimony of either prosecution witnesses, Taneo's admission that he did not see Felix bespeaks of his sincerity in testifying in order that the truth may surface. Appellant also stresses the alleged inconsistency between the description of his attire by the two prosecution witnesses Taneo depicted him as wearing a headband and a T-shirt with long pants while Felix portrayed him as the polo jacket-wearing assailant.[28] This alleged inconsistency, however, refers to a minor detail on a collateral matter. As such, it does not affect the witnesses' credibility. In fact, said variation may indicate truth. Slight contradictions even serve to strengthen the sincerity of a witness and prove that his testimony is not rehearsed.[29] Alleging that both prosecution witnesses had "deliberately and wantonly lied" in inculpating him, appellant contends that the maxim falsus in unus, falsus in omnibus should be applied for his exculpation.[30] In People v. Manalansan,[31] the Court said: x x x. The maxim falsus in unus, falsus in omnibus does not lay down a categorical test of credibility. While the witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreements that all of them should be disbelieved as liars and their testimonies completely discarded as worthless In People v. Pacapac,[32] the Court added that the maxim x x x is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all the testimony of a witness on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and deliberate intention to falsify a material point. Verily, because appellant failed to unsettle the material point of his complicity in the killing of Jimmy Repunte notwithstanding the grueling cross-examination of the two prosecution witnesses, whatever contradictions and inconsistencies might have been present in their testimonies as to peripheral and collateral matters may not result in the total abrogation of their respective testimonies. The defense attempted to besmirch Taneo's credibility by insinuating that he testified against appellant because the latter was mad at him for pushing marijuana to appellant's son. [33] That appellant did not even mention this matter in his repetitious 50-page Brief bespeaks of its falsity. Absent any showing that Taneo was impelled by an ill motive in testifying against appellant, the logical conclusion is that no such improper motive exists and that his testimony deserves full faith and credit. [34] As regards Felix, the fact that he is the brother of Jimmy does not per se make him a biased witness. Mere relationship of the victim to a witness does not automatically impair his credibility and render his testimony less worthy of credence where no improper motive can be ascribed to him for testifying.[35] On the contrary, such relationship lends more credence to a witness' testimony considering his natural interest to see the guilty punished. It would be unnatural for a relative who is interested in vindicating the crime to accuse anyone other than the real culprit. [36] Appellant further asserts that the "real reason" why he was implicated in the crime is that by Felix's own admission, there must be someone to answer for the death of his brother as shown by this portion of his testimony. Q: And at the time when your affidavit was taken you came to know that of all the three accused or suspects only Arsenio Letigio remained at his place of residence? A: Yes, sir. Q: And when you saw your statement, your affidavit you have all the blame on the accused Arsenio Letigio because after all he was the only one who was captured and you placed the blame to Teddy Nemenzo and Amay Ravanes would only complicate the case, is it not (sic)? A: Yes, sir.[37] Once again, appellant's interpretation of Felix's testimony is slanted to his favor. It was but natural for Felix, a simple carpenter, to heap the blame for his brother's death on appellant. After all, he saw appellant fire at his brother. But it is not true that, as appellant wants us to understand, he was simply a scapegoat because Ravanes and Nemenzo had not been arrested. Felix testified that appellant was not the sole perpetrator of the crime. He clearly implicated Ravanes and Nemenzo in court as he did in the sworn statement he executed at five o'clock in the afternoon of May 23, 1989. [38] Appellant's defense of alibi cannot prevail over his positive identification as one of the perpetrators of the crime.[39] Appellant admitted that he was within a 25-meter radius from the crime scene when it occurred. However, the probability of his being with his wife and friend at the crucial time is doubtful. His wife would not have taken the trouble of going with him thereby unnecessarily exposing herself to danger if his purpose was merely to "advise" Nemenzo and Ravanes against taking any rash action. There is in fact another plausible explanation why his wife and friend were very near the crime scene. They followed him knowing that he had an intention other than to assuage the feelings of the enraged Ravanes and Nemenzo. His wife would naturally vouch for his innocence. By their relationship as friends and members of the same religious sect, Ginos also had a reason for offering help towards his exoneration. Aside from this, Ginos' reason for not reporting the crime to the police, that is, he did not want to be implicated in the case and that, anyway, the incident would reach the ears of the authorities from other sources, is unacceptable. If he was the law-abiding citizen that he portrayed himself to be, he should have reported the incident to the authorities, if indeed the appellant had nothing to do with it. The trial court correctly held that the crime committed was murder. The killing was qualified by abuse of superior strength by the three assailants who used deadly weapons in snuffing out the victim's life. [40] Because no aggravating or mitigating circumstances were proven, the trial court correctly imposed the penalty of reclusion perpetua, the medium period of the penalty

of reclusion temporal in its maximum period to death imposable for the crime of murder. [41] In conformity with prevailing jurisprudential law, the heirs of the victim shall be indemnified civilly in the amount of Fifty Thousand Pesos (P50,000.00).[42] WHEREFORE, the herein questioned decision finding appellant Arsenio Letigio guilty beyond reasonable doubt of the crime of murder and imposing on him the penalty of reclusion perpetua and civil indemnity of P50,000.00 is hereby AFFIRMED. Let a copy of this decision be furnished the Philippine National Police and the National Bureau of Investigation for them to exert further efforts in order that appellant's co-accused, Amay Ravanes and Teddy Nemenzo, may be brought to justice for their complicity in the murder of Jimmy Repunte. Costs against appellant. SO ORDERED.

G.R. Nos. 76369-70 September 14, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO MANALANSAN, accused-appellant. The Solicitor General for plaintiff-appellee. Antonio C. De Guzman for accused-appellant. CRUZ, J.: The accused-appellant was charged in two separate informations with the possession and sale of prohibited drugs in violation of the Dangerous Drugs Act. He was convicted in both cases and sentenced accordingly. He now comes before this Court, alleging that: (1) He should not have been prosecuted separately for possession of the marijuana because the offense was already absorbed in the crime of selling the prohibited narcotic. (2) He was deprived of due process because his first motion for postponement was denied by the trial judge and the prosecution was allowed to present its evidence in the absence of his regular counsel. (3) He was convicted on the basis of flimsy and inconsistent evidence as against his definite proof that he had been "framed" in retaliation for his earlier acts against two of the prosecution witnesses. As found by the trial court, Manalansan was arrested in the evening of March 29, 1983, at the foot of the stairs leading to the provincial capitol in La Trinidad, Benguet. The arrest was the result of an entrapment arranged by a NARCOM team headed by Major Percy Aldaba and consisting of Sgt. Glenn Logan, Sgt. Pacifico Mugar, CIC Leo Quevedo, CIC Celerino Beltran, and P/Cpl. Danilo Manalastas. Earlier that evening, Major Aldaba had given P750.00 to Manalastas and Quevedo, who were to be the poseurs/buyers. The money consisted of several bills of various denominations and had previously been photocopied. A little before 8:30 p.m., the team proceeded to the residence of Manalansan in Trancoville, Baguio City. Meeting him on the way, Manalastas and Quevedo told him they were interested in buying marijuana, or the "stuff," as they called it. Manalansan was wary at first but finally agreed to sell them 500 grams of marijuana for the stipulated price of P750.00. They decided to meet at 11 p.m. at the Chinese Temple but Manalansan changed his mind and suggested a "safer spot" at the foot of the stairs to the provincial capitol. As planned, the three met at the appointed time and place, and the sale was consummated, with Manalansan delivering the 500 grams of marijuana to Quevedo and Manalastas who paid him the P750.00. Quevedo then lit a cigarette. At this pre-arranged signal, the other members of the team, who had concealed themselves in several strategic places where they could view the transaction, revealed themselves and arrested Manalansan. He was frisked and found with another 50 grams of marijuana, which was confiscated along with the P750.00. All the marijuana was later sent to the PC Crime Laboratory and the money to the office of the prosecutor.

The above narration was made on the stand by Manalastas, Quevedo, and Glenn Logan. 1 P/Lt. Therese Ann Bugayong, a forensic chemist of the PC Crime Laboratory at Camp Dangwa, testified that the contents of the brown paper bag delivered to Manalastas and Quevedo by Manalansan and of the white plastic packet found on his person were marijuana flowering tops weighing approximately 500 grams and 50 grams, respectively. 2 For his part, Manalansan alleged that he was the victim of a "frame- up" motivated by a desire to avenge his having previously reported Manalastas and Logan for offering a .45 caliber pistol in exchange for marijuana. That was sometime in 1980. Nothing came out of the incident but the agents were apparently still resentful of him, which was why he was arbitrarily picked up in the evening of March 29, 1983. He was detained overnight, during which he was tortured and compelled to sign a piece of paper the contents of which he was not allowed to read. He was then made to subscribe to the document on the promise of his captors that they would release his wife and daughter whom they had also arrested. Manalansan categorically denied that he was selling or in possession of any marijuana at the time of his arrest and implied that this was merely "planted" by the NARCOM agents. 3Moreover, the defense sought to cast doubt on the Identity of the marijuana presented at the trial, suggesting that it pertained to another case as indicated in its markings. 4 On the first issue, we hold that the Government did not err in filing two separate informations for possession and sale of marijuana, respectively, by the accused-appellant. He is correct in arguing that the possession of the marijuana was absorbed in the sale thereof, but that is true only of the 500 grams he delivered to the poseurs/buyers for P750.00. It is not true of the other 50 grams found in his possession which were not covered by the sale and were probably intended for a different purpose like another sale or its direct use by the possessor. It was quite proper for the trial judge to hold that the accused-appellant was guilty of two separate offenses, to wit, sale of the 500 grams of marijuana, and possession of the other 50 grams, at the time of his arrest. We are also not prepared to sustain the second assigned error, for the record shows that the trial judge had valid reasons to deny the motion for postponement. The prosecution witness scheduled to testify at that hearing was the forensic chemist, who had come in response to a subpoena and had a busy official schedule, including appearances at other court hearings. The trial judge was only exercising his sound discretion in ordering the trial to proceed. Although his regular counsel could not attend for medical reasons, Manalansan was nevertheless represented by a temporary substitute lawyer, who did not really have to study the case in depth because the only evidence to be introduced at that particular hearing dealt with the technical Identification of the marijuana. He in fact even conducted a cross-examination. If he really felt that the accused-appellant's interest would be prejudiced, he should have expressed his objection and backed it up by refusing to participate in the examination of the witness. Not having done so, he is deemed to have conformed to the order of the court. Lawyers are not pliant robots at the complete mercy of the judge but can and must protest its acts if they feel their client's rights are being violated. Finally, we come to the credibility of the witnesses. We have held in numerous cases that the evaluation of the witnesses by the trial court is received on appeal with the highest respect because it is the trial court that has the direct opportunity to observe them on the stand and detect if they are telling the truth or lying in their teeth. That assessment is accepted as correct by the appellate court-is indeed binding upon it-in the absence of a clear showing that it was reached arbitrarily. There is no such showing in the case at bar. While it may be conceded that there are a number of inconsistencies in the testimonies of the prosecution witness , they are not in our view substantial enough to impair the veracity of the prosecution evidence of how the two crimes were committed by the accused-appellant. The maxim falsus in unus falsus in omnibus does not lay down a categorical test of credibility. While witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreements that all of them should be disbelieved as liars and their testimonies completely discarded as worthless. The testimony of the accused-appellant is another matter. There is no proof whatever of his alleged manhandling; he did not present any medical certificate of his supposed injuries, and neither did he complain to the prosecutor before whom he says he subscribed a document which, incidentally, was never presented in court by either the prosecution or the defense. And the motive he imputes to the prosecution witnesses is not credible either as even his own witness who was expected to corroborate his assertions actually belied them. Manalansan claimed that when he learned that Manalastas and Logan (who later became Major Aldaba's men) were looking for marijuana, he had reported the matter to Colonel Lomibao, who ordered him to prepare two kilos of marijuana for their entrapment. On the stand, Col. Lomibao denied he had given any such instruction and stressed he had nothing to do whatever with the planned entrapment. In fact, he said, Manalansan was not a civilian informer and was the one who was arrested, not the prospective buyers, who turned out to be CANU agents. We find that the trial court committed no error in convicting the accused-appellant of the separate offenses of selling and possessing marijuana in violation of the Dangerous Drugs Act. We are satisfied that his guilt of the two crimes has been proved beyond reasonable doubt by the evidence of the prosecution. For selling marijuana, Manalansan was sentenced to "the penalty of life imprisonment to death and to pay a fine of P 25,000.00"; and for possession of marijuana, he was sentenced to "a penalty of imprisonment of six (6) years and one (1) day to twelve (12) years, and to pay a fine of P 9,000.00" by Judge Nicodemo T. Ferrer of the Regional Trial Court of Baguio and Benguet. The first penalty of "life imprisonment to death' is obviously erroneous and is hereby changed to life imprisonment only plus the fine. The penalty for the second offense is sustained. We need only add that the active support of everyone is needed to bolster the campaign of the government against the evil of drug addiction. The merchants of all prohibited drugs, from the rich and powerful syndicates to the individual street "pushers," must be hounded relentlessly and punished to the full extent of the law, subject only to the inhibitions of the Bill of Rights. WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED as modified, with costs against the accusedappellant. SO ORDERED.

G.R. No. 90623 September 7, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEOPOLDO PACAPAC, NESTOR TRANGUIA, JOHN DOE and PETER DOE, accused. LEOPOLDO PACAPAC and NESTOR TRANGUIA, accused-appellants. ROMERO, J.: Appellants Leopoldo Pacapac and Nestor Tranguia, together with two unidentified persons designated as John Doe and Peter Doe, were charged with the crime of Robbery in Band with Homicide 1 before the Regional Trial Court (RTC) of Cebu Mandaue City, Branch 28, in an Amended Information dated August 15, 1986, which reads: The State accused LEOPOLDO PACAPAC, NESTOR TRANGUIA JOHNDOE and PETER DOE of robbery in band with homicide committed as follows:

That on or about the 17th day of January 1986 in the City of Mandaue, Philippines and within the jurisdiction of the Honorable Court, the aforesaid accused, Leopoldo Pacapac,Nestor Tranguia, John Doe and Peter Doe, conspiring and confederating together and helping one another, all armed with firearms, with intent to gain and with violence and intimidation against persons, did then and there wilfully, unlawfully and feloniously shoot Rogelio Collantes at his vital portion which caused his death almost instantaneously did then and there take, steal and carry away one (1) diamond ring with 12 stones valued at P6,000.00 and cash in the amount of P3,000.00 in the total amount of P9,000.00 belonging to the latter, to the damage and prejudice of his (victim's) heirs in the amount aforesaid. That the crime was committed with the aggravatting circumstances of treachery, use of motor vehicle, and taking advantage of superior strength. CONTRARY TO LAW. 2 Both accused having pleaded not guilty when arraigned, trial ensued. The prosecution evidence sought to establish that: At around 9:30 o'clock in the evening of January 17, 1986, Patrolman Rogelio Collantes of the Police Force of Mandaue City, was checking their bodega of scrap metals, bottles and cans, located just across their house in Jagobiao, Mandaue City. After five (5) minutes, Flora Collantes, Patrolman Collantes' wife heard sounds of bottles breaking and of footsteps coming from the direction of the bodega. 3 Out of curiosity, she opened the window facing the bodega and saw a man with closed-cut beard, wearing a blue and white striped t-shirt, sleeveless jacket and head band, later identified as Leopoldo Pacapac, holding an unconscious man with one hand and poking something at the latter's face with the other hand. She did not recognize the unconscious man, as she could see only the back of his head. Two (2) other men flanked the unconscious man on either side. 4 One of the men flanking the unconscious man ran to the left side of the street. The other man, who was wearing a light brown long-sleeved jacket over a white and red t-shirt, later identified as Nestor Tranguia, noticed her watching. He pointed a gun at her and ordered her to close the window, saying, "Sirhe kay wa kay labot niini" (close that because you have nothing to do with this). She obeyed out of fear. Moments later; she heard a gunshot and somebody shouting, " Tulis kini, wa moy labot" (This is robbery, you have nothing to do with this) 5 Flora went back to the window and opened it halfway to avoid detection. She saw Pacapac shouting, " Kuhaa ang kuwentas, singsing, ug pitaka" (Get the necklace, ring and wallet). After a while, Pacapac knelt beside the man sprawled on the ground. After divesting the man of his belongings, Pacapac stood up, looked down at the former and said, " Garboso kaayo ning tawhana maong akong gipatay" (This man is very hooty and proud that is why I killed him). Thereafter, the three (3) men left, heading toward Consolacion. 6 Faustino Collantes, Jr., a brother of Rogelio Collantes, was at home when the gunshot rang. When he opened the door to investigate, a man, later identified as Nestor Tranguia, pointed a .38 caliber revolver at him, saying, "Don't do anything because you have nothing to do this." 7 Domingo Semblante heard the gunshot while storing an amplifier in the bodega of a certain Mr. Jordan; located behind Rogelio Collantes' house. In order to verify its source, he went out with Calvin Emano, Robert Perez and two other companions to the source of the explosion. There, they saw a bearded man wearing a short-sleeved jacket or a chaleco over a blue and white horizontal striped t-shirt, red headband, maong pants and white shoes, holding a nickel-plated gun. That man, later identified as Leopoldo Pacapac, pointed the gun at them, saying, "Do not come near because this is the military." Semblante and his companions turned back. While slowly retracing their way to Jordan's bodega, Semblante looked back and saw Pacapac and two(2) companions leaving. 8 Moments later, Flora Collantes' found out that the man sprawled on the ground was her husband. 9 Shortly thereafter, Pat. Ernesto Entise, Officer-in-Charge of the Homicide Section of the Mandaue Police Station, and other policemen arrived. In his initial investigation, Entise learned from witnesses that there were four (4) persons involved. They were described through their attires and facial appearances: One was bearded, wearing a blue and white horizontal striped t-shirt, red head band and maong pants and armed with a .45 caliber nickel-plated revolver; another was wearing a white t-shirt covered with a dark colored jacket and maong pants; and the third was wearing a red and white striped t-shirt and dark pants. The fourth was wearing a brown sweat shirt and dark pants. 10 Entise requested Barangay Captain Bataan Cosedo to drive him around the vicinity, hoping to catch up with the assailants. While making a U-turn on Rizal St., Entise noticed a yellow Galant car without a license plate with four (4) occupants and an armalite rifle sticking out from it. His suspicion aroused, he asked Cosedo to give chase. When they intercepted the car, the occupants shouted, "We are from R-2". Entise alighted from the car and approached the Galant car whose driver likewise alighted and introduced himself as Sgt. Leopoldo Pacapac, connected with the R-2. Entise informed Pacapac that a policeman had been killed. Noticing that the attire of Pacapac fitted the description given by witnesses, he invited Pacapac to the scene of the crime. 11 Pacapac acceded, but Entise observed that he mingled with the crowd. At that precise moment, the Mayor arrived and called Entise. Thereafter, Entise looked for witnesses, but found only Faustino Collantes, Jr. Pacapac having gone back to his group, Entise brought Faustino to where Pacapac and his companions were located for identification. Faustino remained silent. However, after Pacapac and his companions had left, Faustino told him that one of them was the one who pointed a gun at him. 12 Before Pat. Collantes' body was brought to the funeral parlor in Mandaue, Flor was told to get all the belongings of the deceased. She found her husband's ring worth P6,000.00 and wallet containing the P3,000.00 paid to them by a customer earlier that afternoon, missing. Her husband's necklace, which she thought was also missing, was later found under her husband's shirt with its pendant in his armpit. 13 According to the Necropsy Report N-86-25 14 of Dr. Jesus P. Cerna, Medico-Legal Officer, the victim died of a gunshot wound located at the right roof of his mouth, with exit wound at the back of his head.

The case was endorsed to the Criminal Investigation Service (CIS) for further investigation. In a lineup conducted on March 13, 1986, Flora Collantes, Faustino Collantes, Jr. and Domingo Semblante separately identified Pacapac and Tranguia as the persons who robbed and killed Pat. Collantes. Leopoldo Pacapac denied participation in the crime and interposed the defense of alibi. He testified that on January 17, 1986, at around 12:00 o'clock noon, he was at his office at R-2 Division, Recom 7. He received a call which prompted him to go to Arkane International Corporation located at Jagobiao, Mandaue City. Arriving at Arkane at around 1:30 o'clock in the afternoon, he conferred with its owner Alex Ty about the killing of the production manager, Nelson Fuentes. 15 At around 5:00 o'clock in the afternoon, he cooked dogmeat with some security guards who were already off-duty. Two (2) security guards, Nestor Tranguia and Jumamil Prescillas, approached him to inquire whether he was going to the wake of Nelson Fuentes as they wanted to go with him. After eating the dogmeat, at past 10:00 o'clock in the evening, he, together with Nestor Tranguia, Jumamil Prescillas and Roy Cortes, left Arkane on board his yellow Galant car to go to the Mandaue Funeral Parlor where the body of Nelson Fuentes was lying in state. 16 While on the highway near the Eversely Child Sanitarium, he noticed many people. The car of the Mayor and the police cars were also there. He slowed down, but when they passed by the group, a white car blocked their way and an armalite rifle was aimed at them. The occupants of the white car introduced themselves as policemen, so he introduced himself as a PC soldier. One of the white car's occupants, later identified as Pat. Entise, alighted and informed them that a policeman had been killed. He alighted from his car because he knew that the place was infested with NPAs and went to the place of the incident. 17 Upon reaching the crime scene, Pat. Entise asked for witnesses. When several persons approached them, Pat. Entise directed a flashlight at his face, asking, "Is this the one?" Surprised, he asked Entise, "What is this? Am I a suspect?" Pat. Entise said, "No, the one who killed the victim was sporting a moustache." Also, one of the witnesses told them that the assailant was stout. Thereafter, Pat. Entise asked Pacapac to let his companions alight from the car for purposes of identification, but none of them was identified by the witnesses. Pat. Entise extended to the group his apology and allowed them to go. The group proceeded to the funeral parlor. 18 Pacapac's testimony on the failure of the witnesses to identify any of them right after they were intercepted by Pat. Entise was corroborated by other witnesses, namely: Nestor Tranguia, Jumamil Prescillas, Bataan Cosedo, Alejandro Desierto and Joel Tajanlangit. Nestor Tranguia, for his part, opted not to present evidence. Instead, he filed a Motion to Dismiss based on the ground that the evidence of the prosecution "is not only grossly insufficient but miserably failed to show the slightest degree of participation of accused Nestor Tranguia in the alleged offense charged." 19 The prosecution opposed the motion to dismiss. 20 On July 6, 1989, the trial court delivered judgment of conviction, 21 thus: WHEREFORE foregoing premises considered and finding the herein accused LEOPOLDO PACAPAC and NESTOR TRANGUIA, guilty beyond reasonable doubt of the special complex crime of Robbery in Band with Homicide, the said accused are hereby sentenced each to suffer the imprisonment of RECLUSION PERPETUA and to pay severally and jointly the amount of P30,000.00 as indemnity to the heirs of Pat. Rogelio Collantes by reason of his death and to pay their proportionate share of the cost. Both accused being detention prisoners shall be credited in the service of their sentence full time during which they have undergone preventive imprisonment. In the meantime that the two (2) accused, namely, John Doe and Peter Doe are not yet brought before the jurisdiction of this Court, this case shall be ordered ARCHIVED subject to be revived upon the arrest of the two accused. SO ORDERED. 22 Hence, this appeal. Appellants insist on their innocence and contend that the lower court erred in: 1. . . . GIVING CREDENCE TO THE DECLARATIONS, OF WITNESSES, DOMINGO SEMBLANTE, FLORA COLLANTES, AND OTHERS, WHOSE TESTIMONIES WERE ALL INCREDIBLE AND NOT IN ACCORDANCE WITH THE ORDINARY COURSE OF THINGS; 2. . . . CONVICTING THE ACCUSED-APPELLANTS FOR THE STATE MISERABLY FAILED TO ESTABLISH A PRIMA-FACIE CASE AGAINST THEM. 3. . . . CONVICTING THE ACCUSED AS THEIR GUILT WAS NOT ESTABLISHED WITH MORAL CERTAINTY. 4. THERE WAS A DENIAL OF DUE PROCESS FOR THE DECIDING JUDGE WAS NOT THE ONE WHO HEARD THE TESTIMONIES OF SOME PRINCIPAL WITNESSES. 23 The appeal is devoid of merit. Clearly, the core issue raised is factual and involves the credibility of the testimonies of witnesses. Under prevailing jurisprudence, the assignment of values to the testimony of witnesses is best performed by the trial courts. 24 The trial court's findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal, absent any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could have affected the result of the case. 25 Appellants had not successfully shown such oversight, misunderstanding or misapplication of facts or circumstances that would warrant reversal of the trial court's findings and conclusions. Accused-appellants point to certain alleged inconsistencies in the testimonies of prosecution witnesses Flora Collantes, Pat. Ernesto Entise and Domingo Semblante which render their testimonies unworthy of belief. Thus, they allege that Flora Collantes' testimony that the bearded man shouted to his companions to get the victim's necklace, ring and wallet is inconsistent with her testimony that she saw the bearded man himself divesting the victim of his belongings. We do not regard these statements as inconsistent with each other, considering that it was not impossible for Pacapac to do exactly what he ordered if his companions were otherwise busy acting either as lookouts or in warding off onlookers. Records reveal that one of Pacapac's companions had earlier fled toward the left side of the street, and that while Pacapac was divesting the victim of his valuables, his other companion was pointing his gun at somebody.

The other alleged discrepancy in Flora Collantes' and Domingo Semblante's testimonies as to the utterances of the assailants after the gunshot are minor details which are not sufficient to impair the veracity of the prosecution's evidence on how the crime was committed by the appellants. Witnesses may differ in their recollections of an incident, but it does not necessarily follow that their testimonies should be disbelieved and be completely discarded as worthless. 26 Neither could the seeming contradiction between Flora Collantes' testimony that her husband's necklace and ring were missing and her testimony that only the ring and wallet were missing, erode her credibility. It was satisfactorily explained that the former testimony was only a first impression which was later proved incorrect when the necklace was found under Pat. Collantes' shirt, soaked in blood with the pendant under his armpit. Domingo Semblante's testimony that he immediately went to Dr. Cerna's house on the evening of the incident to ask him to perform the autopsy was not proven false by Dr. Cerna's testimony. The question asked of Dr. Cerna was: "But you will agree that none from the Mandaue Police Station on January 17, 1986 went to see you in order to conduct an autopsy of that killing incident involving Pat. Rogelio Collantes, correct?" And his answer was, "I think nobody sir because if ever there was a policeman who informed me that a certain member of the police force was shot, then, I made it a point always that I will go thereat." 27 The question and answer specifically referred to a member of the police force, of which Semblante was not. Contrary to the averment of the appellants, the maxim or rule "falsus in unos, falsus in omnibus" does not lay down a categorical test of credibility. 28 It is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all the testimony of a witness on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and deliberate intention to falsify a material point. 29 The said rule cannot be applied to the case at bench. It has been held that as long as the mass of testimony jibes on material points, the slight clashing statements neither dilute the witnesses' credibility nor the veracity of their testimony. 30 Thus, inconsistencies and contradictions referring to, minor details do not, in any way, destroy the credibility of witnesses. 31 Such inconsistencies are but natural and even enhance credibility as these discrepancies indicate that the responses are honest and unrehearsed. 32 Appellants further contend that Pat. Entise's testimony should not have been given credence for his actuations were contrary to the ordinary course of things. According to appellants, if Pat. Entise believed them to be responsible for the killing of Pat. Collantes, he should have arrested them right then and there at the crime scene or at least confiscated their guns for ballistic examination and required them to submit to a paraffin test to determine the presence of powder burns on their hands. Pat. Entise's explanation on this matter is well-taken. First, witness Faustino Collantes, Jr. did not point to anyone in the group of Pacapac as the perpetrator of the crime. He just remained silent and "scared stuff" ( sic). 33 It was only after the group had left that he informed Entise that one of them was the one he saw at the crime scene. Second, it would be easy to summon the members of the group for investigation if they were in any way involved as one of them was known to Pat. Entise as a member of the R2. 34 Third, and most importantly, Pat. Entise was apprehensive that trouble might arise at the crime scene if right then and there he would invite the group to his office for investigation, considering that they were armed and Pacapac appeared to be angry when he shouted to his group that the police were suspicious of them. Many persons, including the mayor, might be involved should trouble arise. 35 While hindsight might require of Pat. Entise the actions proposed by appellants, Pat. Entise should not also be faulted for what he judged as prudent and circumspect under the circumstances. The initial reluctance of witnesses to volunteer information about a criminal case and their unwillingness to be involved in criminal investigations due to fear of reprisal are common and have been judicially declared not to affect credibility 36 nor should the relationship of the witnesses for the prosecution diminish their credibility. 37Flora Collantes and Faustino Collantes, Jr. are both related to the victim, being the widow and brother, respectively. However, as testified to by Faustino, his initial reluctance to immediately report the identity of the offenders was attributable to fear. At that time, he was scared that trouble might arise and in so far as he was concerned, "one death in the family is enough." 38 It is quite understandable when the witnesses do not immediately report the identity of the offender after a startling occurrence has taken place, especially when they are related to the victim as they have just undergone a traumatic experience. 39 No motive has been established why the witnesses should falsely accuse appellants, who, if we were to believe their testimonies, were not even acquainted with said parties on the date the crime was committed. Appellant Pacapac himself admitted that he was not aware of any reason or motive why the witnesses should testify falsely against them. Absent evidence to show any reason or motive why witnesses for the prosecution should have testified falsely, the logical conclusion is that no improper motive existed and that their testimony is worthy of full faith and credit. 40 Appellants contend that there was denial of due process as the judge who heard the testimonies of the principal prosecution witnesses was not the one who penned the decision. While it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision, since the latter can very well rely on the transcribed stenographic notes taken during the trial as the basis of his decision. 41 Appellants interposed alibi as their defense. Time and again, it has been held that alibi is a weak defense and cannot prevail over the positive identification of the accused by the prosecution's witness who has no motive to testify falsely against them. 42 For the defense of alibi to prosper, the accused must show that he was at some other place for such a period of time that it was physically impossible for him to have been at the place where the crime was committed at the time of its commission. 43 In the case at bench, the place where appellants claimed to have been at the time of the incident was only a few hundred meters away from the scene of the crime. We are convinced beyond reasonable doubt that appellants were the persons who killed and robbed Pat. Rogelio Collantes. Contrary to appellants' third assigned error, the evidence of the prosecution are sufficient to produce moral certainty as to their guilt and complicity in the crime charged. However, the denomination of the crime as Robbery in Band with Homicide is not correct. As we explained in People v. Pedroso: 44

. . . There is no special complex crime of robbery in band with double homicide and/or serious, less serious or slight physical injuries under the present code as amended by Republic Act No. 373. If robbery with homicide or with the other crimes enumerated above, is committed by a band, the indictable offense would still be denominated as "robbery with homicide" under Article 294 (1), but the circumstance that it was committed by a band is not an element of the crime but is merely a generic aggravating circumstance which may be offset by mitigating circumstances. The homicides or murders and physical injuries, irrespective of their numbers, committed on the occasion or by reason of the robbery are merged in the composite crime of "robbery with homicide." The crime committed is, therefore, the special complex crime of Robbery with Homicide under Article 294 (1) of the Revised Penal Code. All the elements of the crime of robbery, namely: intent to gain, unlawful taking of personal property belonging to another and violence against or intimidation of a person under Article 293 of the Revised Penal Code have been duly proven. The victim was shot before he was robbed. In the crime of robbery with homicide, the homicide may precede robbery or may occur after robbery. What is essential is that there is a direct relation, an intimate connection between robbery and the killing, whether the latter be prior or subsequent to the former or whether or both crimes be committed at the same time. 45 Likewise worth stressing is the rule that whenever homicide has been committed as a consequence of, or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide. There is nothing in the records to show that the exception applies in this case. 46 The crime of Robbery with Homicide carries the penalty of reclusion perpetua to death under Article 294 (1) of the Revised Penal Code. Article 296 of the Revised Penal Code provides that when more than three (3) armed malefactors take part in the commission of robbery, it should be deemed to have been committed by a band. At least four (4) armed persons must take part in the commission of robbery. In the instant case, the prosecution failed to indubitably show that more than three (3) armed persons perpetrated the crime. Considering further that the alleged aggravating circumstances of treachery, use of motor vehicle and taking advantage of superior strength were not satisfactorily proven, the proper imposable penalty upon appellants is reclusion perpetua. Conformably with the policy enunciated by this Court in several cases, 47 the indemnity for the death of Pat. Rogelio Collantes should be increased to Fifty Thousand Pesos (P50,000.00). Furthermore, appellants should be required to indemnify his heirs the amount of P9,000.00. representing the value of the ring and money stolen. WHEREFORE, the appealed decision is AFFIRMED, subject to the modification that accused-appellants are sentenced to pay jointly and severally to the heirs of Pat. Rogelio Collantes civil indemnity in the increased amount of P50,000.00 and the amount of P9,000.00 representing the value of the ring and money stolen from said Pat. Collantes. SO ORDERED.

