SECOND DIVISION [G.R. No. 128538. February 28, 2001] SCC CHEMICALS CORPORATION, petitioner, vs.

THE HONORABLE COURT OF APPEALS, STATE INVESTMENT HOUSE, INC., DANILO ARRIETA and LEOPOLDO HALILI, respondents. RESOLUTION QUISUMBING, J.: Before us is a petition for review, pursuant to Rule 45 of the Rules of Court, of the Decision of the Court of Appeals dated in November 12, 1996 in CA-G.R. CV No. 45742 entitled State Investment House, Inc., v. Danilo Arrieta, et al., and SCC Chemical Corporation. The questioned decision affirmed in toto the decision of the Regional Trial Court of Manila, Branch 33, dated March 22, 1993, in Civil Case No. 84-25881, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter to pay jointly and severally the plaintiff the following: a) To pay plaintiff State Investment House, Inc., the sum of P150,483.16 with interest thereon at 30% per annum reckond (sic) from April, 1984 until the whole amount is fully paid; b) To pay plaintiff an amount equivalent to 25% of the total amount due and demandable as attorneys fees and to pay the cost(s) of suit. SO ORDERED.i[1] Equally challenged in this petition is the Resolution of the appellate court dated February 27, 1997, denying SCC Chemicals Corporations motion for reconsideration. The background of this case, as culled from the decision of the Court of Appeals, is as follows: On December 13, 1983, SCC Chemicals Corporation (SCC for brevity) through its chairman, private respondent Danilo Arrieta and vice president, Pablo (Pablito) Bermundo, obtained a loan from State Investment House Inc., (hereinafter SIHI) in the amount of P129,824.48. The loan carried an annual interest rate of 30% plus penalty charges of 2% per month on the remaining balance of the principal upon non-payment on the due date-January 12, 1984. To secure the payment of the loan, Danilo Arrieta and private respondent Leopoldo Halili executed a Comprehensive Surety Agreement binding themselves jointly and severally to pay the obligation on the maturity date. SCC failed to pay the loan when it matured. SIHI then sent demand letters to SCC, Arrieta and Halili, but notwithstanding receipt thereof, no payment was made. On August 2, 1984, SIHI filed Civil Case No. 84-25881 for a sum of money with a prayer for preliminary attachment against SCC, Arrieta, and Halili with the Regional Trial Court of Manila.

In its answer, SCC asserted SIHIs lack of cause of action. Petitioner contended that the promissory note upon which SIHI anchored its cause of action was null, void, and of no binding effect for lack or failure of consideration. The case was then set for pre-trial. The parties were allowed to meet out-of-court in an effort to settle the dispute amicably. No settlement was reached, but the following stipulation of facts was agreed upon: 1. Parties agree that this Court has jurisdiction over the plaintiff and the defendant and that it has jurisdiction to try and decide this case on its merits and that plaintiff and the defendant have each the capacity to sue and to be sued in this present action; 2. Parties agree that plaintiff sent a demand letter to the defendant SCC Chemical Corporation dated April 4, 1984 together with a statement of account of even date which were both received by the herein defendant; and 3. Parties finally agree that the plaintiff and the defendant SCC Chemical Corporation the latter acting through defendants Danilo E. Arrieta and Pablito Bermundo executed a promissory note last December 13, 1983 for the amount of P129,824.48 with maturity date on January 12, 1984.ii[2] The case then proceeded to trial on the sole issue of whether or not the defendants were liable to the plaintiff and to what extent was the liability. SIHI presented one witness to prove its claim. The cross-examination of said witness was postponed several times due to one reason or another at the instance of either party. The case was calendared several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC was finally declared by the trial court to have waived its right to cross-examine the witness of SIHI and the case was deemed submitted for decision. On March 22, 1993, the lower court promulgated its decision in favor of SIHI. Aggrieved by the verdict, SCC elevated the case to the Court of Appeals where it was docketed as CA-G.R. CV No. 45742. On appeal, SCC contended that SIHI had failed to show, by a preponderance of evidence, that the latter had a case against it. SCC argued that the lone witness presented by SIHI to prove its claim was insufficient as the competency of the witness was not established and there was no showing that he had personal knowledge of the transaction. SCC further maintained that no proof was shown of the genuineness of the signatures in the documentary exhibits presented as evidence and that these signatures were neither marked nor offered in evidence by SIHI. Finally, SCC pointed out that the original copies of the documents were not presented in court. On November 12, 1996, the appellate court affirmed in toto the judgment appealed from.

On December 11, 1996 SCC filed its motion for reconsideration, which the Court of Appeals denied in its resolution dated February 27, 1997. Hence, petitioners recourse to this Court relying on the following assignments of error: I THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PRIVATE RESPONDENT PROVED ITS CAUSE OF ACTION AND OVERCAME ITS BURDEN OF PROOF. II THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AWARDING ATTORNEYS FEES TO THE PRIVATE RESPONDENT. We find the pertinent issues submitted for resolution to be: (1) Whether or not the Court of Appeals made an error of law in holding that private respondent SIHI had proved its cause of action by preponderant evidence; and (2) Whether or not the Court of Appeals erred in upholding the award of attorneys fees to SIHI. Anent the first issue, petitioner contends that SIHI introduced documentary evidence through the testimony of a witness whose competence was not established and whose personal knowledge of the truthfulness of the facts testified to was not demonstrated. It argues that the same was in violation of Sections 36iii[3] and 48,iv[4] Rule 130 of the Rules of Court and it was manifest error for the Court of Appeals to have ruled otherwise. In addition, SCC points out that the sole witness of SIHI did not profess to have seen the document presented in evidence executed or written by SCC. Thus, no proof of its genuineness was adduced. SIHI thus ran afoul of Section 2,v[5] Rule 132 of the Rules of Court, which requires proof of due execution and authenticity of private documents before the same can be received as evidence. Petitioner likewise submits that none of the signatures affixed in the documentary evidence presented by SIHI were offered in evidence. It vehemently argues that such was in violation of the requirement of Section 34,vi[6] Rule 132 of the Rules of Court. It was thus an error of law on the part of the appellate court to consider the same. Finally, petitioner posits that the non-production of the originals of the documents presented in evidence allows the presumption of suppression of evidence provided for in Section 3 (e),vii[7] Rule 131 of the Rules of Court, to come into play. Petitioners arguments lack merit; they fail to persuade us. We note that the Court of Appeals found that SCC failed to appear several times on scheduled hearing dates despite due notice to it and counsel. On all those scheduled hearing dates, petitioner was supposed to cross-examine the lone witness offered by SIHI to prove its case. Petitioner now charges the appellate court with committing an error of law when it failed to

disallow the admission in evidence of said testimony pursuant to the hearsay rule contained in Section 36, Rule 130 of the Rules of Court. Rule 130, Section 36 reads: SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. Petitioners reliance on Section 36, Rule 130 of the Rules of Court is misplaced. As a rule, hearsay evidence is excluded and carries no probative value.viii[8] However, the rule does admit of an exception. Where a party failed to object to hearsay evidence, then the same is admissible.ix[9] The rationale for this exception is to be found in the right of a litigant to crossexamine. It is settled that it is the opportunity to cross-examine which negates the claim that the matters testified to by a witness are hearsay.x[10] However, the right to cross-examine may be waived. The repeated failure of a party to cross-examine the witness is an implied waiver of such right. Petitioner was afforded several opportunities by the trial court to cross-examine the other partys witness. Petitioner repeatedly failed to take advantage of these opportunities. No error was thus committed by the respondent court when it sustained the trial courts finding that petitioner had waived its right to cross-examine the opposing partys witness. It is now too late for petitioner to be raising this matter of hearsay evidence. Nor was the assailed testimony hearsay. The Court of Appeals correctly found that the witness of SIHI was a competent witness as he testified to facts, which he knew of his personal knowledge. Thus, the requirements of Section 36, Rule 130 of the Rules of Court as to the admissibility of his testimony were satisfied. Respecting petitioners other submissions, the same are moot and academic. As correctly found by the Court of Appeals, petitioners admission as to the execution of the promissory note by it through private respondent Arrieta and Bermundo at pre-trial sufficed to settle the question of the genuineness of signatures. The admission having been made in a stipulation of facts at pre-trial by the parties, it must be treated as a judicial admission. Under Section 4,xi[11] Rule 129 of the Rules of Court, a judicial admission requires no proof. Nor will petitioners reliance on the best evidence rulexii[12] advance its cause. Respondent SIHI had no need to present the original of the documents as there was already a judicial admission by petitioner at pre-trial of the execution of the promissory note and receipt of the demand letter. It is now too late for petitioner to be questioning their authenticity. Its admission of the existence of these documents was sufficient to establish its obligation. Petitioner failed to submit any evidence to the contrary or proof of payment or other forms of extinguishment of said obligation. No reversible error was thus committed by the appellate court when it held petitioner liable on its obligation, pursuant to Article 1159 of the Civil Code which reads: ART. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

On the second issue, petitioner charges the Court of Appeals with reversible error for having sustained the trial courts award of attorneys fees. Petitioner relies on Radio Communications of the Philippines v. Rodriguez, 182 SCRA 899,909 (1990), where we held that when attorneys fees are awarded, the reason for the award of attorneys fees must be stated in the text of the courts decision. Petitioner submits that since the trial court did not state any reason for awarding the same, the award of attorneys fees should have been disallowed by the appellate court. We find for petitioner in this regard. It is settled that the award of attorneys fees is the exception rather than the rule, hence it is necessary for the trial court to make findings of fact and law, which would bring the case within the exception and justify the grant of the award.xiii[13] Otherwise stated, given the failure by the trial court to explicitly state the rationale for the award of attorneys fees, the same shall be disallowed. In the present case, a perusal of the records shows that the trial court failed to explain the award of attorneys fees. We hold that the same should thereby be deleted. WHEREFORE, the instant petition is PARTLY GRANTED. The decision dated November 12, 1996 of the Court of Appeals is AFFIRMED WITH MODIFICATION that the award of attorneys fees to private respondent SIHI is hereby deleted. No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

SECOND DIVISION [G.R. No. 129057. January 22, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BILLY DE LEON, DOMINADOR DE LEON and LEOPOLDO DE LEON, accused.

DOMINADOR DE LEON and LEOPOLDO DE LEON, accused-appellants.

DECISION DE LEON, JR., J.:

This is an appeal from the Decisionxiv[1] dated January 30, 1997 of the Regional Trial Court, Branch 38, Lingayen, Pangasinan, in Criminal Case No. L-5499, finding accused-appellants Leopoldo and Dominador, both surnamed de Leon, guilty of murder and sentencing them to suffer the penalty of Reclusion Perpetua and to pay, jointly and severally, the heirs of the deceased victim, Ignacio Jimenez, the sum of P15,000.00 as actual damages, P50,000.00 as compensatory damages and P50,000.00 as moral damages, as indemnity plus the cost of the suits. The record shows that on July 23, 1996, Assistant City Prosecutor (on detail) Abraham L. Ramos II filed with the Regional Trial Court of Lingayen, Pangasinan an Information charging the brothers, Billy, Dominador and Leopoldo, all surnamed de Leon, with murder, allegedly committed as follows: That on or about the 13th day of June 1996 in the afternoon, in barangay Lomboy, Municipality of Binmaley, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a bladed instrument, with treachery and used of superior strength and intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and stab Ignacio Jimenez, inflicting upon him the following: multiple stab wounds chest multiple hacked wound head with fracture

which injuries directly caused his death, to the damage and prejudice of the heirs of the said Ignacio Jimenez. Contrary to Article 248 of the Revised Penal Code.xv[2] Only appellants Leopoldo and Dominador de Leon were brought to trial inasmuch as co-accused Billy de Leon evaded arrest. Upon being duly arraigned, Leopoldo and Dominador pleaded Not Guilty.xvi[3] The prosecutions case relied primarily on the testimony of prosecution witnesses, Chito (Tito) Jimenez and Annaluz Hilarion, who claimed to have personally witnessed the killing as well as on the post-mortem examination and findings of Dr. Nicanor Arzadon who testified thereon. Chito Jimenez, son of the victim, Ignacio Jimenez, testified that on June 13, 1996 at around 3:00 oclock in the afternoon, while watching a game of pool beside the house of Romy Castro in Barangay Lomboy, Binmaley, Pangasinan, he saw accused Billy de Leon struck his father, Ignacio with a cap. Chito called the attention of Billy to the fact that his father was already old. Instead of heeding Chitos request, Billy boxed him on the stomach, forcing Chito to retaliate, thus a fistfight ensued. Ignacio pacified Billy and Chito, after which Ignacio and Billy left while Chito remained in the said place. Ten (10) minutes later, Billy returned, and immediately boxed and slapped Chito several times and drew a 10-inch long bolo. Chito ran towards the southern direction and met his father, Ignacio who came out of their house. While he was 10 meters

away from his father, he stopped and saw Billy accosting and stabbing his father on the stomach several times. At that very instant, Leopoldo and Dominador arrived, and thereupon Leopoldo held the arms of his father, Ignacio, while Dominador stabbed the back portion of Ignacios head. Thereafter, the three (3) brothers ran away while the victim, Ignacio, walked towards his house and once near Chito, told his son to bring him to the hospital. Chito called Annaluz Hilarion who was five (5) meters away from the incident, to accompany them to the hospital. The victim was brought to the Pangasinan Provincial Hospital in Dagupan City where he later expired.xvii[4] Annaluz Hilarion corroborated the testimony of Chito Jimenez on some material points. Annaluz testified that at around 3:00 oclock in the afternoon of June 13, 1996 while she was resting in their house, she heard a startling commotion outside their house. Immediately, she stood up and looked through the window and saw Chito running southward to their house, and being chased by Billy who was followed by Leopoldo and Dominador. She also saw Chitos father, Ignacio, walking towards the opposite direction. When the de Leon brothers met Ignacio, they accosted the latter. Billy stabbed Ignacio on the stomach and then Leopoldo held the arms of Ignacio while Dominador took his turn in stabbing the said victim at the back of his head. Thereafter, Billy continued stabbing Ignacio on the right side of the stomach several times, and then the said de Leon brothers ran away. Ignacio struggled toward the direction of his house, but he fell down and was not able to reach the same. Together with Chito, they brought the victim to the Pangasinan Provincial Hospital in Dagupan City but expired while being treated.xviii[5] Annaluz likewise stated that neither Chito nor Ignacio was holding a stone or any weapon at the time she saw them.xix[6] Nicanor Arzadon, resident physician of the Pangasinan Provincial Hospitalxx[7] at Dagupan City testified on the injuries sustained by Ignacio and the cause of his death. He testified that he conducted an autopsy of the victim several hours after the latters death and thereafter prepared an autopsy report. In his post-mortem examination,xxi[8] he observed the following wounds sustained and the cause of death of the victim, thus: 1. 2. Incised wound 7 cm. angle of mandible (L) located on the left face; Hacked wound 8 cm. Temporal area (L) on the left side of the head;