G.R. Nos. 138874-75 January 31, 2006 PEOPLE OF THE PHILIPPINES, Appellee, vs. FRANCISCO JUAN LARRAAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERT CAO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and JAMES ANDREW UY alias "MM," Appellants. RESOLUTION PER CURIAM: Most jurisdictions recognize age as a barrier to having full responsibility over ones action. 1 Our legal system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the privileged mitigating circumstance of minority embodied in Article 68 of the Revised Penal Code -- the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by reason of his age, is presumed to have acted with less discernment. The case at bar is another instance when the privileged mitigating circumstance of minority must apply. For our resolution is the motion for reconsideration2 filed by brothers James Anthony and James Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on the ground that he was a minor at the time the crimes were committed. A brief review of the pertinent facts is imperative. On February 3, 2004, we rendered a Decision3 convicting the Uy brothers, together with Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag of the crimes of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape; and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision reads: WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG;and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection; (2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG;and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years ofprision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM; (4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P150,000.00 as moral damages; and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. SO ORDERED. On March 23, 2004, the Uy brothers filed a motion for reconsideration anchored on the following grounds: I ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997; II THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING.4 The issues raised in the above motion being intertwined with those raised by Larraaga, Aznar, Adlawan, Cao and Balansag in their separate motions for reconsideration, we deemed it appropriate to consolidate the motions. After a painstaking evaluation of every piece and specie of evidence presented before the trial court in response to th e movants plea for the reversal of their conviction, still we are convinced that the movants guilt has been proved beyond reasonable doubt. Thus, in our Resolution d ated July 21, 2005, we denied all the motions. However, left unresolved is the issue of J ames Andrews minority. Hence, this disquisition. In their motion, the Uy brothers claim that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed. To substantiate such claim, he begs leave and pleads that we admit at this stage of the

proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. In the ultimate, he prays that his penalty be reduced, as in the case of his brother James Anthony. Considering that the entry of James Andrews birth in the proffered Certificate of Live Birth is not legible, we required the Solicitor General (a) to secure from the City Civil Registrar of Cotobato, as well as the National Statistics Office, a clear and legible copy of James Certificate of Live Birth, and thereafter, (b) to file an extensive comment on the Uy brothers motion , solely on the issue of James Andrews minority. On November 17, 2005, the Solicitor General submitted his comment. At tached therewith are clear and legible copies of James Certificate of Live Birth duly certified by the Office of the City Civil Registrar of Cotobato and the National Statistics Office. Both documents bear the entry October 27, 1979 as the date of his birth, thus, showing that he was indeed only 17 years and 262 days old when the crimes were committed on July 16, 1997. Consequently, the Solicitor General recommended that the penalty imposed on James Andrew be modified as follows: In Criminal Case No. CBU-45303 for the special complex crime of kidnapping and serious illegal detention with homicide and rape, the death penalty should be reduced to reclusion perpetua. In Criminal Case No. CBU-45304, for the crime of simple kidnapping and serious illegal detention, the penalty of reclusion perpetua should be reduced to twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, similar to the penalty imposed on his brother James Anthony in Criminal Case No. CBU-45303. The motion is meritorious. Article 68 of the Revised Penal Code provides: ART. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of this Code, the following rules shall be observed: xxx 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.5 On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.6 There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.7 Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum. WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years ofprision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum. SO ORDERED.

PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee,

G.R. No. 176262 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, TINGA, CHICO-NAZARIO, and REYES, JJ. Promulgated:

- versus -

EDILBERTO TORRES andJOSE TORRES, Accused-Appellants.

September 11, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.: For review is the Decision[1] dated 27 September 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 00994 which affirmed the Decision[2] dated 3 January 2005 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 11, finding appellants Edilberto Torres and Jose Torres guilty of the crime of murder and sentencing them to suffer the penalty of reclusion perpetua. On 10 May 2002, appellants, together with their brother Rodolfo Torres, were charged before the RTC of Malolos, Bulacan, with the crime of murder under Article 248 of the Revised Penal Code, as amended. The accusatory portion of the Information reads: That on or about the 17th day of February, 2002, in the municipality of San Miguel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a pointed instrument and firearm, with intent to kill Noel Yumang y Macasu, conspiring, confederating together and mutually helping one another, with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault, stab and shoot the said Noel Yumang y Macasu hitting him on the different parts of his body, thereby inflicting upon him serious physical injuries which directly caused the death of the said Noel Yumang y Macasu.[3]

During their arraignment on 31 May 2002, appellants Edilberto Torres and Jose Torres, with the assistance of counsel de oficio, entered their respective pleas of not guilty, while accused Rodolfo Torres remains at large. [4] Thereafter, trial ensued. At the trial, the prosecution proved the following: On 17 February 2002, at around one oclock in the mornin g, witness Emilio Tamundez (Emilio) was walking home after spending hours guarding the fruits of the mango trees owned by his parents-in-law and a certain Feliciano Calbay. As he was passing through Feliciano Calbays rice field, he noticed Noel Yumang (Noel), who was 40 to 50 meters away, also walking on his way home. Suddenly, three men emerged from the middle of the rice field and attacked Noel, the victim. Emilio recognized the assailants as appellants and accused Rodolfo Torres. While Rodolfo held both arms of Noel behind his back, Edilberto seized the head of Noel by his left hand and stabbed the victim on the nape and on the left side of his body. Rodolfo then pushed the victim to the ground. When the victim hit the ground, Jose poked a gun on th e victims head and shot the latter. Thereafter, the Torres brothers left the scene. At past 1:00 in the morning of the same day, a barangay official of Tibagan, San Miguel, Bulacan, called up the PNP San Miguel Station to report the killing incident. In response, PO2 Ferdinand Pagala went to the crime scene where he found the corpse of the victim. Thereafter, PO2 Pagala brought the body to a funeral parlor for autopsy. In the afternoon of the following day, Emilio met the barangay captain of Tibagan and informed the barangay official of what he had witnessed. He was told that two of the assailants were already arrested and were detained at the municipal jail, and that the victims wake was being held at Feliciano Calbays house. Dr. Agnes Carpio conducted an autopsy of the body. She confirmed that the victim died of cardiac respiratory arrest secondary to gunshot wounds and stabbing. In her medico-legal report the following were the findings:

Head: 1 inch clean edge wound in 3 inch depth at the postoccipital region 1 cm post auricular left stab wound Trunk: 0.5 cm 2 inch depth at the post axillary side left 1 inch clean edge wound 3 inch depth left bullet wound at the right shoulder as point of entry 9 holes.[5]

For their defense, appellants denied authorship of the killing of the victim. They interposed the defense of denial and alibi. Appellant Jose testified that he is a native of San Miguel, Bulacan. He left his native place when he was more or less 22 years old. Presently, he is a resident of BarangayBongbongan II, Sibalom, Antique. According to him, 10 days before the incident, he arrived at his daughters residence in Meycauayan, Bulacan, as he was invited by his daughter to attend the baptism of his grandchild. His son-in-law, Florante Zamora, asked him to go to Tibagan, San Miguel, Bulacan, to invite their relatives there. At around 5:00 to 6:00 a.m. of 17 February 2002, he left for Tibagan, San Miguel, to personally invite his siblings to the baptism. He reached the house of his brother, appellant Edilberto, at around 10:00 a.m. where he came upon Edilbertos wife. After a while, a policeman and the barangay captain arrived looking for Edilberto, who was then attending the wake of a certain barangay councilman. The barangay captain asked Edilbertos wife to call her husband. When Edilberto arrived, the barangay captain invited the former, who, in turn, requested appellant Jose to accompany him to the barangay hall. Instead of being brought to the barangay hall, appellants were brought to the municipal building of San Miguel,Bulacan. Moments later, appellants were escorted to the police station, then the policeman and the barangay captain left. When the policeman and the barangay captain returned, another person was with them and pointed to them as the killers of Noel. Appellant Edilberto denied having any participation in the death of Noel. He pointed to Feliciano Calbay as the person responsible for implicating him and his brothers for the death of Noel. Feliciano Calbay, whose wife is the aunt of the victim, wanted to get the farm lot that the Torres brothers were leasing. Calbay even filed a case against the Torres brothers, but he lost the case. This loss made him angry with the Torreses. Florante Zamora, son-in-law of appellant Jose Torres, confirmed the latters testimony regarding his arrival in Meycauayan and his trip to Tibagan at around 5:00 a.m. of 17 February 2002. The trial court, however, was convinced that the prosecution had discharged the required quantum of evidence to prove the guilt of the appellants of the crime charged. It convicted the appellants of murder, qualified by treachery and imposed upon each of them the penalty of reclusion perpetua. Appellants were also ordered to indemnify, jointly and severally, the heirs of the victim in the amounts of P60,000.00 as civil indemnity, P50,000.00 as moral damages and P20,000.00 as exemplary damages, and to pay the costs. The dispositive portion of the RTC decision reads: WHEREFORE, this Court finds the herein accused JOSE TORRES and EDILBERTO TORRES, GUILTY beyond reasonable doubt of Murder under Article 248 of the Revised Penal Code, as amended, and hereby sentences both to suffer the penalty of Reclusion Perpetua and to pay jointly and severally the heirs of the late Noel Yumang the following sums of money: 1. 2. 3. P60,000.00 as civil indemnity; P50,000.00 as moral damages; and P20,000.00 as exemplary damages.

The case against Rodolfo Torres is hereby ARCHIVED.[6] On 11 February 2005, appellants filed a notice of appeal.[7] The trial court ordered the transmittal of the entire records of the case to the Court of Appeals. The Court of Appeals, on 27 September 2006, promulgated its Decision affirming in toto the decision of the trial court. The Court of Appeals decreed: WHEREFORE, the appealed Decision dated January 3, 2005 of the Regional Trial Court, Branch 11, Malolos, Bulacan in Criminal Case No. 1225-M-2002, finding appellants Jose Torres andEdilberto Torres guilty beyond reasonable doubt of Murder defined and penalized under Article 248 of the Revised Penal Code is hereby AFFIRMED.[8]

Hence, the instant case. In their brief, the appellants assign the following errors: I THE TRIAL COURT GRAVELY ERRED IN CONCLUDING, SANS FACTUAL BASIS AND CONCRETE EVIDENCE, THAT THE ACCUSED-APPELLANTS WERE THE ONES RESPONSIBLE FOR KILLING NOEL YUMANG. II THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIME CHARGED ALTHOUGH THEIR IDENTITIES AND PARTICIPATION IN THE ALLEGED ACT WERE NOT PROVEN WITH CERTAINTY. Appellants impugned the trial courts verdict convicting them, which judgment was affirmed by the Court of Appeals, since the same allegedly was not supported by evidence on record. They assert that the prosecution failed to establish the identity of the perpetrators, as the eyewitness did not see at close range the faces of the killers. Furthermore, the incident happened at 1:00 oclock in the morning when only the new moon was illuminating the vast rice field. The moonlight provided blurred and pale brightness only and could not have provided sufficient illumination. Thus, the identification of the appellants is unreliable. Appellants submission lacks merit. Emilio Tamundez, the eyewitness to the incident, described with clarity the circumstances prior to, during and after the killing of the victim. He saw the incident and was able to identify the assailants as he was about 40 to 50 meters away from the scene. Not only was the situs criminis lit up by moonlight, it was also brightened by the flashlight held by the victim, which remained on even when it fell from the victims hand. Thus, contrary to appellants postulation, the prosecution witness sufficiently demonstrated that the scene received ample illumination when the killing took place. Emilio Tamundez testified, thus: Public Pros.: Q: While you were walking in the ricefield of one Feliciano Calbay, do you remember any unusual incident that happened? Yes, sir. And, what was that unusual incident? While Noel Yumang was walking, he was just suddenly grabbed by three (3) men, sir. How far were you from Noel Yumang when he was grabbed by three (3) men. 40 to 50 meters away from him, sir. Did you recognize these three (3) persons who suddenly grabbed Noel Yumang? Yes, sir, I was able to recognize them. Who were they? Rodolfo Torres grabbed and held him and after that he was stabbed by Edilberto Torres, sir. What about Jose Torres, what did he do? xxxx A: After Rodolfo Torres pushed him on the ground, he was shot by Jose Torres, sir.

A: Q: A: Q: A: Q: A: Q: A: Q:

Public Prosecutor Q: What was Noel Yumang do when he was grabbed by the three (3) accused?

A:

He was walking towards home, sir. xxxx

Q:

How did you recognize Rodolfo Torres, Edilberto Torres and Jose Torres at that time of the day considering that you were 40 to 50 meters away? Because of the moonlight, sir. xxxx

A:

Q: Court:

Will you kindly demonstrate before this court how Rodolfo Torres grabbed Noel Yumang by the hand?

Assuming that Noel Yumang is the Fiscal. Court: The witness demonstrating that Rodolfo Torres held both arms of Noel Yumang at his back. His left and right arms criss-crossing each other. Public Pros: Q: Will you also kindly demonstrate how Edilberto Torres stabbed Noel Yumang while he was being held by the hand by Rodolfo Torres?

Interpreter: Edilberto Torres was on the left side of Noel Yumang. He grabbed the head of Noel Yumang by his left hand and stabbing him on the nape and on the left side of the body. Public Pros: Q: A: Q: A: Q: A: After Edilberto Torres stabbed Noel Yumang twice, what happened after that? He was pushed to the ground by Rodolfo Torres, sir. And, after Rodolfo Torres pushed Noel Yumang to the ground, what happened next? Jose Torres poked his gun and shot Noel Yumang, sir. Now, after Jose Torres shot Noel Yumang while on the ground, what happened next if any? They scampered away, sir.[9]

During cross-examination, Emilio Tamundez further revealed: Q: A: Q: A: Q: A: And of course, Noel Yumang isnt holding anything at that time because he was immediately grabbed? He was holding a flashlight, sir. Of course, when Rodolfo Torres suddenly grabbed him, the flashlight would fell down? Yes, it fell down, sir. Do you know thereafter where this flashlight was after the incident? The flashlight was left there lighted, sir.[10]

The autopsy report confirms the testimony of Tamundez that the victim died of cardiac respiratory arrest due to the gunshot and stab wounds sustained by him. Moreover, the eyewitness could not have been mistaken about the identity of appellants since he knew them.[11]

In contrast to the trustworthy, positive and detailed evidence arrayed against appellants, all they could muster for their defense was denial and alibi. Appellant Jose Torres claimed that he was in Saluysoy, Meycauayan, Bulacan, at the time the crime was committed. He only left that place for Tibagan, San Miguel, Bulacan, only at around 4:30 to 5:00 a.m. of the same day. He presented his son-in-law to corroborate his alibi. Alibi is an inherently weak defense and must be brushed aside when the prosecution has sufficiently and positively ascertained the identity of the accused.[12] The prosecution witness had categorically identified appellants as participants in the crime. With the positive identification of the appellants, they must demonstrate by positive, clear and satisfactory proof that it was physically impossible for them to be at the scene of the crime during its commission. [13] Hence, it is not sufficient that the accused was somewhere else when the crime was committed. Physical impossibility refers to the distance between the place where the accused was when the crime happened and the place where it was committed, as well as the facility of the access between the two places.[14] In the instant case, appellant Jose admitted that there are available means of going toTibagan from Saluysoy, and that it would take only about 2 hours to travel. His admission proves fatal to his defense. He surreptitiously acknowledged that it was physically possible for him to be at the scene when the crime happened. This Court also finds unreliable the testimony of appellant Joses son -in-law confirming his alibi. As previously held by this Court: One can easily fabricate an alibi and ask friends and relatives to corroborate it. When a defense witness is a relative of an accused whose defense is alibi, courts have more reason to view such testimony with skepticism.[15]

Appellant Edilberto Torres also failed to offer any evidence to prove that it was physically impossible for him to be at the scene at the time and date in question. He claims that he was in Tibagan attending the wake of a certain councilman when the killing happened. Since the wake was held in the same barangay where the killing took place, there was a great possibility that Edilberto was at the locus criminis when the crime occurred. Hence, Edilberto cannot avail himself of the defense of alibi because it was physically possible for him to be at the crime scene when it was committed. Desperate to exculpate themselves from the charges, appellants make an issue on the credibility of witness Emilio Tamundez. They claim that his actuation in not immediately revealing what he witnessed is not in accord with ordinary human experience. There is no merit in appellants assertion. This Court has held time and again that there is no standard behavior for a person who is confronted with a shocking incident. [16] One may immediately report the incident to the proper authorities while others, in fear and/or avoiding involvement in a criminal investigation, may keep to themselves what they witnessed. [17] In this case, fear of reprisal or avoiding participation in the investigation could be a credible excuse for the one-day silence of a prosecution witness before divulging to authorities what he had just witnessed. Appellants argue that the trial court erred in appreciating the qualifying circumstance of treachery. They assert that in the absence of any proof of the manner in which the aggression was commenced, as in the instant case, treachery cannot be appreciated. 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.[18] It is an aggravating circumstance that qualifies the killing of the person to murder. 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 opportunity for self-defense or retaliation; and (2) deliberate or conscious choice of means, methods or manner of execution. Moreover, it must be alleged in the information and proved during the trial. In the wee hours of the morning, the unsuspecting victim, Noel Yumang, was walking home, unarmed and unaware of the danger that lurked behind those thick grasses in the rice fields. He had brought with him a flashlight to illumine his path. All of a sudden, appellants, who came from the middle of the field, launched their attack. Rodolfo grabbed the victims arms and held them behind his back. With the victim in that helpless position, Edilberto stabbed him on the nape and on the side of his body. Then, Rodolfo pushed the victim to the ground. As the victim was lying on the field, face down, Jose shot the former on the head. Indubitably, it was impossible for the victim to defend himself against the onslaught of appellants and their brother. They deliberately adopted means and methods in ensuring his barbaric demise. Other than the aggravating circumstance of treachery, the information alleged evident premeditation as well. The three requisites needed to prove evident premeditation are the following: (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the offender had clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. [19] On this score, the prosecution failed to prove any essential element of these circumstances.

In sum, this Court yields to the factual findings of the trial court which are affirmed by the Court of Appeals, there being no compelling reason to veer away from the same. This is in line with the precept stating that when the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.[20] Also affirmed is the ruling of the trial court and the Court of Appeals imposing upon the appellants the penalty of reclusion perpetua. Also in order is the award of moral damages in the amount of P50,000.00.[21] However, the award of civil indemnity in the amount of P60,000.00 needs to be reduced to P50,000.00 in accordance with the prevailing jurisprudence.[22] The award of exemplary damages is likewise in order, since the qualifying circumstance of treachery was proven.[23] When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code. [24] This kind of damage is intended to serve as deterrent to serious wrongdoings, and as a vindication for undue sufferings and wanton invasion of the rights of an injured or as punishment for those guilty of outrageous conduct. [25] The award of temperate damages in the amount of P25,000.00 to the heirs of the victim is justified. Temperate damages are awarded where no documentary evidence of actual damages was presented in the trial because it is reasonable to presume that, when death occurs, the family of the victim incurred expenses for the wake and funeral. [26] WHEREFORE, the Decision of the Court of Appeals dated 27 September 2006 affirming in toto the 3 January 2005 Decision of the trial court is hereby AFFIRMED withMODIFICATIONS with respect to the award of damages. Appellants are ordered to indemnify the heirs of Noel Yumang the amount of P50,000.00 as civil indemnity,P50,000.00 as moral damages, P25,000.00 as exemplary damages and another P25,000.00 as temperate damages. Costs against appellants. SO ORDERED.

BANK OF THE PHILIPPINE ISLANDS, Petitioner,

G.R. No. 157177 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CORONA,* NACHURA, and REYES, JJ.

- versus -

JESUSA P. REYES and CONRADO B. REYES,

Promulgated: Respondents. February 11, 2008 x------------------------------------------------x

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 Decision [1] of the Court of Appeals (CA) dated October 29, 2002 as well as its Resolution [2] dated February 12, 2003, which affirmed with modification the Decision of the Regional Trial Court (RTC) of Makati, Br anch 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 update d 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 P 100,000.00 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 validat ed for the amount of P 100,000.00 (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 plainti ff 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 o n December 7, 1990. [4] On August 12, 1994, the RTC issued a Decision [5] 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. 2. 2. 3. Return to plaintiffs their P100,000.00 with interest at 14% per annum from December 7, 1990; Pay plaintiffs P1,000,000.00 as moral damages; Pay plaintiffs P350,000.00 as exemplary damages; 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 claim ed 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 g ave 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 P 100,000.00 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 th e 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 fact ual 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 wei ght 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 pr eponderance 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 pe nned 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 forP200,000.00; 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 slip [15] forP200,000.00. 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 deposit P100,000.00 in cash with her.

Moreover, respondent Jesusa's claim that she signed the withdrawal slip withou t 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 1601 288A 288A 233324299 233243388

151245 07DEC90 ***200000.00 [18] BIG AMOUNT 151251 07DEC90 ***200000.00 151309 07DEC90 ***200000.00 PB BALANCE ERROR BAL. 229,257.64 151338 07DEC90 ***200000.00 BIG AMOUNT 151344 07DEC90 ***200000.00 151404 07DEC90 ***200000.00 TOD 151520 07DEC90 ***2000.00 151705 07DEC90 ***22917.00 151727 07DEC90 ***100000.00 BIG AMOUNT 151730 07DEC90 ***100000.00 151746 07DEC90 ***100000.00 [19] 151810 07DEC90 151827 07DEC90 ***100000.00 151903 151914 ***1778.05 152107 ***5000.00 152322 ***2000.00 152435 152506 ***4000.00 152557 ***2000.00 152736 ***2000.00 152849 ***3150.00 07DEC90 07DEC90 07DEC90 07DEC90 07DEC90 07DEC90 07DEC90 07DEC90 07DEC90

1601 1601

288J 288A

233243388 233243388

1601

288A

233243388

1601 1601

288J 288A

233243388 233243388

1601 1789 1601

288A 288A 288A

233320145 233324299 233243388

1601 1601

288J 288A

233243388 233243388 235076748 235076748

1370 288A 1790 288A ***100000.00 [20] 1301 1690 1601 1601 288A 288A 288A 288A

233282405 235008955 3333241381 233314374 235076764 235076764 233069469 233254584 231017585

1370 288A 1790 288A ***4000.00 1601 288A 1601 288A

0600 288A 686448

152941 07DEC90 ***2800.00 153252 07DEC90 (Emphasis supplied)

1790 288A ***2800.00 1601 288A

3135052255 233098264

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, not P100,000.00 , 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 of P200,000.00. [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. [28] Capati 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 ofP100,000.00 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 of P200,000.00, 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 ofP100,000.00, 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 of P200,000.00 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 P249,657.64 [31] 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 copy [33] of the deposit slip was left in her cage. [34] However, 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 abou t 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 the 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, 2003are hereby REVERSED and SET ASIDE . The complaint filed by respondents, together with the counterclaim of petitioner, is DISMISSED . No costs. SO ORDERED .

JOSE INGAL y SANTOS, Petitioner,

G.R. No. 173282 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, TINGA,* CHICO-NAZARIO, and REYES, JJ.

- versus -

Promulgated: PEOPLE OF THEPHILIPPINES, Respondent. March 4, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION CHICO-NAZARIO, J.: Assailed before Us is the Decision[1] of the Court of Appeals in CA-G.R. CR.-H.C. No. 01056, dated 31 August 2005, which affirmed in toto the decision[2] 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 thecarinderia. 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 identified [12] 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-87-167[13] 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 Follow-up 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 Sheet[23] 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 statement[24] 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 atCoral 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 c orner 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 Tan[26] 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 Barangayin 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 Order[32] 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 inPeople 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 Resolution[35] 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 brief 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 ACCUSED-APPELLANT 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 Report[37] dated 3 April 1987 and the Booking and Information Sheet[38] 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 stabbin g aforenamed victim. From these, it is clear that Sgt. Yangs testimony in court was not in accord with the statements contained 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 au thorities.[43] Initial 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 herSinumpaang 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 petitioners 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 arbitrarine ss or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses 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, saidfindings 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. 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 thecarinderia. 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 at 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 of reclusion 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.

DOMINADOR MALANA and RODEL TIAGA, Petitioners,

G.R. No. 173612 Present:

- versus -

QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, and CHICO-NAZARIO, VELASCO, JR., JJ.

PEOPLE OF THE PHILIPPINES, Respondent. Promulgated:

March 26, 2008

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

DECISION TINGA, J.:

The petitioners Dominador Malana (Dominador) and Rodel Tiaga (Rodel), together with their acquitted co-accused Elenito Malana (Elenito), were charged with the crime of murder and multiple frustrated murder before the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 12. The charges[1] stemmed from an incident on 28 May 2000that left Betty Capsa-Roxas (Betty) dead, and her daughter and granddaughter injured. The appellants pleaded not guilty during the arraignment. The prosecution presented the two adult survivors of the ghastly crime, Vicente Roxas Jr., (Vicente) and his daughter Suzette Roxas (Suzette), as its main witnesses. They testified as follows: In the evening of 28 May 2000, Vicente, his wife, Betty, Suzette, and the latters infant daughter, Jenny Rose de la Cruz (Jenny), were asleep inside their house in San Jose del Monte, Bulacan. Their house is a singlestorey structure with spaces apportioned for the living room, the kitchen, and one bedroom. [2] Vicente and Betty slept at the living room, while Suzette and Jenny occupied the bedroom. [3] Vicente testified that at around 11:30 p.m., he was awakened by the sound of dogs barking. He saw the kitchen door of their house on fire. He tried to douse the flames with water, but the fire fuming of the smell of gasoline, spread out instead. Vicente woke Betty and told her to fetch help. As Betty opened the main door of their house, Dominador, Rodel, and a third man whom he identified as Ronnie Malana, suddenly appeared and entered the house. [4] Since these individuals had previously threatened to kill Vicente and his entire family, Vicente, upon seeing them, ran through the burning kitchen door and out of the house to seek help from his brother-in-law, Roberto Oredero, whose house was merely 30 meters away. [5] After escaping several meters from his house, Vicente heard an explosion and saw the fire engulf his entire house.[6] Meanwhile, Suzette, who was awakened by her parents panicked reaction to the kitchen fire, cradled Jenny and saw the three men enter their house when her mother opened the main door. Dominador and Rodel were standing behind the third man.[7] She testified that the third man carried a round one-gallon container with a wick of three to four inches in length. Rodel lit the wick with a match, and the third man threw the container into Suzettes bedroom. After that, the three men simultaneously ran away. Suzette saw the container burst into flames and explode. [8] The explosion killed Betty instantly, blowing apart her legs and one of her arms. Her body, from the waist down, was burned. The explosion also shattered and exposed the bone of Suzettes left leg and knocked her front teeth out. The doctors could not save Suzettes shattered left leg so the same was amputated from below the knee. Had it not been for the prompt medical attention she received, Suzette would have died from the injuries she had sustained from the explosion. [9] Jenny survived the blast with barely any injury. Vicente also testified that appellants had been threatening to liquidate him and his family, due to their belief that he was in the practice of witchcraft by which he had caused the deaths of Rodels parents -in-law.[10]

Appellants proffered the defenses of denial and alibi. Dominador testified that on the date and time of the crime, he was working as a construction worker in Parian, Calamba, Laguna and that he had been in Laguna since 11 May 2000 until the end of the month. He claimed that he was implicated by Vicente because the latter thought that he had something to do with the elopement of Suzette. [11] He pointed to Salvador Villafuerte, Roman Villafuerte, Boyet Villafuerte, and Mondring Erederos as the perpetrators of the crime. [12] Rodel testified that he was recuperating from illness in Binahaan, Pagbilao, Quezon when the incident took place. He claimed that he was implicated because he helped Dominador in engaging the services of a counsel.[13] Elenito similarly gave the alibi that he was engaged as a construction worker together with Dominador in Laguna when the crime occurred. He also denied that his alias is Ronnie, the name of the third perpetrator identified by Vicente.[14] The RTC, in a Decision[15] dated 21 February 2003, found Dominador and Rodel guilty of two (2) separate crimes of murder and frustrated murder, and acquitted Elenito on the ground of reasonable doubt. The trial court gave credence to the eyewitness accounts of Vicente and Suzette who positively identified the appellants as two of the three perpetrators of the crime. However, the trial court acquitted Elenito as he was not positively identified by Suzette as the third man and his physical appearance does not fit the description of the tall fat man seen by Suzette. Appellants appealed from the trial courts decision to the Court of Appeals. The appellate court, in a Decision [16] dated 20 April 2006, affirmed the guilt of appellants but modified their sentences such that each of them is liable for the complex crime of murder with frustrated murder and attempted murder; hence, it sentenced each of the appellants to suffer the penalty prescribed for the most serious crime which is death. The Court of Appea ls denied appellants motion for reconsideration in a Resolution[17] dated 20 July 2006. Hence, the present Petition[18] before this Court. Except as to the penalty of death, now commuted to reclusion perpetua pursuant to Republic Act No. 9346,[19] we affirm appellants conviction. There is no cogent reason to disturb the finding of guilt made by the trial court and affirmed by the appellate court. The issues raised by appellants involve weighing of evidence already passed upon by the trial court and the appellate court. Appellants question the credibility of the testimony of Vicente and Suzette and the weight given by the trial court to the testimony of the bomb specialist. The age-old rule is that the task of assigning values to the testimonies of witnesses in the stand and weighing their credibility is best left to the trial court which forms its first-hand impressions as a witness testifies before it. It is also axiomatic that positive testimony prevails over negative testimony. [20] Vicente positively identified appellants as two of the three assailants who barged into his house and committed the heinous crime. He testified on direct examination as follows: Q: A: Q: A: Q: A: Q: A; When you saw your kitchen door of your house was on fire, what did you do then? I tried to put off the fire by tossing it with container of water, sir. Were you able to stop the fire? No, sir, because I smell[ed], it was a gasoline. when you were not able to stop the fire, what did you do? Because my wife then was awake[d] I instructed her to sought [sic] for [sic] help, sir. Did she accede, as you directed? Yes, sir. When my wife opened the door to ask for help Dominador Malana, Rodel Aliaga and Ronnie Malana suddenly appeared at the door. This Ronnie Malana is he present? he is not present inside the courtroom, sir. What about Dominador Malana? Yes, sir. Point to him.

Q: A: Q: A: Q:

COURT: Stand up. Witness pointed to Dominador Malana inside the courtroom.[21] xxx FISCAL: Q: How about this other one Rodel Aliaga?

A:

Yes, sir.

BRANCH CLERK OF COURT: Witness pointed to Rodel Aliaga, the accused, inside the courtroom.[22] xxx FISCAL: Q: Which door of your house did they enter? A: The main door, sir. Q: A: When they entered these three persons: Rodel, Dominador and Ronnie, what did they do inside your house? When I saw them, because I received several threats from them, I immediately ran towards the kitchen door which was then burning, which was then on fire, sir. xxx Q: A: Q: A: When you ran towards the burning kitchen door which was on fire, where was your wife, your grandchildren and your daughter? They were inside our house in the living room, sir. What happened when you ran towards the kitchen door which was burning? After I ran out of the house, sir, I heard an explosion and when I looked back I saw that my house was on fire.[23] (Emphasis ours.)

Suzette testified on what occurred after her father ran out of their house to seek help leaving her and her mother to face the two appellants and a third person. She testified, thus: Q: A: Q: A: Q: A: Q: A: Court: A: Thru that door? Yes, Your Honor. And after the bombing what transpired next if anything did transpire and your have carried your child? My mother then ran towards the main door, sir. Was she able to reach the main door? Yes, sir. So what if anything did happen when your mother reached the main door? She opened the door, sir. And thereafter when she opened the door, what transpired next? As soon as she opened the door, three (3) men entered our house, sir.

Fiscal: Q: Were you able to recognize these three (3) men? A: I only recognize two of the three (3) men, sir. Q: A: Q: A: These two (2) whom you claimed you came to know, are they present before this courtroom? Yes, sir. Will you point to them one by one? The first one was Rodel Tiaga (witness pointing to the accused inside the courtroom) and the second one is Dominador Malana (witness pointing to the accused inside the courtroom) The other one whom you claimed entered the main door of your house after the same was opened by your mother, is also around, will you be able to recognize him? Yes, sir. So what happened when three (3) men including that person who is not around together with these two (2) persons that you have just pointed out entered your house? One of them was carrying a gallon container with dynamite inside and he threw it inside the house, sir.

Q: A: Q: A:

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Who in particular was carrying that content with dynamite? A fat tall man with dark complexion, sir. You mean the one who is not present before this courtroom? Yes, sir. What about these two (2) persons that you have just pointed out? What did they do immediately after they entered the house? They were the ones holding the matchstick and the matchbox, sir. Whey you say they were the one holding the match, you mean both of them? No, sir. Who was the one holding the match? Rodel, sir. What about the other one, what was he doing? I did not notice anymore because that happened too fast, sir. Were you able to know what did Rodel do with the match? He lit it, sir. With what? What was the that he lit? The dynamite, sir, inside the container. How did you come to know that that was a dynamite? The one gallon container with a wick, sir.[24] xxx

FISCAL: Q: A: Q: A: Immediately after the wick was lighted according to you by Rodel, what happened next? He then threw it, sir. In what direction he threw it? In my room, sir. xxx Fiscal: Q: A: And after they threw this Exh. E, what transpired next? I saw the gallon burst into flame, sir. (nagliyab)

Court: Q: A: Fiscal: Q: A: Q: A: Q: A: Q: A: At that precise time that tall fat man threw that Exh. E to your room, where wer e the other two (2), Rodel and Dominador? They were behind him, sir. What were they doing? I did not notice anymore, sir. And after they threw that Exh. E to your room, what did they do after the burning? I did not see anymore, sir, because there was an explosion. Explosion of what? the dynamite they threw, sir. When you said they threw that gallon container to your room, did they do that together, the three (3) of them? The tall fat man only who threw it towards my room, sir.

Q: A:

So when that dynamite marked as Exh. E which you drew exploded, what happened next? I then saw my mother beside me burned and with her legs both cut off and half of her body burned and one of her arm also cut off, and her body from waist down she was burned. Also my left leg was also cut off and my front teeth were missing and both arms of my baby were slightly burned.

COURT: Make it of record that the witness has her left leg also amputated or cut off up to the above the knee and it was wrapped with bandage and she has scratches with her. [25] (Emphasis ours.) The Court agrees with the appellate courts following observations: We have no doubt in Suzettes testimony as she would not have lightly accused the herein accusedappellants if they were not the true malefactors of the crime committed. Indeed, as a direct victim, who lost her left leg to the crime; as mother, who had to bear the sight of her eight-month old baby injured by burns; and as a daughter, who witnessed her own mother burn to death, Suzette could never have just pinpointed to anyone to the crime. Under her circumstances, surely, there could have been no other overriding reason for Suzettes damning testimony against the accused-appellants save for the purpose of making sure that justice was done and the culprits of the crime be held accountable and meted their proper punishment for their dastardly deed. Suzettes relationship to the victim of this case, including her personal i njury, in accord with human nature, ensured that she would have the most interest in telling the truth, rather than prevaricate and send innocent men to rot in jail. On the other hand, while Vicente did not actually see the accused-appellants perpetrate the crime, Vicentes testimony lends credence to the fact that the accused -appellants were present in the place, time, and date of the crime. The previous life threats made by the accused-appellants on Vicente and his family, and the exploding of the Roxas residence following Vicentes escape from his house, served to corroborate and shed light to Suzettes account of the crime.[26] There is no merit in appellants assiduous assertion that they should be acquitted under the equipoise rule in view of what to them are doubts as to their guilt. This rule provides that where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused. There is, therefore, no equipoise if the evidence is not evenly balanced.[27] Said rule is not applicable in the case before us because the evidence here presented is not equally weighty. The equipoise rule cannot be invoked where the evidence of the prosecution is overwhelming. Against the direct, positive and convincing evidence for the prosecution, appellants could only offer denials and uncorroborated alibi. It is elementary that alibi and denial are outweighed by positive identification that is categorical, consistent and untainted by any ill motive on the part of the eyewitness testifying on the matter. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.[28] The prosecution witnesses positively identified appellants as two of the perpetrators of the crime. It is incumbent upon appellants to prove that they were at another place when the felony was committed, and that it was physically impossible for them to have been at the scene of the crime at the time it was committed.[29] This they failed to prove. Appellants tried to sow reasonable doubt on their guilt by harping on minor factual matters and engaging in semantics. Their effort is futile. This Court cannot be led to a different result. The Court of Appeals correctly resolved all the issues raised by the appellants. The appellate court correctly found appellants guilty of the complex crime of murder[30] with frustrated murder and attempted murder under Article 48[31] of the Revised Penal Code. The explosion killed Betty instantly,[32] while Suzettes left leg was amputated from below the knee[33] and she would have died from the injuries she sustained had it not been for the prompt medical attention she received. [34] Appellants intent to kill is apparent when they threw the explosive device towards the direction of the victims. The killing of Betty by means of an explosive device qualifies the crime to murder under Article 248(3) of the Revised Penal Code. With respect to Suzette, appellants are guilty of frustrated murder inasmuch as all the acts necessary that would consummate the crime of murder were complete but she nevertheless survived due to causes independent of appellants will.[35] Jenny survived the blast with barely any injury. However, this is not to say that the crime committed against her was merely slight physical injuries because the appellants were motivated by the same intent to kill when they lobbed the explosive device inside Vicentes house. Since the injuries inflicted are not fatal, the crime committed is merely attempted murder. The case before us is clearly governed by the first clause of Article 48 because by a single act, that of lobbing an explosive device inside Vicentes house, appellants committed three grave felonies, namely, (1) murder, of which Betty was th e victim; (2) frustrated murder, of which Suzette was the injured party; and (3) attempted murder, of which Jenny was the injured

party. A complex crime is committed when a single act constitutes two or more grave or less grave felonies. Appellants single act of detonating an explosive device may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offenders were impelled by a single criminal impulse which shows their lesser degree of perversity. [36] Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances. Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death.[37] However, pursuant to Republic Act No. 9346,[38] the penalty of death properly imposed on the appellants by the Court of Appeals is hereby reduced to reclusion perpetua. To recapitulate the three acts done by appellants in tandem with a third man loom large in the prosecution evidence, namely: first, their dousing of Vicentes kitchen door with gasoline and setting it ablaze; [39] second, their subsequent entry to the house when Betty opened the main door to seek help; and thence, third, their lobbing an explosive device inside the house, followed by their escape. The trial court and the appellate court did not anymore address the treacherous manner by which the crime was committed, as alleged in the Information. We reiterate our holding in People v. Comadre[40] that: Coming now to Antonios liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party. Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the commission of the crime. It is significant to note that aside from treachery, the information also alleges the use of an explosive as an aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code, we should determine which of the two circumstances will qualify the killing in this case. When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence[[41]] support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.[[42]][43] xxx Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of treachery in this case.[[44]] Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty. [45] Regarding damages, we affirm the monetary award granted by the Court of Appeals. Appellants judicially admitted the actual loss of the victims house and their appliances and implements contained therein, subject to the courts consideration of depreciation value, amounting to P300,000.00; and of the victims medical and burial expenses amounting to P15,340.15 and P9,610.00, respectively. Appellants are ordered to pay the heirs of Betty Capsa-Roxas civil indemnity in the amount of P50,000.00 and moral damages in the amount of P50,000.00. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 00138 is AFFIRMED with the MODIFICATION that appellants are sentenced to suffer the penalty of reclusion perpetua without possibility of parole. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 173023 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES,* AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. Promulgated:

- versus -

RESURRECCION RANIN, JR. yJAMALI, Appellant.

June 25, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.: For review are the Decision[1] dated October 26, 2005 and Resolution[2] dated March 1, 2006 of the Court of Appeals in CAG.R. CR No. 00424. The Court of Appeals had affirmed the Decision[3] dated July 8, 2004 of the Regional Trial Court (RTC), Branch 219, Quezon City which convicted appellant Resurreccion Ranin, Jr. of murder in Criminal Case No. Q-99-86998. The Court of Appeals likewise denied appellant Ranins motion for reconsideration. The antecedent facts culled from the records are as follows: In the morning of February 18, 1999, Lina de Castro, a lady guard detailed at Palma Hall in the University of the Philippines (UP), Diliman Campus, noticed appellant Raninpacing the pathway. Appellant Ranin intermittently glanced at a photo which he kept in his pocket while his three companions sat on a bench. Sensing that the four were outsiders, de Castro asked them to leave. Yet again, at around 3:30 p.m. the following day, de Castro saw appellant Ranin walking by the CASAA canteen as his companions rested on a bench. De Castro accosted appellant Ranin and demanded that he leave. Without responding, the latter headed towards the photocopying machine at the Arts and Sciences Building and then back. He did this routine four times while constantly checking a photo hidden in his pocket. Meanwhile, Nio Calinao was seated on a bench with other UP students. When appellant Ranin neared their bench, he suddenly fired two successive shots at Calinao. The other students ran away as Calinao fell to the ground. While the latter was crawling on the ground holding his stomach, appellant Ranin shot him a third time. Then, appellantRanin fired a fourth time at the fallen body of Calinao. De Castro tugged on appellant Ranins shirt and told him, Dodong, Dodong, tama na yan, patay na yang bata.[4] Appellant Ranin pointed the gun at her but put it down right away. After that, appellant Ranin and his companions fled. On September 21, 1999, Resurreccion Ranin, Jr. y Jamali, Besmart Al-Baddar Lauppah y Umparah, Rizal Sarri Lamsani y Jamang and Ommar Hadjula y Kainong were charged with murder in an Information[5] which reads as follows: On or about February 19, 1999, in Quezon City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, while confederating, conniving, conspiring and mutually helping and aiding one another, with evident premeditation and treachery, taking advantage of superior strength and employing means to weaken the defense of the victim, did then and there, with criminal and malicious intent to kill, wilfully, unlawfully, feloniously, shoot Ni[]o Calinao with a .45 caliber pistol which caused his instantaneous death, to the damage and prejudice of his heirs. CONTRARY TO LAW.[6] On arraignment, all of them pleaded not guilty. Trial thereafter ensued. Appellant Ranin claimed that he had never been to UP, and that both his hands were injured. His left suffered from atrophy and had a deep diagonal scar. The bone in his right forearm was broken and stainless steel had been placed inside. On demonstration, appellant Ranin could not cock a .45 caliber pistol using his left arm and pull the trigger with his forefinger. In its Decision dated July 8, 2004, the RTC convicted appellant Ranin thus: WHEREFORE, judgment is hereby rendered: a) Finding the accused BESMART AL-BADDAR LAUPPAH Y UMPARAH and OMMAR HADJULA Y KAINONG culpability not proven beyond reasonable doubt, the Court hereby ACQUITS them of the offense charged; b) The Jail Warden of the BJMP-Q.C. is hereby directed to release from his custody the persons of BESMART AL-BADDAR LAUPPAH Y UMPARAH and OMMAR HADJULA Y KAINONG unless they are being held for any other lawful cause/s;

c) Finding the accused RESURRE[C]CION RANIN, JR. Y JAMALI, guilty of the crime of MURDER beyond reasonable doubt; d) Sentencing RESURRE[C]CION RANIN, JR. Y JAMALI to suffer the maximum penalty of DEATH; e) Ordering RESURRE[C]CION RANIN, JR. Y JAMALI to indemnify the heirs of NIO CALINAO in the sum of P77,000.00 as actual damages and P500,000.00 as moral damages. SO ORDERED.[7] The trial court denied the motion for reconsideration filed by appellant Ranin. On appeal, the Court of Appeals affirmed the RTCs decision. The appellate court ruled that without any definite scientific findings that appellant Ranin is not capable of using his right hand, the possibility that it can be used is presumed. [8] Likewise, it sustained the prosecution witnesss positive identification of appellant Ranin as the killer against the latters alibi. The Court of Appeals found the inconsistency in de Castros testimony as regards the interval between the 2nd, 3rd and 4th shots inconsequential. Appellant Ranin moved for reconsideration but it was denied by the Court of Appeals in a Resolution dated March 1, 2006. Now, appellant Ranin seeks a review of his conviction on a lone assignment of error: THE HONORABLE COURT A QUO ERRED IN AFFIRMING THE DECISION OF THE HONORABLE TRIAL COURT AS HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. [9] Appellant Ranin argues that the Court of Appeals disregarded vital physical evidence which casts reasonable doubt on his guilt. He adds that it also shifted the burden of evidence on appellant Ranin to prove his innocence when it held that absent a conclusive medical finding that he was incapable of using his right hand, its possible use is presumed. Appellant Ranin also states that the appellate court erred in trivializing the contradictions in de Castros testimony as to the interval between s hots, and his distance from Calinao when he allegedly fired them. Appellant Ranin finally insists that the rule on appreciation of evidence by the trial court should not be applied since the judge who tried the case was not the one who penned the decision. The Office of the Solicitor General (OSG) counters that the factual findings of the trial court were supported by the evidence on record: Lina de Castro positively identified appellant Ranin as the shooter; Rina Sartin confirmed his presence at the crime scene; and the radiologist Dr. Eugene Dy and neurologist Dr. Jose C. Navarro did not completely rule out the use by appellant Ranin of his fingers. Also, the OSG agrees with the trial court that evident premeditation and treachery attended the killing of Calinao. The Information charged appellant Ranin with Murder under Article 248,[10] paragraphs (1) and (5) of the Revised Penal Code. To be liable for murder, the prosecution must prove that: (a) a person was killed; (b) the accused killed him; (c) the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (d) the killing is neither parricide nor infanticide.[11] In the case at bar, appellant Ranin makes issue of the discrepancies in de Castros testimony. At the onset, de Castro stated that a minute separated the second and third shots; and two minutes passed before appellant Ranin fired a fourth time. She later changed her account to add a minute interval between the shots. Appellant Ranin reasons that it would be highly unusual to take five minutes to shoot, and then get lost behind a crowd afterwards. Likewise, de Castro approximated appellant Ranin to have fired the gun 0.8 meters away from Calinao, but the forensic pathologist found no zone of blackening typical of gunshot wounds sustained at close range. Suffice it to state that the perceived contradictions in the testimony of de Castro merely referred to minor matters that did not touch on the commission of the crime itself as to affect the substance of her declaration, and the veracity or weight of her eyewitness testimony. Witnesses cannot be expected to give a flawless testimony all the time. [12] We have repeatedly held that minor variances in the details of a witnesss account, more frequently than not, are badges of truth rather than indicia of falsehood, and bolster the probative value of the testimony. Indeed, even the most candid witness often makes mistakes and falls into confused statements, and at times, far from eroding the effectiveness of the evidence, such lapses could instead constitute signs of veracity.[13] In no uncertain terms, de Castro elucidated what transpired after appellant Ranin discharged the first two shots: ATTY. PAGGAO: xxxx Q: After the firing of the gun to Nio, do you know what happened to Nio? A: Yes, Sir. ATTY. PAGGAO: Q: What happened? A: He rolled down on the ground, Sir. Q: What about his three (3) companions on the bench? A: They were gone, Sir. They ran away, Sir.[14] (Emphasis supplied.) xxxx Contrary to appellant Ranins claim, Calinaos friends did not linger to watch the shooter let off the third and fourth shots. They scampered for safety, thereby affording appellant Ranin an occasion to carry out his design with impunity. As a rule, the trial courts assessment of the credibility of witnesses is entitled to great respect and will not be distur bed on appeal, unless: (1) it is found to be clearly arbitrary or unfounded; (2) some substantial fact or circumstance that could materially affect the disposition of the case was overlooked, misunderstood, or misinterpreted; or (3) the trial judge gravely abused his or her discretion.[15] None of the above circumstances applies to the case at hand. Moreover, the fact that the judge who penned the decision was not the judge who heard the testimonies of the witnesses was not enough reason to overturn the findings of fact of the trial court on the credibility of the witnesses. Though ideally a judge should hear all the testimonies personally, at times the reality is that a different judge might pen the decision because the predecessor judge has retired or died or has resigned. In this situation, it cannot be assumed that the findings of fact of the judge who took over the case are not reliable and do not deserve the respect of the appellate courts. The judge who did not hear the

testimonies personally can always rely on the transcripts of stenographic notes taken during the trial. Such dependence does not violate substantive and procedural due process.[16] Neither did the appellate court discount any exculpatory physical evidence. Even as the prosecution proved that appellant Ranin could not grasp a .45 caliber pistol with his left hand, de Castro specified the right hand as the one used by appellant Ranin to fire the gun, thus: ATTY. PAGGAO: xxxx Q: With what hand did Ranin draw out from his waist his gun? A: His right hand, Sir. Q: You mean the hand with the rolled up sleeve? A: Yes, Sir.[17] (Emphasis supplied.) xxxx Thereafter, the dexterity of appellant Ranins right hand fingers was assessed: xxxx ATTY. RIGOROSO: May I request, Your Honor, the witness to try to bend the pointer of his right arm, [Y]our Honor. WITNESS: (Trying to bend the pointer of his right arm). ATTY. RIGOROSO: May I manifest, Your Honor, that the witness is incapable of bending the finger at the middle panel . . . ATTY. MALLABO: I felt it is very hard, Your Honor. ATTY. PAGGAO: I noticed all the other fingers, the index finger are movable, Your Honor, the witness can actually bend all the four fingers. ATTY. RIGOROSO: Except for the pointer, Your Honor. The pointer [cannot] be ben[t], Your Honor. May we also manifest, Your Honor, that the forefinger is also deformed and smaller, it tilts towards the middle finger, Your Honor.[18] xxxx Even as appellant Ranin had difficulty bending his right forefinger, this did not foreclose the possibility that he used any of his right hand fingers to pull the trigger. In fact, the result of the Nerve Conduction Studies[19] administered on appellant Ranin unqualifiedly indicated normal sensory conduction of his right radial nerve. To merit credibility, denial must be buttressed by strong evidence of non-culpability. Unable to show such evidence, herein appellant Ranin failed to overcome de Castros testimony, which positively identified him as the shooter.[20] It is well settled that positive identification, where categorical, consistent, and not attended by 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 evidence, are negative and self-serving evidence undeserving weight in law.[21] In the same vein, appellant Ranins alibi that he had never been to UP fails in the face of positive identification by de Castro. The Court likewise agrees with the trial court that treachery and evident premeditation attended the killing which qualified the offense to murder. There is treachery when the means, methods and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person.[22] The essence of evident premeditation, for its part, is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.[23] Here, de Castro spotted appellant Ranin pacing the pathway of the UP Diliman Campus, occasionally looking at a photograph a day before the shooting incident. Verily, appellant Ranin had ample time to ruminate on the possible consequences of his act. As to the manner of attack, the testimony of Dr. Raquel Del Rosario-Fortun on the autopsy was enlightening: xxxx ATTY. PAGGAO: xxxx Q: Will you describe to us exactly the direction of the bullet or with what direction did it exit after entering the blood opening? A: I assessed that the trajectory of the first gunshot would be to the left to right downward and backward. That is based on the anatomic position. xxxx Q: Would you say that [it] is possible or probable that the victim was on the sitting position while the gunman was standing on his left side? A: Its possible, Sir.[24] xxxx Evidently, Calinao was unaware of the impending danger as appellant Ranin suddenly fired two successive shots at him. Now, as to the imposable penalty on appellant Ranin, we take into account the passage of Republic Act No. 9346, [25] which was signed into law by President Gloria Macapagal-Arroyo on June 24, 2006. The pertinent provisions of said law states that: SECTION 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating

Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly. [SEC.] 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or xxxx [SEC.] 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.[26] In accordance with the new law, Rep. Act No. 9346, the penalty imposed upon appellant Ranin should be reduced to reclusion perpetua, but he shall not be eligible for parole under the Indeterminate Sentence Law. [27] With regard to the amount of actual damages, only expenses supported by receipts will be allowed.[28] Hence, the award of P77,000 as actual damages by the trial court should be reduced to P42,000.[29] The parties have also stipulated on the entitlement of the victims heirs to moral damages.[30] The controlling case law[31] sets the amount of moral damages at P50,000. The award of civil indemnity, on the other hand, is separate and distinct from the award of moral damages which is based on a different jural foundation and assessed by the Court in the exercise of sound discretion. In murder, the grant of civil indemnity requires no proof other than the fact of death as a result of the crime and proof of appellants responsibility therefor.[32] Under prevailing jurisprudence,[33] the Court has pegged the amount at P75,000. It should be paid by appellant Ranin to the heirs of Nio Calinao who are entitled to receive it. Finally, as evident premeditation has been taken to qualify the offense to murder, treachery may be appreciated as an ordinary aggravating circumstance, to support the award of exemplary damages in the amount of P25,000. In People v. Aguila,[34] we emphasized that exemplary damages of P25,000 are recoverable if there was present an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime. [35] WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 00424 are hereby AFFIRMED with MODIFICATION. In view of Rep. Act No. 9346 prohibiting the imposition of the death penalty, appellant Ranin is hereby sentenced to reclusion perpetua without possibility of parole. The award of actual damages is reduced to P42,000, while that of moral damages is also reduced to P50,000. The appellant is further ORDERED to pay the heirs of Nio Calinao P75,000 as civil indemnity and P25,000 as exemplary damages. No pronouncement as to costs. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 175929 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated:

- versus -

ROMMEL DELA CRUZ, Accused-Appellant.

December 16, 2008

x--------------------------------------------------x DECISION

REYES, R.T., J.: MURDER is one of the odious crimes a man can commit against another. It is no respecter of blood relations. Accused-appellant Rommel dela Cruz seeks a reversal of his conviction by the Court of Appeals (CA) [1] and the Regional Trial Court (RTC)[2] for murder. The Facts Mario Pader, Manny Viscaya and Rafael Santarin are neighbors and friends. [3] Santarin and appellant Dela Cruz are first cousins.
[4]

On August 7, 1995, at about 7:00 p.m., Santarin, Pader and Viscaya were conversing [5] near the barangay hall in Nadurata St., Caloocan City. Fronting the barangay hall is a street which was lighted by a fluorescent lamp.[6] Santarin was seated between Pader and Viscaya.[7] They were arms-length away of each other.[8] Appellant was sanding behind them,[9] at a distance of about two (2) meters.[10] Viscaya went to buy some cigarettes from a nearby store beside the barangay hall[11] and returned to the place where Santarin and Pader were.[12] Suddenly, appellant came from behind and stabbed Santarin[13] once.[14] Santarin fell to the ground, chin first.[15] Pader and Viscaya were instantly shocked and were unable to move. [16] Appellant immediately fled the scene.[17] Subsequently, people from the barangay hall arrived and brought Santarin to the nearest hospital.[18] He, however, succumbed to death due to the stab wound. [19] Dr. Bienvenido Muoz, a Medico-Legal Officer of the National Bureau of Investigation (NBI), [20] conducted an autopsy on the victims body. According to his findings,[21] Santarin sustained one stab wound in the back[22] which was 15 centimeters deep.[23] The wound reached the left lung[24] causing his death.[25] According to Dr. Muoz, the weapon used by the assailant was a sharp, pointed single-bladed instrument which could either be a kitchen knife or a balisong.[26] On December 13, 1995, appellant was indicted for murder in an Information that read: INFORMATION The undersigned Assistant City Prosecutor accuses ROMMEL DELA CRUZ of the crime of MURDER, committed as follows: That on or about the 7th day of August, 1995 in Kaloocan City, Metro-Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, with treachery and evident premeditation and with deliberate intent to kill, did then and willfully, unlawfully and feloniously attack and stab with a bladed weapon on the back portion of the body one RAFAEL SANTARIN y DELA CRUZ, thereby inflicting upon the latter serious physical injuries which injuries caused his death upon arrival at the Ospital ng Kalookan, this city.