3. Stab wound 3 cm. (L) midaxillary line, level of the 7th ICS, penetrating, perforating middle portion lower lobe (L) lung; 4. Stab wound 4 cm., 8th ICS, ant. Axillary line, penetrating, lacerating diaphragm, penetrating, perforating greater curvature of stomach; 5. Stab wound 4 cm. mid. Hypochondria area, (L) penetrating, perforating lesser curvature;

6. Stab wound, 3 cm. Epigastric area (L) penetrating, perforating body of stomach, thru and thru, penetrating, lacerating body of pancreas;

7. Stab wound 7 cm. Intercostal space, mid-clavicular line (R) non-penetrating, right side below right nipple; 8. Stab wound 3 cm. Intercostal space, midclavicular line (R) penetrating lacerating lower lobe (R) liver; 9. 10. Hacked wound, 6 cm. parietal area; Massive intra-abdominal bleeding.

CAUSE OF DEATH: Hypovolemia 2o to multiple stab wound. Dr. Nicanor Arzadon declared that a sharp bladed instrument caused the said wounds, and based on the sizes of the wounds, it is likely possible that two (2) or more kinds of weapons were used in hacking or stabbing the victim.xxii[9] Rita Jimenez, wife of victim Ignacio, testified regarding the expenses incurred by the family in connection with her husbands death, as follows: for the 9 days vigil, P4,500.00; for coffin and funeral services, P7,500.00; for the autopsy examination, P1,000.00; for wreath, P1,000.00; for the last night vigil, P3,500.00; for food and fish, P2,000.00; for church rites, P600.00; for the novena, P500.00; and for the lompos, P1,500.00.xxiii[10] On their part, both accused-appellants Leopoldo and Dominador invoked the defense of denial and alibi. They claimed that in the afternoon of June 13, 1996, they went to Manat, Binmaley upon the invitation of Modesto Reyes, to harvest fish in the latters fishpen. They arrived at around 1:00 oclock in the afternoon and left the said place at around 3:00 oclock in the afternoon of the same day. At around 4:00 oclock, they were already home. Mercedes, wife of Leopoldo, informed them that their brother, Billy, stabbed Ignacio. Mercedes told Leopoldo not to go out of the house as Ignacios sons might retaliate against them. When the policemen arrived, Leopoldo and Dominador were invited to the police station. After some questioning by SPO4 Crispin Cancino, they were asked to go out of the room and made to sign the police blotter. They were not allowed to leave the police station, and on the following day, they were placed behind bars.xxiv[11] Mercedes de Leon, wife of Leopoldo, Dina de Leon, wife of Dominador and Modesto Reyes, owner of the fishpen where accused-appellants have allegedly harvested fish, tried to corroborate accused-appellants alibi. Those three (3) defense witnesses declared that at the time of the stabbing incident, Leopoldo and Dominador were at Manat, Binmaley, Pangasinan, harvesting fish; and that accused-appellants arrived home from Manat at 4:00 oclock in the afternoon, or after the stabbing incident. On January 30, 1997, a Decision was rendered by the trial court finding accused-appellants guilty of murder. The judgment reads: Accordingly, in the light of all the considerations discussed above, the court finds and holds the accused, Dominador de Leon and Leopoldo de Leon, guilty beyond reasonable doubt of the

crime of Murder charged in the Information filed against them, and pursuant to law, hereby sentences each of the above-named accused to suffer the penalty of Reclusion Perpetua and to pay proportionately the cost of the proceedings. The court further directs the accused to indemnify jointly and severally the heirs of the deceased, the sum of P15,000.00 as actual damages; P50,000.00 as compensatory damages and P50,000.00 as moral damages, without subsidiary imprisonment in case of insolvency. And considering that accused, Billy de Leon is still at large and has not yet been arrested up to the present, let the record of the case insofar as said accused is concerned be sent to the files, without prejudice on the part of the prosecution to prosecute him after he is arrested or has surrendered to the court. Meantime, let an order of arrest be issued against accused Billy de Leon, to be served upon him by the PNP, Binmaley, CIG, Dagupan City and NBI, Dagupan City. SO ORDERED. Hence, this appeal. Accused-appellants, in their appeal prayed for acquittal by (1) impugning the credibility of the two (2) main prosecution witnesses, Chito Jimenez and Annaluz Hilarion, and (2) claiming alibi that they were somewhere else when the crime happened. On the first issue for resolution, i.e. whether the trial court erred in giving credence to the prosecutions version of the incident that not only Billy de Leon, but also accused-appellants Leopoldo and Dominador were guilty of stabbing the victim, Ignacio Jimenez, to death, well settled is the rule that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner while testifying during the trial, unless the trial court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.xxv[12] No cogent reasons exist to disturb the factual findings of the trial court, more particularly on its assessment of the credibility of the prosecution witnesses. The trial court correctly ascertained that the testimonies of the prosecution witnesses Chito and Annaluz clearly and adequately proved how the killing happened and the extent of accusedappellants participation in that incident. Both witnesses testified in a straightforward, clear and positive manner and the court finds no valid and plausible reason to discredit the truth and veracity of their narration. As recounted by Annaluz in her testimony ATTY. BASBAS Will you kindly tell the Honorable Court what was that incident that called your attention, Madam Witness?

They said that there is trouble, sir.

Q What, if any, did you do when you heard the word in Pangasinan dialect, gulo, which means trouble? A Q A I stood up and looked out the window, sir. What, if any, did you see when you looked out the window? I saw Chito Jimenez running, then, Ignacio Jimenez passed by, sir.

COURT Passed by your house? A Yes, sir.

ATTY. BASBAS To what direction was Chito Jimenez proceeding when you saw him running? A Q A Q A Towards their house, south direction, sir. How about Ignacio Jimenez? While Ignacio Jimenez was running towards the north direction, sir. By the way, do you know the relation between Ignacio Jimenez and Chito Jimenez? They are father and son, sir.

Q What happened next after you saw Chito Jimenez running towards their house going to southern direction and Ignacio Jimenez on the northern direction? A Billy de Leon, Dominador de Leon and Leopoldo de Leon were also running, sir.

Q To what direction were [sic] Billy de Leon, Dominador de Leon and Leopoldo de Leon proceedings when you saw them running? A They were chasing Chito Jimenez, sir, going south.

Q What happened next after you saw Billy de Leon, Dominador de Leon and Leopoldo de Leon running and chasing Chito Jimenez? A They saw Ignacio Jimenez and they accosted him, sir.

Q A

When you said they accosted him, to whom are you referring to as accosted? Ignacio Jimenez, sir.

Q After Ignacio Jimenez was accosted by the three (3) Billy de Leon, Dominador de Leon and Leopoldo de Leon, what happened next? A Q They stabbed him, sir. Do you know who among the three (3) stabbed Ignacio Jimenez?

A First, it was Billy de Leon who stabbed Ignacio Jimenez while Leopoldo de Leon held Ignacio Jimenez, sir. Q After Leopoldo de Leon held Ignacio Jimenez, what happened next?

A Then, Dominador de Leon stabbed Ignacio Jimenez on his head, sir. (Witness pointing the back top of the head). Q Will you kindly stand up, Madam witness, and demonstrate before this Honorable Court how did Leopoldo de Leon hold Ignacio Jimenez? A Like this, sir (Witness place herself behind with both arms holding the shoulder. The court interpreter represents the victim in the demonstration through the armpit). Q What happened next after Dominador de Leon stabbed Ignacio Jimenez at the back of his head? A Then, Billy de Leon kept on stabbing the victim, sir.

Q By the way, Madam Witness, you mentioned a while ago that Billy de Leon first stabbed Ignacio Jimenez, my question, what part of the body of Ignacio Jimenez was hit by Billy de Leon when he was first stabbed by Billy de Leon? A On his stomach, sir (Witness pointing to the right side of his stomach).

Q And when you said that Billy de Leon continued stabbing Ignacio Jimenez after he was stabbed by Dominador de Leon at the back of his head, what part or parts of the body of Ignacio Jimenez was hit by Billy de Leon? A Q A On the abdomen, sir. What happened next after Billy de Leon stabbed Ignacio Jimenez in the abdomen? The three (3) ran away, sir.xxvi[13]

On cross-examination, Annaluz categorically stated that: ATTY. CAMPOS By the way, who was the first one whom you saw running among the three? A Billy de Leon was ahead, sir.

COURT Followed by? A Dominador de Leon and Leopoldo de Leon, sir.

ATTY. CAMPOS As you sense they were running, they were chasing Chito Jimenez? A Q A Q A Q A Yes, sir. And they were unable to catch Chito Jimenez? No, sir. At that time when you saw Billy de Leon, he was already injured, am I correct? Not yet, sir. You did not see him to have wound on his head? None, sir?

Q Along their way, Madam Witness, the three (3), Billy de Leon, Dominador de Leon and Leopoldo de Leon, met Ignacio Jimenez who was running towards north? A Yes, sir.

Q It was at that instance the three (3) met Ignacio Jimenez when the three (3), according to you, stabbed Ignacio Jimenez? A Yes, sir.

Q When you saw Billy de Leon, Dominador de Leon and Leopoldo de Leon running and chasing Jimenez, you did not see them arm, am I correct? A They were armed, sir.

Q A Q A Q A Q A Q A Q

And who was armed, Madam Witness? The three (3) were armed, sir. And what was Billy de Leon carrying with him as a weapon? Billy de Leon was carrying a bolo about one (1) foot long, sir. How about Dominador de Leon? Bolo with the same size, sir. How about Leopoldo de Leon? Before he held Ignacio Jimenez on the shoulders, he threw his bolo, sir. Were you able to find this bolo which was thrown by Leopoldo de Leon? No more, sir. You saw where Leopoldo de Leon threw the bolo?

A At the time they ran away towards their house, they picked up the bolo and then brought with them, sir.xxvii[14] Likewise, Chito Jimenez on cross-examination declared that: ATTY. CAMPOS The moment you met your father along your way when you were running, the two (2) other accused, Leopoldo de Leon and Dominador de Leon, were not yet around? A After I met my father, then, my father met Billy de Leon and then the two (2) Dominador and Leopoldo de Leon, appeared sir. Q From what direction did these two (2) other accused, Leopoldo de Leon and Dominador de Leon, come from, Mr. Witness? A They came from their house, sir.

Q By the way, how far is the house of Leopoldo de Leon from that place where you met your father when you were running? A Just beyond the concrete fence, about fifteen (15) meters from the fence of the court building, sir.

Q And how about the house of Dominador de Leon in relation to that place where you met your father along your way when you were running? A The same distance, sir.

Q According to you, you were running so fast and you ran as fast as you could towards your house, you never look back when you were running? A I looked back, sir.

Q How could that be that you recognized these two (2) other accused, Leopoldo de Leon and Dominador de Leon, when you were running fast? A Q A Q A I stopped, sir. When you reached your house, am I correct? Yes, sir. And you stayed inside your house upon reaching your house, is that correct? I did not proceed home but I stopped besides the house of Annaluz, sir.

Q And you are now changing your testimony when you said a while ago that you stopped running upon reaching home? A Q A Q A Q A Yes, sir, is not true. The truth now is that, you where, Mr. Witness? Ten (10) meters away from the place of stabbing, sir. Why did you stop, Mr. Witness? Because Billy de Leon accosted my father and then these two (2) brothers arrived, sir. Did you really see how Billy de Leon accosted your father? Yes, sir.