Contrary to law. Kaloocan City, Metro Manila, December 6, 1995. (SGD.) AFABLE E. CAJIGAL Assistant City Prosecutor[27] Appellant evaded arrest. The long arm of the law, however, caught up with him when he was arrested in Aliaga, Nueva Ecija. When arraigned on June 7, 2000, appellant, assisted by Atty. Jimmy Edmund Batara, pleaded not guilty [28] to the Information. Trial on the merits ensued after. The prosecution evidence, which portrayed the foregoing facts, was supplied by the combined testimonies of Viscaya and Dr. Muoz. Appellants version of the events is premised on denial and alibi.[29] He claimed that on the night of August 7, 1995, at about 7:00 p.m., he went to collect his fees for electrical services rendered from neighbors. [30] It was about that time when he passed by the group of Viscaya who were seated in front of the barangay hall at Libis Nadurata,Caloocan City.[31] Appellant did not join the group but went on his separate way. He went to the houses of his clients to collect his fees until 8:00 p.m.[32] He did not go home to his parents house later that evening because he was angr y with them and his siblings.[33] He slept in a parked passenger jeep that was half a kilometer away from his parents house. [34] He woke up at 3:00 a.m.[35] and took a passenger jeep bound for the pier.[36] He took a boat to Cebu City, arriving there the following day at about 6:00 a.m.[37] He stayed in Cebu City for four years.[38] His family in Cebu City was surprised to see him when he got there.[39] Sometime in 1999, appellant returned, his family in tow, to his parents house in Caloocan City. His mother, however, refused to accept them for her fear of trouble because of his alleged involvement in the killing of his first cousin. [40] As a result, he and his family proceeded to the house of his sister at P. Zamora Street, Caloocan City.[41] His mother later allowed his wife and children to stay in her house at Libis, but not him.[42] Appellant proceeded to Tabang, Plaridel Bulacan[43] and stayed there for eight (8) months.[44] He told his relatives there that his mother was keeping him away as his life was in danger. [45] He also feared for his life because he was accused of killing his first cousin.[46] Appellant later transferred to Aliaga, Nueva Ecija where he was arrested onJune 7, 1999. [47] According to appellant, Viscaya had ill-motives in testifying falsely against him. They had a misunderstanding sometime in 1989 after appellant meddled in a quarrel between Viscaya and a friend. Since then, Viscaya resented him. Appellant insisted that he is innocent. When asked why he was charged for the killing of his first cousin, his reply was hindi ko po alam sa kanila.[48] RTC and CA Dispositions On February 26, 2001, the trial court rendered a judgment of conviction, disposing as follows: WHEREFORE, premises considered, this Court finds the accused ROMMEL DELA CRUZ guilty beyond reasonable doubt as principal of Murder, as defined and penalized under Article 248 of the Revised Penal Code, as amended by Section 6 of Rep. Act No. 7659. Accordingly, he shall serve the penalty of Reclusion Perpetua, with all the accessory penalties under the law and shall pay the costs.

Pursuant to Section 7, Rule 117 of the Revised Rules of Criminal Procedure, the accused shall be credited with the period of his preventive detention. By way of death Indemnity, the accused shall pay the victims heirs the amount of P50,000.00, without subsidiary imprisonment in case insolvency. As funeral and related expenses, the accused shall also pay the victims heirs the amount of P20,900.00 without subsidiary imprisonment in case of insolvency. The Branch Clerk of this Court shall now issue the corresponding Commitment Order for the accuseds confinement at the Bureau of Corrections, Muntinlupa City.[49] By virtue of this Courts decision in People v. Mateo,[50] the Court issued a resolution on September 6, 2004, transferring this case to the CA for appropriate action and disposition.

On July 28, 2006, the CA affirmed the trial courts disposition, with modification on the award of damages. The fallo of the CA decision reads: UPON THE VIEW WE TAKE OF THESE CASES, THUS, the appealed Decision finding the accused-appellant Rommel Dela Cruz guilty beyond reasonable doubt of murder, and sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with MODIFICATION. The civil aspect of the case of MODIFIED to read: the accused-appellant is hereby ORDERED to pay the heirs of the victim the amounts of P50,000.00 as civil indemnity, P20,900.00 as actual damages, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs shall also be assessed against the accused-appellant. SO ORDERED.[51] Undaunted, appellant took the present recourse. Issues In his final bid to seek reversal of his conviction, appellant imputes to the trial court the following errors, to wit: I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE INCREDIBLE ACCOUNT OF THE PROSECUTION WITNESS ANENT THE SUBJECT INCIDENT. II. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN REASONABLE DOUBT. III. ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS GUILTY, THE CRIME COMMITTED IS ONLY HOMICIDE.[52] (Underscoring supplied) The first and second issues, being related, will be resolved jointly. Our Ruling I. The trial court did not err in convicting appellant. It did not also err in giving full faith and credence to the account of the prosecution witness. Positive identification prevails over denial and alibi. Flight is an indication of guilt. In support of the first and second assigned errors, appellant claims that the testimony of Viscaya leaves much to be desired. According to him, there is a gaping hole in Viscayas testimony[53] that seriously militates against his conviction. Although Viscaya testified about the presence of appellant at the scene of the crime, he, nonetheless, categorically admitted that he did not see the weapon used in stabbing the victim. [54] The contention is untenable. The emphasis, gesture and inflection of the voice are potent aids in understanding the testimony of witnesses. The trial court has the opportunity and is presumed to take advantage of these aids in weighing the testimony of the witnesses. But as they cannot be incorporated into the record, this Court has no assistance in the examination of the testimony and must, therefore, rely upon the good judgment of the trial court. [55] Thus, in the absence of any showing that the trial courts calibration of credibility was flawed, We are bound by its assessment.[56] More than that, a reading of the testimony of Viscaya would show that the trial court did not, in any way, err in calibrating the credibility of his testimony: MANNY VISCAYAS DIRECT EXAMINATION CONDUCTED BY PUBLIC PROSECUTOR FILOMENO BAJAR xxxx Fiscal: On August 7, 1995 at around 7:00 oclock in the evening, do you still remember your whereabouts? Witness: I was there at the side of the barangay hall. xxxx Q: Now, were you alone then or do you have companion with you on said place? A: Mario Pader was with me and we were talking.

Q: Who else were there, if you know? A: We were 3 then, Rafael Santarin, Mario Pader and myself. xxxx Q: A: While the 3 of you were conversing on August 7, 1995 at around 7:00 p.m., do you remember if any unusual incident that transpired? While we were conversing, I spotted Rommel dela Cruz on our back.

Q: How far was Rommel dela Cruz from you when you saw him? A: He was about two (2) meters away from us. Q: What was he doing when you saw him for the first time in that distance for two (2) meters? A: He was standing there, Sir. Q: After seeing him, what happened? A: When I saw him coming from our back, he immediately attacked.

Q: Whom did he attack? A: Rafael Santarin, Sir. xxxx Q: So, when you said attack, what actually do you mean by that? A: Rafael Santarin was stabbed, Sir. Q: A: Before we go further, this Rommel dela Cruz who was your neighbor for 15 years, if he is in court, can you identify him? Yes, Sir.

Q: Please point to him? A: That one, Sir. Interpreter: The witness pointed to a person inside the courtroom who identified himself as Rommel dela Cruz? Fiscal: How were you able to see the stabbing of the victim in this case by Rommel dela Cruz when according to you, your back was against him? Witness: Because after I spotted Rommel dela Cruz from our back, I bought cigarette and after buying cigarette, that was the time that he stabbed the victim. xxxx Q: A: When you saw the stabbing of the victim by Rommel dela Cruz, what was then your position in relation to Rommel and Rafael? My side was facing the two.

Q: Were you still buying cigarette or, you have already bought cigarette when you saw them? A: I already bought cigarette, Sir. Q: Will you please demonstrate to us how Rommel dela Cruz stabbed the victim?

Interpreter: The witness is demonstrating a forward thrust using his right hand. Fiscal: Were the two (2) protagonists facing each other? Witness: No, Sir. Q: What was then the position of the victim in relation to the stabber? A: The back of the victim was against the accused.

Q: Did you see the weapon that was used by the accused in stabbing the victim? A: I did not see it because the incident happened so fast.

Q: How many times did he stab the victim? Witness: Only one, Sir. xxxx Q: When these people arrived and lifted the victim, where was then the accused? A: The accused ran away, Sir. xxxx Fiscal: What happened to the victim after he was stabbed by the accused? A: He fell on the ground. xxxx Q: Were you investigated by the police in relation to the incident that you saw? A: Yes, Sir, at the District Office of the police.

Q: What did you tell the police? A: I told them that I saw the incident. Q: A: Before the stabbing of your friend by the accused, was there any conversation that transpired between the two? None, Sir.[57] (Emphasis ours)

No rule exists which requires a testimony to be corroborated to be adjudged credible. [58] Witnesses are to be weighed, not numbered.[59] Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction.[60] Although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily with the greatest number.[61] Conviction can still be had on the basis of the credible and positive testimony of a single witness.[62] That Viscaya did not see the weapon used does not impair his credibility. As he explained, he failed to see the weapon used to stab Santarin because the incident happened so fast.[63] There is neither jurisprudence nor rules of evidence that a witness credibility is affected if there is failure to see the weapon used in the commission of the crime. To rule along the twisted logic of appellant could be absurd. Viscaya was unrelenting in positively identifying appellant as the one who stabbed Santarin. Note that Viscaya and appellant were neighbors for about fifteen (15) years.[64] There could have been no mistake in Viscayas identification of appellant as the assailant. It is settled that when conditions of visibility are favorable, and when the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. [65] Absent any evidence showing any reason and motive for the witness to prevaricate, the logical conclusion is that no such improper motive exists, and the testimony is worthy of full faith and credit.[66] Appellant has not presented any shred of evidence that Viscaya was impelled by an improper motive in identifying him as the assailant. When appellant was asked why he was charged with the killing of his first cousin, all he could say was hindi ko po alam sa kanila.[67] Appellants claim that Viscaya had an evil motive in testifying against him b ecause they had a previous misunderstanding is too flimsy an excuse. Appellants denial and alibi are not worthy of belief. It is an oft -quoted doctrine that positive identification prevails over denial and alibi.[68] Alibi cannot prevail over the positive identification of the accused as the perpetrator of the crime. [69] Furthermore, for the defense of alibi to prosper, appellant must establish that (a) he was in another place at the time of the commission of the offense; and (b) he was so far away that he could not have been physically present at the place of the crime, or its immediate vicinity, at the time of its commission.[70] Appellant does not dispute that he was near the scene of the crime on August 7, 1995. It was not also physically impossible for him to have been the author of the crime, and after, hide to avoid being prosecuted. In fact, during cross-examination, appellant explicitly admitted that the distance from where he slept and place of the stabbing incident was only for a short distance. Thus: Q: A: You claimed in your Affidavit that you are (sic) only sleeping in the parked jeep near the school and your distance is not even 20 meters walk from where you were sleeping to the place of the stabbing incident? Yes, Sir.

Q: Less than? A: Yes, Sir, by mere walking, one would reach the place of the incident from the place where I used to sleep in front of the elementary school, Sir.[71] Another circumstance which glaringly points to the guilt of appellant is his flight, not only from the scene of the crime, but also from the clutches of the authorities. Flight of an accused from the scene of the crime removes any remaining shred of doubt on his guilt.[72] Indeed, the wicked flee, when no man pursueth, but the innocent are bold as a lion.[73] Consider the following: First. On the night of the killing, appellant did not go home to his parents house and instead slept inside a parked passenger jeep which was half a kilometer away from his parents house. His reason was his alleged anger with his parents and siblings. He did not, however, explain what caused his anger for his parents and siblings which could have made his claim of not going home on that night believable. Second. Appellant proceeded to the pier at 3:00 a.m. and took a boat for Cebu City where he admittedly stayed for 4 years. Third. Although he and his family returned to Caloocan City in 1999, appellant opted not to stay in the city. He instead went to Tabang, Plaridel, Bulacan where he told his relatives that his mother was keeping him away as his life was in danger. He also told them that he feared for his life because he was accused of killing his first cousin. Fourth. Continuing his flight, appellant finally sought sanctuary in the house of his relatives in Nueva Ecija where he was eventually caught. Taken all together, these circumstances show that appellant entertained fear for what had happened to his first cousin. This could hardly be the conduct of an innocent man. In his supplemental brief,[74] appellant also claims that the non-presentation of Pader as witness is tantamount to suppression of evidence.[75] If appellant felt that the prosecution was suppressing evidence, he should have asserted during trial his constitutional right to have compulsory process to secure the attendance of witnesses and the production of evidence on his behalf. [76] This he did not do. Appellant cannot now be heard for the first time on appeal to complain that he could not secure the presence of witnesses at the trial. It does not appear that he made any effort to do so before or during the progress of the trial, or that he sought the aid of the court to compel the attendance of his witnesses, or objected to proceeding without them. [77] Also, there was no necessity for the prosecution panel to present Pader as witness for the simple reason that his testimony would have merely been corroborative. As earlier mentioned, the testimony of Viscaya is credible of belief, thus, any testimony of Pader would have only been a superfluity. The elements of murder are: (1) That a person is killed; (2) That the accused killed him; (3) That the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the Revised Penal Code; and (4) The killing is not parricide or infanticide.[78] Appellant claims that there was no concrete evidence proving that, indeed, treachery was employed in committing the crime charged.[79] According to him, the prosecution failed to present evidence that accusedappellant has resolved to commit the crime prior to the moment of killing. There was no proof that the death of the deceased was the result of meditation, calculation or reflection.[80] Appellant is mistaken. There is treachery when a victim is set upon by the accused without warning; when the attack is sudden and unexpected and without the slightest provocation on the part of the victim; or is, in any event, so sudden and unexpected that the victim is unable to defend himself, thus insuring the execution of the criminal act without risk to the assailant.[81] In order to sustain a finding of treachery, two conditions must be present, to wit: (1) the employment of means of execution that give the person attacked not opportunity to defend himself or retaliate; and (2) the means of execution were deliberately or consciously adopted.[82] Appellants attack on Santarin was so sudden and launched from behind that the latter was caught off guar d. Appellant gave the victim no opportunity to defend himself, as the latter was innocently conversing with Viscaya and Pader. Appellants attack was swift, deliberate and unexpected.[83] There was no slightest provocation on the part of Santarin. Treachery is, without question, present. It is clear from the records that appellant had pondered upon the mode or method of his attack to insure the killing of Santarin or remove or diminish any risk to himself that might arise from the defense that Santarin might make. Appellant suddenly stabbed Santarin at the back, even in the absence of provocation by the victim, to insure himself against the risk from any possible defense that Santarin might make.

Dr. Muoz, who conducted the autopsy on Santarins corpse, also found out that Santarin sustained one stab wound at the back portion of his body, which caused his death. This corroborated the testimony of Viscaya that appellant stabbed the victim once at the back. In one case, this Court ruled that treachery attended the killing of the victim since the stabbing was sudden and unexpected, and the victim was not only unarmed, but was unable to defend himself. [84] In another case[85] where treachery was also appreciated, it was shown that the victims were totally unprepared for the sudden and unexpected attack of appellant. II. Appellant was correctly convicted of murder. There was no violation of the right of appellant to be informed of the nature and cause of accusation against him. Appellant contends that while it is not disputed that treachery was stated in the information, nonetheless, the same was not specified therein as a qualifying circumstance[86] in an ordinary and concise language sufficient to enable a person of common understanding to know what were those qualifying circumstances.[87] Thus, assuming he is guilty, he could only be convicted of homicide, not murder. Appellant is building castle on sand. It is true that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.[88] The Constitution uses the word shall, hence, the same is mandatory. A violation of this right prevents the conviction of the accused with the crime charged in the Information. The constitutional guaranty has a three-fold purpose: First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction. [89] The en banc per curiam Resolution of this Court in People v. Aquino[90] provides for the proper way of making allegations of qualifying or aggravating circumstances in an Information as mandated by Sections 8[91] and 9[92] of Rule 110 of the Revised Rules on Criminal Procedure: x x x the Court has repeatedly held even after the recent amendments to the Rules of Criminal Procedure, that qualifying circumstances need not be preceded by descriptive words such as qualifying or qualified by to properly qualify an offense. x x x In the recent case of People v. Lab-eo, the appellant there questioned the decision of the lower court raising the killing to murder. The appellant there argued that he could only be convicted of homicide since the Information merely stated that the aggravating circumstances of evident premeditation, treachery, abuse of superior strength and craft attended the commission of the offense. The appellant also asserted that since the circumstances were merely described as aggravating and not qualifying, he should only be convicted of the lesser crime of homicide. On this score, the Court ruled that The fact that the circumstances were described as aggravating instead of qualifying does not take the Information out of the purview of Article 248 of the Revised Penal Code. Article 248 does not use the word qualifying or aggravating in enumerating the circumstances that raise a killing to the category of murder. Article 248 merely refers to the enumerated circumstances as the attendant circumsta nces. xxxx The use of the words aggravating/qualifying circumstances will not add any essential element to the crime. Neither will the use of such words further apprise the accused of the nature of the charge. The specific allegation of the attendant circumstance in the Information, coupled with the designation of the offense and a statement of the acts constituting the offense as required in Sections 8 and 9 of Rule 110, is sufficient to warn the accused x x x. x x x The words aggravating circumstances include qualifying circumstances. Qualifying circumstances are aggravating circumstances which, by express provision of law, change the nature of the crime to a higher category. The words attendant circumstances, which still appear in Article 248 (raising homicide to murder), refer to qualifying circumstances those aggravating circumstances that, by express provision of law, change the nature of the crime when present in the commission of the crime. Section 9, Rule 110 of the Revised Rules of Criminal Procedure states that the x x x qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know x x x (the) qualifying and aggravating circumstances x x x.

Thus, even the attendant circumstance itself, which is the essential element that raises the crime to a higher category, need not be stated in the language of the law. With more reason, the words aggravating/qualifying circumstances as used in the law need not appear in the Information, especially since these words are merely descriptive of the attendant circumstances and do not constitute an essential element of the crime. These words are also not necessary in informing the accused that he is charged of a qualified crime. What properly informs the accused of the nature of the crime charged is the specific allegation of the circumstances mentioned in the law that raise the crime to a higher category. Section 8 of Rule 110 requires that the Information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. Section 8 merely requires the Information to specify the circumstances. Section 8 does not require the use of the words qualifying or qualified by to refer to the circumstances which raise the category of an offense. It is not the use of the words qualifying or qualified by that raises a crime to a higher category, but the specific allegation of an attendant circumstance which adds the essential element raising the crime to a higher category. xxxx We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the Information allege, specify or enumerate the attendant circumstances mentioned in the law to qualify the offense. These circumstances need not be preceded by the words aggravating/qualifying, qualifying, or qualified by to be considered as qualifying circumstances. It is sufficient that these circumstances be specified in the Information to apprise the accused of the charges against him to enable him to prepare fully for his defense, thus precluding surprises during the trial. When the prosecution specifically alleges in the Information the circumstances mentioned in the law as qualifying the crime, and succeeds in proving them beyond reasonable doubt, the Court is constrained to impose the higher penalty mandated by law. This includes the death penalty in proper cases. xxxx To guide the bench and the bar, this Resolution clarifies and resolves the issue of how to allege or specify qualifying or aggravating circumstances in the Information. The words aggravating/qualifying, qualifying, qualified by, aggravating, or aggravated by need not be expressly stated as long as the particular attendant circumstances are specified in the Information. (Emphasis ours) The Information in this case clearl y forewarns appellant that without any justifiable cause, with treachery and evident premeditation and with deliberate intent to kill, he did then and willfully, unlawfully and feloniously attack and stab, wi th a bladed weapon, on the back portion of the body, Santarin, thereby inflicting upon the latter serious physical injury which injury caused his death.[93] These allegations, once they were proven beyond reasonable doubt by the prosecution, qualify the killing of Santarin to murder. WHEREFORE, the petition is DENIED and the appealed Court of Appeals Decision AFFIRMED. SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, G.R. No. 179277 Appellee, Present: QUISUMBING, J., Chairperson, TINGA, REYES, LEONARDO-DE CASTRO, and BRION, JJ.

- versus -

REMON COJA y SIMEON, Appellant.

Promulgated: June 18, 2008

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

DECISION TINGA, J.: On automatic review is the Decision[1] of the Court of Appeals dated 30 April 2007 in CA-G.R. CR-H.C. No. 00849 affirming in toto the Decision[2] of the Regional Trial Court (RTC) of Cavite City, Branch 17, in Criminal Case No. 222-01 finding appellant Ramon Coja y Simeon guilty beyond reasonable doubt of the crime of rape, and sentencing him to suffer the penalty of reclusion perpetua and to pay P50,000.00 as civil indemnity and P50,000.00 as moral damages. On 2 May 2001, appellant was charged in an Information for rape allegedly committed as follows: That on or about the 1st day of May 2001 in the Municipality of Noveleta, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with four (4) other persons whose real names, personal identities and whereabouts are still unknown, by means of force and taking advantage of superior strength, and while the herein private complainant, [AAA],[3] a minor of 16 years old, was deprived of reason or otherwise unconscious, with lewd designs and actuated by lust, did then and there, willfully, unlawfully, and feloniously have carnal knowledge of the said [AAA], against her will and consent, to her damage and prejudice. CONTRARY TO LAW.[4] Upon arraignment, appellant pleaded not guilty. Trial then proceeded. The prosecution presented the testimonies of the victim, AAA, her godfather, Rolando Valido (Valido), the police officer who conducted the investigation and effected the arrest of appellant, SPO1 Clipseo Mediran (Mediran), and medico-legal officer Dr. Annabelle Soliman (Soliman). AAA narrated that on 1 May 2001, at around 6:00 p.m., she and her sister were in a vacant lot owned by AKI-RIN Restaurant located in Magdiwang, Noveleta, Cavite. She asked permission from her sister to visit her friend Cindy at Teachers Village and on her way there, she met the brother of Cindy. After their talk, AAA decided not to proceed to Cindys place anymore and instead returned to her sister. When she arrived at the vacant lot, she heard a whistle (sitsit) coming from appellant. Suddenly, two (2) unidentified persons approached and held her by the arms. Appellant went behind her back and covered her nose and mouth with a black handkerchief. She lost consciousness. Upon regaining consciousness, AAA found herself lying on the ground in another vacant lot some 200 meters away from AKI-RIN Restaurant, with her legs spread apart, her pants down and her shoes gone. She felt pain in her legs and in her lower abdominal area. She managed to crawl away from the vacant lot to the house of her godfather, Valido. There, she cried and repeatedly uttered the name of appellant. Valido summoned AAAs aunts who in turn called for AAAs uncle. The latter called for the barangay patrol. All together, they went to the house of AAA in Putol and from there they proceeded to police station on their way to which they met AAAs mother. At the police station, AAA gave a written statement. Appellant was immediately arrested and brought to the police station where AAA was able to identify him. The following day, AAA went to the National Bureau of Investigation (NBI) where she was examined by a doctor. When asked for the reason why appellant committed the alleged dastardly act, AAA answered that when she quit as a member of the fraternity headed by appellant, the latter threatened her that something would happen to her.[5] Valido testified that he was inside his house in San Jose, Noveleta, Cavite watching television when he heard somebody outside the house calling out, Ninong, Ninong, tulungan mo ako . He went out and saw AAA all dirtied and crying. He let her

inside the house and there AAA told him, Ninong, ginalaw ako, ginalaw ako. Valido asked AAA for the culprit and she replied, Coja, Coja.[6] Mediran was the police investigator assigned at the police station in Noveleta, Cavite on 1 May 2001. At 10:00 p.m., he received a complaint from AAA who reported that she was raped by five (5) men. Mediran, accompanied by Olan Monzon, PO1 Nolasco and Barangay Captain Lamit, then went to the house of appellant in Gahak, Kawit, Cavitebut did not find him there. They continued searching for appellant until they found him in Kaingin attending a meeting de avance. They invited appellant to the police station where AAA positively identified him as one of those who raped her. [7] Soliman, a NBI medico-legal officer conducted an examination on AAA. She issued Living Case No. MG-01-374 stating her findings as follows: GENERAL PHYSICAL EXAMINATION: xxx No evident sign of extragenital physical injury noted. GENITAL EXAMINATION Pubic hair, fully grown, abundant. Labia majora, gaping, Labia minora, coaptated. Fourchette, tense, reddish, superficial abrasion. Vestibule, mucosa, pinkish. Hymen, tall, thick, intact. CONCLUSIONS: No evident signs of extragenital physical injury was[sic] noted on the body of the subject at the time of the examination. Recent genital injury noted.[8] The defense interposed alibi. Appellant recalled that he met AAA sometime in the second week of March 2001 when AAA joined the brotherhood Vampire Trasher, a group of skateboarders headed by him. [9] Appellant claimed that AAA stayed at his house for two days in March when she ran away from home. That was the last time appellant saw her. On 1 May 2001 at 4:00 p.m. appellant, together with his ten companions, was in Kaingin in Kawit, Cavite making tents for a wake. After the work, he then proceeded to a tapsihan, also in Kaingin, to attend a meeting de avance. It was there that he was arrested at around 10:00 p.m. that day and brought to the Noveleta Police Station. [10] The following day, he was brought to the Prosecutors Office in Imus, Cavite.[11] His alibi was corroborated by Alfred Solis who testified that he and several other persons were with appellant on that fateful day in Barangay Kaingin, Kawit, Cavite. They started their work on a tent at 4:00 p.m. and finished the same at 7:00 p.m. After completing the job, they then attended the meeting de avance of Mayor Poblete. At the said meeting, five police officers arrived and arrested appellant. He and his companions followed appellant to the police station but they were not able to give their statement to the police.[12] Shirley Coja, appellants mother, also testified that appellant asked her permission to leave the house at 4:00 p.m. on 1 May 2001 to attend a dance practice. She was surprised to learn that appellant was arrested by the police. She went to see appellant at the Noveleta Police Station after the arrest but she was likewise not allowed by the police investigator to explain her side. [13] On 25 August 2003, the RTC rendered judgment finding appellant guilty beyond reasonable doubt of the crime of rape. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused Remon Coja guilty beyond reasonable doubt of the crime of rape defined and penalized under paragraph (1) (b) of Article 266-A of the Revised Penal Code, as amended by R.A. [No.] 8353, and hereby sentences him to suffer the penalty of reclusion perpetua. Further, he is hereby ordered to pay to private complainant the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages.[14]

The issues boil down to two, namely: whether rape was consummated, and whether criminal culpability may be imputed to appellant. In concluding that AAA was raped, the RTC relied on the findings of the medico-legal officer, thus: In the case at bar, the report of the medico-legal officer shows that [AAA] did not sustain extra-genital physical injury and her hymen was intact. Recent injury was, however, noted on her genitalia. Thus, the labia majora was gaping, the labia minora coaptated, and the fourchette was tense with reddish superficial abrasion. To the mind of this Court, these medical findings indicate more than mere scraping of the mons pubis or pudendum. At the very least, they show that there was touching of the labia majora and labia minora

and therefore it may be legally said that private complainants private organ was indeed penetrated or entered. Indeed, a gaping labia minora shows consummation of rape x x x The nature of the genital injuries are [sic] also reasonably consistent with penetration by the male organ. Anent the abrasion on the fourchette, Dr. Soliman testified the same could have been caused by pressure by a male organ on the outer part of the genitalia. [AAA] also stated that she felt pain on her abdominal area and her legs. Such pain could have been caused by pressure exerted on that area, such as by a person lying on top of her. (Citations omitted)[15] On the basis of circumstantial evidence presented, the RTC had no doubt that appellant was the perpetrator of the crime. It found that: In the case at bar, the evidence shows that accused was known to [AAA] at the time of the incident and she could have easily identified him as the person who covered her mouth while two men held her arms. It is also reasonable to deduce that only the accused and his companions could have had control over the person of [AAA] after she was rendered unconscious and it was only they who could have sexually molested her. The evidence also shows that after she regained consciousness, [AAA] realized that she was abandoned at the wooded and grassy area and she felt weak. Her shoes were missing, her legs were spread apart, her pants have been lowered, and her bra was inverted. As earlier stated, she also felt pain in her abdominal area and her legs. These circumstances are telltale signs of sexual assault and this Court gives full faith and credence to [AAAs] testimony thereon. She testified in a direct and forthright manner on the witness stand and there is nothing in the evidence to show that she might have been actuated by ill-motives in imputing to accused a crime as serious as rape. The evidence also shows that [AAA] reported the matter to the police at 10 [p.m.] of the same day, May 1, 2001, or barely 4 hours after accused covered her mouth. She submitted herself to physical examination at the NBI Clinic, Manila the following morning 9:25 a.m. of May 2, 2001. The police investigator also observed that at the time [AAA] came to report the incident she appeared as though she was bewildered. These circumstances show that there was no time for [AAA] to concoct a rape story and that even in her weakened condition, she was determined to swiftly redeem her honor and bring her defiler to justice. Indeed, [AAA] would not have immediately come out in the open and expose herself to the shame and stigma of a public disclosure of the assault on her womanhood if the same were not true. (Citations omitted)[16] On appeal, the Court of Appeals affirmed in toto the RTC ruling. Appellant insists that his guilt has not been proven beyond reasonable doubt. He assails the credibility of AAAs testimony with respect to the commission of the crime and the identity of the alleged perpetrator. He raises doubts as to whether AAA was raped because there was no evident sign of extragenital injury nor traces of semen in her organ and because her hymen was still intact. These medical findings further lend dubiety to AAAs claim that at least five men raped her. Assuming further that AAA was indeed raped, appellant adds, there is no direct evidence that would directly implicate him as the perpetrator. Appellant asserts that there were no witnesses to corroborate AAAs statement before or after she passed out. He contends that AAA only implicated him mainly because he was the last one she had seen before she lost consciousness.[17] For its part, the Office of the Solicitor General (OSG) maintains that appellants guilt has been proven beyond reasonable doubt. It upholds the credibility of AAAs testimony pointing to appellant as the one who raped her. The OSG contends that while AAA was rendered unconscious and there were no witnesses to such rape, there was sufficient circumstantial evidence to establish with moral certainty that it was appellant who raped AAA. [18] Essentially, the issue to be resolved is whether appellants guilt has been proven beyond reasonable doubt. The gravamen of the offense of rape is sexual intercourse with a woman against her will or without her consent.[19] Consequently, for the charge of rape to prosper, the prosecution must prove that (1) the accused had carnal knowledge of the complainant; and, (2) that the same was accomplished through force or intimidation. [20] In cases of rape, only two (2) persons are normally privy to its occurrence, the complainant and the accused.[21] Generally, the nature of the offense is such that the only evidence that can prove the guilt of the accused is the testimony of the complainant herself.[22] Thus, the prosecution of rape cases is anchored mainly on the credibility of the complaining witness. As a general rule, the findings of the trial court relative to the credibility of the rape victim are normally respected and not disturbed on appeal. More so, if they are affirmed by the appellate court. [23] It is only in exceptional circumstances that this rule is brushed aside, such as when the courts evaluation was reached arbitrarily, or when the trial court overlooked, misunderstood or misapplied certain facts or circumstances of weight and substance which could affect the result of the case. [24] The Court does not find any of these exceptions in the case at bar. AAAs narration of the events surrounding the alleged sexual assault was adjudged by the trial court as credible. The narration reads, thus:

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Now, on May 1, 2001 at around six oclock in the evening, can you recall where you were, Miss Witness? We were at the vacant lot of AKI-RIN, maam. Where is this AKI-RIN located? At Magdiwang, maam. In what municipality is this located? In Noveleta, maam. Who were your companions at that time? My sister, maam. What were you doing there at that time? I was talking to my sister and I asked permission from her that I will go to my friend Cindy. And what did you do next, if any? Then we separated, maam. And where did you go? To my friend Cindy at Teachers Village, maam. Where is this Teachers Village located? At Magdiwang, Noveleta, maam. Now, after going to the place of your friend, what did you do next? I was not able to talk with my friend because I met the brother of my friend, Joseph. So, what did you do next after talking to the brother of Joseph? I went back and I also passed-by the same place AKI-RIN, maam. At around what time was that, Miss Witness? More or less, 6:30, maam. So, while you were at AKI-RIN around 6:30 in the evening, can you recall if anything unusual happened? I was already on my way going back to my sister and suddenly sinitsitan ako ni Coja. What happened next after Coja called you? Suddenly, two (2) persons approached me and held me at my arms, maam. Do you know who these two (2) persons were? No, maam. If you will see these persons again, will you be able to identify them? The one, maam. What about Ramon Coja, what did he do, if any? He at once went to my back, he covered by mouth and nose with black handkerchief and I lost consciousness, maam. Now, when did you regain your consciousness? I cannot remember the time because I was still shocked and I was weak, maam. Can you recall where you were when you regained your consciousness? Yes, maam. Where were you, Miss Witness? At the vacant lot near RCBC, maam. Where is this RCBC located? It was just after the bridge of Magdiwang. Also in the Municipality of Noveleta? Yes, maam.

Q: A: Q: A: Q: A: Q: A: Q: A:

Q: A: Q: A:

Who were your companions when you regained your consciousness? No one, maam. What did you see after you regained your consciousness? When I regained consciousness, I noticed that I do not have my shoes, my legs were spread, and my pants was down, I experienced pain in my lower abdominal area, and my legs were aching. What happened next, Miss Witness? I fixed myself, maam. And then what did you do next? I crawled at the vacant lot because it was going up, maam. And what did you do next or where did you go? I went to the house of my godfather because that was the nearest place I could go, maam. Where was that place, Miss Witness? In San Jose II, maam. Also in Noveleta? Yes, maam. What is the name of your godfather? Rolando Valido, maam. Now, what happened when you went to the place of your godfather? I cried and cried and I repeatedly said the name of R emon Coja, maam.[25]

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Naturally, AAA could not have seen appellant insert his penis into her vagina primarily because AAA lost her consciousness. Hence, carnal knowledge may be proven by circumstantial evidence provided that there is more than one circumstance, the facts from which the inferences are derived are proved, and the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[26] Jurisprudence is replete with cases of rape where the victim was unconscious and the accused was found guilty on the basis of circumstantial evidence. In People v. Sabardan,[27] the victim felt dizzy and lost consciousness after the accused forced her to drink beer. Upon waking up, she found herself completely naked and felt severe pains in her vagina. The Court upheld the culpability of the accused for rape. In People v. Gaufo,[28] the victim was hit on her head by the accused but she fought back and asked for help. The accused then punched her abdomen causing her to lose consciousness. Upon regaining her bearings, she noticed that her underwear was missing, her vagina was bleeding and her body was painful. The combination of these circumstances, among others, led the Court to adjudge the accused guilty of rape. In People v. Perez,[29] this Court ruled that the victims positive identification of the accused as the person who came to her room and covered her nose and mouth with a foul smelling handkerchief until she lost consciousness, the blood and white substance found in her aching vagina, her torn shorts and her missing panties all led the Court to the conclusion that accused had raped her while she was unconscious. The circumstances enumerated by the Court of Appeals yield the inescapable conclusion that rape did occur and was perpetrated by appellant, thus: [AAA] joined the Vampire [T]rasher Fraternity with accused -appellant as the fraternitys acting president; 2. [AAA] left the fraternity and was warned with a retaliation from appellant; 3. [AAA] came across appellant who was then in company with other persons, on that hapless evening of May 1, 2001; 4. The two companions of appellant held [AAA] in both hands while accused-appellant covered her mouth with a black handkerchief and drugged her, rendering her unconscious[;] 5. When [AAA] regained consciousness, her shoes were missing, her pants were down and her legs were wide opened; 6. After the incident, [AAA] sought the help of her godfather, Rolando Valido who confirmed her ordeal and the fact that she pointed to appellant as her tormentor; 7. [AAA] reported the incident to the police, had her body examined and exposed herself to the rigors, the pain, the hardship and the humiliation of a public trial; and 8. Dr. Soliman confirmed in her testimony the presence of abrasion in [AAAs] fourchette and her gaping labia majora.[30] 1.

Indeed, the prosecution evidence has sufficiently established the following: first, AAA positively identified appellant as the one who went behind her back and covered her mouth with a handkerchief; second, appellant was the last person AAA saw before the latter lost consciousness; third, when she regained consciousness, she found herself in a very compromising situation, with her pants down and her legs spread apart; fourth, upon reaching the house of her godfather, AAA immediately declared that appellant was the one who ravished her; and fifth, the medical findings reveal injuries supportive of sexual assault. The combination of these circumstances establishes beyond reasonable doubt that AAA was raped by appellant while she was in a state of unconsciousness. These circumstances constitute an unbroken chain of events which inevitably points to appellant, to the exclusion of all others, as the perpetrator of the crime. Appellant capitalizes on the absence of extragenital injuries, hymenal lacerations and spermatozoa to belie the accusation of rape against him. The absence of extragenital injuries only corroborated AAAs claim that she was unconscious at the time of the alleged rape. Clearly, AAA was not able to physically resist appellants sexual advances. In any event, it must be stressed that medical findings of injuries or hymenal lacerations in the victim's genitalia are not essential elements of rape. Even the absence of such injuries does not negate rape. What is indispensable is that there was penetration of the penis, however slight, into the labia or lips of the female organ.[31] Moreover, the presence of superficial abrasion in the fourchette corroborates the allegation that there was sexual assault. Although the medico-legal expert testified that it may have been caused by scratching or pressure exerted on the area,[32] it is highly probable that it has been caused by penile penetration in light of the allegations of AAA that she was sexually molested the day before the examination. Appellant maintains that he was only charged of rape because he was the only person known to AAA at the time of the incident and was the last one she saw before she passed out. This argument is not well-taken. Aside from the fact that he was the last person AAA saw before she lost consciousness, appellant was also the one who covered her mouth with a handkerchief which caused her to lose consciousness. It is of no moment that AAA identified appellant and not the latters cohorts as the perpetrator considering that the existence of conspiracy was alleged and proven by the concerted actions of appellant and four others in abducting AAA. The defense of alibi must fall in light of AAAs positive identification of appellant. For alibi to prosper, it does not suffice to prove that the accused was at another place when the crime was committed, but it must also be shown that there was physical impossibility for him to have been at the scene of the crime. [33] It was not physically impossible for appellant to go to Noveleta and perpetrate the crime then proceed to Kawit where he was apprehended for it is only a short distance away as shown by the records. In sum, the physical evidence corroborated by circumstantial evidence justifies appellants conviction and the imposition of the penalty of reclusion perpetua. WHEREFORE, the Decision of the Court of Appeals of 30 April 2007 affirming the Decision dated 25 August 2003 of the Regional Trial Court of Cavite City, Branch 17 in Criminal Case No. 222-01, finding appellant Ramon Coja y Simeon guilty beyond reasonable doubt of rape and sentencing him to suffer the penalty of reclusion perpetua and ordering him to pay AAA the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED. SO ORDERED.

PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee,

G.R. No. 182192 Present:

- versus

AGRIPINO GUEVARRA MULINGTAPANG alias DUNGGOL, Accused- Appellant.

y BOY

YNARES-SANTIAGO, Chairperson, CARPIO,* AZCUNA,** CHICO-NAZARIO, and NACHURA, JJ. Promulgated:

October 29, 2008 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.: For review is the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02367, dated 16 October 2007,[1] affirming with modification the Decision, dated 4 July 2006, of the Batangas City Regional Trial Court (RTC), Branch IV, in Criminal Case No. 12486,[2] finding accused-appellant Agripino Guevarra y Mulingtapang, alias Boy Dunggol, guilty of murder, and imposing upon him the penalty of reclusion perpetua. The facts gathered from the records of the case are as follows: On 30 August 2002, an Information[3] was filed with the RTC charging appellant with murder. The accusatory portion of the information reads: That on or about August 24, 2002 at around 9:15 oclock in the evening at Ebora Road, Brgy. Kumintang Ibaba, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a caliber .45 pistol, a deadly weapon, with intent to kill and with the qualifying circumstance of treachery, did then and there willfully, unlawfully and feloniously attack, assault and repeatedly shot with said firearm suddenly and without warning one P/Chief Inspector Marcos Barte y Paz while the latter was unarmed and completely defenseless, thereby hitting him on different parts of his body which directly caused the victims death. That the special aggravating circumstance of the use of an unlicensed firearm is attendant in the commission of the offense. When arraigned on 12 November 2002, appellant, assisted by his counsel de oficio, pleaded Not guilty to the charge.[4] Trial on the merits thereafter followed. The prosecution presented as witnesses Anacleto Gonzales (Anacleto), Maria Antonette Gonzales (Antonette), Senior Police Officer 1 Felixberto Cabungcal (SPO1Cabungcal), SPO1 Florentino Buenafe (SPO1 Buenafe), Dr. Edwin Castillo (Dr. Castillo), Dr. Antonio S. Vertido (Dr. Vertido), and Marita Gonzales Vda. de Barte (Mrs. Barte). Their testimonies are summarized as follows: Anacleto, cousin of herein deceased victim Police Chief Inspector Marcos P. Barte (Inspector Barte) of the Batangas City Police Station, testified that on 24 August 2002, at around 3:30 p.m., Inspector Barte, accompanied by a certain Roberto Godoy (Godoy) and Ronnie Valiente (Valiente), arrived at his house located at Barangay KumintangIbaba, Batangas City. He, Inspector Barte, Godoy, Valiente, and Anacletos father-inlaw, Nicasio Resurreccion (Nicasio), talked and drank gin inside the house. Subsequently, the group, with the exception of Godoy, left the house and went to a videoke bar owned by a certain Sergeant Emilio Vidal (Sgt. Vidal) located at Ebora Road, BarangayKumintang Ibaba, Batangas City. They arrived at the videoke bar at about 8:30 p.m. He drank one bottle of beer while Inspector Barte consumed two bottles of beer. Thereafter, at about 9:15 p.m., the group went out of the videoke bar. He saw his wife, Antonette, outside the videoke bar. Antonette approached and talked to him. He also saw Godoyseated in the drivers seat of an owner -type jeep parked near the videoke bar, and a certain Imelda Shin (Imelda) sitting at the back portion of the jeep. Valiente boarded the jeep and sat beside Imelda. Inspector Barte also boarded the jeep and sat in the front passengers seat beside Godoy. When Anacleto was about to board the jeep, appellant suddenly appeared and approached Inspector Barte. Appellant asked Inspector Barte if he was Major Barte. Thereupon, he saw appellant shoot Inspector Barte several times with a short firearm. He was then one arms length from Inspector Barte and one meter away from

appellant. Inspector Barte slumped on his seat bloodied while Godoy shouted that he was also hit. Appellant immediately fled the scene.[5] Subsequently, Anacleto drove the jeep and brought Inspector Barte to the Batangas Regional Hospital. Inspector Barte was pronounced dead on arrival. Godoy was also brought to the said hospital for treatment of his wounds. Later, the police arrived at the hospital and interviewed him about the incident. He executed a sworn statement regarding the incident.[6] Antonette narrated that on 24 August 2002, at about 8:40 p.m., she, together with Godoy and Imelda, went to a videoke bar owned by Sgt. Vidal at Ebora Road, BarangayKumintang Ibaba, Batangas City, to fetch her husband, Anacleto. She and Imelda boarded an owner-type jeep driven by Godoy in going to the videoke bar. Upon arriving thereat, she proceeded to the videoke bar, peeped in its window, and saw Anacleto, Inspector Barte, her father, and Valiente therein. She signaled to Anacleto that she would wait for them on the jeep outside the videoke bar. Afterwards, Anacleto, Inspector Barte, Nicasio, and Valiente went out of the videoke bar. Nicasio boarded a tricycle and proceeded home while Valiente and Inspector Barte boarded the jeep. Valiente sat beside Imelda at the backseat of the jeep while Inspector Barte sat beside the drivers seat then occupied by Godoy. When Anacleto was about to board the jeep, she heard a gunshot. Upon turning her head towards the direction of the gunshot, she saw appellant shoot InspectorBarte with a short firearm. Thereafter, she heard Godoy shouting that Inspector Barte was shot and told her to call the police. She immediately proceeded to a nearby drug store where she used a telephone in contacting the police. She saw Anacleto driving the jeep with Inspector Barte on board. Later, she proceeded to the Batangas Regional Hospitalwhere she saw the lifeless body of Inspector Barte in a stretcher. She also saw therein Godoy being treated for wounds.[7] SPO2 Cabungcal, a member of the Batangas City Police Station, Intelligence Division, testified that he was on duty at the said station on the night of 24 August 2002. On that same night, the station received a report about a shooting incident at Ebora Road, Barangay Kumintang Ibaba, Batangas City. He and several police officers immediately proceeded to the crime scene. Upon arriving thereat, they searched the crime scene and recovered four caliber .45 empty shells, one live caliber .45 ammunition and one deformed caliber .45 slug. Thereafter, they went to the Batangas Regional Hospital where they were informed that Inspector Barte was already dead. He turned over to SPO1 Buenafe, the investigator of the case, the evidence they recovered from the crime scene.[8] SPO1 Buenafe, a member of the Batangas City Police Station, Investigation Section, averred that he conducted an investigation in the instant case; that after the incident, he went to the Batangas Regional Hospital where he was informed that Inspector Barte was already dead and Godoy was injured; and that SPO1 Cabungcal turned over to him object evidence recovered from the crime scene.[9] Dr. Castillo, a surgeon assigned at the Batangas Regional Hospital, recounted that he attended to Inspector Barte when the latter was brought to the hospital on the night of24 August 2002. During the initial examination, he observed that Inspector Barte sustained gunshot wounds and had no blood pressure, cardiac and respiratory rate. He and some medical staff tried to resuscitate Inspector Barte but to no avail. The gunshot wounds were located on the left temporal area, left anterior chest, right nipple, and left arm of Inspector Barte. He considered the gunshot wounds in the left temporal area and left anterior chest of Inspector Barte fatal. He issued a medico-legal certificate pertaining to Inspector Barte and an anatomical chart showing the location of gunshot wounds sustained by Inspector Barte.[10] His findings, as stated in the medico-legal certificate of Inspector Barte, are as follows: THIS IS TO CERTIFY that Marcos P. Barte, 46 years of age, male, Filipino of Soro-soro 2, Batangas City, at about 9:30 p.m., August 24, 2002 with the following injuries sustained by him: Multiple gunshot wounds anterior chest left, Right nipple left temporal area, left arm NOTE: DEAD ON ARRIVAL.[11]

Dr. Vertido, Medico-Legal Officer of the National Bureau of Investigation (NBI), Southern Tagalog, Region 4, declared that he conducted an autopsy on the corpse of Inspector Barte; that Inspector Barte sustained three gunshot wounds; that the first gunshot wound was located on the left portion of the head which fractured the skull; that the second gunshot wound was situated on the right portion of the chest which perforated the heart and the upper lobe of the left lung exiting at the left side of the back; that the third wound was on the left portion of the chest which penetrated the upper lobe of the left lung and exited at the posterior side of the left arm; and that these wounds caused the death of Inspector Barte.[12] He issued a Certificate of Post-Mortem Examination on Inspector Barte in support of his foregoing findings, viz: POSTMORTEM FINDINGS Pallor, lips and nailbed. Contusion; anterior chest wall, midline, 2 x 3 cm. GUNSHOT WOUNDS:

1. ENTRANCE 1.3 x 1.0 cm. ovaloid, edges inverted, with a contusion collar widest at its upper border, surrounded by an area of tattoing, 8 x 6 cms. at the left temple 6 cms. infront and 5 cms. above the left external auditory meatus, directed backwards, downwards and medially, involving the skin and underlying soft tissue, fracturing left temporal bone, lacerating corresponding lobe, fracturing and penetrating left midcranial fossa, into the soft tissue of the left posterior neck, 12 cms, below and 10 cm behind the left external auditory meatus where a semideformed slug was recovered. 2. ENTRANCE 1.3 x. 1.0 cm. ovaloid, edges inverted, with a contusion collar widest at its lower border located at the right anterior chest wall, 10 cms. from the anterior median line, 125 cms. above the right heel, directed, backward, upward and from right to left involving the skin and underlying soft tissue perforating the heart, and upper lobe of the left lung, then making an EXIT wound, 1.0 x 1.1. cm., ovaloid, edges everted, located at the back left side, (scapular area) 20 cm. from the posterior median line, 137 cm. above the left heel. 3. ENTRANCE 1.2 x 1.0 cm. ovaloid, edges inverted with a contusion collar widest at its lower border, located at the left anterior chest wall, 2 cm. from the anterior median line 131 cm. above the left heel, directed backward, upward and laterally, involving the skin and underlying soft tissues, perforating upper lobe of the left lung then making an EXIT wound, 1 x 1.1 cm. ovaloid, edges evertedlocated at the left arm, posterior aspect, upper 3rd 28 cms. above the left elbow. CAUSE OF DEATH: GUNSHOT WOUNDS, HEAD AND CHEST.[13]

Mrs. Barte, wife of Inspector Barte, testified on the civil aspect of the case. She presented a list of expenses incurred for the wake and burial of Inspector Barte which amounted to P183,425.00. She also submitted official receipts pertaining to the funeral expenses (P46,250.00), burial lot (P53,000.00), and interment fee (P10,000.00). She claimed that at the time of Inspector Bartes death, the latter was receiving a monthly income of P30,982.00.[14] The prosecution also adduced documentary and object evidence to buttress the testimonies of its witnesses, to wit: (1) sworn statement of Mrs. Barte (Exhibit A);[15] (2) sworn statement of Anacleto (Exhibit B);[16] (3) sworn statement of Antonette (Exhibit C);[17] (4) sworn statement of SPO1 Buenafe (Exhibit D);[18] (5) death certificate of Inspector Barte (Exhibit E);[19] (6) certification from the PNP, Firearms and Explosives Division, Camp Crame, Quezon City, that appellant is not a licensed/registered firearm holder of any kind and caliber (Exhibit F); [20] (7) four empty bullet shells, one deformed slug and one live ammunition (Exhibit G);[21] (8) list of wake and burial expenses (Exhibit H);[22] (9) official receipt covering the funeral expenses (Exhibit I);[23] (10) official receipt for the burial lot (Exhibit J); [24] (11) anatomical chart showing the location of gunshot wounds sustained by Inspector Barte (Exhibit K);[25] (12) medico-legal certificate of Inspector Barte signed by Dr. Castillo (Exhibit L);[26] (13) pay slip of Inspector Barte for August 2002 (Exhibit M);[27] (14) list of expenses incurred for the food served during the wake and burial of Inspector Barte (Exhibit N);[28] (15) request for autopsy of Inspector Barte signed by Mrs. Barte (Exhibit O);[29] (16) certificate of identification signed by Dr. Vertido (Exhibit P);[30] (17) certificate of post-mortem examination on Inspector Barte (Exhibit Q);[31] (18) autopsy report on Inspector Barte signed by Dr. Vertido (Exhibit R);[32] and (19) anatomical sketch of the location of the gunshot wounds sustained by Inspector Barte prepared by Dr. Vertido.[33] For its part, the defense presented the testimonies of appellant and Ferdinand Ravino (Ravino) to refute the foregoing accusation. No documentary evidence was presented. Appellant denied any liability and interposed the defense of alibi. Appellant testified that at the time of the incident (9:15 p.m., 24 August 2002), he was at Barangay Malad, Calapan City, Oriental Mindoro vacationing at the house of a certain Hector Africa (Africa). He arrived therein on the afternoon of 23 August 2002 and left on the morning of 26 August 2002. He was not acquainted with Inspector Barte and came to know that he was accused of killing Inspector Barte when he arrived at Batangas City from Oriental Mindoro on the afternoon of 26 August 2002. He was informed that he would be salvaged for killing Inspector Barte. Hence, he became afraid and hid in his house for two weeks. Thereafter, he surrendered to the mayor of Batangas City who turned him over to the Batangas City police. He alleged that Anacleto and Antonette testified against him because he did not support the candidacy of Antonette during the previous election for barangay captain where Antonette lost. He supported then the candidacy of the incumbent barangay captain.[34] Ravino narrated that he has known appellant since 1991 because they were co-workers in Toyota Motors, Batangas City. On 24 August 2002, at around 12:00 in the afternoon, Africa came to his auto mechanic shop in Calapan, Oriental Mindoro and talked to him. Africa requested him to go to his house at Barangay Malad, Calapan City, Oriental Mindoro, to fix Africas car and thereafter to drink liquor with him. Subsequently, he went to Africas house arriving therein at 5:30 p.m. of the same day. He saw Africa, appellant and one helper of Africa inside the house. Africa told him that appellant was taking a vacation at his house. After fixing Africas car, he, Africa and appellant had a drinking spree until 11:00 p.m. of the same day. Thereupon, he left Africas house. Later, he and appellant met at the city jail of Batangas City. He was detained for a criminal charge while appellant was detained on the charge of killing Inspector Barte. During their detention, appellant requested him to testify in his favor to which he acceded. He was still a detainee at the time he testified in the RTC as regards the instant case. [35] After trial, the RTC rendered a Decision on 4 July 2006 convicting appellant of murder.[36] Appellant was sentenced to reclusion perpetua. He was also ordered to pay the heirs of Inspector Barte the amounts of P50,000.00 as compensatory

damages, P109,250.00 as actual damages, P50,000.00 as moral and exemplary damages, P4,212,312.72 for loss of earning capacity, and cost of suit. The dispositive portion of the RTC Decision reads: In view of all the foregoing and upon evidence established by the Prosecution, accused Agripino Guevarra y Mulingtapang alias Boy Dunggol is hereby found Guilty beyond a reasonable doubt of committing the crime of Murder under Article 248 of the Revised Penal Code as amended by Republic Act No. 7659. The proper penalty would have been death by lethal injection but with the repeal of the death penalty pursuant to Republic Act No. 9346 which was recently signed into law by the President on June 22, 2006, imposition thereof is no longer possible. Consequently, herein accused is sentenced to suffer the penalty of reclusion perpetua and to pay the costs. Further, he shall pay the private offended party P50,000.00 for the death of Major Barte as compensatory damages;P109,250.00 as actual damages sustained which were reflected in the official receipts submitted in evidence; P50,000.00 as moral and exemplary damages; P4,212,312.72 loss of earnings computed on the basis of the pay slip of Major Barte for the month of August, 2002 showing that at the time of his death his full compensation amounted to P30,982.00. The accused maybe credited with his preventive imprisonment if he is entitled to any and directed to be immediately committed to the National Penitentiary in Muntinlupa City.[37] Appellant appealed to the Court of Appeals. On 16 October 2007, the appellate court promulgated its Decision affirming with modification the RTC Decision.[38] It held that an additional amount of P25,000.00 as exemplary damages should also imposed on appellant because the qualifying circumstance of treachery attended the killing of InspectorBarte. Thus: WHEREFORE, premises considered, the July 4, 2006 Decision of the Regional Trial Court of Batangas City, Branch IV, is hereby AFFIRMED with the MODIFICATION that exemplary damages in the amount of P25,000.00 should also be awarded.[39]

Appellant elevated the instant case before us assigning a single error, to wit: THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[40]

Appellant maintains in his lone assigned error that his testimony and that of his corroborating witness, Ravino, were more credible than the testimonies of Anacleto andAntonette; that his denial and alibi were meritorious; and that the mitigating circumstance of voluntary surrender should be appreciated in his favor. In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following well-settled principles: (1) the reviewing court will not disturb the findings of the lower court, unless there is a showing that it overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that may affect the result of the case; (2) the findings of the trial court on the credibility of witnesses are entitled to great respect and even finality, as it had the opportunity to examine their demeanor when they testified on the witness stand; and (3) a witness who testifies in a clear, positive and convincing manner is a credible witness.[41] After carefully reviewing the evidence on record and applying the foregoing guidelines to this case, we found no cogent reason to overturn the RTCs ruling finding the testimonies of Anacleto and Antonette credible. As an eyewitness to the incident, Anacleto positively identified appellant as the one who shot Inspector Barte with a short firearm. He was merely one arms length from Inspector Barte and one meter away from appellant during the incident. In addition, the crime scene was welllighted by a nearby lamp post and lights coming from the videoke bar which enabled him to recognize appellant. Further, he was familiar with the face of appellant because the latter was his barriomate. Anacletos direct account of how appellant shot Inspector Barte is candid and convincing, thus: Q: Now, while you were outside the [videoke] restaurant at around 9:15 in the evening of August 24, 2002, do you remember any untoward incident that happened thereat? Yes, sir. What was that particular incident? The shooting of Major Barte (Inspector Barte), sir. Who shot Major Barte? Agripino Guevarra y Mulingtapang alias Boy Dunggol.

A: Q: A: Q: A:

Q: A: Q: A:

How did it happen that accused was there at that time and said place? I did not notice where he came from, he suddenly appeared. After he suddenly appeared, what did the accused do? He approached Major Barte and asked are you Major Barte? and afterwards he fired shots at Major Barte. Was Major Barte able to answer that question of the accused to him? No maam. What happened to Major Barte after having (sic) shot by the accused? I saw him slumped on his seat on the car, bloodied. How far were you from Major Barte at that time? About one arm[s] length, maam.

Q: A: Q: A: Q: A: xxxx Q:

Now, you said Agripino Guevarra is the one who shot to death Major Barte, if he is in Court this morning, would you be able to identify him? Yes, maam. Would you please point to him? (Note: Witness is pointing to the man wearing a yellow shirt seated in the front row of the Courtroom who answers by the name of Agripino Guevarra when he was asked by the Court). [42]

A: Q: A:

xxxx Q: You stated that while you were talking with Major Barte when the latter was sitted (sic) in the front seat, the accused suddenly appeared? Yes, sir. Where did he suddenly appear, from your right or left? From my right side, sir. Where was he at that time in relation to the jeep? On the right side of the jeep, sir. You are also on the right side of the jeep? Yes, sir. You are also 1 meters from the jeep? No sir. How far were you from the jeep? More or less one (1) arm length, sir. How far was the accused in this case when you first saw him? We were both on the same distance from the jeep, sir. After you saw the accused suddenly appeared on your right side you also saw him put up his gun?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q:

A: Court: Q: A: xxxx Q:

No sir.

How about you, how far are you from the accused when you first saw him? Almost one (1) meter, sir.[43]

You stated last time that when the accused asked if he is Major Barte the accused immediately shot Major Barte, is that correct? Yes, sir. You also stated that the accused shot him five (5) times? No, sir. How many times did the accused shoot Major Barte? I heard four (4) shots, sir. When you say you heard four (4) shots you mean to say you did not see him fired (sic) his gun? I saw it, sir.[44]

A: Q: A: Q: A: Q: A:

Antonettes testimony, corroborating the foregoing testimony of Anacleto, was also clear and reliable. Being an eyewitness to the incident, she pointed to appellant as the one who shot Inspector Barte. Her narration of the incident is truthful, to wit: Q: After Major Barte occupied the front seat at the right [side] of the driver and your husband was about to board the jeep, what happened next, if any? I heard that gunshot, maam. Upon hearing that gunshot, what did you do? I turned my head where the gunshot came from, maam. And what did you find out? I saw a man shooting a man riding at the right side of the vehicle, maam. Who was being shot by that person? Major Barte, maam. Did you recognize who [shot] Major Barte? Yes, maam. Who is that person? Mr. Agripino Guevarra, maam.

A: Q: A: Q: A: Q: A: Q: A: Q: A: xxxx Q:

You said that you this Agripino Guevarra? Yes, maam. Even before this date?

saw Agripino Guevarra shooting

Major Barte,

do

you

know

A: Q:

A:

Yes, maam. Being a native of this barangay and I have been a barangay councilwoman and he became also a barangay tanod. If he [is] present in Court this afternoon, would you able to identify him? Yes, maam. Would you please point to him? (Witness is pointing to a man wearing a yellow shirt of Agripino Guevarra when he was asked by the Court). [45] who answers by the name

Q: A: Q: A:

Further, the foregoing testimonies are consistent with documentary and object evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Anacleto and Antonette to be clear and credible. Denial is inherently a weak defense as it is negative and self-serving. Corollarily, alibi is the weakest of all defenses for it is easy to contrive and difficult to prove. [46] Denial and alibi must be proved by the accused with clear and convincing evidence otherwise they cannot prevail over the positive testimony of credible witnesses who testify on affirmative matters. [47] For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.[48] Appellant testified that he was vacationing in Africas house at Barangay Malad, Calapan City, Oriental Mindoro at the time (9:15 p.m.) and date (24 August 2002) of the incident. Ravino claimed that, upon arriving at Africas house in Calapan Oriental, Mindoro at about 5:30 p.m. of the day of the incident, he saw appellant there. Ravino then proceeded to fix Africas car. After fixing Africas car, he, Africa and appellant had a drinking spree until 11:00 p.m. of the same day. Be that as it may, Ravino neither categorically stated nor confirmed that appellant was present in Africas house from the time he was fixing Africas car at past 5:30 p.m. up to the time he was done with it which was before 11:00 p.m. As mentioned earlier, Ravino merely claimed that he saw appellant in Africas house at about 5:30 p.m. and after fixing Africas car, he, Africa and appellant had a drinking spree until 11:00 p.m. Thus, it was highly possible that since Ravinos sight was directed or focused on Africas car as he was fixing it, he did not notice appellants departure from Africas house at past 5:30 p.m. Appellant then proceeded to the videoke bar of Sgt. Vidal in Barangay Kumintang Ibaba, Batangas City, where he killed Inspector Barte at around 9:15 p.m. It was also probable that Ravino did not notice appellants subsequent arrival in Africas house, which was before 11:00 p.m., from the crime scene because he was still busy fixing Africas car. The foregoing view is bolstered by appellants admission that it would only take him 45 minutes to reach Calapan City, Oriental Mindoro from the Batangas pier via a Supercat boat.[49] There was, therefore, a great possibility that appellant was present at the scene of the crime when it was committed at about 9:15 p.m. of 24 August 2002. Thus, the defense failed to prove that it was physically impossible for appellant to be at or near the crime scene when the incident occurred. Besides, we have held that an alibi becomes less plausible as a defense when it is corroborated only by relatives or friends of the accused. [50] We agree with the RTC and the Court of Appeals that the qualifying circumstance of treachery and the special aggravating circumstance of use of an unlicensed firearm attended the killing of Inspector Barte. It is settled that aggravating/qualifying circumstances must be alleged in the information and proven during the trial before they can be appreciated.[51] There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defensive or retaliatory act which the victim might make.[52] 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 r etaliatory act on the part of the offended party who has, thus, no opportunity for self-defense or retaliation; and (2) deliberate or conscious choice of means, methods or manner of execution. [53] In the case at bar, treachery was alleged in the information and all its elements were duly established by the prosecution. Inspector Barte was sitting inside the jeep when appellant suddenly appeared and approached him. Appellant asked Inspector Barte if he was Major Barte. However, before Inspector Barte could respond or utter a word, appellant quickly shot him several times in the head and chest with a caliber .45 pistol. The suddenness and unexpectedness of the appellants attack rendered Inspector Barte defenseless and without means of escape. There is no doubt that appellants use of a caliber .45 pistol, as well as his act of waiting for Inspector Barte to be seated first in the jeep before approaching him and of shooting Inspector Barte several times on the head and chest, was adopted by him to prevent Inspector Barte from retaliating or escaping. Considering that Inspector Barte was tipsy or drunk and he was seated inside the jeep where the space is narrow, there was absolutely no way for him to defend himself or escape.