Q When your father was accosted by Billy de Leon, you did not notice Leopoldo de Leon and Dominador de Leon around? A Q It was then that the two (2) arrived, sir. And the moment Billy de Leon accosted your father, he stabbed your father?

Yes, sir.

Q Comes these two (2) other accused, first, Leopoldo de Leon held the arms of your father, then Dominador de Leon whom you alleged to have also stabbed your father? A Q A Yes, sir. And when these were happening you were about ten (10) meters away from the four (4)? Yes, sir.

Q And while Ignacio Jimenez or your father was being handled by the three (3) accused, you did not do anything just watched, am I correct? A Q A Q A Q A Q A Yes, sir. I watched them because I got frightened, sir. You did not come to the aid of your father? No, sir. Neither that you called for help from other persons who were around? No, sir. But there were other persons around, am I correct? I did not notice, sir. And so, your attention was only focused on what was happening to your father? Yes, sir.xxviii[15]

In an attempt to discredit the prosecution witnesses, accused-appellants contend that their testimonies are contradictory in that while Annaluz testified that accused-appellants Leopoldo and Dominador ran with Billy in chasing Chito, prosecution witness Chito, on the other hand, declared that Leopoldo and Dominador appeared only when his father, Ignacio, was being accosted by Billy. The inconsistencies, if any, were more imaginary than real. Besides, the inconsistencies, if any, in the testimony of the prosecution witnesses refer only to minor details and collateral matters which do not affect the substance, veracity, and weight of their testimony. They even tended to strengthen rather than weakened, the credibility of the witnesses as they negate any suspicion of a rehearsed testimony.xxix[16] Furthermore, the court cannot and should not expect the testimonies of different witnesses to be completely identical and to coincide with each other for not all persons who witnessed an incident are impressed in the same manner; and it is only natural that, in relating their impressions, they might disagree on some minor details.

The credibility of the prosecution witnesses is not affected by their relationship with the deceased. The fact that witness Chito is the son of the victim while Annaluzs mother-in-law is the second cousin of the wife of the victim is of no consequence since mere relationship with the victim does not necessarily tarnish the testimony of a witness. When there is no showing of improper motive on the part of the witness in testifying against the accused, her relationship with the victim does not render her testimony less worthy of full faith and credence.xxx[17] In fact, relationship itself could even strengthen credibility in a particular case, for it is highly unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. The earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence to blame one who is innocent of the crime.xxxi[18] Likewise, as shown by the medical examination, the victim sustained nine (9) stab wounds. Dr. Arzadon who conducted the post mortem examination of the victim opined that two (2) different weapons could have caused the wounds of the victim. He testified: COURT Now, considering the two possibilities that it could be one weapon or more than two weapons, what is the greater possibility? A I could not tell, sir.

Q You could not tell despite the fact that there are different sizes as you say about the length? A Q A In my opinion, it is more than two, sir. So, the greater possibility is more than two weapons? Yes, sir.

Q Now, considering also the nature of the wounds more particularly in their sizes, is it possible that there are more than one weapon used in inflicting the injuries? A Q A It is possible, sir. Is it also possible that there is only one weapon used or not possible? It is possible, sir.

Q Considering now the two possibilities, which is more possible considering the sizes of the wounds, there are two or more kinds of weapon used or only one kind of weapon? A More than one kind of weapon, sir.xxxii[19]

Billy could not have been solely responsible for all the stab wounds sustained by the victim as the same were in all probability caused by two (2) different weapons. None of the witnesses for the defense, more particularly Mercedes de Leon, who testified that Billy was the only one responsible, declared on the witness stand that Billy used more than one weapon in stabbing the victim. On the other hand, accused-appellants defense is a bare and shallow alibi which is a weak defense. It should be rejected inasmuch as the identities of the accused, as in the case at bar, have been sufficiently and positively established by eyewitnesses to the offense.xxxiii[20] As amply observed by the trial court, there is no proof of physical impossibility for the accusedappellants to be present in the scene of the crime. Hence, in the light of the positive identification of accused-appellants, by two (2) eyewitnesses, as the perpetrators of the crime, their defense of denial and alibi cannot prosper. On the matter of conspiracy, we have consistently held that conspiracy need not be shown by direct proof of an agreement by the parties to commit the crime.xxxiv[21] It is sufficient that there is a common purpose and design, concerted action and concurrence of interests and the minds of the parties meet understandingly so as to bring about a deliberate agreement to commit the offense charged, notwithstanding the absence of a formal agreement.xxxv[22] The credible testimonies of prosecution witnesses Annaluz and Chito disclosed that after Billy accosted Ignacio, the former stabbed the latter on the stomach one or two (2) times, then Leopoldo held the arms of Ignacio; and then Dominador took his turn in stabbing the victim at the back of the head. Billy continued stabbing the victim, and then the three (3) accused-brothers left and ran away at the same time. These concurrent actions of accused Billy and accused-appellants Leopoldo and Dominador which revealed a mutual intention and determination to kill the victim, Ignacio, indicated conspiracy. We likewise affirmed the trial courts holding that the killing is qualified to murder by abuse of superior strength, accused-appellants having overpowered the unarmed victim in terms of number and weapons used. To take advantage of superior strength is to purposely use excessive force out of proportion to the means of defense available to the person attacked.xxxvi[23] Although superiority in number is not always superiority in strength, the same is decidedly true in the case at bar where all the appellants were armed. Furthermore, there was only one adversary, an unarmed man who at that time was in no position to defend himself. As aptly held by the trial court and we quote: In the case at bar, the evidence on record shows that during the stabbing accused Leopoldo de Leon held the victim while his brothers Billy and Dominador stabbed him several times in the different parts of his body. Such being the state of affairs at the time the incident happened, the combined strength of the three accused is more superior than the strength of the deceased who was much older than the accused. Verily, the stabbing is qualified by the circumstance of abuse of superior strength, hence the killing is murder as charged in the Information. Anent accused-appellants civil liability, the award of P15,000.00 as actual damages should be deleted inasmuch as there were no receipts presented to evidence the same. The award of P50,000.00 designated as compensatory damages by the trial court should be properly

denominated as civil indemnity ex delicto. This amount of indemnity is in accordance with jurisprudence and it requires no proof other than the fact of death as a result of the crime and proof of the appellants responsibility therefor. WHEREFORE, the appealed Decision dated January 30, 1997 of the Regional Trial Court of Lingayen, Pangasinan, Branch 38, in Criminal Case No. L-5499 finding appellants Leopoldo de Leon and Dominador de Leon, guilty beyond reasonable doubt of murder and sentencing them to suffer the penalty of Reclusion Perpetua is AFFIRMED with MODIFICATION that appellants are ordered to pay, jointly and severally, only the amounts of P50,000.00 as civil indemnity ex delicto and P50,000.00 as moral damages, to the heirs of the victim, Ignacio Jimenez. The award of P15,000.00, as actual damages, is deleted for lack of proof thereof. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

i[1] Rollo, p. 33.

ii[2] Id.

at 31.

iii[3] SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. iv[4] SEC. 48. General Rule. The opinion of a witness is not admissible, except as indicated in the following sections. v[5] SEC. 2. Proceedings to be recorded. The entire proceedings of a trial or hearing; including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings.5 vi[6] SEC. 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered shall be specified.

vii[7] SEC. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx (e) That evidence willfully suppressed would be adverse if produced. viii[8] Waterous Drug Corporation v. NLRC, 280 SCRA 735,745 citing People v. Laurente, 255 SCRA 543, 567 (1996); Batiquin v. Court of Appeals, 258 SCRA 334, 342 (1996) (1997); Eugenio v. Court of Appeals, 239 SCRA 207, 216 citing People v. Valero, L-45283-84, March 19, 112 SCRA 661; 3 Jones on evidence, 2nd Ed., 745. (1994). ix[9] Krohn v. Court of Appeals, 233 SCRA 146,154 (1994). x[10] San Sebastian College v. Court of Appeals, 197 SCRA 138-146 (1991). xi[11] SEC. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. xii[12] Rules of Court, Rule 130, sec.3 and 4. xiii[13] Philippine National Bank v. Court of Appeals, 256 SCRA 491, 504 (1996). xiv[1] Penned by Judge Antonio M. Belen; Rollo, pp. 21-31. xv[2] Rollo, p. 8. xvi[3] Original Records, p. 36. xvii[4] TSN dated October 9, 1996, pp. 4-10. xviii[5] TSN dated October 8, 1996, pp. 11-15. xix[6] Id., p. 22. xx[7] Now Don Teofilo Sison Memorial Hospital. xxi[8] Exhibit F. xxii[9] TSN dated October 23, 1996, pp. 9, 12. xxiii[10] TSN dated October 30, 1996, p. 6.

xxiv[11] TSN dated November 19, 1996, pp. 5-9. xxv[12] People v. Tolibas, et al., G.R. No. 103506, February 15, 2000; People v. Naguita, 313 SCRA 292, 304-305 [1999]. xxvi[13] TSN dated October 8, 1996, pp. 11-14. xxvii[14] Id., pp. 23-25. xxviii[15] TSN dated October 9, 1996, pp. 19-21. xxix[16] People v. Sanchez, 302 SCRA 21, 51 [1999]; People v. Lising, 285 SCRA 595 [1998]. xxx[17] People v. Gallo, G.R. No. 128361, November 16, 1999, p. 6. xxxi[18] People v. Rendoque, et al., G.R. No. 106282, January 20, 2000, p. 11. xxxii[19] TSN dated October 23, 1996, p. 12. xxxiii[20] People v. Grefaldia, 298 SCRA 337, 347 [1998]. xxxiv[21] People v. Sabal, G. R. No. 128158, September 7, 2000. xxxv[22] People v. Gallo, G. R. No. 128361, November 16, 1999, p. 8. xxxvi[23] People v. Maldo, 307 SCRA 424, 441; People v. Asto, 277 SCRA 697, 711 [1997].

EN BANC [G. R. No. 138264. April 20, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS ENRIQUEZ a.k.a. Rodolfo Enriquez and Bebot Enriquez, accused-appellants. DECISION
DAVIDE, JR., C.J.:

The accused-appellant Tomas Enriquez (hereafter ENRIQUEZ) was charged with the crime of murder for the violent death of Jessie Conlu (hereafter JESSIE) in Criminal Case No. 11858

before the then Court of First Instance of Iloilo City. The information filed against him on 16 November 1979 read as follows: That on or about the 13th day of October, 1979, in the City of Iloilo, Philippines, and within the jurisdiction of this Court, said accused, with deliberate intent, without justifiable motive, with a decided purpose to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and criminally stab, hit and wound Jessie Conlu with a double bladed stainless knife, with which the said accused was provided at the time, causing upon said Jessie Conlu a stab wound on a vital part of his body, which caused his instantaneous death. CONTRARY TO LAW. Iloilo City, Philippines, November 16, 1979.xxxvi[1] In an Order dated 21 November 1979xxxvi[2], the trial court issued a warrant of arrest against ENRIQUEZ and fixed a bail bond of P30,000 for his provisional liberty. The case was archived because ENRIQUEZ remained at large.xxxvi[3] Several years thereafter, or on 19 April 1991, ENRIQUEZ was arrested. In a petition for habeas corpus docketed as Special Proceeding No. 9676 and assigned to Branch 38 of the Regional Trial Court of Iloilo City, he questioned the legality of the warrant of arrest. In its decisionxxxvi[4] of 30 April 1991, said court declared illegal the arrest of ENRIQUEZ and ordered his release from detention. On 29 June 1995,xxxvi[5] an Amended Information was filed against ENRIQUEZ before the Regional Trial Court of Iloilo City. It contained essentially the same allegations as that of the original information, except that the aliases of ENRIQUEZ, namely Rodolfo Enriquez and Bebot Enriquez, were included and no bail was recommended for his temporary liberty. On 6 July 1995,xxxvi[6] ENRIQUEZ applied for bail, citing as basis therefor his admission to bail in the original information. On 16 July 1995, and pending the action on his application for bail, ENRIQUEZ was arrested.xxxvi[7] In its Order of 22 August 1995,xxxvi[8] the trial court denied the application for bail on the grounds that ENRIQUEZ was a fugitive from justice; he was convicted of several offenses; and the evidence against him was strong. ENRIQUEZ assailed the order before the Court of Appeals in a petition docketed as C.A.-G.R. SP No. 38729. In its decision of 29 February 1996,xxxvi[9] the Court of Appeals set aside the challenged order because it failed to state clearly the basis upon which ENRIQUEZs application for bail was denied. In its order of 16 April 1996,xxxvi[10] the trial court, citing as basis the facts and evidence on record, denied again the application for bail. ENRIQUEZ challenged this order in a petition he filed with the Court of Appeals which was docketed as CA-G.R. SP No. 41298. In the decisionxxxvi[11] of a Special Division, the Court of Appeals set aside the 16 April 1996 order of the trial court. Accordingly, on 24 March 1997,xxxvi[12] the trial court fixed at P60,000 the bail