Pertinent provision of Presidential Decree No. 1866, as amended by Republic Act No. 8294, [54] states that if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Appellants use of an unlicensed firearm in killing Inspector Barte was alleged in the information as a special aggravating circumstance. Such circumstance was also duly proven by the prosecution during the trial. The prosecution presented a certification from the PNP Firearms and Explosives Division which attests that appellant was not a licensed/registered firearm holder.[55] Appellants assertion that he was entitled to the mitigating circumstance of voluntary surrender is meritorious. For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) that the offender had not been actually arrested; (2) that the offender surrendered himself to a person in authority; and (3) that the surrender was voluntary.[56] All of the foregoing requisites are present in the case at bar. Appellant had not been actually arrested by the police or other law enforcers. He surrendered unconditionally to the mayor of Batangas City, a person in authority, thereby saving the police trouble and expenses which it would otherwise incur in his search and capture. The fact that appellant surrendered two weeks after the incident is immaterial. We have held that for voluntary surrender to mitigate an offense, it is not required that the accused surrender at the first opportunity.[57] As long as the aforementioned requisites are met, voluntary surrender can be appreciated.[58] We shall now determine the propriety of the penalties imposed on appellant. Article 248 of the Revised Penal Code states that murder is punishable by reclusion perpetua to death. Article 63(4) of the same Code provides that if the penalty is composed of two indivisible penalties, as in this case, and both mitigating and aggravating circumstances attended the commission of the crime, the courts shall reasonably allow them to offset one another in consideration of their number and importance. As earlier determined, the mitigating circumstance of voluntary surrender and the aggravating circumstances of treachery and use of an unlicensed firearm were present in the instant case. Nonetheless, the aggravating circumstance of treachery in this case cannot be applied for offsetting because it was already considered as a qualifying circumstance.[59] Thus, only the aggravating circumstance of use of an unlicensed firearm may be utilized in offsetting the mitigating circumstance of voluntary surrender. We stated earlier that the use of an unlicensed firearm in murder is a special aggravating circumstance and not merely a generic aggravating circumstance. As such, it cannot be offset by an ordinary mitigating circumstance such as voluntary surrender.[60] Thus, the only modifying circumstance remaining in the present case is the special aggravating circumstance of use of an unlicensed firearm. Article 63(1) of the Code provides that if the penalty is composed of two indivisible penalties, as in this case, and there is present only one aggravating circumstance, the greater penalty shall be applied. Consequently, the penalty imposable on appellant is death. However, with the effectivity of Republic Act No. 9346 entitled, An Act Prohibiting the Imposition of Death Penalty in the Philippines, the imposition of the capital punishment of death has been prohibit ed. Pursuant to Section 2 thereof, the penalty to be meted to appellant shall be reclusion perpetua. Said section reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

(b)

Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides: SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Hence, the RTC and the Court of Appeals were correct in imposing the penalty of reclusion perpetua on appellant. As to damages, both courts acted accordingly in awarding civil indemnity [61] to the heirs of Inspector Barte since the award of this damage is mandatory in murder cases.[62] Nevertheless, the amount of P50,000.00 imposed as civil indemnity should be increased to P75,000.00 based on prevailing jurisprudence.[63] In People v. Quiachon,[64] we explained that even if the penalty of death is not to be imposed on accused because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is still proper as the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. In the instant case, the qualifying circumstance of treachery and the special aggravating circumstance of use of unlicensed firearm attended the killing of Inspector Barte. These circumstances were duly alleged in the information and proven during the trial.

The award of moral damages in the amount of P50,000.00 is proper in view of the violent death of Inspector Barte and the resultant grief to his family.[65] Likewise, the award of exemplary damages in the amount of P25,000.00 is in order because the killing of Inspector Barte was committed with the aggravating circumstances of treachery and use of an unlicensed firearm.[66] Also, the award of P109,250.00 as actual damages is appropriate since these were supported by official receipts attached on records.[67] The heirs of Inspector Barte should also be indemnified for loss of earning capacity pursuant to Article 2206 of the New Civil Code.[68] Consistent with our previous decisions,[69] 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). Inspector Bartes death certificate states that he was 46 years old at the time of his demise. [70] The pay slip issued by the PNP, Camp Crame, Quezon City, to InspectorBarte for August 2002 shows that the latter was earning an annual gross income of P371,784.00.[71] Applying the above-stated formula, the indemnity for the loss of earning capacity of Inspector Barte is P4,213,551.00, computed as follows: Net Earning Capacity = 2/3 (34) x (P371,784.00 P185,892.00) = 2/3 (34) x P185,892.00. = P4,213,551.00. Hence, the amount of P4,212,312.72 awarded to the heirs of Inspector Barte as indemnity for the latters loss of earning capacity should be increased to P4,213,551.00. In addition to the damages awarded, we also impose on all the amounts of damages an interest at the legal rate of 6% from this date until fully paid.[72] WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. CR H.C. No. 02367, dated 16 October 2007, is hereby AFFIRMED with the following MODIFICATIONS: (1) the civil indemnity of appellant is increased from P50,000.00 to P75,000.00; (2) the indemnity for Inspector Bartes loss of earning capacity is increased from P4,212,312.72 to P4,213,551.00; and (3) an interest on all the damages awarded at the legal rate of 6% from this date until fully paid is imposed. SO ORDERED.

PEOPLE OF THEPHILIPPINES, Appellee,

G.R. No. 176152 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

NIDO GARTE, Appellant.

Promulgated: November 25, 2008

x--------------------------------------------------x DECISION CARPIO MORALES, J.: Nido Garte (appellant) was charged and convicted of four counts of rape of AAA, his 17 year old daughter, by the Regional Trial Court, Branch 89, Quezon City by Joint Decision of May 19, 2005[1] which was affirmed with modification by the Court of Appeals. The Amended Informations against appellant read: Criminal Case No. Q-01-106123 That on or about the first week of April[,] 2001[,] in Quezon City, Philippines, the above-named accused with force and intimidation did then and there, willfully, unlawfully and feloniously commit acts of sexual assault upon the person of one [AAA][,] his own daughter[,] a minor 17 years of age by then and there inserting his penis inside her vagina and thereafter had carnal knowledge of her against her will and without her consent, to her damage and prejudice.[2] (Underscoring supplied) Criminal Case No. Q-01-106124 That on or about the 23rd day of May, 2001[,] in Quezon City, Philippines, the above-named accused with force and intimidation did then and there, willfully, unlawfully and feloniously commit acts of sexual assault upon the person of one [AAA][,] his own daughter[,] a minor 17 years of age by then and there inserting his penis inside her vagina and thereafter had carnal knowledge of her against her will and without her consent, to her damage and prejudice.[3] (Underscoring supplied) Criminal Case No. Q-01-106125 That on or about the second week of April, 2001[,] in Quezon City, Philippines, the above-named accused with force and intimidation did then and there, willfully, unlawfully and feloniously commit acts of sexual assault upon the person of one [AAA][,] his own daughter[,] a minor 17 years of age by then and there inserting his penis inside her vagina and thereafter had carnal knowledge of her against her will and without her consent, to her damage and prejudice.[4] (Underscoring supplied) Criminal Case No. Q-01-106126 That on or about the 8th day of August, 2000, in Quezon City, Philippines, the above-named accused with force and intimidation did then and there, willfully, unlawfully and feloniously commit acts of sexual assault upon the person of one [AAA][,] his own daughter[,] a minor 17 years of age by then and there dragging her inside her room, removing her clothes, placed hims[elf] on top of her and inserting his penis inside her vagina and thereafter had carnal knowledge of her against her will and without her consent, to her damage and prejudice.[5] (Underscoring supplied) At the pre-trial of the cases which were consolidated, appellant admitted that he is the father of AAA; that at the time of the incident, he and AAA were residing in the same place in Quezon City; and that he and AAAs mother BBB are not married, they being merely live-in partners.[6] At the witness stand where she kept crying, AAA gave the following account:

She was born on November 9, 1982.[7] Appellant, a barangay tanod, was a tricycle driver plying in the vicinity of Sikatuna, Quezon City. Her mother BBB, a laundrywoman, would leave home in the morning and return at around 5:00 p.m. of each day of work. She, appellant and BBB were residing at a guardhouse in Sikatuna, Quezon City. In the afternoon of August 8, 2000, on her arrival from school, appellant dragged her inside their guardhouse-residence and kissed her neck and put himself on top of her.[8] After that incident, she went to the house of, and reported the incident to her sister CCC, BBBs child by a previous relation, who restrain ed her from returning home to the guardhouse. She thus stayed with CCC for two weeks until BBB fetched her.[9] In the first week of April 2001, at around 3:00 p.m., over her resistance, appellant kissed and mashed her breasts and other parts of her body and succeeded in having sexual intercourse with her in their house the door of which he barricaded. After the incident she again repaired to her sisters house and related to her what appellant did.[10] While her sister was incensed, given the threat of appellant against revealing what he did, otherwise he would kill her and BBB, BBB was not informed thereof. [11] In the second week of April 2001, after AAA returned from a visit to her sister, appellant again had carnal knowledge of her.[12] On May 23, 2001, appellant, infuriated over AAAs frequent going out of the house, again had sexual intercourse with her. While AAA fiercely resisted, appellant instilled fear in her with his Batangas fan knife ( beinte nueve).[13] When at 5:00 p.m. her mother BBB arrived and found her crying, she related to her her plight. BBB did not, at first, believe her and even got mad at her.[14] BBB eventually accompanied AAA and CCC to Camp Karingal to file a complaint against appellant and execute a Salaysay,[15] following which they proceeded to CampCrame for AAAs medical examination.[16] The medical examination conducted by Dr. Mary Ann P. Gajardo generated the following findings: GENERAL AND EXTRAGENITAL: PHYSICAL BUILT: Medium built MENTAL STATUS: Coherent female subject BREAST: Conical in shape with pinkish brown areola and nipples from which no secretions could be pressed out. PHYSICAL INJURIES: See back page PUBLIC [sic] HAIR: Scanty growth LABIA MAJORA: Full, convex and slightly gaping LABIA MINORA: Pinkish brown non-hypertrophied HYMEN: Fleshy, elastic type, with deep healed laceration at 6 oclock position. POSTERIOIR [sic] FOURCHETTE: Rounded EXTERNAL VAGINAL ORIFICE: Offers strong resistance of the examining finger. VAGINAL CANAL: Narrow with prominent rugosities. CERVIX: Normal in size, color and consistency CONCLUSION: The subject is in non-virgin state physically. There are no external signs of application of any form of physical trauma. x x x x[17] (Emphasis in the original; underscoring supplied) Appellant, denying the charges, invoked alibi. By his account, he would ply his route within the Sikatuna area from 4:00 or 5:00 a.m., take lunch at home, rest for about an hour and then resume his work. He would go home at 8:00 in the evening, take dinner, watch television and then leave the house at 10:00 p.m. to discharge his duties as abarangay tanod until the following day. Why his daughter would impute rape charges against him, he had no idea as he had been enjoying a harmonious relationship with family members except his stepdaughter CCC who harbors ill feelings against him for unknown reasons. [18] By Joint Decision of May 19, 2005,[19] the trial court convicted appellant, disposing as follows: WHEREFORE, premises considered[,] judgment is rendered finding accused Nido Garte guilty [of] four (4) counts of the crime of Rape[,] defined and penalized under Art. 226-A in relation to subsec. 1, Art. 226B, RPC or R.A. 8353. Accordingly, he is hereby sentenced to suffer death for each count of rape as charged in the four (4) informations docketed as Q-01-1061123, Q-01-106124, Q-01-106125 and Q-01-106126. He is further ordered to pay complainant for each count of rape the sum of P75,000.00 as civil indemnity (P. vs. Dinambing, 379 SCRA 107) or a total of P300,000 and the sum of P50,000.00, as moral damages for each count of rape, or a total of P200,000.00. With costs de oficio.[20] (Underscoring supplied)

In convicting appellant, the trial court observed: In a clear, direct, positive, straightforward manner and continuous crying on the witness stand, complainant declared that she was ravished or raped four times by no less than her father. It has been said that a witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on her accusation is a credible witness. Consequently, accuseds denial of the crimes gains no significance at all. Similarly, the fact that the evidence for both the prosecution and the defense was bereft of any motive for the complainant to testify the way she did renders her a very credible witness. When there is no evidence to show that a witness was actuated by improper motive , her identification of the accused as the perpetrator of the crime should be given full faith and credit. Besides motive plays insignificant importance by the fact that accused was positively identified as the author of the crimes. It is worth stating also that complainant in relating her unforgettable experience in the hands of the accused cried continuously on the witness stand. To the mind of the Court this act of complainant, who was under solemn oath while on the witness stand is another strong badge of her credibility. The Supreme Courtruled that the crying of the offended party on the witness stand narrating her horrible ordeals earmarks her credibility with the verity born out of human nature and experience. One thing more, it is doctrinal that no woman especially a young girl like the complainant, who has not been exposed to the intricacies of the world and in her right mind would cry rape by her father, allow the examination of her private parts, or subject herself and her family to the embarrassments and humiliation concomitant to the prosecution of the case unless her charges were true and her motive is her fervent desire to seek justice. Besides, the accusations of the complainant w[ere] corroborated by the medical finding that she is no longer in a virgin state. While medical finding on non-virginity of an offended party is not controlling on the truth of the accusation, the same has been repeatedly accepted by the Supreme Court as corroborating evidence on the crime of rape. Similarly, it is clear from the testimony of the complainant that she was raped four times under threats, force and in the presence of a knife and her efforts to resist the unpardonable act of the accused, who is her father, and pleas for mercy, did not deter his evil lustful spirit in committing the crime. . . Even assuming that there was absence of any force or intimidation, the same does not affect the nature of the crime. The rule firmly settled in this jurisdiction is that in a rape committed by a father against his own daughter, the formers authority and moral ascendancy over the latter substitute for violence or intimidation .[21] (Emphasis and underscoring supplied; citations omitted) On appeal, appellant cited inconsistencies in the evidence for the prosecution, viz: AAAs two Salaysays[22] relative to the number of times she claimed to have been raped; BBBs testimony relative to the number of times AAA informed her mother about the rapes;[23] and AAAs claim on direct examination that appellant used a knife whereas she claimed on cross examination that appellant poked a gun at her.[24] And appellant argued that it would be unusual for a father to rape his daughter in broad daylight, without bothering to close the windows and lock the door. [25] By Decision of September 27, 2006,[26] the appellate court dismissed appellants appeal in this wise: Accused-appellants reliance on the alleged discrepancies between [AAA]s Sinumpaang S alaysay and handwritten sworn affidavit on the number of times she was raped is untenable. We take note of the steadfast doctrine prevailing in our criminal justice system that inconsistencies found in the ex parte affidavits do not necessarily downgrade the credibility of a witness. Almost always, ex parte affidavits are considered incomplete and often inaccurate. They are products sometimes of partial suggestions and at other times of want of suggestions and inquiries, without the aid of which witnesses may be unable to recall the connected circumstances necessary for accurate recollection. In this regard, the Court takes note of the fact that although [AAA]s educational attainment is that of a second year high school student, the latter admitted however that she was not well versed in written English. This would account for the non-inclusion of the first rape, more so if we consider the disparity in the dates of the commission of the first rape which occurred a year before the commission of the subsequent rapes. As testified to by [AAA], she was not able to mention the August 8, 2000 rape incident as she was confused at the time. Added to this, the evidence on hand also show that [AAA] was not beside the policeman when the Sinumpaang Salaysay was prepared and that thereafter, she just signed the same without reading it. Significantly, the records reveal that the handwritten affidavit, executed subsequent to the Sinumpaang Salaysay, is a supplemental affidavit for [AAA]s earlier sworn statement. Also worthwhile to note is the fact that while on the stand, [AAA] remained firm and steadfast that what she stated in her sworn affidavits were correct despite the consistent prodding of the defense counsel xxxx Considering the foregoing, the Court finds such alleged discrepancy in [AAA]s sworn affidavits on the non-inclusion of the first rape is a trivial matter which do not in any way cast doubt on her credibility .

In the same manner, we rule that the alleged inconsistency with respect to the weapons used in the commission of the rapes is likewise unavailing as we find the same as a mere extraneous matter and does not remove the fact that the crime of rape was repeatedly committed by the accused-appellant against the victim through the use of force and intimidation xxxx Meanwhile, the alleged inconsistency between the testimonies of [AAA] and her mother, [BBB] as to the number of times [AAA] informed the latter of the rape incidents is again a trivial matter which does not remove the fact that the latter corroborated the claim of her daughter that she was raped by her father, [BBB]s husband. True, [BBB} admitted that she first had doubts in the truthfulness of [AAA]s claim considering its disturbing implications, but in the end she herself was convinced from her observations of her daughters conduct who always appeared to be frightened On the matter of accused-appellants contention on the improbability of the commission of the rapes during daytime, well-settled is the rule that lust is no respecter of time and place, and in this case, also of kinship[27] (Italics in the original; emphasis and underscoring supplied) In view, however, of the enactment of Republic Act No. 9346, [28] the appellate court modified the penalty of death to reclusion perpetua in each of the four counts of rape. In addition to the award for civil indemnity and moral damages, the appellate court awarded exemplary damages in the amount of P25,000 for each count. Thus the decretal portion of the appellate court decision reads: WHEREFORE, premises considered, the decision of the Regional Trial Court, Branch 89 of Quezon City in Criminal Cases Nos. Q-01-106123, Q-01-106124, Q-01-106125 and Q-01-106126 finding accusedappellant Nido Garte GUILTY beyond reasonable doubt of the crime of rape under Article 266-A in relation to paragraph 1 of Art. 226-B of the Revised Penal Code, as amended by Republic Act No. 8353, in each case is AFFIRMED with MODIFICATION in that, accused-appellant is sentenced is sentenced to suffer the penalty of reclusion perpetua for each count of rape and is also hereby ordered to pay [AAA] P75,000 as civil indemnity; P50,000 as moral damages; and P25,000 as exemplary damages, in each case.[29] (Underscoring supplied) Hence, the present appeal of appellant. Appellant and the People have by separate Manifestations informed that they are no longer filing supplemental briefs as they had sufficiently discussed their respective positions in the briefs they earlier filed.[30] Appellants conviction for each of the four counts must be upheld. A review of the records of the cases shows that AAAs testimony has satisfactorily met the test of credibility. Why AAA would impute serious charges against him, appellant could not advance any reason. In the recent case of Campos v. People,[31] this Court once again reiterated the following well-settled rule: . . . [A] rape victims testimony against her parent is entitled to great weight since, customarily, Filipino children revere and respect their elders. These values are so deeply ingrained in Filipino families that it is unthinkable for a daughter to concoct brazenly a story of rape against her father, if such were not true. Indeed, courts usually give greater weight to the testimony of a girl who fell victim to sexual assault, especially a minor, particularly in incestuous rape as in this case, because no woman would be willing to undergo a public trial and bear the concomitant shame, humiliation, and dishonor of exposing her own degradation were it not for the purpose of condemning injustice and ensuring that the offender is punished.[32] Appellants harping on the alleged inconsistencies in AAAs claim respecting the kind of weapon used by appellant and the number of times she informed her mother about the incidents does not persuade. Especially given the number of times AAA was abused, she is not expected to have the memory of an elephant and the cold precision of a mathematician. [33] Indeed, minor lapses are to be expected when a person is recounting details of a traumatic experience which are commonly too painful and agonizing to recall, especially in a courtroom atmosphere. [34] More specifically on the kind of weapon used by appellant to threaten AAA, AAAs claims bearing thereon are not necessarily conflicting.[35] AAA corrected herself by pointing out that aside from the knife, appellant also threatened her with a gun. If the defense wanted to impeach AAA, it should have followed the procedure laid down by Rules of Court [36] by laying the predicate.[37] No such effort was done, however.

In any event, whether appellant used a gun or a knife to threaten AAA becomes immaterial as his moral ascendancy as a father over her replaces force and intimidation. People v. Rodavia, which was correctly cited by the Office of the Solicitor General, is instructive: [T]he use of a knife or any other weapon for that matter is not an element of the crime of rape. As long as the evidence shows that force, violence or intimidation was used to have a carnal knowledge of the victim, the requisite components of the crime are deemed satisfied. It bears emphasizing that in a rape committed by a father against his own daughter , the formers moral ascendancy and influence sufficiently takes the place of violence or intimidation. Under the same circumstances, proof of force and violence is not even essential, because the moral and physical ascendancy of the father over his daughter is sufficient to cow her into submission to his bestial desires.[38] (Emphasis and underscoring supplied) Appellants denial and alibi are of course legitimate defenses in rape cases. To successfully invoke alibi, however, the accused must not only prove his presence at another place at the time of the commission of the offense. He must also demonstrate that it would be physically impossible for him to be at the locus criminis at the time of the commission of the crime.[39] Appellant, on whom the onus probandi lies, failed to discharge the same, however, as he in fact testified that he would go home for lunch and dinner in between plying his tricycle in the vicinity. The Court affirms then the appellate courts decision, with modification, however. Following Republic Act No. 9346 which provides: Section 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended[,] (Underscoring supplied), appellant is not eligible for parole.[40] And consistent with prevailing jurisprudence, the award by the trial court of moral damages in the amount of P50,000 in each count, which was affirmed by the appellate court, should be increased to P75,000 for each count.[41] WHEREFORE, the assailed September 27, 2006 Decision of the Court of Appeals in CA-GR CR-H.C. No. 01099 is AFFIRMED with MODIFICATION in that appellant is not eligible for parole, and his liability for moral damages is increased from P50,000 to P75,000 in each of the four counts of rape. In all other aspects, the challenged decision is affirmed. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 171348 Present: PUNO,* C.J. YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and REYES, JJ.

- versus -

LARRY ERGUIZA, Promulgated: Accused-Appellant. November 26, 2008 x----------------------------------------------------------x DECISION AUSTRIA-MARTINEZ, J.:

The Court is confronted with another case of rape. The victim, a 13-year-old girl. And although the Court may be moved by compassion and sympathy, the Court, as a court of law, is duty-bound to apply the law. Basic is the rule that for conviction of a crime, the evidence required is proof beyond reasonable doubt -- conviction with moral certainty. For review before this Court is the November 18, 2005 Decision [1] of the Court of Appeals (CA) in CA-G.R. CR H. C. No. 00763 which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of San Carlos City, Pangasinan, Branch 57, finding Larry Erguiza (appellant) guilty of one count of rape and sentencing him to suffer the penalty of reclusion perpetua. The Information, dated April 10, 2000, in Criminal Case No. SCC 3282 reads as follows: That on or about 5:00 oclock in the afternoon of January 5, 2000, at the back of the Bical Norte Elementary School, municipality of Bayambang, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife, by means of force and intimidation, did then and there, willfully, unlawfully, and feloniously have sexual intercourse with AAA [3], a minor of 13 years old, against her will and consent and to her damage and prejudice.[4] When arraigned, appellant pleaded not guilty.[5] Thereafter trial ensued. The prosecution presented four witnesses, namely: private complainant (AAA), her mother BBB and father CCC, and Dr. James Sison. The defense presented five witnesses, namely: Joy Agbuya, Juanito Macaraeg, Juanita Angeles, Albina Erguiza, and appellant. On November 27, 2000, the RTC found appellant guilty of the crime of rape, the dispositive portion of which reads as follows: In view whereof, the Court finds the accused LARRY C. ERGUIZA guilty of RAPE under Article 266-a paragraph 1(a) in relation to Article 266-b of R.A. 8353 and R.A. 7659 and sentences (sic) to suffer the penalty of reclusion perpetua and to pay the offended party, AAA P50,000 as civil indemnity, P50,000 as moral damages, P50,000 as exemplary damages, to give support to AAA's offspring and to pay the costs. SO ORDERED.[6] On appeal, the CA aptly summarized the respective versions of the parties, based on the evidence presented before the trial court, thus: PROSECUTION'S VERSION: On January 5, 2000, at around 4:00 o'clock in the afternoon, AAA, a thirteen-year old first year high school student, together with her friends, siblings Joy and Ricky Agbuya, went to the mango orchard located at the back of ZZZ Elementary School to gather fallen mangoes.[7] When they were bound for home at around 5:00 o'clock in the afternoon, AAAs short pants got hooked on the fence. AAA asked Joy and Ricky to wait for her but they ran away and left her.[8] While AAA was trying to unhook her short pants, Larry suddenly grabbed and pulled her. Poking a knife at her neck, Larry threatened to hurt her if she would make a noise. [9]

Accused-appellant dragged AAA towards a place where a tamarind tree and other thorny plants grow. Then Larry removed his maong pants and forced AAA to lie down on the grassy ground. Thereafter, he removed her short pants and panty, mounted himself on top of her and inserted his penis into her private parts and made push and pull movements. He likewise raised AAAs sando and mashed her breast. AAA felt pain when accused-appellant entered her and she felt something sticky in her private part after Larry made the push and pull movements.[10] Larry told AAA not to tell anybody about the incident otherwise he would kill her and all the members of her family and then he ran away.[11] AAA lingered for a while at the place and kept crying. Having spent her tears, she wore her panty and short pants and proceeded to the adjacent store of her Aunt Beth who was asleep. After staying for some time at the store, AAA decided to come (sic) home. Upon reaching home, she directly went to bed. Fearing Larry's threat, AAA kept mum on the incident.[12] On April 7, 2000, BBB brought her daughter AAA to her grandmother (BBB's mother), a hilot residing in XXX, Tarlac, to consult her on the unusual palpitation on the mid-portion of AAA's throat and the absence of her monthly period.[13] After examining AAA, her grandmother told BBB that her daughter was pregnant. BBB asked AAA who was the father of her unborn child but AAA refused to talk. After much prodding, and in the presence of her Uncle, Rudy Domingo, AAA finally revealed that she was raped by accusedappellant.[14] On April 8, 2000, AAA, accompanied by her mother and uncle, went to the police headquarters in YYY, Pangasinan to report the incident.[15] Then the police brought her to YYY DistrictHospital[16] where Dr. James Sison, Medical Officer III of said hospital conducted the examination on Michelle. Dr. Sison made the following findings: Q. x x x No extragenital injuries noted. Complete healed hymenal laceration 11:00 o'clock. x x x. In layman's term, Dr. Sison found no physical injury from the breast, the body except the genital area wherein he found a significant laceration complete (sic) healed over 11:00 o'clock.[17] Dr. Sison also testified that a single sexual intercourse could make a woman pregnant. BBB testified that her daughter AAA stopped going to school after she was raped and that no amount of money could bring back the lost reputation of her daughter. CCC (AAA's father), testified that on May 2, 2000, the family of accused-appellant went to their house and initially offered P50,000 and later P150,000; that in January 5, 2000, while they were repairing his house for the wedding reception[18], Larry left at around 4:00 o'clock p.m. DEFENSE'S VERSION On January 5, 2000, Larry Erguiza helped in the repair of CCC's[19] house from 8:00 o'clock in the morning up to 5:00 o'clock in the afternoon. When he reached home at around 5:00 pm, his mother Albina Erguiza instructed him to fetch a hilot as his wife Josie was already experiencing labor pains. He proceeded to fetch the hilot Juanita Angeles and stayed in their house until his wife delivered a baby at around 3:00 o'clock in the morning of January 6, 2000.[20] Juanita Angeles corroborated Larry's testimony that he indeed fetched her at around 5:10 pm on January 5, 2000 to attend to his wife who was experiencing labor pains and who delivered a baby at about 3:00 a.m. of January 6, 2000; and that Larry never left his wife's side until the latter gave birth. Albina, mother of the accused-appellant, testified that AAA is the daughter of her balae Spouses CCC and BBB; that her son Larry, her husband and two others left CCC and BBB's residence at about 5:00 o'clock in the afternoon on January 5, 2000; that she went to Spouses CCC and BBB to talk about the charge of rape against her son; that Spouses CCC and BBB were asking forP1,000,000.00 which was later reduced to P250,000.00 and that she made a counter-offer of P5,000.00.[21] Joy Agbuya testified that she and AAA were at the mango orchard of Juanito Macaraeg on January 5, 2000; that she never left AAA when her short pants got hooked; that they went together to the store of Auntie Beth where they parted .[22] Juanito Macaraeg, the mango orchard caretaker, testified that the house of Larry was a walking distance of about three minutes from the mango orchard; that if one runs fast, it would only take a minute to reach his house; and that he could not recall having seen Larry in the orchard.[23] (Emphasis supplied)

In its Decision dated November 18, 2005, the CA affirmed the decision of the RTC, but modified the amount of the award of exemplary damages and costs as follows: WHEREFORE, in view of all the foregoing circumstances, the Decision of the Regional Trial Court of San Carlos (Pangasinan), Branch 57 dated November 27, 2000 in Criminal Case No. SCC-3282 is AFFIRMED with MODIFICATION. Accused-appellant Larry Erguiza is held GUILTY of 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 and to give support to AAAs offspring. SO ORDERED.[24] Hence, herein appeal. In his appeal Brief,[25] appellant raises the following errors: 1. THE COURT A QUO GRAVLEY ERRED IN GIVING CREDENCE TO THE INCREDIBLE, THUS UNBELIEVABLE TESTIMONY OF PRIVATE COMPLAINANT AAA. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED APPELLANT OF THE CRIME OF RAPE DESPITE THE FACT THAT THE PROSECTUION EVIDENCE FAILED TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT. THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING ACCUSED-APPELLANT'S DEFENSE OF ALIBI CORROBORATED BY THE WITNESSES PRESENTED BY THE DEFENSE. [26]

2.

3.

The appeal is meritorious. The prosecution's evidence does not pass the test of moral certainty. This Court has ruled that in the review of rape cases, the Court is guided by the following precepts: (a) an accusation of rape can be made with facility, but it is more difficult for the accused, though innocent, to disprove it; (b) the complainant's testimony must be scrutinized with extreme caution since, by the very nature of the crime, only two persons are normally involved; and (c) if the complainant's testimony is convincingly credible, the accused may be convicted of the crime. [27] In the case at bar, the CA upheld the conclusion of the RTC in finding the complainant credible, to wit: The testimonies of victims who are young and of tender age, like AAA, deserve full credence and should not be dismissed as mere fabrication especially where they have absolutely no motive to testify against the accused-appellant as in this case. Larry even admitted that AAA had no ill motive for charging him with rape. The Supreme Court in several cases, ruled that full credence is accorded the testimony of a rape victim who has shown no ill motive to testify against the accused. This being so, the trial court did not err in giving full credence to AAA's testimony.[28] This Court does not agree with the CA. The Court is not unmindful of the general rule that findings of the trial court regarding credibility of witnesses are accorded great respect and even finality on appeal.[29] However, this principle does not preclude a reevaluation of the evidence to determine whether material facts or circumstances have been overlooked or misinterpreted by the trial court. [30] In the past, this Court has not hesitated to reverse a judgment of conviction, where there were strong indications pointing to the possibility that the rape charge was false.[31] Generally, 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. And so long as her testimony meets the test of credibility and unless the same is controverted by competent physical and testimonial evidence, the accused may be convicted on the basis thereof. [32] After a judicious examination of the records of the case, the Court finds that there is testimonial evidence that contradicts the findings of the RTC and CA on the basis of which no conviction beyond reasonable doubt could arise. It is the unrebutted testimony of a credible defense witness. The testimony of Joy Agbuya (Joy) casts doubt as to the possibility of rape having taken place as narrated by complainant. In addition, the testimony of a disinterested defense witness, Juanita Angeles (Juanita) corroborated the alibi of appellant. Before dwelling on the testimonies of Juanita and Joy, the Court shall first scrutinize the testimonial evidence presented by the prosecution and the defense. Aside from the testimony of complainant, the prosecution presented the following witnesses: Dr. James Sison, BBB, and CCC. The pertinent portions of their testimonies may be summarized as follows:

Dr. James Sison testified that he conducted the medical examination of complainant. His diagnosis was that there was a significant laceration completely healed at the 11:00 o'clock position.[33] However, Dr. Sison testified that his findings were not conclusive, but were rather suggestive that complainant was raped. Furthermore, as to the question of paternity of the child of complainant, Dr. Sison suggested doing a DNA match.[34] BBB testified the she brought AAA to her grandmother, a hilot residing in XXX, Tarlac, to consult her on the unusual palpitation on the mid-portion of complainant's throat and the absence of her monthly period. [35] After examining complainant, the hilot told BBB that her daughter was pregnant. AAA later revealed that she was raped by appellant.[36] BBB further testified that she accompanied AAA to the police headquarters in YYY, Pangasinan to report the incident.[37] Afterwards, the police brought complainant toYYY District Hospital[38] where Dr. James Sison, Medical Officer III of said hospital, conducted the examination on complainant. On cross-examination, BBB testified that the family of appellant offered her money to settle the case.[39] CCC, the father of AAA, was the lone rebuttal witness of the prosecution. In order to rebut the allegation made by appellant's family that the present case was filed because appellant's family did a poor job in preparing for the wedding of CCC's daughter DDD and apellant's brother Carlito, CCC testified that on the contrary, the wedding went smoothly.[40] CCC further claimed that the family of appellant knelt before him crying and offered money to settle the case. [41] Moreover, CCC testified that appellant left his house at 4:00 p.m. on January 5, 2000. On the other hand, the defense presented four witnesses, namely: Juanito Macaraeg (Macaraeg), Albina Erguiza (Albina), Juanita and Joy. Macaraeg, the caretaker of the mango orchard, testified that he did not see appellant on any occasion in the orchard.[42] More specifically, Macaraeg emphasized that he did not see appellant on January 5, 2000.[43] However, on crossexamination, he testified that the house of appellant is only a three-minute walk from the mango orchard and probably a minute if one walks fast.[44] Albina, the mother of appellant, testified that on January 5, 2000, she was with appellant at the house of CCC and BBB preparing for the wedding of CCC's daughter DDD and appellant's brother Carlito. She said that they left the house of CCC at around 5:00 p.m.[45] Albina narrated that when they arrived home, at around 5:02 or 5:03 p.m., she sent appellant to fetch a hilot, as the wife of appellant was having some labor pains.[46] She said that appellant and the hilot arrived at around 5:30 p.m.[47] According to Albinaappellant never left their house.[48] On the day of the wedding, Albina testified that she had an altercation with BBB regarding the bills and that they never resolved their quarrel.[49] She spoke to BBB and CCC because she learned that they were falsely accusing appellant of raping AAA.[50] After talking to BBB and CCC, she and her husband confronted appellant and asked if he had raped complainant, which appellant denied.[51] Albina claimed that CCC and BBB were demanding P1,000,000.00 and that they later reduced it to P250,000.00.[52] Albinasaid that she offered P5,000.00 to BBB and CCC only to preserve their relationship as in-laws and for peace.[53] In sum, with the exception of the claim of AAA that she was raped by appellant, other evidence presented by the prosecution did not identify appellant as the perpetrator of the crime. Moreover, the testimonies of the witnesses for both the prosecution and the defense conflict on certain points, more notably the claim by BBB and CCC that the family of appellant offered to settle the case. This, however, was denied by Albina, who claimed that it was BBB and CCC who demanded P1,000,000.00. The offer of compromise allegedly made by Albina is critical to the case at bar in light of law and jurisprudence that an offer of compromise in a criminal case may be received in evidence as an implied admission of guilt.[54] In the case at bar, the offer of compromise was first testified to by BBB on cross-examination, to wit: Q. A. Is it not a fact that there was an offer by you to the mother of the accused that they pay you 1 million and you have reduced it to P250,000.00? No, sir, it was they who were the ones offering for settlement, but we never offer them any settlement, sir.[55]

On rebuttal, CCC corroborated the testimony of BBB that the family of appellant offered to settle the case, to wit: Q. And according to Larry Erguiza as well as his witnesses they told the Honorable Court that you and your wife are demanding from Larry Erguiza and his parents the amount of one million pesos so that you will not file this case against the accused, what can you say about that? There is no truth about that, sir. And what is the truth about it? It was they who went to my house, they even knelt before me crying and they were offering money, sir. [56]

A. Q. A.

However, Albina, the mother of appellant, denied the foregoing allegations, to wit: Q. A. Q. A. What happened when you went to the house of BBB and CCC talking with them about their problem of the alleged rape on AAA, their daughter? They were asking for a settlement price for one million pesos but we have no money, sir. What did you do when they were asking one million pesos from you? We told them that we do not have that money until they reduced the price to P250,000.00 but we have no money because we are poor, sir. Were you around when BBB testified to the witness stand? I was here, sir. Did you hear what BBB said that you were the one offering money? Yes, sir, I was here and I heard that. What can you say to that allegation of BBB? That is not true, sir. She was saying that we were the ones offering money for one million to them but she was telling a lie, it was they who were asking for one million pesos, sir. What is your proof that is was they who are demanding the amount of one million and reduced that to two hundred fifty thousand (P250,000.00)? We already left because we cannot afford to give that much, sir. Aside from the fact that you do not have money, was there any reason or what was your other reason in going there? Our reason in talking to them was that when Larry said that he did not commit the alleged rape and so we went there to talk to them so that we could preserve our relationship as in-laws even if it is for the sake of peace we could try our best to cope up even P5,000.00 just for the sake of peace because our intention in going to their house was to extract the truth, sir.[57]

Q. A. Q. A. Q. A.

Q. A. Q. A.

On cross-examination, appellant gave the following statements: Q. A. Q. A. Q. A. Q. A. Before the filing of this case with this Honorable Court, your parents and you were pleading to the parents of AAA not to continue anymore the case, is it not? Yes, sir, so that the case will not be filed and our relationship will not be destroyed, sir. In fact you asked your parents to do so, is it not? No, sir. They were the ones who went to the house of AAA, sir. But the family of AAA did not agree to the pleadings of your parents that the case be not filed anymore, is it not? They will agree if we will pay then 1 million, but we do not have 1 million, sir. Did you offer them 1 million? No, sir. They were the ones who told that to us.[58] (Emphasis Supplied)

The alleged offer of the parents of appellant to settle the case cannot be used against appellant as evidence of his guilt. Appellant testified that he did not ask his parents to settle the case. Moreover, appellant was not present when the offer to settle was allegedly made. An offer of compromise from an unauthorized person cannot amount to an admission of the party himself. [59] Although the Court has held in some cases that an attempt of the parents of the accused to settle the case is an implied admission of guilt, [60] we believe that the better rule is that for a compromise to amount to an implied admission of guilt, the accused should have been present or at least authorized the proposed compromise. [61] Moreover, it has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution. [62] In addition, the Court, in weighing the evidence presented, may give less weight to the testimonies of Albina, on the one hand, and BBB and CCC, on the other, as they are related to the appellant and the victim, respectively[63] Their testimonies relating to the offer of settlement simply contradict each other. As a matter of fact, even the lower courts did not consider the alleged offer of settlement in resolving the case. Thus, the Court now considers the testimonies of Juanita and Joy. Testimony of Juanita Angeles

Juanita, a hilot, testified that appellant fetched her at around 5:10 in the afternoon of January 5, 2000.[64] She asserted that they arrived at the house of appellant at 5:30 p.m. She said that appellant's wife gave birth at dawn at 3:00 a.m. of January 6, 2000.[65] Juanita said that appellant was with her the entire time and never left the house. [66] Testimony of Joy Agbuya For a better perspective on the testimony of Joy, it is necessary to repeat the testimony of AAA. AAA testified that on January 5, 2000, she was accompanied by 12-year-old Joy and the latter's brother Ricky Agbuya (Ricky) to the mango orchard at the back of the elementary school to pick fallen mangoes. Further, complainant claims that she was left behind by Joy and Ricky when her shorts got hooked to the fence and that while she was unhooking her pants from the fence, appellant grabbed her and raped her.[67] This was however contradicted by Joy, to wit: Q. How many times did you go to the mango orchard of Juanito Macaraeg? A. Three (3) times, sir. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. When you usually go to the mango orchard of Juanito Macaraeg, where did you met [sic] with AAA? In their house, I dropped by her house, sir. Was there an occasion wherein you brought your brother Ricky when you went with AAA to the mango orchard of Juanito Macaraeg? No, sir. Are we made to understand that Ricky, your brother did not go even once to the mango orchard of Maning Macaraeg? Yes, sir. According to AAA in her sworn statement she stated that in [sic] January 5, 2000 you were with your brother Ricky and AAA in going to the mango orchard, what can you say about that? What she is saying is not true. I was not with my brother, sir. I did not tug him along with me. It is also said by AAA that you left her behind in was hooked, what can you say about that? No, sir I waited for her. the mango orchard when her pants

Are we made to understand Madam Witness, that there was no instance or never that happened that you left her in the mango orchard alone? No, sir, I waited for her and both of us went home together, sir. Going back to the occasion wherein you were with AAA, who were with you in going back home? Just the two (2) of us, sir. In your way home, where did you part or separate with each other? In front of the store of auntie Beth, sir.[68]

xxxx Q. A. Q. A. Is AAA your bestfriend? Yes, sir. Since you said that AAA is your bestfriend was there an occasion wherein she told you that she was raped? None, sir.[69] (Emphasis and underscoring supplied)

On cross-examination, Prosecutor Ely Reintar elicited the following statements from Joy: Q. A. Q. A. Q. A. Q. In the year 2000, when was the last time that you talked to AAA? April, sir. After April, you did not talk to AAA anymore? No more, sir. Your friendship was severed? Yes, sir. Will you please tell the Honorable Court why your friendship became severed?

A. Q. A.

Because she quarreled with me, sir. And because you quarreled, that is the reason why you are now testifying against her? Yes, sir.[70]

On re-direct examination, Joy clarified, thus: Q. A. Madam Witness, you said that you have a quarrel with the private complainant, AAA, will you please tell this Honorable Court what is the reason or cause of your quarrel with AAA? Because they wanted me to say another statement that I left AAA behind, sir .[71] (Emphasis supplied)

On re-cross examination, Joy gave the following answers to the questions of Prosecutor Reintar: Q. You said that the reason for your quarrel is that they wanted you to change your statement, that you left behind AAA, who are those they, that you are referring to?

INTERPRETER No answer. Witness I, sir. PROS. REINTAR Q. Who told you to change your statement that you left AAA behind? A. Because they are saying that I will change my statement that I left AAA but I did not sir. Q. A. Q. A. Who are these who are telling that? They, sir. Will you please mention them? BBB, only her, sir.[72]

The testimony of 12-year-old Joy makes it impossible for the appellant to have raped AAA the way complainant narrated it, to wit: Q. A. Q. A. Q. A. You try to understand clearly the question, Madam Witness, and may I repeat that, at the time of the rape when according to you, you were the one raped, where were Joy and Ricky Agbuya? They left ahead of me because my short pants was hooked at the fence so I was left behind, sir. Were you able to remove the pants of yours at the fence? I was removing it sir, when he suddenly grabbed me. And who is this person you are referring to as the one who grabbed you? Larry Erguiza, sir.[73]

Put simply, complainant could not have been raped because Joy waited for complainant when the latters shorts got hooked to the fence and thereafter both went home together. The Court finds no cogent reason for Joy to lie and say that she had waited for complainant and that they both went home together. She had nothing to gain for lying under oath. Moreover, the records are bereft of any showing or claim that Joy was related to or was a close friend of appellant or his family. On the contrary, Joy considers herself the best-friend and playmate of complainant.[74] When Prosecutor Reintar questioned her as to her understanding of the oath she took, Joy answered, That I will swear to God, sir. x x x The truth, sir.[75] Furthermore, Joy did not succumb to pressure even as she was being conscientiously examined by Prosecutor Reintar. Joy boldly testified that BBB, the mother of complainant, was forcing her to change her statement. The testimony of Joy clearly lays down the following facts which are damaging to the case of the prosecution: first, that Joy did not leave behind AAA when the latters shorts got hooked to the fence; and secondly, that Joy and AAA left the orchard, w ent home together and separated at their Aunt Beth's house, indicating that no untoward incident, much less rape, was committed by appellant at the time and place that complainant had testified on. Necessarily, either Joy or AAA lied under oath. It was thus critical for the prosecution to show that Joy gave false statements. Unfortunately for AAA, the prosecution miserably failed to rebut Joys testimony. Neither complainant nor Ricky, BBB or any other witness was called to the witness stand to refute Joys testimony. True, it is up to the prosecution to determine who to present as witnesses.[76] However, considering that the testimony of Joy critically damaged the case of the prosecution, it

behooved the prosecution to present evidence to rebut the defense evidence. Witnesses such as Ricky, AAA and BBB should have been presented by the prosecution to demolish Joy's testimony. The testimony of Ricky is particularly significant, especially since AAA claimed that he was with her and his sister Joy at the mango orchard on the day of the alleged rape incident. The failure on the part of the prosecution to present Ricky or AAA bolsters the defense evidence, that no rape happened on the date and time claimed by AAA. The prosecution presented CCC, the father of complainant, as it's lone rebuttal witness.[77] However, the testimony of CCC covered facts and issues not related to the testimony of Joy. The testimony of CCC merely rebutted the allegation made by appellant's family that the present case was filed because appellant's family did a poor job of preparing for the wedding of CCC's daughter DDD and apellant's brother Carlito. To this, CCC testified that on the contrary, the wedding went smoothly.[78] Furthermore, CCC claimed that the family of appellant knelt before him crying and offered money to settle the case.[79] In addition, CCC testified that appellant left his house at 4:00 p.m. on January 5, 2000. Thus, the testimony of CCC did not in any way rebut the testimony of Joy. Further, Joy testified that during the three times she went with AAA to the mango orchard, the time was 1:00 p.m.[80] However, AAA testified that she went to the mango orchard with Joy at 4:00 p.m. [81] The variance in the testimonies of Joy and AAA as to the time they went to the mango orchard on the day of the alleged rape incident may be disregarded as they are de minimis in nature and do not relate to the commission of the crime. There is a common point uniting the testimonies of both Joy and AAA; that is, that both referred to the day when AAAs short got hooked to the fence. Moreover, assuming arguendo that the variance between the testimonies of AAA and Joy as to the time they were together at the mango orchard is an indicia that AAA may have been raped by appellant on a different day, not on January 5, 2000, to still impute to appellant the crime of rape is not plausible. The Court is not unmindful of the rule that the exact date of the commission of the crime of rape is extraneous to and is not an element of the offense, such that any inconsistency or discrepancy as to the same is irrelevant and is not to be taken as a ground for acquittal.[82] Such, however, finds no application to the case at bar. AAA and Joy may differ in their testimonies as to the time they were at the mango orchard, but there could be no mistake as to the actual day when AAA was supposed to have been raped; it was the day when AAA's shorts got hooked to the fence at the mango orchard. The RTC and CA unwittingly brushed aside the testimonies of Juanita and Joy and gave full credence to the testimony of AAA. As a matter of fact, their probative weight were not considered or evaluated in the text of the lower courts' decision. As mentioned earlier, the prosecution could have rebutted the testimony of Joy, but for some reason or oversight, it chose not to do so. Consequently, in view of the unrebutted testimony of Joy, appellants defense of alibi and denial assumes considerable weight. It is at this point that the issue as to the time that the rape was committed plays a significant factor in determining the guilt or innocence of appellant. This Court must therefore address this issue for a thorough evaluation of the case. The Court takes note that Macaraeg, the caretaker of the orchard, testified that appellant's house was only a minute away from the orchard if one would run. As earlier mentioned, CCC testified that appellant left CCC's house at 4:00 p.m. on January 5, 2000, contrary to the testimony of Albina that she and appellant left at 5:00 p.m. AAA declared that the alleged rape took place after 5:00 p.m. Q. A. Q. A. Q. A. So at 4:00 o'clock you were at the house and you left and proceeded at the back of the school to pick mangoes? Yes, sir. That was already around 5:00 o'clock? Yes, sir. I asked my companion Joy. What did you ask of her? She was wearing a wristwatch and I asked Joy what time is it and when I looked at her wristwatch, it was already 5:00 o'clock, sir.[83] (Emphasis Supplied)

Moreover, on cross-examination, AAA gave the following statements, to wit: Q. A. Q. A. So it is almost 5:00 p.m. When you went to the mango orchard with Joy Agbuya and Ricky Agbuya? What I only know was that, it was already about 5:00 o'clock then, sir. How many minutes did you consume in getting mangoes? When we went there, we were not able to get some mango and when I asked sir what was the time then and when I looked at the wristwatch, it was already 5:00 o'clock, sir.[84] (Emphasis Supplied)

The testimony of Joy makes it impossible for AAA to have been raped at 4:00 p.m. or 5:00 p.m. or any time thereafter since it was not rebutted that Joy never left complainant at the mango orchard even when AAA's shorts got hooked to the fence, and both went home together without any other untoward incident. This Court is not unmindful of the doctrine that for alibi to succeed as a defense, appellant 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. [85] In the case at bar, although the orchard is just a minute away from the house of appellant, in view of the testimony of the hilot Juanita that appellant was with her from 5:10 p.m. and never left his house from that time until his wife gave birth at 3:00 a.m.; and the testimony of Joy that she never left AAA in the orchard and that they both went home together, the defense of alibi assumes significance or strength when it is amply corroborated by a credible witness. [86] Thus, the Court finds that appellant's alibi is substantiated by clear and convincing evidence. What needs to be stressed is that a conviction in a criminal case must be supported by proof beyond reasonable doubt -moral certainty that the accused is guilty.[87] The conflicting testimonies of Joy and complainant, and the testimony of Juanita that corroborated appellants alibi preclude the Court from convicting appellant of rape with moral certainty. Faced with two conflicting versions, the Court is guided by the equipoise rule.[88] Thus, where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[89] The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. [90] It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion.[91] What is required of it is to justify the conviction of the accused with moral certainty.[92] Upon the prosecution's failure to meet this test, acquittal becomes the constitutional duty of the Court, lest its mind be tortured with the thought that it has imprisoned an innocent man for the rest of his life. [93] WHEREFORE, the Decision dated November 18, 2005 of the Court of Appeals in CA-G.R. CR H. C. No. 00763 is REVERSED and SET ASIDE. Larry Erguiza isACQUITTED and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 170360 Present:

*

versus

QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

HENRY GUERRERO y AGRIPA, Accused-Appellant.

Promulgated:

March 12, 2009 x ----------------------------------------------------------------------------------------x

DECISION

BRION, J.:

We review in this appeal the April 27, 2005 decision of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00120,[1] affirming with modification the January 28, 2003decision of the Regional Trial Court ( RTC), Branch 94, Quezon City.[2] The RTC decision found the accused-appellant Henry Guerrero y Agripa (appellant) guilty beyond reasonable doubt of the crime of rape, and sentenced him to suffer the penalty of reclusion perpetua.

ANTECEDENT FACTS The prosecution charged the appellant before the RTC with the crime of rape under an Information that states: That on or about the 30th day of May, 1998, in Quezon City, Philippines, the said accused by means of force and intimidation, did then and there willfully, unlawfully and feloniously touch [ AAAs][3]private part, a minor 13 years of age, removed her panty and inserted his index finger on her vagina and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW.[4]

The appellant pleaded not guilty to the charge. The prosecution presented the following witnesses in the trial on the merits that followed: AAA; BBB; SPO4 Susano San Diego ( SPO4 San Diego); SPO4 Milla Billones (SPO4 Billones); and Dr. Ma. Cristina Freyra (Dr. Freyra). The appellant took the witness stand for the defense. AAA testified that the appellant was the kumpadre of her mother, and was a frequent visitor at her parents house. She recalled that on May 30, 1998, the appellant who was standing beside the window of his house called her. She approached the appellant who then grabbed her arms and dragged her inside his house. The appellant removed her dress and panty, then took off his own clothes. Thereafter, the appellant touched her private parts. She felt pain when the appellant tried to insert his penis into her vagina. She cried when she saw blood on her private part. She went to school after two (2) days, but slept in the classroom because she had a headache and felt pain all over her body. She only informed her mother of the sexual abuse after her (AAAs) brother informed their mother that she had been sleeping during school hours. Their mother filed a complaint before the police when she learned of the rape. On cross examination, AAA admitted that the appellant had touched her prior to May 30, 1998. She again narrated that she was playing with her cousin at around 5:00 p.m. of May 30, 1998, when the appellant, who was then holding a fighting cock, called her and asked her to place a bet for him in an ending game. She approached the appellant who then dragged her inside his house. She did not shout because the appellant was armed with a knife and was threatening her. The appellant took off his shorts and briefs after he undressed her. She did not run because she was scared that the appellant might kill her. She added that she never again went near the appellants house after the rape. [5] BBB, the mother of AAA, declared on the witness stand that she discovered the rape incident only in June 1998. According to her, she noticed that her daughter was always tulala and would not respond when talked to. When she forced AAA to disclose what her problem was, she (AAA) replied that Kuya Henry raped me. AAAs brothers and sisters were present when she made this revelation. She responded to the disclosure by accompanying AAA to the Batasan Police Station 6 where the desk

officer, SPO4 Billones, took AAAs statement. They went to the PNP Crime Laboratory for AAAs medical examination upon police instructions.[6] SPO4 San Diego narrated that on July 13, 1998, AAA and her mother went to the police station to report the rape incident. At the police desk officers instructions, he and SPO4 Antoni o Osorio (SPO4 Osorio) went to the appellants residence (in Pigeon Street, Batasan Hills) and invited the appellant to the police station for investigation. He and SPO4 Osorio executed an affidavit upon their arrival at the police station.[7] SPO4 Billones testified that AAA and her mother went to the police station sometime in July 1998 to report that the appellant had sexually abused AAA. She took AAAs statement and prepared a referral letter for the victims medico -legal examination. She recalled that AAA, at that time, looked tired and uneasy. [8] Dr. Freyra, the medico-legal officer of the PNP Central Crime Laboratory, testified that she conducted a medical examination of AAA on July 14, 1998, and made the following findings: F I N D I N G S: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female subject. Breasts are undeveloped. Abdomen is flat and soft. GENITAL: There is absence of pubic hair. Labia majora are full, convex and coaptated with pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with deep, healed lacerations at 4 and 9 oclock positions. External vaginal orifice offers strong resistance to the introduction of the examining index finger. Vaginal canal is narrow with prominent rugosities. C O N C L U S I O N: Subject is in non-virgin state physically. There are no external signs of recent application of any form of trauma at the time of examination. REMARKS: Vaginal and peri-urethral smears are negative for gram-negative diplococcic and for spermatozoa. x x x.[9] On cross examination, she stated that the hymenal lacerations on AAAs private part could have been caused by the insertion of a blunt object into her vagina.[10] The appellant was the sole defense witness, and gave a different version of the events. He declared on the witness stand that he had known AAA and her parents for about six (6) years; they both live on the same street. He recalled that before 7:00 a.m. on May 30, 1998, he went to the house of the spouses Felipe where he worked as a carpenter. He did not leave the Felipes house until he finished his work at 9:00 p.m. On cross examination, he admitted that the parents of AAA were his kumpare and kumadre, respectively, and stated that his place of work was a 30-minute walk, more or less, from his residence. [11] The RTC convicted the appellant of the crime of rape in its decision of January 28, 2003 under the following terms: WHEREFORE, premises considered, judgment is hereby rendered finding the herein accused Henry Guerrero Agripa GUILTY BEYOND REASONABLE DOUBT of Rape and hereby sentences him to suffer the penalty of Reclusion Perpetua and to indemnify the offended party the sum of P50,000.00 and to pay the costs. SO ORDERED.[12] [Emphasis in the original] The records of this case were originally transmitted to this Court on appeal. Pursuant to our ruling in People v. Mateo,[13] we endorsed the case and the records to the CA for appropriate action and disposition. [14]

The CA, in its decision[15] dated April 27, 2005, affirmed the RTC decision, with the modification that the appellant be ordered to pay the victim P50,000.00 as moral damages. The CA gave credence to AAAs testimony which it found to be corroborated on material points by the testimony and findings of Dr. Freyra. The appellant, on the other hand, merely presented the weak defenses of denial and alibi. In his brief,[16] the appellant argued that the RTC erred in convicting him of the crime charged despite the prosecutions failure to prove his guilt beyond reasonable doubt. THE COURTS RULING We resolve to deny the appeal for lack of merit. Sufficiency of Prosecution Evidence An established rule in appellate review is that the trial courts factual findings, including its assessment of the credibility of the witnesses and the probative weight of their testimonies, as well as the conclusions drawn from the factual findings, are accorded respect, if not conclusive effect. These actual findings and conclusions assume greater weight if they are affirmed by the CA. Despite the enhanced persuasive effect of the initial RTC factual ruling and the results of the CAs appellate factual re view, we nevertheless fully scrutinized the records of this case as the penalty of reclusion perpetua imposed on the accused demands no less than this kind of scrutiny.[17] The Revised Penal Code, as amended by Republic Act No. 8353, [18] defines and penalizes Rape under Article 266-A, paragraph 1, as follows: ART. 266-A. Rape; When and How Committed. - Rape is committed -

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) b) c) Through force, threat or intimidation; When the offended party is deprived of reason or otherwise unconscious; By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. xxxx

Thus, for the charge of rape to prosper, the prosecution must prove that (1) the offender had carnal knowledge of a woman, and (2) he accomplished the act through force, threat or intimidation , or when she was deprived of reason or was otherwise unconscious, was under 12 years of age, or was demented.[19] In her testimony, AAA positively identified the appellant as her rapist; she never wavered in this identification. To directly quote from the records: ASSISTANT PROSECUTOR BEN DELA CRUZ Q: [AAA] A: Q: A: Q: A: Q: Yes, sir. What was that unusual incident? He called me. He was just standing by the window, and then he dragged me inside the house. What happened after you were dragged inside the house? He removed my dress. What followed after he undressed you? On May 30, 1998, do you recall of any unusual incident that happened to you?

A:

He also undressed himself.

ASSISTANT PROSECUTOR DELA CRUZ At this juncture the witness is crying, Your Honor, may we ask that the continuation of the testimony of witness be reset tomorrow x x x. CONTINUATION OF DIRECT EXAMINATION BY ASSISTANT PROSECUTOR DELA CRUZ Q: Ms. Witness, for clarity, will you please step down from the witness stand and tap the shoulder of the accused in this case, Henry Guerrero Agripa?