bond for the provisional liberty of ENRIQUEZ. On the same date, ENRIQUEZ was released from detention after Congressman Raul Gonzales deposited in court the cash bond of P60,000.xxxvi[13] Thereafter, ENRIQUEZ sought the inhibition of Presiding Judge Jose Abdallah of Branch 39 of the trial court. Pursuant to our Resolutionxxxvi[14] of 9 December 1997, Presiding Judge Bartolome M. Fanual of Branch 25 of said court was designated to hear and decide the case. On 8 April 1998,xxxvi[15] Congressman Gonzalez withdrew the cash bond he posted for ENRIQUEZ. On 29 April 1998,xxxvi[16] ENRIQUEZ was arrested, but was again released after he posted a cash bond.xxxvi[17] After trial on the merits, the trial court rendered on 8 October 1998 a Decisionxxxvi[18] finding ENRIQUEZ guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of death and to indemnify the family of the victim in the amount of P50,000 and to pay the costs. It took into account the qualifying circumstance of treachery and the aggravating circumstance of evident premeditation. The decretal portion of the decision reads as follows: Accordingly, premises considered, the Court, finding the accused, Tomas Rodolfo Enriquez alias Bebot, guilty beyond reasonable doubt of the crime of murder and charged with the qualifying circumstance of treachery and an aggravating circumstance of evident premeditation, hereby sentences him to an extreme penalty of death as well as orders him to indemnify the family of the victim the amount of P50, 000.00 and to pay the costs. The bail bond posted for his provisional liberty is cancelled and returned to him, and that his arrest is hereby ordered for him to serve his sentence. The bail bond posted for his provisional liberty is cancelled and returned to him, and that his arrest is hereby ordered for him to serve his sentence. SO ORDERED. On 29 October 1998,xxxvi[19] ENRIQUEZ was arrested and committed to the Provincial Jail of Iloilo City. The witnesses presented by the prosecution were Dr. Tito Doromal, Rene de la Pea and Romeo Ladrillo. Dr. Tito Doromal, a Medico-Legal Officer of the Philippine National Police, testified that on 13 October 1979, he examined the dead body of a certain Jessie Conlu and prepared an Autopsy Reportxxxvi[20] describing the wound inflicted and the cause of his death and an Anatomical Sketchxxxvi[21] of the victims body. Dr. Doromal opined that the wound was inflicted by a sharp pointed, single bladed instrument, presumably a knife. The wound was fatal as it penetrated the heart of the victim causing his instantaneous death. In all probability the assailant

was facing the victim during the attack as evidenced by the stab wound on the chest bone.xxxvi[22] Rene de la Pea, a resident of Barangay Duyan-Duyan, Sta. Barbara, Iloilo City, testified that he personally knew ENRIQUEZ because they used to hang around together since 1968. ENRIQUEZ, an amateur boxer then, was the sparring partner of Renes uncle Rodolfo Tato.xxxvi[23] On 13 October 1979, Rene was working as a stevedore in ILIASCO, a company engaged in arrastre service, and was tasked to load and unload cargoes from the ships Princess of Negros and Don Vicente. ILIASCOs office was located at the corner of Blumentritt Street and Muelle Loney Street, in Iloilo City. At about 3:00 to 3:30 p.m. of 13 October 1979, Rene and his brother Christian were at the Coca-Cola plant located at the corner of Melliza Street and Muelle Loney Street. At that time, Rene was passing on the basket of tomatoes to Christian who in turn loaded the basket to the ship carrier Princess of Negros. He noticed ENRIQUEZ, then clad in maong pants and white T- shirt, walking along Melliza Street. Rene also saw JESSIE, who was wearing a white shirt with stripes, walking along Muelle Loney Street and heading towards the direction of ENRIQUEZ. Immediately thereafter, ENRIQUEZ armed with a pointed instrument wrapped with a piece of cloth, ran slowly toward JESSIE and stabbed the latter. JESSIE held his chest, vomited blood and fell to the ground. ENRIQUEZ stared at JESSIE and immediately fled. Rene saw all of these because he was standing at a distance of approximately five meters from ENRIQUEZ and JESSIE. After the incident, Rene continued to perform his work since he expected that somebody would come to aid JESSIE. A policeman by the name of Dignadice, Jr. arrived at the scene of the crime and removed JESSIEs body.xxxvi[24] Prior to that fateful day, ENRIQUEZ solicited Renes help to kill JESSIE because the latter was having an affair with ENRIQUEZs wife. Rene turned down the request.xxxvi[25] Rene did not report what he had witnessed to the police authorities. He decided to testify because his conscience bothered him, and a certain Boyboy Cordera prodded him to appear in court to testify. Boyboy had learned from Romeo Ledrillo, a co-worker of Rene at the arrastre, that Rene witnessed the incident. Lastly, Rene denied that he was offered any price or money or that he harbored a grudge against ENRIQUEZ.xxxvi[26] Romeo Ladrillo testified that sometime in 1991 he became a resident of Barangay KasingKasing, Molo, Iloilo City. He, too, became familiar with ENRIQUEZ and had known the latter under the name Rodofo Enriquez alias Bebot Enriquez. ENRIQUEZ was the barangay captain of their barangay.xxxvi[27] Such familiarity began during the time when ENRIQUEZ used to do odd jobs in Muelle Loney Street.xxxvi[28] Romeo was also familiar with JESSIE who was engaged in the business of selling fighting cocks.xxxvi[29] On 13 October 1979, Romeo was working as a foreman of Negros Navigation. At about 3:15 p.m. of that day, he was at Bong-Bongs store located across the Coca-Coca plant at Melliza Street. At a distance of four to five meters, he saw JESSIE walking alongside the Coca-Cola plant. Likewise, Romeo noticed ENRIQUEZ moved near JESSIE and stabbed the latter on the

chest with something in his hand covered by a white cloth. Thereafter, JESSIE spurted blood and fell flat on the ground. ENRIQUEZ ran away.xxxvi[30] Romeo left the scene immediately after the policemen arrived.xxxvi[31] Romeo further declared that Rene de la Pea was also present at the scene and witnessed the incident.xxxvi[32] Romeo also corroborated the testimony of Rene regarding the plan of ENRIQUEZ to kill JESSIE.xxxvi[33] Lastly, Romeo declared that he testified because of his concern for the truth and his conscience bothered him. Through the prodding of Ulysses Corvera, a resident of Barangay Kasing-Kasing, Molo, Iloilo City, Romeo revealed what he knew about the incident to a certain Fiscal Castrojas.xxxvi[34] The defense presented as its witnesses Wilfredo Altamia, Christian de la Pea, and ENRIQUEZ. Wilfredo Altamia, a resident of Tabucan, Mandurriao, Iloilo City, testified that in 1966 he was a great fan of ENRIQUEZ, who was then a singer in the local radio. Sometime in 1978, he joined ENRIQUEZ as vocalist of the Dazzers Orchestra, a musical band owned by Henrietta Jayme. On 13 October 1979, the band was contracted to perform in Maayon, in the Province of Capiz. At about 10:00 to 11:30 a.m. of that day, the members of the band consisting of about 15 members, including ENRIQUEZ, rode on a truck from Lapaz, Iloilo City for Maayon. They arrived in Maayon at about 3:00 to 4:00 p.m. of the same day. Their musical engagement in Maayon started at 8:00 p.m. of 13 October 1979, and they performed until 2:00 a.m. of the following day, 14 October 1979. Wilfredo asserted that ENRIQUEZ was with them from the time they left Iloilo City until the end of their performance in Maayon.xxxvi[35] Thereafter, the group returned to Iloilo City and arrived thereat at around 8:00 a.m. of 14 October 1979.xxxvi[36] Wilfredo further declared that he and ENRIQUEZ left the Dazzers Orchestra in 1983 and 1981, respectively.xxxvi[37] It was only on 2 June 1998 that he learned about the criminal indictment against ENRIQUEZ.xxxvi[38] Christian de la Pea, also a resident of Barangay Kasing-Kasing, Molo, Iloilo City, testified that he became acquainted with ENRIQUEZ sometime in 1992.xxxvi[39] He worked from 1977 up to 1980 as a stevedore of ILIASCO. He was not aware of any untoward incident that transpired on 13 October 1979; and opined that during those times, stabbing, shooting or robbery was an ordinary occurrence in view of the proliferation of gang wars in the place.xxxvi[40] Lastly, Christian declared that he was not familiar with JESSIE not until 1 June 1998 when a certain Atty. Padojinog showed him a document proving that his brother-in-law Romeo and his brother Rene testified in court on the death of JESSIE.xxxvi[41] ENRIQUEZ testified that in 1965 he became a resident of Barangay Kasing-Kasing, Molo, Iloilo City, and that he held the position of a barangay captain of the barangay since 1989. ENRIQUEZ admitted that he was christened as Tomas Rodolfo Enriquez, although he was also identified as Tomas Bebot Enriquez or Rodolfo Bebot Enriquez. He denied having been

acquainted with JESSIE and claimed that he became familiar with such name only in 1992 when a warrant of arrest was issued against him. ENRIQUEZ theorized that the present case was politically motivated. He cited the presence in court of Ulysses Colvera, his political rival in the 1997 election, and that he was arrested in 1992 by a certain Mayor Ganzon. To further show his innocence and lack of knowledge of the circumstances surrounding JESSIEs death, ENRIQUEZ declared that he learned about the charge against him only in 1992. Prior to said date, he was not investigated by the police authorities relative to the crime he allegedly committed.xxxvi[42] ENRIQUEZ further declared that he was a member of Dazzers Orchestra. On 13 October 1979, he and the members of the band left Iloilo City for a singing engagement in Maayon, Capiz. They returned to Iloilo City the following day and arrived thereat at about 8:00 a.m.xxxvi[43] The trial courts judgment of conviction was primarily based on the testimonial account of Rene de la Pea and Romeo Ladrillo who both witnessed the commission of the crime from a distance of about four to five meters and positively identified ENRIQUEZ as the assailant. The crime was perpetrated in broad daylight, in full view of and within the range of vision of Rene and Romeo who were ENRIQUEZ co-workers and long-time acquaintances. In view of these, the defense of denial and alibi interposed by ENRIQUEZ has no leg to stand on.xxxvi[44] The trial court further observed that there was no showing of a personal hostility between ENRIQUEZ and the prosecution witnesses to raise doubt on the trustworthiness of the latters testimony. It struck down for lack of merit ENRIQUEZ claim that his political enemies instigated the charge against him. There was no intimation that Rene and Romeo were influenced by a political ambition neither was there a showing that a promise or reward was offered to them. The trial court also ruled that ENRIQUEZ cannot make much of the fact of delay in the prosecution of this case. While indeed the crime was perpetrated in 1979, the evidence on record shows that it was only in 1992 when ENRIQUEZ was arrested. The prosecution of the case was further delayed when, by means of a petition for habeas corpus, ENRIQUEZ successfully challenged the validity of his arrest alleging that he was not the Tomas Enriquez referred to in the warrant of arrest. The trial court appreciated against ENRIQUEZ the qualifying circumstance of treachery. To justify the imposition of the death penalty, the trial court appreciated the generic aggravating circumstance of evident premeditation, which was not offset by any mitigating circumstance. The finding of treachery was based on the swiftness of the attack on a victim who was unsuspecting, unarmed and was not in a position to retaliate.xxxvi[45] As to evident premeditation, it considered the testimony of Rene and Romeo that a few days prior to the incident ENRIQUEZ revealed to the former the latters intention to kill JESSIE. The case is now before us for automatic review of the judgment pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of R.A. 7659. In his Appellants Brief ENRIQUEZ alleges that the court a quo erred in finding that:

I THE TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION ARE CREDIBLE AND DESERVING OF CREDENCE. II THE INSINUATION THAT POLITICS MAY HAVE PROMPTED THE WITNESSES TO TESTIFY AGAINST THE ACCUSED DOES NOT HAVE SUPPORT OF SATISFACTORY PROOF. III THE PRESENCE OF QUALIFYING CIRCUMSTANCE OF TREACHERY AND EVIDENT PREMEDITATION WAS DULY PROVEN. and that it committed grave or serious error in: IV CONVICTING THE ACCUSED OF DEATH PENALTY. V NOT CONSIDERING THE INORDINATE DELAY IN THE TRIAL OF THE CASE IN VIOLATION OF THE CONSTITUTION OF THE PHILIPPINES ON SPEEDY DISPOSITION OF THE CASE. ENRIQUEZ attacks the credibility of the prosecution witnesses particularly Rene de la Pea and Romeo Ladrillo. He harps on the alleged material inconsistencies and contradictory statements of Rene and Romeo. On direct examination Rene declared that at the time of the stabbing incident he was hanging around near the premises of the old site of Coca-Cola plant when the stabbing incident happened because they went there after finishing their work as the ferry boat left.xxxvi[46] However, in the cross-examination, Rene was clear enough in saying that he was actually busy with his job putting the basket of tomatoes to the shoulder of his brother Christian de la Pea the one loading it to the ship,xxxvi[47] at the time of the incident. It was also incredible to believe that Rene would voluntarily testify because of an alleged guilty conscience. Rene, who was not related to the victim, cannot be more interested than JESSIEs wife who had expressed disinterest in the prosecution of the instant case. Further eroding the truthfulness of Renes testimony were the following: (1) he failed to make an accurate account for the reason of the delay in the departure of the ship; (2) he had known Boyboy Cordera only on 11 June 1996, when in truth and in fact he had been visiting the residence of his parents in Molo, Iloilo City, which was also the place where Boyboy resided; (3) it was physically impossible for Rene to have observed the happening of the incident and at the same time witnessed the activity of

ENRIQUEZ and of the victim; and (4) he was not consistent in his declaration that after the incident until July 1995 he had not met and talked with ENRIQUEZ. ENRIQUEZ further alleges that there were material inconsistencies between the testimonies of Rene and Romeo in that: (1) according to Romeo the crime happened by the side of the old Coca-Cola plant while Rene declared that it happened across the street of the old Coca-Cola plantxxxvi[48]; (2) since Rene and Romeo were situated at different locations, it was not possible that they would witness the stabbing incident at the same distance; (3) they were unable to establish with certainty whether Christian de la Pea was present at the scene of the crime; (4) they differed in their testimony on the behavior of ENRIQUEZ after the stabbing incident; and (5) both gave a different version as to the exact number of policemen who arrived at the scene of the crime. ENRIQUEZ considers as improbable the similarity in the declaration of Rene and Romeo regarding the circumstances surrounding the incident. The similar pattern of describing the incident strongly suggests that they were rehearsed and were, therefore, unreliable witnesses. That the witnesses exhibited extraordinary mental ability for remembering every detail of the incident does not coincide with the reality taking into account their lowly position as mere porters. It was also unusual that Romeo and Rene did not reveal to anybody what they had witnessed on that fateful day. In support of the second assigned error, ENRIQUEZ theorizes that the instant case is politically motivated. He capitalizes on the following facts: (1) he was a candidate for the position of and had been elected as barangay captain of Barangay Kasing-Kasing, Molo, Iloilo City; (2) the witnesses for the prosecution Rene and Romeo came out in the open to testify on an incident that occurred sixteen years ago; and (3) Mr. Colvera and a certain Tony, who were both known as his political rivals in the barangay election, orchestrated the move to induce Rene and Romeo to testify against him. As to the third assigned error, ENRIQUEZ asserts that the evidence of the prosecution on the issue of treachery and evident premeditation was controverted by the following facts: (1) ENRIQUEZ ran towards the victim which necessarily put the latter on guard of the latters harmful intention; (2) if indeed the knife used to kill the victim was wrapped in a cloth, then the weapon could not have deeply penetrated the victims body; (3) the attack on the victim was frontal; and (4) the crime was perpetrated within the view of many people. Anent the fourth assigned error, ENRIQUEZ claims that there was no basis for the trial courts imposition of the penalty of death since the crime was committed in 1979. The death penalty may be imposed only during the operation of the 1987 Constitution and R.A. No. 7659 and not before the enactment of the latter. The trial courts imposition of the death penalty violated the constitutional proscription on the operation of ex post facto law. Finally, in support of the last assigned error, ENRIQUEZ invokes Section 16 of Article III of the 1987 Constitution on speedy trial. A violation of his right to a speedy disposition of the case entitles him to a dismissal thereof, which is equivalent to an acquittal on the merits.

In the Appellees Brief, the Office of the Solicitor General (OSG), prays for the affirmance of the trial courts judgment of conviction with the modification that the penalty imposed should be lowered to reclusion perpetua. It argued that the assailed inconsistencies in the testimony of the prosecution witnesses do not refer to material points. The lack of symmetry or exact identity in their testimony served to augment rather than dilute the trustworthiness of their testimony.xxxvi[49] The alleged discrepancies were insufficient to outweigh the categorical statement of the witnesses for the prosecution on the commission of the crime by ENRIQUEZ. Furthermore, it was not incredible that a witness, who only wanted the dispensation of justice, would voluntarily testify about a crime which happened sixteen years back. There was also insufficient evidence showing that the opponents of ENRIQUEZ in politics had induced the witnesses of the prosecution to falsely testify against him. Moreover, the Appellee was not responsible for the delay in the prosecution of this case and did not violate the right of ENRIQUEZ to speedy trial. ENRIQUEZ was arrested only on 19 April 1991 and shortly thereafter he filed a petition for habeas corpus which paved the way for his release from detention. He was re-arrested in 1995 only. The Appellee asserts that there was enough evidence on the record to support the finding of the trial court on treachery. The attack was sudden and unexpected and the victim was caught unaware on the danger to his life.xxxvi[50] As to evident premeditation, ENRIQUEZ had contrived to kill the victim three days before the incident. However, the OSG submits that the trial court erred in imposing the death penalty since the crime was committed at the time when under the 1987 Constitution the penalty of death was abolished. The Death Penalty Law, R.A. 7659, cannot be applied to the instant case since it would be unfavorable to the accused.xxxvi[51] We shall resolve the first and the second assigned errors since they both pertain to the issue of credibility. It is doctrinally settled that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observe their deportment and manner of testifying during trial. This rule admits of exceptions, such as when the evaluation was reached arbitrarily or when the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which could affect the result of the case.xxxvi[52] Unfortunately, ENRIQUEZ has failed to show the presence of any of these exceptions. The conviction of ENRIQUEZ was primarily based on the positive and categorical account of prosecution witnesses Rene de la Pea and Romeo Ladrillo. Their identification of ENRIQUEZ as the assailant was forthright and clear. We affirm the trial courts dissertation on this issue: That the identity of the accused as the person who stabbed and killed the victim, Jessie Conlu, has been properly established by eye-witnesses Rene de la Pea and Romeo Ladrillo. The stabbing incident took place at past 3 oclock in the afternoon of October 13, 1979 in Melliza Street near Muelle Loney, Iloilo City. The two witnesses were just some four (4) to five (5) meters away from the scene when the accused, upon approaching the victim stabbed him

(victim). There is no reason to doubt the identification made by them of the accused, the accused being their co-resident in Barangay Kasing-kasing, Molo, Iloilo City, having known him, for many years back, that is even as early as 1967 or 1968 and that the incident occurred in broad daylight with nothing to impede or obstruct their view. That the testimonies of these witnesses are credible and deserving of credence for they were not shown to have been motivated by any grudge, ill-will or misunderstanding in testifying against the accused. As held in People vs. Villagracia, 219 SCRA 212, in the absence of ill-will, it is hardly credible that witnesses would prevaricate and cause damnation to one who brought them no harm or injury. There is also good person (sic) to believe these witnesses to have actually seen the stabbing incident considering the fact that said incident occurred right near the immediate premises of their place of work where they have the right or supposed to be.xxxvi[53] ENRIQUEZs argument on the alleged inconsistencies in the testimony of the prosecution witnesses does not persuade us. A careful scrutiny of the transcript of stenographic notes of the testimonies of Rene de la Pea and Romeo Ladrillo shows that they gave a clear and affirmative full account of what actually transpired on the fateful day of 13 October 1979. Their separate story agree on material points, specifically on the identity of ENRIQUEZ as the culprit, the manner by which he perpetuated the crime, the motive behind the killing, and the date the crime was committed. The inconsistencies were on minor matters and were trivial and unimportant. Settled is the rule that minor inconsistencies doe not affect the credibility of a witness; on the contrary, they may be considered badges of veracity or manifestations of truthfulness on material points and they may even heighten the credibility of the witness.xxxvi[54] Further, ENRIQUEZ can not make much of his claim that it was unclear from the testimony of Rene as to what exactly was he doing at the time of the occurrence of the incident. It is clear on the record that Rene was passing the basket of tomatoes to his brother Christian de la Pea, and was explicit in saying that he noticed ENRIQUEZ pass by in front of him and at a distance of about five meters ENRIQUEZ Approach and stab JESSIE.xxxvi[55] Renes declaration that he was hanging around the premises has reference to the time after he had finished his work in the arrastre and not during the time of the incident. As to the failure of Rene and Romeo to report to the police authorities ENRIQUEZs identity immediately after the commission of the crime, we need only stress that such was not entirely against human experience. We are not unaware of the natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in this case.xxxvi[56] The fact that Rene and Romeo were unschooled and illiterate does not diminish the trustworthiness of their testimony. The virtue of truthfulness is not a monopoly of the old, the rich, and the learned -- truth can come from the mouths of a child and the lips of the poor, the simple and the unlettered.xxxvi[57] We find no factual basis for the claims of ENRIQUEZ that the instant case was maneuvered by his political adversaries. We approve the finding of the trial court, viz:

The insinuation that politics may have caused or prompted the witnesses to testify against him as he, being the barangay captain of Barangay Kasing-kasing, Molo, was or is the object of envy or hatred by his political opponents does not have the support of any satisfactory proof, the fact being that these witnesses were not shown to have been engaged or involved in politics and much less has it been shown that they were merely induced for a fee or promise of reward to testify against the accused.xxxvi[58] The defense of alibi interposed by ENRIQUEZ cannot stand in view of his positive testimony of Rene de la Pea and Romeo Ladrillo that he, ENRIQUEZ, was the one who stabbed and killed JESSIE. We have time and again ruled that alibi is the weakest of all defenses for it is easy to fabricate and difficult to prove; it can not prevail over the positive identification of the accused by the witnesses.xxxvi[59] We are in full agreement with the trial courts finding that the killing was committed with the qualifying circumstance of treachery, hence, the crime committed is murder. There is treachery when the offender commits any of the crime against the person, employing means, methods, or forms in the execution thereof which tend directly to insure its execution, without risk to himself arising from the defense which the offended party might make.xxxvi[60] For treachery to be appreciated two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted.xxxvi[61] In this case, the foregoing requirements of treachery was adequately established and we adopt the trial courts finding thereon, to wit: The fact as testified to by the witnesses shows that the assault was unprovoked. There was no exchange of words between the victim and the accused at anytime before the actual attack, that the accused, upon approaching and coming near his unarmed victim, immediately stabbed him with something covered by a white cloth, something which turned out to be a knife, which caused the victim to fall, vomit blood and almost instantaneous death. There is no question that the attack although frontal, was unexpected and sudden, and that the victim was unarmed. xxx The unexpectedness (sic) and suddenness of the attack coupled by the fact that the accused concealed his weapon with a cloth as he approached and until he finally delivered a fatal stab blow on the thoraco-abdominal region of his victim which did not only penetrate and perforate the thoracic cavity and mid-anterior pericardial sac but the mid-upper 3rd of the right ventricle of the heart as well clearly characterize the assault as treacherous. This manner of assault positively points to the fact that the accused consciously and deliberately employed a form of attack to ensure the consummation of his objective with certainty.xxxvi[62] As regards evident premeditation, the following requisites must be proved before it may be appreciated: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused has clung to his determination; and (3) sufficient lapse of time

between such determination and execution to allow him to reflect upon the consequences of his act.xxxvi[63] While the first and third requisites may have been proven by the fact that a few days prior to the incident, ENRIQUEZ told Rene and Romeo that he wanted to kill JESSIE because of the latters alleged illicit relationship with him, ENRIQUEZs wife, no convincing evidence was offered to prove how ENRIQUEZ planned and prepared to kill JESSIE to show that he had clung to his determination. We cannot also agree with the trial courts imposition of the death penalty. The crime was committed on 13 October 1979 at a time when the imposable penalty for murder was reclusion temporal in its maximum period to death. Since there was neither aggravating nor mitigating circumstance attending the commission of the crime, the penalty should be imposed in its medium period,xxxvi[64] that is, reclusion perpetua. Besides, it was committed at the time when the imposition of the death penalty was suspended pursuant to Section 19(1) of Article III of the Constitution. The death penalty was restored by R.A. No. 7659,xxxvi[65] which took effect on 31 December 1993.xxxvi[66] Finally, the right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable length of time.xxxvi[67] We find that the constitutional right of ENRIQUEZ to a speedy trial was not impaired since the delay in the prosecution of the instant case cannot be characterized as unreasonable, vexatious and oppressive and not one without the participation or fault of the accused. Notably, the trial began only on 13 July 1995 or more than a decade after the filing of the original information on 16 November 1979. However, it was evident on the record that the accused left for Manila68 immediately after the filing of the criminal indictment presumably to evade the strong arm of the law. ENRIQUEZ was arrested only sometime in 1991 but the trial of the case was further delayed by the habeas corpus proceeding69 that he initiated. In the final analysis, ENRIQUEZ cannot attribute the delay to anyone else but himself. WHEREFORE, the decision of 8 October 1998 rendered by the Regional Trial Court of Iloilo City, Branch 25, in Criminal Case No. 11858 finding accused-appellant TOMAS ENRIQUEZ guilty beyond reasonable doubt as principal of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, as amended, is hereby AFFIRMED with the modification that the penalty is reduced from death to reclusion perpetua. The rest of the judgment stands. No pronouncement as to costs. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, GonzagaReyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. Pardo, J., on sick leave.