[AAA] A: Yes, sir. This man, sir.

COURT INTERPRETER Witness tapping the right shoulder of the man who is wearing a yellow T-shirt and who when asked identified himself as Henry Guerrero Agripa. ASSISTANT PROSECUTOR DELA CRUZ Q: Yesterday, during the direct examination, you were telling us about your ordeal, what you experienced on May 30, 1998 in the hands of this accused, Henry Guerrero Agripa? Do you remember that, Mr. [sic] Witness? A: Q: Yes, sir. Now, Ms. Witness, again, I will ask you, what happened on May 30, 1998? What happened to you?

xxx A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: I was then near their window and he grabbed me inside their house. When you said nila, to whom are you referring to? The house of the suspect. You mean Henry Guerrero Agripa, the accused in this case? Yes, sir. What happened after you were dragged inside the house of the accused? He undressed me. What was removed by the accused when you said he undressed you? My shorts and panty. And then what did he do next, if he did anything, after he undressed you? He also undressed himself. Thereafter, what happened next, if any.

ASSISTANT PROSECUTOR DELA CRUZ At this juncture, your honor, may we put on record that the witness is crying. xxx A: Ginalaw na niya po ako.

xxx COURT: I will ask her a question. When you said ginalaw, you mean he only held your hands? [AAA] A: Q: A: xxx Q: About how many times did he do to you this touching of your body as well as your private parts? Many times. No, your honor, he touched my whole body. Including what? My private parts.

A: xxx Q: A: Q: A: Q: A: Q:

When you said he touched your private parts, you mean he touched you with his hands? He used his private parts. You mean his penis? Yes, sir. What did you feel? I felt pain. And what did he do exactly when you said you felt pain, what was he doing at this time when you felt pain? Because he was trying to force his private part into mine, into my vagina. Aside from the pain that you felt, was there anything else that happened to you on account of that act of the accused trying to penetrate you? No more, sir. Okay. What did you observe in you[r] private parts after the accused tried to penetrate you? There was blood. And how did you react when you said there was blood in your private part? I just cried. You said he tried to penetrate you with his penis, how many times did he do this? Once only. x x x[20] [Emphasis supplied]

A: Q:

A: Q: A: Q: A: Q: A:

AAAs testimony strikes us to be clear, convincing and credible, corroborated as it was in a major way by the medico legal report and the testimony of Dr. Freyra. It bears emphasis that during the initial phases of AAAs testimony, she broke down on the witness stand when the prosecution asked her questions relating to the rape she suffered. This, to our mind, is an eloquent and moving indication of the truth of her allegations. In addition, our examination of the records gives us no reason to doubt AAAs testimony or suspect her of any ulterior motive in charging and testifying against the appellant. We have held time and again that testimonies of rape victims who are young and immature, as in this case, deserve full credence considering that no young woman, especially one of tender age, would concoct a story of defloration, allow an examination of her private parts, and

thereafter subject herself to a public trial if she had not been motivated solely by the desire to obtain justice for the wrong committed against her.[21] Clearly, the prosecution positively established the elements of rape required under Article 266-A. First, the appellant succeeded in having carnal knowledge with the victim; AAA was steadfast in her assertion that the appellant tried to force his penis into her vagina. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by a penis capable of consummating the sexual act (as part of the entry of the penis into the labias of the female organ) is sufficient to constitute carnal knowledge.[22] Our ruling in People v. Bali-Balita[23] is particularly instructive: We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be touched by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or thelabia minora of the pudendum constitutes consummated rape.[24] [Emphasis and italics supplied] Undoubtedly, there was touching of the labia as AAA testified that the appellant was trying to force his private part into her vagina, as a result of which, she felt pain. She also testified that her vagina bled after the incident. More importantly, Dr. Freyra testified that there were deep hymenal lacerations on AAAs private part, thus: ATTY. RONALD ANCHETA Q: Doctor, in your findings, you said that you found out that the hymen was lacerated at 4 and 9 oclock positions.

DR. FREYRA A: Q: A: Q: Yes, sir. Doctor, what could have been the cause of the laceration? The cause of such laceration is the insertion of any blunt object inside the vagina. Now doctor, would you be able to distinguish if only the tip of the penis or full or the whole penis was inserted. Would you determine that considering that the laceration is [at] 4 and 9 oclockpositions? The laceration is inflicted in the hymen if there was insertion of any hard blunt object and the size of the laceration would depend on the object that penetrated and it does not matter whether the tip of the penis is short or inverted. Are you saying that even the tip of the penis could have caused the laceration at 4 and 9 oclock? As I have said, it would depend on the diameter of the thing that enters the hymen and it would break that would need to accommodate the diameter of the thing that enters [ sic]. So how about in this case, Doctor, if the male factor is an adult at the time of the sexual abuse and there was full penetration. Is it not a fact that there could have been more laceration than what has been stated there in your report? No, sir because the hymen is elastic and it would break and produce lacerations that are made in order to accommodate the diameter of the thing that enters and since the thing that penetrated only required two lacerations located at 4 and 9 oclock, those were the only lacerations inflicted in order to accommodate the thing that entered.

A:

Q: A:

Q:

A:

Q:

How about if the finger was inserted in the hymen of the victim, would it produce that type of lacerations? If it was a finger that penetrated the hymen, perhaps I would see a smaller laceration in the hymen. Then also it would depend on the size of the smaller finger that entered the hymen and did not do any other movements like sideward movement it would be a shallow laceration. But in this case, it is a deep healed laceration of the hymen. x x x[25] [Emphasis ours]

A:

Second, the appellant employed force and intimidation in satisfying his lustful desires. AAA categorically stated that she was dragged by the appellant who was wielding a knife inside his (appellants) house. AAA likewise testified that the appellant continued to threaten her while they were inside his house; and that she (AAA) did not attempt to run for fear for her life. As an element of rape, force or intimidation need not be irresistible; it may be just enough to bring about the desired result. What is necessary is that the force or intimidation be sufficient to consummate the purpose that the accused had in mind.[26] In People v. Mateo,[27] we held: It is a settled rule that the force contemplated by law in the commission of rape is relative, depending on the age, size strength of the parties. It is not necessary that the force and intimidation employed in accomplishing it be so great and of such character as could not be resisted; it is only necessary that the force or intimidation be sufficient to consummate the purpose which the accused had in mind. Intimidation, more subjective than not, is peculiarly addressed to the mind of the person against whom it may be employed, and its presence is basically incapable of being tested by any hard and fast rule. Intimidation is normally best viewed in the light of the perception and judgment of the victim at the time and occasion of the crime.[28] By itself, the act of holding a knife is strongly suggestive of force or at least of intimidation, more so if the knife was directed at a minor, as in this case. Clearly, AAA could not be expected to act with equanimity and with nerves of steel, or to act like an adult or a mature and experienced woman who would know what to do under the circumstances, or to have the courage and intelligence to disregard the threat.[29] Under the circumstances obtaining in this case, the overt acts of the appellant were sufficient to bring AAA into submission. The Appellants Defenses In stark contrast with the prosecutions case is the appellants alibi of having been in the Felipes house at the time the rape was committed. He maintained that he never left the Felip es house from 7:00 a.m. up to 9:00 a.m. of that day. By the appellants own admission, however, the residence of the Felipe spouses is also located at Batasan Hills, and was a mere 30 minute walk, more or less, from his (appellants) house where the rape was committed. Considering the proximity of these places, we cannot accord any value to the appellants alibi. For the defense of alibi to prosper, proof of being at another place when the crime was committed is not enough; the accused must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity when the crime was committed. [30] Moreover, we cannot help but note that the alibi of the accused is totally uncorroborated; only the appellant testified about his presence elsewhere. Already a weak defense, alibi becomes even weaker when the defense fails to present corroboration. The alibi totally falls if, aside from the lack of corroboration, the accused fails to show the physical impossibility of his presence at the place and time of the commission of the crime. [31] The Proper Penalty The applicable provisions of the Revised Penal Code, as amended by Republic Act No. 8353 (effective October 22, 1997), covering the crime of Rape are Articles 266-A and 266-B, which provide: Article 266-A. Rape; When and How Committed. - Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; xxxx Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. xxxx

Although the prosecution proved during trial that the rape was committed with the use of a deadly weapon, we cannot appreciate this qualifying circumstance as it was not alleged in the Information. The lower courts therefore are correct in imposing the penalty of reclusion perpetua on the appellant. The Proper Indemnity We sustain the awards of civil indemnity and moral damages in accordance with prevailing jurisprudence. Civil indemnity, actually given as actual or compensatory damages, is awarded upon the finding that rape was committed.[32] Similarly, moral damages are awarded to rape victims without need of pleading or evidentiary basis; the law assumes that a rape victim suffered moral injuries entitling her to the award.[33] WHEREFORE, in light of all the foregoing, we hereby AFFIRM the April 27, 2005 Decision of the CA in CA-G.R. CR-HC No. 00120 in toto. Costs against appellant Henry Guerrero y Agripa. SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 180499 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, and BRION, JJ.

- versus -

CONRADO CACAYAN, Appellant.

Promulgated: July 9, 2008

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DECISION TINGA, J.: Four (4) informations[1] for rape accusing appellant Conrado Cacayan of raping his eighteen (18)-year old daughter, AAA,[2] were filed before the Regional Trial Court (RTC) of Baler, Aurora, Branch 96. The informations were similarly worded except for the dates of the commission of the crime. Appellant pleaded not guilty to all the charges against him during the arraignment. [3] The facts as culled from the records are as follows: AAA[4] was born on 19 August 1979.[5] Due to familial problems, AAA was reared by a sister of appellant in Saguday, Quirino, Isabela. On 10 January 1997, AAA started living with appellant in Barangay Diniog, Dilasag, Aurora. Her father was living in with another woman and the latters 13-year old niece, BBB.[6] AAA helped out in appellantssarisari store.[7] In the afternoon of 13 May 1997, AAA and BBB went out with appellant to gather rattan in the mountain. Earlier that day, appellant had a drinking session with a friend who was elected as barangay councilor. At around 7:00 p.m., the three passed by the seashore on the way to the mountain. As they were about to set up camp for the night, appellant asked BBB to fetch a cauldron (casserole) from Dipasaleng, Diniog, which, from where they were, would take around 15 minutes to reach. After BBB left, appellant approached AAA, who was then spreading a blanket on the seashore, and blamed her for his defeat in the 12 May 1997 barangay election. Appellant told her to undress and lie down. When she did not comply, appellant unsheathed his bolo, pointed it to her neck, and threatened to kill her if she refused to lie down. Despite AAAs vehement refusal, appellant star ted pulling down her pants and panties. After undressing AAA, appellant removed his pants. AAAs pleas for mercy fel l on deaf ears. Appellant laid her on the blanket, held her left hand, and rested the bolo on the right side of her neck. Appellant then inserted his penis into her vagina. After appellant succeeded in having sexual intercourse with her, he told her to get dressed. Appellant called back BBB. They all spent the night by the seashore. AAA was not permitted by appellant to leave the place.[8] The following morning, 14 May 1997, the three of them went to the mountain to gather rattan. At around 10:00 a.m., appellant told BBB to go down the mountain ahead of them. When BBB left, appellant asked AAA if he could repeat what he did to her the night before. AAA pleaded and reminded him that she is his daughter. When AAA did not comply with his wishes, appellant again threatened her with a bolo, then held her hand and laid her down. Appellant rested his bolo on her neck and held her hand as he inserted his penis into her vagina. AAA cried and shouted for help to no avail. After the sexual intercourse, they went down the mountain.[9] On 7 June 1997, the three of them went to appella nts banana plantation in Dicasiw, Dilasag, Aurora to gather bananas. After the task, AAA went home ahead of them. Appellant followed her and told her to stop. She refused and told him that she still had to wash some clothes. Appellant scolded her with exp letives for not following his order. She retorted, What kind of father are you? You are doing bad things to your daughter! Appellant pulled AAA, causing her to stumble. He laid AAA down and undressed her. Appellant held her hand and rested his bolo on AA As neck. He inserted his penis into her vagina. The penetration caused her extreme pain because she was then suffering from vaginal infection caused by appellants previous sexual assaults. AAA described it as, Masakit po dahil hindi pa po magaling iyong mga butligbutlig dahil doon po saginawa niya sa akin.[10] AAA did not report the rape for fear that appellant would make good his threat that he would kill her and her mother.[11] Sometime in June 1997, AAA started living in the house of CCC, [12] who used to be her teacher in school. Because AAA had financial difficulties when she was stillCCCs student, the latter invited her to stay in her house. Appellant gave his permission to this arrangement; however, he told CCC not to allow AAA to go out.[13]

On 21 June 1997, appellant went to CCCs house and confronted AAA about the rumors that she had gone out with many male companions during the town fiesta. She went with appellant to his house to verify the gossips and there, she denied the rumors. Then, she proceeded to leave for CCCs house but appellant persisted in accompanying her. Together, they boarded a tricycle which, on the way to their destination, ran out of fuel. The driver advised them to just walk the rest of the way. However, before they could reach CCCs house, appellant dragged AAA into a coconut plantation and told her to undress. Appellant persisted in undressing AAA despite her pleas for mercy. AAA resisted appellants actions but the latter drew a knife and pointed it at her neck. Appellant undressed himself and inserted his penis into AAAs vagina while she was lying down. Appellant made push-and-pull movements which AAA described as, kinayopan po nya ako. Labas[-] pasok po ang ari nya sa ari ko. After satisfying his bestial desires, appellant told AAA to stand up and get dressed. [14] As soon as AAA reached the house of CCC, she confided to the latter that appellant had raped her. CCC advised her to report the matter to the Department of Social Welfare and Development (DSWD). AAA did not follow CCCs advice for she was afraid that appellant could easily kill her.[15] Instead, AAA escaped to Barangay Calabuanan, Baler, Aurora to seek her friend. She was told by the residents, however, that her friend was working in Bulacan. A certain Baby Lucie Bitong (Baby), a resident of the locality, invited AAA to her house. There, AAA related her ordeal to Baby. Baby accompanied AAA to a barangay councilor who, in turn, referred them to the barangay captain. Thebarangay captain was then in a meeting so a tanod took her statement. AAA and Baby proceeded to the DSWD office in the municipal building. As advised by the DSWD, they proceeded to the police station where AAAs statement was taken. [16] On 14 July 1997, Dr. Nenita Hernandez, the municipal health officer of Baler, Aurora, examined AAA and issued a medico-legal examination report.[17] She testified that the healed hymenal lacerations were consistent with the fact that the last rape occurred on 21 June 1997, and that these also indicate several forcible copulations. [18] Appellant denied the charges against him. He testified that AAA merely concocted the charges against him for he scolded and mauled her on 20 June 1997 when he learned from his brother that she was having an affair with a certain Alias Pogi near the seashore the day before. Appellant disavowed that AAA was with him gathering rattan on 13 and14 May 1997 and that she was with him gathering bananas on 7 June 1997 as in fact on those dates, she was managing their sari-sari store.[19] He testified that AAA was not in his house on 21 June 1997, the date of the fourth rape. [20] Appellants brothersArman Cacayan (Arman), Mariano Cacayan (Mariano) and Guillermo Cacayan (Guillermo) tried to corroborate appellants defense. Arman and Mariano both testified that appellant could not have raped AAA on 13 and 14 May and on 7 June 1997 since on said dates, they saw AAA tending the sari-sari store, and that appellant was at home in the evening of 13 May. Mariano testified that he even saw AAA having a picnic with her friends by the beach in Dilasag on 14 May. Mariano further testified that he saw AAA kissing a man near the seashore in the evening of 19 June 1997, and told appellant about it. He revealed that AAA was beaten up by appellant because of said incident.[21] Arman testified that AAA was alone when she boarded the tricycle bound to CCCs house in the evening of 21 June 1997, and that appellant was then in his house. He further testified that AAA was a flirt.[22] Guillermo also tried to show through his testimony that AAA was a flirt. He testified that AAA was no longer a virgin and that the latter had previously suffered a miscarriage as he once saw her bleeding when they were still living in the same house.[23] In its Decision[24] dated 23 July 2002, the RTC found appellant guilty of four (4) counts of rape with the use of a deadly weapon and attended by the aggravating circumstance of relationship and sentenced him to death. Since the rapes were committed prior to the effectivity of Republic Act No. 8353 on 22 October 1997, the RTC applied Article 335 of the Revised Penal Code.[25] The records of the case were thereafter forwarded to this Court on automatic review. On 7 February 2006, the Court issued a Resolution[26] transferring the case to the Court of Appeals for intermediate review. The Court of Appeals[27] affirmed with modification the decision of the RTC. The appellate court found appellant guilty of all four (4) counts of simple and not qualified rape. It held that although appellant admitted that AAA is his daughter, her minority at the time she was raped was not alleged in the informations nor was it proven in court. Appellant filed a Notice of Appeal dated 19 July 2007 before the Court of Appeals.[28] The case is again before us for our final disposition. Appellant assigns two (2) errors which have already been passed upon by the Court of Appeals, to wit: whether the RTC erred in finding him guilty of all four (4) counts of rape despite the alleged failure of the prosecution to prove his guilt beyond reasonable doubt; and assuming arguendo that he is guilty, whether the RTC erred in imposing the death penalty.[29] The appeal is bereft of merit. The issues raised by the appellant involve weighing of evidence already passed upon by the RTC and the Court of Appeals. The age-old rule is that the task of assigning values to the testimonies of witnesses in the stand and weighing their credibility is best left to the trial court which forms its first-hand impressions as a witness testifies before it. It is also axiomatic that positive testimony prevails over negative testimony.[30] The denial and alibi of appellant fail in light of AAAs positive identification that he raped her on the alleged dates which is corroborated by physical evidence showing forced coitus. It is true that alibi is not always false and without merit. It may serve as basis for an acquittal if it can really be shown by clear and convincing evidence that it was indeed physically impossible for the accused to be at the crime scene at the time. [31]

In this regard, appellant failed to prove convincingly that he was not at the crime scene at the time the four rapes occurred because he merely denied that AAA was with him on the alleged dates. Moreover, the distance of appellants house, where AAA was alleged to be during the four rapes, from the crime scene does not evince belief that it was impossible for him to be there when the rapes were committed. Further, jurisprudence has shown that alibi becomes less plausible as a defense when it is invoked and sought to be crafted mainly by the accused himself and his immediate relative or relatives.[32] Appellants alibi is patently selfserving even though his brothers tried to corroborate it. The use of a bolo at the time of the rapes and the threat of death posed by appellant constituted sufficient force and intimidation to cow AAA into obedience.[33] Moreover, appellant, who is AAAs father, undoubtedly exerted a strong moral influence over her. His moral ascendancy and influence over AAA may even substitute for actual physical violence and intimidation.[34] In a prosecution for rape, the complainants candor is the single most important issue. If a complainants testimony meets the test of credibility, the accused may be convicted solely on that basis. [35] We have thoroughly examined AAAs testimony and find nothing that would cast doubt as to her credibility. All said, there is no evidence to show any improper motive on the part of AAA to falsely charge appellant with rape and to testify against him; hence, the logical conclusion is that her testimony is worthy of full faith and credence. The prosecution has established beyond reasonable doubt that appellant had carnal knowledge of AAA against her will, through force and intimidation, and with the use of a bolo. The alleged minor inconsistencies in AAAs testimony pertain only to collateral or minor incidents of the case and they do not affect the real issue, which is whether or not appellant indeed raped his daughter, AAA. As long as the witness has been found credible by the trial court, especially after undergoing a rigid cross-examination, any apparent inconsistency may be overlooked. This is especially true if the lapses concern trivial matters.[36] AAAs failure to report the previous incidents of rape to her mother does not dent her credibility, there being no standard form of behavior expected of rape victims who react differently to emotional stress. [37] Appellant's threats had intimidated AAA and kept her from immediately reporting the rapes. As this Court held, it is not uncommon for young girls to conceal for some time the violation of their honor because of the threats on their lives. [38] Appellants contention that AAA filed the rape charges because he had scolded and mauled her for seeing a man could not be believed. As held by the Court in People v. Rosario,[39] [i]t would take the most senseless kind of depravity for a young daughter to fabricate a story which would send her father to death only because he disciplined her. Verily, no child in her right mind would concoct a story of defloration against her own father and expose her whole family to the stigma and disgrace associated with incestuous rape, if only to free herself from an overweening and strict parent who only happens to enforce parental guidance and discipline. Significantly, AAAs claim of sexual violations was corroborated by Dr. Hernandezs medical findings which were presented to the RTC at the trial. AAAs hymen showed multiple healed lacerations at 11, 3, 4, 6, 7 and 8 oclock positions.[40] As Dr. Hernandez testified, these lacerations could only have resulted from the forcible insertion into the vagina of an erect penis.[41] Lastly, just as in other rape cases, appellant raises the argument that the rapes could not have happened because BBB was with them when the alleged crime was committed. However, as is common judicial experience, rapists are not deterred from committing their odious act by the presence of people nearby. As revealed in our review of rape cases, rape can be committed in a house where there are other occupants.[42] All told, the Court finds no reason to reverse the ruling of the RTC and the Court of Appeals insofar as the crime was committed. What remains to be determined is the propriety of the penalty imposed on appellant in relation to the second issue raised. The RTC is correct when it imposed the penalty of death for the four rapes. Under Article 335 of the Revised Penal Code, the use by appellant of a bolo to consummate the crime is a special aggravating circumstance which warrants the imposition of the penalty of reclusion perpetua to death. A similar provision can also be found in Article 266-B,[43]when the law on rape was amended by Republic Act No. 8353 which also reclassified rape to a crime against persons. With the existence of the aggravating circumstance of relationship, the imposable penalty is death conformably with Article 63[44] of the Revised Penal Code. There is no question that appellant is the father of AAA.[45] Such relationship of father-daughter in rape cases is considered an aggravating circumstance under Article 15[46] of the RPC.[47] However, pursuant to Republic Act No. 9346,[48] the Court can only impose the penalty of reclusion perpetua without eligibility for parole, in lieu of the death penalty. Article 335 also provides for the death penalty if the rape victim is under eighteen (18) years of age and the offender is a parent of the victim. The Court notes that the Court of Appeals erred when it applied this qualifying circumstance and reduced appellants sentence to reclusion perpetua. It also erred when it held that the age of AAA has not been adequately established during the trial. It must be emphasized that the RTC imposed the death penalty on appellant, but not on the basis of the qualifying circumstances of minority and relationship, the concurrence of which would have warranted a mandatory death sentence under the law. Instead, the RTC based its judgment on the finding that appellant committed the rape with the use of a deadly weapon which prescribes the penalty of reclusion perpetua to death. Moreover, the alternative circumstance of relationship was appreciated by

the RTC as an aggravating circumstance that justified the imposition of death. Thus, even if the qualifying circumstance of minority had not been sufficiently established by the prosecution, still it would not matter because the death sentence was imposed without reference to and independently of the minority of AAA. As to damages, the trial court correctly awarded P50,000.00 as moral damages, an award that rests on the jural foundation that the crime of rape necessarily brings with it shame, mental anguish, besmirched reputation, moral shock and social humiliation.[49] The award of exemplary damages in the amount of P25,000.00 was correctly granted pursuant to the ruling in People v. Catubig[50] that the award of exemplary damages is justified pursuant to Article 2230 of the Civil Code.[51] Since the special aggravating circumstance of the use of a deadly weapon attended the commission of the rape, the offended party is entitled to exemplary damages. However, the Court finds that the civil indemnity should be increased to P75,000.00 for each of the four (4) counts of rape. In accordance with prevailing jurisprudence, the civil indemnity awarded to the victims of qualified rape shall not be less than Seventy-Five Thousand Pesos (P75,000.00),[52] and P50,000.00 for simple rape.[53] WHEREFORE, the decision of the RTC in Criminal Case Nos. 2282-85 ordering appellant to pay AAA P50,000.00 as moral damages and P25,000.00 as exemplary damages, for each of the four (4) counts of rape, and the decision of the Court of Appeals in CA-G.R. CR-HC No. 02039 reducing the sentence of appellant from death to reclusion perpetua without eligibility for parole, likewise for each of the four (4) counts of rape, is AFFIRMED with the MODIFICATION that the civil indemnity be increased to P75,000.00 for each of the four (4) counts of rape. Costs against appellant. SO ORDERED.

ANTONIO LEJANO, Petitioner,

G.R. No. 176389 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

- versus -

PEOPLE OF THE PHILIPPINES, Respondent. x --------------------------------------------- x PEOPLE OF THE PHILIPPINES, Appellee, - versus HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO Promulgated: BIONG, Appellants. December 14, 2010 x ---------------------------------------------------------------------------------------- x DECISION ABAD, J.: Brief Background On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.[1] The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.[2] The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean in the United States of G.R. No. 176864

America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling crossexaminations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.[3] On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde. [4] The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,[5] hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence [6] to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case. Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. Issues Presented Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidenc e that would prove his innocence. In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are: 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised

about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.[8] If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland[9] that he cites has long be overtaken by the decision in Arizona v. Youngblood,[10] where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the pro ceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.[11] They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Now, to the merit of the case. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio Dong Ventura. There,Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez, Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990. As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmel as house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala AlabangCommercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening (bad trip). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, Pipilahan natin siya [Carmela] at ako ang mauuna. Lejano said, Ako ang susunod and the others responded Okay, okay. They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight.

Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout (Pasabugin kaya natin ang transformer na ito). But Alfaro shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, O sige, dito lang kami, magbabantay lang kami. Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it (para daw walang ilaw). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a womans voice ask, Sino yan? Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, Okay ba? After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: Ikaw na nga dito, maghanap ka ng susi. She asked him what key he wanted and he replied: Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse. When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key. Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, Prepare an escape. Aalis na tayo. Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area. The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the blaming session took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, Bakit naman pati yung bata? Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, Pera lang ang katapat nyan. Biong answered, Okay lang. Webb spoke to his companions and told them, We dont know each other. We havent seen each otherbaka maulit yan. Alfaro and Estrada left and they drove to her fathers house.[12] 1. The quality of the witness

Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an asset, a stool pigeon, one who earned her living by fraternizing wit h criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an asset. She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of

the Martilyo gang that killed a police officer. Because of her talent, the task force gave her very special treatment and she became its darling, allowed the privilege of spending nights in one of the rooms at the NBI offices. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus:

ATTY. ONGKIKO: Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? xxxx A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor.

ATTY. ONGKIKO: Q. And what did you say? xxxx A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Q. Atty. Sacaguing, were you able to interview this alleged witness?

WITNESS SACAGUING: A. No, sir. ATTY. ONGKIKO: Q. Why not? WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify. ATTY. ONGKIKO: Q. All right, and what happened after that? WITNESS SACAGUING: A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag kayong COURT: How was that? WITNESS SACAGUING: A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan. xxxx ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that papapelan ko na lang yan? WITNESS SACAGUING: A. I said, hindi puwede yan, kasi hindi ka naman eye witness. ATTY. ONGKIKO: Q. And what was the reply of Ms. Alfaro? WITNESS SACAGUING: A. Hindi siya nakakibo, until she went away.

(TSN, May 28, 1996, pp. 49-50, 58, 77-79) Quite significantly, Alfaro never refuted Sacaguings above testimony. 2. The suspicious details

But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Secondly, the police had arrested some akyat -bahay group in Paraaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents. Not surprisingly, the confessions of some members of the Barroso akyat bahay gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following: a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso akyat -bahay gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the l ight off. But, unlike the Barroso akyat -bahay gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their darling of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel Ging Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael,

exclaiming: How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me. As it turned out, he was not Miguel Rodriguez, the accused in this case. [13] Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony

There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro entered the house. Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gang -rape of Carmela. Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an asset then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang -rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, Sino yan? On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carme las mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. 4. The supposed corroborations

Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained[14] and the presence of semen in Carmelas genitalia,[15] indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.[16] White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passe d the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly cleaned up Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaros testimony about the movements of the persons involved. Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,[17] White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required. [18] But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit. Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the roo m that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.[19] On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t shirt.[20] She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood. Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2 nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep. And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.[21] The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called Bagyo, because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house. 5. The missing corroboration

There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gangrape her is totally uncorroborated! For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony. But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. Webbs U.S. Alibi Among the accused, Webb presented the strongest alibi. a. The travel preparations

Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money. [22] Gloria Webb, his aunt, accompanied him. Rajah Tours

booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to hisdespedida party on March 8, 1991 at Faces Disco along Makati Ave.[23] On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb'sdespedida party. Among those present were his friends Paulo Santos and Jay Ortega.[24] b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.[25] Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through.[26] He was listed on the United Airlines Flights Passenger Manifest.[27] On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,[28] the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991, [29] and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.[30] c. Details of U.S. sojourn

In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.[31] In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in thePhilippines.[32] In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.[33] During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler [34] and working at his cousin-inlaws pest control company.[35] Webb presented the companys logbook showing the tasks he performed, [36] his paycheck,[37] his ID, and other employment papers. On June 14, 1991 he applied for a driver's license[38] and wrote three letters to his friend Jennifer Cabrera.[39] On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.[40] On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.[41] Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car. [42] To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle [43] and a car plate LEW WEBB.[44] In using the car in the U.S., Webb even received traffic citations.[45] On June 30, 1991 Webb, again accompanied by his father and Aragon, [46] bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a receipt dated June 30, 1991. [48] On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic. [49] Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez. [50] There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards. [51] In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house. [52] He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992. d. The second immigration checks

As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.[53] Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103, [54] certified by Agnes Tabuena[55] confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry.[56] Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification

The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, I saw him do it.? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, He did it! without blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly just so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front door just so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi

To establish alibi, the accused must prove by positive, clear, and satisfactory evidence [57] that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.[58] The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions. The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,[59] the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true. [60] The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record. [61] The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus: While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding no evidence of lawful admission of Webb, this was already clarifi ed and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request. The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was not exhaustive and did not reflect all available information. Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..[62]

The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go

back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours. If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it planted in the lower courts minds. 7. Effect of Webbs alibi to others

Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall. CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediatelyRELEASED from detention unless they are confined for another lawful cause. Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections isDIRECTED to report the action he has taken to this Court within five days from receipt of this Decision. SO ORDERED.