FIRST DIVISION [G.R. No. 136304. January 25, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER RAMA, accused-appellant. DECISION PUNO, J.: The birth of the New Year in 1998 saw the loss of Roger and Eufemia Cabiguin's infant child, Joyce Ann Cabiguin. For her loss, an information was filed against the accused Roger Rama, viz: "That on or about the 1st day of January, 1998, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ROGER RAMA, did then and there, wilfully, unlawfully and feloniously kidnap JOYCE ANN CABIGUIN, a minor, one (1) year and six (6) months old. Contrary to Article 267, par. 4 of the Revised Penal Code."xxxvi[1] The prosecution's story was gathered mainly from the testimony of five-year old Roxanne Cabiguin, a cousin of Joyce Ann. On January 1, 1998, Roxanne, her sister Rose Ann, Mama Weng, Uncle Dony, grandmother Diana, Joyce Ann and the latter's younger brother Pogi were at the Dagupan public plaza. Roxanne played with her Uncle Dony, Rose Ann, and Joyce Ann at the plaza's stage while her Mama Weng sat at the side of the stage, feeding Pogi. Mama Diana went to a store to buy some food. At that time, the accused Rama and another man were also at the plaza. Rama called Roxanne and told her that if she would bring the beautiful girl (referring to Joyce Ann) to him, he would give Roxanne a biscuit. Rama gave her one biscuit. She ate it. She then carried Joyce Ann to the accused Rama who ran away with little Joyce Ann. Roxanne told her Mama Weng and Mama Diana that Joyce Ann was taken by a man. They looked for Joyce Ann and the man but they were nowhere to be found. During her testimony, Roxanne pointed to the accused Rama as the man who took away Joyce Ann.xxxvi[2]

Roxanne's testimony was corroborated by Pierre Torio. On January 1, 1998, he was with his cousin and niece at the Dagupan City plaza from about 1:15 p.m. to 4:30 p.m. Facing the stage, they sat on a bench to its right. They were about nine to ten meters away from the stage. There were about seven children playing on the stage. At about 1:30 p.m. to 2:00 p.m., the accused Rama entered the plaza and sat about five to six meters away from them. He was with two other men and a pregnant woman. He entered the plaza playground where many kids were playing. He stared at the children and looked confused, then came out seemingly not knowing what to do, and approached the stage. But before he could reach the stage, he returned to the playground. Subsequently, at about 2:45 p.m., a tall man asked Torio if he saw the missing Joyce Ann. He replied that he saw the accused Rama acting suspiciously in the plaza. He did not see though whether Rama took Joyce Ann. By this time, Rama was nowhere in sight.xxxvi[3] On January 7, 1998, Torio's cousin called him up to go to the Dagupan City police station because the person who took Joyce Ann was there. He was asked to identify the man he saw acting suspiciously at the playground. The police pointed successively to the men sitting at the police station and each time asked Torio if that was the suspicious-acting man. He replied in the negative. When the police pointed the accused Rama, Torio confirmed that he was the man acting suspiciously. He gave a sworn statement narrating what he saw on January 1, 1998 at the Dagupan plaza playground. On the witness stand, Torio pointed to the accused Rama as the man who acted suspiciously at the playground. He affirmed that he could not be mistaken because the accused Rama sat only about five to six meters away from him.xxxvi[4] Diana Laviste Cabiguin, paternal grandmother of Joyce Ann, also testified. Along with Joyce Ann and other relatives, she went to the Dagupan plaza on January 1, 1998. At the time Joyce Ann disappeared, Diana went to McDonald's to buy some snacks. When she went back to her relatives, Joyce Ann was already gone. One of the children playing in the plaza playground, Bryan Ocampo, informed Diana's group that Joyce Anne was taken by a man. They searched in vain for the missing Joyce Ann. Two days later, or on January 3, 1998, after receiving tips from the townspeople, Diana went to Binmaley, Pangasinan, the vicinity where the accused lived. She was with a certain Elvira Sebastian, some policemen, and three children at the plaza playing with Joyce Ann on January 1, 1998, namely: thirteen-year old Bryan Ocampo, eleven-year old Benjamin Sarmiento, and Jesus Ulanday. When the group reached the house of the accused Rama, they found the latter and his wife and their children sleeping. They were permitted by the accused Rama to examine the premises of his house and to look for the missing Joyce Anne. Their search was fruitless but all three kids pointed to the accused Rama as the kidnapper. Jesus even urinated upon seeing the accused Rama because the latter spanked him when he (Jesus) ran after Rama as the latter took away Joyce Ann. Rama threatened Jesus not to follow him or else he (Rama) would throw a stone at him. On January 5 or 6, 1998, Diana, Bryan, Benjamin, and Jesus went again to Binmaley. All three children pointed again to the accused Rama as the man who took Joyce Anne. The three children did not, however, take the witness stand. Bryan's parents were at first willing to let Bryan testify, but after Rama's wife talked to them, they changed their mind. Benjamin's father was at first also willing to let his child testify but later on had a change of heart for fear of their safety.xxxvi[5]

Elvira Sebastian corroborated Diana Laviste's testimony. She testified that on the night of January 1, 1998, Diana, along with some policemen and three children who witnessed the taking of Joyce Ann, one of whom was a certain Bryan, went to her house because the first suspect was her uncle, Eduardo Sebastian. The children were asked if Eduardo was the kidnapper, but they answered in the negative. Diana asked Elvira's assistance to find the kidnapper. The following day, or on January 2, 1998, at about 9:00 a.m., Diana went back to Elvira's house. Elvira, Diana, Bryan, Benjamin, and Jesus asked around about the missing Joyce Anne. Elvira learned from the former manager of the fish business where the accused Rama worked that there were other instances of kidnapping in the market place. She (the manager) informed Elvira that on January 1, 1998, she saw the accused Rama with a child. The manager told Elvira that the latter might be familiar with Rama's face because he was pushing carts of fish for a living and these cart pushers would usually buy doughnuts from the store of Elvira's father. Elvira stayed behind to wait for the accused Rama at the manager's store. The rest of Diana's group went to the National Bureau of Investigation. After an hour's wait in vain, Elvira left. She returned the following day, but again, the accused Rama did not show up. On January 3, 1998, Elvira went with Diana, Bryan, Benjamin, Jesus, Roger (father of Joyce Ann), and some policemen to Rama's house. The children pointed to the accused Rama as the culprit. One of the children whom the accused Rama spanked at the park during the taking of Joyce Ann even urinated out of fright when he saw the accused. Despite the identification made by the children, the policemen did not arrest Rama. This prompted Diana to go to the Philippine National Police - Criminal Investigation and Detection Group (PNP-CIDG) in Dagupan City for the arrest of the accused Rama. The following day, she and the children went to the Magsaysay market beside Mele's restaurant and saw again the accused Rama. The children again pointed to the accused as the man behind Joyce Ann's taking. Rama threatened them not to implicate him or he would kill them. The group left the place. She executed an affidavit narrating the foregoing incidents.xxxvi[6] SPO3 Teofilo Ubando, investigator at the PNP-CIDG in Dagupan City, also took the witness stand. He testified that on January 6, 1998, Roger and his wife, Eufemia, went to the CIDG office. They reported to Ubando that the accused Rama kidnapped their daughter, Joyce Ann. Bryan and Benjamin who witnessed the accused Rama take Joyce Ann, also went to the CIDG office. The two children informed Ubando where the accused Rama lived. Eufemia, Ubando, Bryan, Benjamin, and other policemen went to Rama's house in Binmaley, Pangasinan, while Roger was left in the office. They brought with them a letter signed by Police Senior Inspector Rodolfo S. Azurin, Jr., Deputy Provincial Field Officer, inviting the accused Rama to immediately appear before the CIDG in relation to the kidnapping of Joyce Ann.xxxvi[7] Upon reaching Rama's house, the group did not find him there. His wife told them that he was in Mele's restaurant. Together with Rama's wife, the group proceeded to Mele's restaurant. At about 4:30 p.m., Rama arrived. The police presented to him the letter signed by Azurin and invited him to go to their office. The accused Rama obliged. His wife went with him. When the group arrived in the CIDG office, Rama signed the letter inviting him to the police station.

The following day, or on January 7, 1998, the police presented the accused Rama and four other persons from their office in a police line-up. Benjamin and Bryan, and three other witnesses, Rose Anne Cabiguin, Jesus Cabiguin, and Andrew Cabiguin, all pointed to the accused Rama as the man who took Joyce Ann. Pictures were taken of Benjamin and Bryan, and Jesus Ulanday pointing to the accused Rama as the man who took away Joyce Ann.xxxvi[8] Sgt. Moyano and Sgt. Niro took the affidavits of Benjamin and Bryan. Roger Cabiguin's statement was also taken.xxxvi[9] The accused Rama testified. From 1975 up to 1998, he was a cart pusher at the Magsaysay market in Dagupan City. He would go to work at about 6:30 p.m. and go home at about 9:00 the following morning. Fish vendors would usually hire him to carry their goods in his cart. On January 1, 1998, he was at home in Binmaley, Pangasinan, the whole day. He fetched water, helped his wife wash clothes, and took care of his youngest daughter. At 1:00 p.m. to 5:00 p.m., he went to sleep. He did not go to work in the evening as his customers usually did not sell fish on New Year's Day. The next day, he again stayed in the house. At 6:30 in the evening, he went to work and went home the following morning at 9:00. On January 3, 1998, he went to work as usual. Upon arriving home the next morning, his wife told him that at about 11:00 p.m. the previous night, some policemen went to their house looking for something. On January 4, 1998, at about 11:00 in the evening, two policemen went to his house looking for a baby. They were with an old woman whom Rama later on identified in the courtroom as Diana Laviste, a man, Bryan and Benjamin. He let the group in. They did not find the baby they were looking for. The two children stated that he (Rama) was not the man who took the missing Joyce Ann. On January 5, 1998, Rama again went to work until 9:00 a.m. He arrived home at about 10:30 a.m. and stayed there until 12:00 noon. He went to the city and watched a movie from 1:00 p.m. to 4:00 p.m. He then proceeded to the Magsaysay market to get his cart. Thereupon, a CIDG member approached him and asked him to go with his group because they were going to ask him some questions. He was asked where he brought the missing Joyce Ann, but he denied taking the child. When he arrived at the CIDG office in Tapuac, the CIDG members asked him to join a police line-up. Bryan and Benjamin were then brought out and they pointed to the accused and said "It's him." At the latter part of his testimony, however, the accused Rama testified that the children said, "It's not him." When shown Exhibit B-1, a picture of two children pointing to him, the accused confirmed that the two children were Bryan and Benjamin. Another unidentified child pointed to the accused Rama. Roxanne who later on testified in court also pointed to him at the line-up. These children were not assisted when they identified him at the police line-up. After investigation, Rama was asked to stay in the CIDG detachment from January 6 to 9, 1998, then he was transferred to Bonuan, then he was again brought back to the CIDG office. Rama testified that he did not know of any reason why Diana Laviste and Roger Cabiguin filed a case against him, why Bryan and Benjamin identified him as the culprit during the police line-up, and why Roxanne identified him in court as the man who took Joyce Ann. He also did not have any grudge against Pierre Torio.xxxvi[10] Violeta Cayabyab also testified in defense of the accused Rama. She was Rama's neighbor in Binmaley, Pangasinan. She testified that on January 1, 1998, the accused Rama was in his house the whole day. On cross-examination, however, she testified that as a vegetable vendor, she

would leave Binmaley at dawn and purchase her vegetables in Dagupan at about 3:00 a.m everyday. She would then sell her vegetables in the morning and go home at about 11:00 a.m. She also testified that the accused Rama's family and her family are good neighbors. They consider each other as part of the family. Between the accused Rama and the private complainant, she admitted that she would side with Rama.xxxvi[11] Edilberto Aguada took the witness stand. He is a canteen owner and the person from whom the accused Rama had been getting his cart for two years. On January 1, 1998, the accused Rama reported for work in the evening. He also worked in the evening of January 2, 1998. On crossexamination, however, he admitted that he did not see the accused Rama until evening on January 1, 1998. The same was true of January 2, 1998. He admitted that he did not know what the accused Rama did on those days.xxxvi[12] SPO4 Reynaldo de Vera of the Dagupan City Police Station also testified. On January 1, 1998, Diana Laviste reported the kidnapping of Joyce Ann Cabiguin. On January 4, 1998, Diana, along with Roger, went back to the police station and informed them that the children who were witnesses to the kidnapping of Joyce Ann lived in Pantal. De Vera, SPO2 Cesar Calimag, Diana, and Roger went to Pantal to pick up the children. The group then went to the house of the accused Rama in Gayaman, Binmaley. When they saw the accused Rama in his house and the two children were asked if he was the man who took away Joyce Ann, they answered that he was not the one. The police asked the children to further examine the face of the accused Rama, but the children confirmed that it was not him. The group then left the house and proceeded back to the police station. De Vera did not make any written record of the identification process. The police likewise no longer followed up the case of the missing Joyce Ann.xxxvi[13] The trial court gave credence to the prosecution's story. It convicted the accused Rama, viz: "WHEREFORE, the accused is hereby found guilty beyond reasonable doubt of the offense charged as defined and penalized by Article 267 of the Revised Penal Code, as amended by R.A. No. 7659, and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the parents of the victim the amount of P100,000.00 as moral damages and another amount of P20,000.00 as temperate or moderate damages. Considering that reclusion perpetua shall be from twenty years and one day to forty years (Art. 27, RA 7659), the period within which he has been placed under detention shall be deducted from his sentence."xxxvi[14] Hence this appeal by the accused Rama on the following grounds: I. THE TRIAL COURT GRAVELY ERRED IN NOT DISMISSING THE CASE DESPITE SEVERAL INSTANCES WHEREIN THE PROSECUTION WAS NOT ABLE TO PRESENT OR CONTINUE THE PRESENTATION OF ITS EVIDENCE. II.

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING. We first deal with the issue of the prosecution's repeated failure to present evidence. On April 20, 1998, due to the absence of the public prosecutor, the lower court issued an order resetting the hearing to April 30 and May 4, 1998 with a warning to the prosecution that if it fails to present its witness without any reason, the case would be dismissed.xxxvi[15] The hearing scheduled on April 30, 1998, was, however, cancelled because the judge was on leave. On May 4, 1998, the prosecution witness did not appear. The court gave the prosecution another chance to present its witnesses on May 12, 1998 with a second warning that should the prosecution again fail to do so, the case would be dismissed. On May 12, 1998, the public prosecutor handling the instant case was absent due to sickness. Another public prosecutor appeared before the court and informed the judge that she was not certain whether the private complainant and other witnesses were notified of the hearing. The substitute prosecutor prayed for a three-day postponement in order to contact the private complainant and promised that should the prosecution fail to present witnesses at such time, the prosecution would not object to a provisional dismissal of the case. Against the vehement objection of the defense, the court granted the prosecution a last chance to present its witnesses on May 15, 1998 and gave a final warning that should the prosecution fail to do so, the case would be dismissed. On May 15, 1998, the prosecution presented its witness. The defense contends that the delays caused by the prosecution violated his right to speedy trial. The court therefore committed grave abuse of discretion in not dismissing the instant case. The accused's contention is bereft of merit. While the Court recognizes the accused's right to speedy trial and adheres to a policy of speedy administration of justice, we cannot deprive the State of a reasonable opportunity to fairly prosecute criminals. Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy trial.xxxvi[16] The prosecution failed to justify the absence of the prosecutor from the hearing on April 20, 1998. Nor was it able to offer an explanation for the failure of the witness to appear on May 4, 1998. On May 12, 1998, the public prosecutor was again absent due to sickness and it was not ascertained whether the prosecution witness was notified of the scheduled hearing. Three days thenceforth, however, the prosecution presented its witness. In determining whether the accused's right to speedy trial was violated, the delay demonstrated above should be considered in view of the entirety of the proceedings. The following provisions of the Revised Rules of Criminal Procedure (the "Revised Rules") which became effective last December 1, 2000, are apropos: "Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be entitled to the following rights: (h) To have speedy, impartial and public trial."

"Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable length of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court." The Information for the instant case was filed on February 3, 1998. The prosecution presented its witnesses from March 4, 1998 to May 26, 1998. The defense, on the other hand, presented its witnesses from August 4, 1998 to September 15, 1998. The trial court rendered its decision on September 28, 1998. We can compute from the above dates that the trial was completed in 195 days or from March 4, 1998 to September 15, 1998. However, while the Revised Rules provide that the entire trial period shall not exceed one hundred eighty (180) days, delays caused by the accused himself or his counsel should logically be excluded from this period. The records show that on March 4, 1998, Atty. Abalos replaced Atty. Taminaya as counsel for the accused. Atty. Abalos asked for a resetting of the case to March 27, 1998 to allow him to go over the transcript of stenographic notes of the testimony of the prosecution witness and conduct crossexamination.xxxvi[17] On March 27, 1998, Atty. Abalos was absent and so the hearing was reset to March 30, 1998.xxxvi[18] On April 2, 1998, Atty. Abalos was appointed as public prosecutor, thus leaving the accused Rama without counsel. Atty. Surot was appointed as the accused's new counsel. To give Atty. Surot a chance to go over the records of the case, the hearing was reset to April 14, 1998.xxxvi[19] All in all, therefore, the delay caused by the accused or his counsel was a period of thirty-eight (38) days. This period should be deducted from the 195-day period within which the trial was completed. Thus, to be exact, the entire trial was completed in one hundred fifty-seven (157) days, well within the 180-day period provided by the Revised Rules. This is not an unreasonable length of time that violates the right of the accused to speedy trial. The trial court therefore did not err in not dismissing the case on the ground of violation of the accused's right to speedy trial. We come now to the second issue raised by the defense. The accused Rama faults the trial court for finding him guilty beyond reasonable doubt despite the insufficiency of evidence. First, he makes much of the fact that the prosecution did not present Bryan and Benjamin, the two children who allegedly saw the accused Rama take Joyce Ann. This fact, however, does not militate against the story of the prosecution. It is well-settled that the non-presentation of certain witnesses by the prosecution is not a plausible defense and the matter of choosing witnesses to present lies in the sound discretion of the prosecutor handling the case.xxxvi[20] Besides, the prosecution adequately explained that the parents of the two children, Bryan and Benjamin, reneged on their willingness to have their children testify after the wife of the accused talked to them for fear of their safety. Likewise, as correctly pointed out in the appellee's brief, nothing could have prevented the defense from presenting Bryan and Benjamin as its own witnesses in order to discredit the testimony of Roxanne, the lone eyewitness presented by the prosecution. The presumption of suppressed evidence does not apply when the same is equally accessible or available to the defense.xxxvi[21]

Secondly, the accused points out that since Bryan and Benjamin were not presented as prosecution witnesses, Diana Laviste's claim that these children pointed to the accused as the man who took away Joyce Ann does not bear any weight in evidence. This therefore leaves only the testimony of Roxanne as the basis for the prosecution's identification of the accused Rama as the culprit. The defense contends, however, that Roxanne's testimony, coming from the mouth of a five-year old, does not deserve credit because she could not answer many questions and appeared to have been coached by her grandmother, Diana. We cannot subscribe to the accused's contention. The Rules of Evidence provide in Rule 130, Secs. 20 and 21: "Sec. 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Sec. 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be witnesses: xxx (b) Children whose mental maturity is such as to render them incapable pf perceiving the facts respecting which they are examined and relating them truthfully." In Dulla v. Court of Appeals and Andrea Ortega,xxxvi[22] the Court, citing the above provisions, gave credence to the testimony of a three-year old witness. It held: "It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States v. Buncad, this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point says: 'But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.' (Wigmore on Evidence, vol. I, p. 638) The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing, it is setted that the trial court is called upon to make such determination." (emphasis supplied) In People v. Mendiola,xxxvi[23] the Court gave credence to the testimony of the six-year old witness even if she failed to answer some questions because of her tender age.

In the case at bar, while the five-year old witness, Roxanne, was not able to answer some questions such as which was her left and her right, she was straightforward in identifying the accused Rama as the culprit, viz: "Q: A: Q: A: Q: A: xxx Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Do you know Joyce Ann Cabiguin? Yes, sir. Do you know where Joyce Ann is now? No, sir. Why, where is she now? She is not here, sir. Why? Because a man took her, sir. You said that a man took her, who is that man, if you know? Yes, sir. Will you point to her (sic)? (Witness pointed to a person, when asked, responded by the name of Roger Rama) Do you know what place or where that man took Joyce Ann? At the plaza, sir. You said you will tell the truth, will you tell the truth now? Yes, sir. Who is your mother? Nanay Weng, sir. Will you please point to her? My mother is not here, sir.

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

Why were you at the plaza? Because my mother brought us for a stroll, sir.

What did you see at the plaza? Stage, sir. Did you talk to that man at the stage? Yes, sir. What did he say to you, if any? He told me that I will get the beautiful girl and he will give biscuit, sir. Who is that beautiful girl? My ading (my sister), sir. Do you know the name of your ading? Joyce Ann, sir. Can you tell the Court how you carried her? (witness demonstrated how she carried her sister by extending her two hands) Is Joyce Ann already able to walk or not? Yes, sir. Where did you bring Joyce Ann? To the man, sir. That same man? Yes, sir. What did the man do to Joyce Ann? He ran away with her, sir."xxxvi[24]

On cross-examination, Roxanne remained straightforward, consistent, and candid in her testimony, viz: "Q: When you told (sic) that the man told you that he will give you biscuit and telling (sic) you that you get Joyce Ann and bring her to him, did he give you that biscuit already before you went to Joyce Ann? A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Yes, sir. How many biscuits did he give you? One, sir. Did you give Joyce Ann a piece of the biscuit? No, sir. What did you do with the biscuit? I ate it, sir. Do you know how to distinguish colors? (no answer) Do you remember what was the man wearing at that time when he approached you? Yes, sir. What? (witness pointed again to accused Roger Rama)

Q: When this Roger Rama approached you, and upon telling you that you bring Joyce Ann to him, did you bring Joyce Ann immediately to him? A: Q: A: Yes, sir. When you brought Joyce Ann to him, what did you do? He ran away with my sister Joyce Ann, sir."xxxvi[25]

We thus find no reason to disturb the trial court's assessment of the credibility of the child witness, Roxanne. The determination of the competence and credibility of a child as a witness rests primarily with the trial judge as he had the opportunity to see the demeanor of the witness,

his apparent intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities cannot be conveyed by the record of the case, the trial judge's evaluation will not be disturbed on review, unless it is clear from the record that his judgment is erroneous.xxxvi[26] This conclusion is in accord with the spirit and letter of the Rule on Examination of a Child Witness (the "Rule") which became effective last December 15, 2000. The following provisions are apropos: "Section 1. Applicability of the Rule. -- Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses." (emphasis supplied) "Section 3. Construction of the Rule. -- This Rule shall be liberally construed to uphold the best interests of the child and to promote the maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused." (emphasis supplied) "Section 6. Competence. -- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. xxx (a) Proof of necessity. -- A party seeking a competency examination must present proof of necessity of competence examination. The age of the child by itself is not a sufficient basis for a competency examination." (emphasis supplied) Thirdly, the defense faults the trial court for relying on a single eyewitness account in convicting the accused Rama. The Court has long held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court.xxxvi[27] The Rule also provides in Section 22, viz: "Section 22. Corroboration.-- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases." (emphasis supplied) The records of the instant case bear out the clear and straightforward manner by which Roxanne testified. The trial court thus correctly relied upon the sole testimony of Roxanne. Fourthly, as opposed to the accused's contention, motive is not essential to the conviction of the accused when he is positively identified.xxxvi[28] As the lone eyewitness, Roxanne, positively

identified the accused Rama, the accused's contention deserves scant consideration. In fact, what is worthy of consideration is the fact that the accused Rama himself admitted that he did not know of any motive which would urge the prosecution witnesses to falsely testify against him. The running case law is that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.xxxvi[29] Finally, the accused Rama contends that the testimony of SPO4 Reynaldo de Vera of the Dagupan City Police Headquarters that Bryan and Benjamin did not point to the accused Rama as the culprit when they went to Rama's house should be given weight. Absent any motive for de Vera to testify for the defense, he should be presumed to be telling the truth and performing his duties regularly. We do not agree. Suffice it to say that the observations stated and conclusions drawn by the trial court in its decision adequately meet this contention of the accused Rama. The trial court noted the lackadaisical manner by which de Vera handled the case of the missing Joyce Ann. He could not even remember if he recorded in the police blotter the disappearance of Joyce Ann as reported by her parents and the investigation he made when he, along with Bryan and Benjamin, went to the house of the accused. He did not even take down notes when he conducted his investigation of the accused. Nor did he follow-up the case after the investigation he conducted in the house of accused Rama. It was in fact his demeanor which prompted Joyce Ann's parents to seek the help of the CIDG in Dagupan City. In view of the positive identification made by Roxanne, the accused's defense of denial and alibi must fall. Well-settled is the rule that positive identification of the accused will prevail over the defense of denial and alibi.xxxvi[30] Furthermore, for alibi to prosper, it must be shown that there was physical impossibility for the accused to have been at the scene of the crime. The defense has failed to satisfy this requirement. The trial court took judicial notice of the fact that Gayaman where the accused supposedly was at the time Joyce Ann disappeared is only about five to six kilometers away from the plaza where Joyce Ann was playing. We now deal with the penalty to be imposed. Article 267 of the Revised Penal Code provides in relevant part, viz: "Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days."

As of the time the instant case was decided by the trial court, Joyce Ann was still missing. Her kidnapping had far exceeded three days. The penalty of reclusion perpetua is thus meted out to the accused Rama in accordance with the above provision. Anent the award of damages, the trial court struck off the record Roger Cabiguin's testimony regarding the anguish Joyce Ann's loss caused him because he did not appear for cross-examination. There being no evidence in support of the award of moral and temperate damages, we cannot award the same.xxxvi[31]

IN VIEW WHEREOF, the impugned decision is AFFIRMED with the MODIFICATION that the award of moral and temperate damages is deleted. Costs against accused-appellant. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

EN BANC [G.R. No. 131823. January 17, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISAGANI PARAISO y HUTALLA, accused-appellant. DECISION PER CURIAM: The case before us for automatic review is a conviction for rape with homicide against appellant Isagani Paraiso y Hutalla, rendered in the judgmentxxxvi[i][1] of the Regional Trial Court xxx, dated September 29, 1997. Paraiso was charged in an informationxxxvi[ii][2] which reads as follows: That on or about the 5th day of August 1994, at xxx Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo, with intent to kill and taking advantage of his superior strength, did then and there willfully, unlawfully and feloniously attack, assault and hack several times with said weapon one AAA, a minor, 13 years of age, inflicting upon her fatal wounds on vital parts of her body, which directly caused her death; that on the same occasion, the said accused, with lewd design, did then and there willfully, unlawfully and feloniously have sexual intercourse with said AAA while she was already unconscious. During his arraignment on December 17, 1996, appellant, duly assisted by counsel, pleaded not guilty.xxxvi[iii][3] Thereafter, trial on the merits followed. The Solicitor General, in his Brief for Plaintiff-Appellee,xxxvi[iv][4] related the facts, as follows: On August 5, 1994, at around 9:00 oclock in the morning, BBB, AAAs father, was having a drinking spree with appellant and Anthony Briones in the place of a copra dealer near the school

of xxx. It lasted up to 1:00 oclock in the afternoon when they decided to separate. Appellant told BBB that he had to proceed to the place of the pamanhikan which concerned his son. Appellant likewise asked BBB who were the persons in their house. BBB told appellant his children AAA and two year-old CCC will be left in their house, as the other two children will buy rice.(TSN, 5-13-97, pp. 8-10) On the same day of August 5, 1994, at around 4:00 oclock in the afternoon, Benny Reoveros was in their house at xxx when he heard the voice of a young child shouting Diyos ko po, Diyos ko po, tama na po, tama na po. He was thus impelled to proceed to the place where the shout came from. When he was already near, at a distance of about fifteen (15) meters more of less, he saw appellant Isagani Paraiso carrying a child face down, with his two hands. Benny hid himself in a shrubby place where there were several anahaw trees. The he saw appellant put down the child with her face up on the ground. The child was AAA. Benny was more or less twenty (20) meters away from the place of appellant and AAA. He saw appellant remove the shorts of AAA then raise her upper clothes and pull down his pants. Appellant then placed himself on top of AAA and raped her for about five minutes. Thereafter, appellant hacked AAA on the neck with a bolo. Because of fear, Benny ran to their house. He reported the incident to Barangay Captain Angel Roy Recilla who in turn summoned his barangay kagawad and they went to the place pointed by Benny. At the shrubby place, they found Arlene already dead. (TSN, 4-15-97, pp. 39) Dr. Manuel L. Salaveria, Municipal Health Officer of xxx conducted the post mortem examination upon the victim AAA with the finding that she was abused and the cause of death was cardio respiratory arrest due to severe internal and external hemorrhage secondary, multiple hack wounds (Exhibit B). AAA was buried in the afternoon of August 7, 1994. Appellant relates his version of the facts, thusly:xxxvi[v][5] Evidence for the defense shows that on August 5, 1994 at about 11:00 oclock in the morning, the accused had a drinking spree with the father of the deceased. It lasted until about 1:00 oclock in the afternoon. Thereafter, the accused readily went home riding his carabao. On his way, he met the brother and sister of the deceased. He asked them were they were going and the two answered that they were going to buy rice. He arrived at his house at more or less 2:30 in the afternoon. Upon reaching his place, he tied his carabao at a coconut tree. Since he was under the influence of liquor at that time and feeling sleepy, he immediately went into bed. At that time, his sister Florinda was with him. At around 3:00 oclock of the same afternoon, Letecia Buizon, cousin of the accused dropped by the latters house in order to ask for bamboo poles to be used in the flooring of her house. Finding that the accused was sleeping, she went out of the house and got 8 pieces of bamboo poles, then returned to the house of the accused to inform the latter that she already got the bamboo poles. However, upon seeing that the accused was still sleeping, she just went home at xxx. xxx. The trial judge evaluated the credibility of the witnesses and their testimonies, viz.:xxxvi[vi][6]

As shown by the records, witness Reoveros, at times, hedged and failed to answer some questions; and gave inconsistent statements, particularly when asked about distances and the four (4) cardinal directions, viz: (a) distance of his house to house of victim which he estimated to be 50 meters, more or less, if about of the distance from this Court to railroad crossing (TSN., April 7, 1997, pp. 3-5); (b) time consumed by the travel from the place of barangay captain to the place of victim which he stated is more or less 1 hour (TSN., pp. 14-15, supra); (c) failed to answer when asked three (3) times if he was definite that on the night of August 5, 1994, he did not inform the barangay captain that it was Isagani Paraiso who raped and killed AAA; and (d) his errors and inconsistencies in his rough sketch (Exh. 1). He candidly admitted his nonfamiliarity with the four (4) cardinal directions due to his lack of education and that what he knew is going to Ilaya or Ibaba. (TSN., 29, 1997). These enumerated inconsistencies in the declarations of the eyewitness Benny Reoveros cannot destroy the totality of his testimony. These discrepancies do not negate the main thrust of his testimony that he saw the accused raped and hacked the victim on the date and time in question. A truth-telling witness is not always expected to give an error-free testimony, considering the lapse of time and treachery of human memory. Thus, we have followed the rule in accord with human nature and experience that honest inconsistencies on minor and trivial matters serve to strengthen, rather than destroy, the credibility of a witness, especially of witnesses to crimes shocking to conscience and numbing to senses (People vs. Paule, G.R. Nos. 118168-70, September 11, 1996), as in this case at bar. xxx xxx xxx

The most important thing is that the eyewitness Benny Reoveros, on the witness stand, was firm, spontaneous and categorical in his declaration that it was accused Isagani Paraiso whom he saw that afternoon carrying the victim, face down and laid her on the ground, face up; then lowered her shorts and panty, pushed up her blouse and raped her. Thereafter, accused hacked her on the neck with his bolo. Reoveros stood by his declaration, unshaken throughout the entire trial, and never showed any hesitation in his identification of accused. His positive identification is unerring. He knows accused who is his uncle by affinity because the wife of accused and his mother are sisters. Moreover, nowhere in the records does it show that said eyewitness was impelled by improper motives to impute such false and serious charges. (People vs. Trilles, 254 SCRA 641). Even accused admitted, on record, that witness Reoveros, a nephew of his wife, has a very high respect from him, xxx. xxx xxx xxx

xxx As witness Reoveros succinctly stated, he was bothered by his conscience for what accuse did to the child. Thus, despite his relationship to accused, he had to come forward and reveal what he saw. This Court understands the failure of the witness Reoveros to immediately report the incident and reveal the identity of the accused after that startling and shocking occurrence. More so,

when he is related by affinity to the perpetrator of the crime, as this makes it all the more traumatic. xxx xxx xxx xxx

Furthermore, Reoveros version of the incident is supported by the physical evidence of the case, the Post-Mortem Examination (Exh. B, B-1 to B-3), showing that the victim, AAA sustained multiple hack wounds and her internal examination revealed the following: vagina admits one finger with ease. On opening up the introitus there is perineal laceration and minute hemorrhages at 3 oclock and 9 oclock positions. Hymen ruptured. Patient: abused. xxx xxx xxx

Finally, accuseds defense of alibi crumbles in the face of the positive identification of the accused as the perpetrator of the crime (People vs. Ferrer, 255 SCRA 19). Positive identification was made by eyewitness Benny Reoveros, his nephew by affinity. Reoveros could not, therefore, have been mistaken as to his identity. The doctrine constantly upheld by this Court is that alibi and denial cannot prevail over the positive identification of the accused as the perpetrator of the crime. In addition thereto, accused has failed to establish that it was physically impossible for him to have been at the crime scene when it happened (People vs. Alimon, 257 SCRA 661). And it is well-settled that the testimony of a single eyewitness is sufficient to support a conviction so long as such testimony is found to be clear and straight-forward and worthy of credence by the trial court (People vs. De Roxas, 241 SCRA 369). With its above findings, the lower court concluded that it was fully convinced and morally certain that it was the accused Isagani Paraiso who raped and killed the victim AAA. Thus, the penalty of death was imposed, in accordance with article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act 7659. The dispositive portion of the Judgemnt dated September 29, 1997, reads: WHEREFORE, finding the accused Isagani Paraiso y Hutalla guilty beyond reasonable doubt of the crime of rape with Homicide, he is hereby sentenced to suffer the penalty of death, with its accessory penalties under Art. 40 of the Revised Penal Code, and to pay the Heirs of the deceased AAA the following: (a) P150,000.00 for actual and moral damages; and (b) P50,000.00 indemnity for death, without subsidiary imprisonment in case of insolvency, and to pay the costs. Pursuant to Sec. 10 of Rule 122 of the Revised Rules of Court, as amended, let the whole records of this case be forwarded to the Supreme Court for automatic review and judgment. In his Brief,xxxvi[vii][7] accused-appellant makes a single assignment of error, as follows: The Court a quo gravely erred in finding that the guilt of the accused for the crime charged has been proven beyond reasonable doubt.

To support his plea for acquittal, appellant points to alleged flaws in the prosecution evidence: (1) the delay of the eyewitness in identifying the appellant as the culprit; (2) the eyewitness false statement during direct examination that appellant was his blood-relative while, in truth, they are only related by affinity; and (3) the improbability of the commission of such a crime in broad daylight and within hearing distance of neighboring houses. These circumstances, appellant avers, amount to a failure of the prosecution to meet the quantum of evidence required to overcome his innocence. As to the first alleged flaw, jurisprudence is replete with rulings that delay in revealing the identity of the perpetrator of the crime will not impair the credibility of the witness, if such delay is sufficiently explained.xxxvi[viii][8] It is not uncommon for witnesses to the commission of crimes to show reluctance in volunteering information thereon and getting involved in criminal investigations.xxxvi[ix][9] This is especially true when family members are the assailants.xxxvi[x][10] In this case, the lone eyewitness, Benny Reoveros, is related by affinity to accused-appellant, the latters wife being the sister of Bennys mother. Appellant himself admitted that he was highly respected by the eyewitnessxxxvi[xi][11] and knows no reason why the latter would testify against him.xxxvi[xii][12] Indeed, the defense showed no reason why Reoveros would falsely implicate Paraiso in a despicable and grave offense as rape with homicide. As the Solicitor General correctly cites, where there is no evidence and nothing indicates that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.xxxvi[xiii][13] Absent a corrupt intent, Reoveros close relationship to and respect for appellant sufficiently explain his delay in identifying the latter as the wrongdoer. Nevertheless, the Court carefully examined the lengthy testimony of Benny Reoveros. We find the meat of his testimony, as to how the crime was committed and by whom, to be clear, positive and unequivocal, as follows: PROSECUTOR MAGNO: Q Now, at around four oclock in the afternoon on August 5, 1994, do you remember where were you? A Q A Yes, sir. Where were you then? I was in our house, sir.

Q And where is your house located insofar as the barangay, municipality and province are concerned? A Q xxx, sir. And what were doing, if any, on that precise time, date and place?

I was making something where our stove will be placed, sir.

Q And while you were making the patungan of the stove at around four oclock in the afternoon on August 5, 1994, could you remember of any unusual incident that happened? A Q A Q A Q A Q A There was, sir. And what was that unusual incident you are referring to? I heard somebody shouting, sir. And what was that shout that you heard? He was shouting Diyos ko po, Diyos ko po, tama na po, tama na po. And from what place were that shout you heard came from? From the house of BBB, sir. And how far is that house of BBB from your house? More or less fifty (50) meters away, sir.

Q When you heard the shout coming from the house of BBB, what are those particular words that you heard? A He was shouting Diyos ko po, Diyos ko po, tama na po, tama na po.

Q And from the moment you heard that shout Diyos ko po, Diyos ko po, tama na po, tama na po, is that coming from a man or a woman? A Q That is the voice of a woman, sir. That voice that you heard come from and old woman or a young woman?

ATTY. BONIFACIO: We will object, Your Honor. COURT: Sustained PROSECUTOR MAGNO:

Q Now and the moment that you heard the shout Diyos ko po, Diyos ko po, tama na po, tama na po, what did you do if you did any? A And because of the shout of that young child, I could not avoid going to that place, sir.

Q And you mean to convey before this Court that you went to that place where the shout came from? A Q A Q A Q A Q A Q A Yes, sir. Now and what happened after you went to the house where the shout came from? When I was already near, I saw isagani Paraiso, sir. And this Isagani Paraiso is the uncle and accused in this case? Yes, sir. And what was the position of Isagani Paraiso when you saw him? I saw that he was carrying the child AAA, sir. And who is this AAA in relation to the owner of the house BBB? Father, sir, parent. and what was the position of AAA when she was carried by Isagani Paraiso? She was face down carried by the two hands of Isagani Paraiso, sir.

INTERPRETER: Witness demonstrated how AAA was carried by the two hands of Isagani Paraiso. PROSECUTOR MAGNO: Q Now, for how long did you look at this Isagani Paraiso and AAA from the time that you saw Isagani Paraiso for the first time? A More or less one (1) minute, sir.

Q And how far were you from Isagani Paraiso and AAA to the place where you were standing at that moment where you were? A More or less fifteen (15) meters, sir.

Q A sir. Q A Q A

Now and what did you do after seeing that Isagani Paraiso was carrying AAA? What I did was I hid myself in a shrubby place where there were several anahaw trees,

And after hiding yourself at the anahaw trees, what happened next, if any? I saw when this Isagani Paraiso put down this AAA with her face up, sir. And where did this AAA placed by Isagani Paraiso? On the ground, sir.

Q Now, how far is that house of BBB where you saw Isagani Paraiso and AAA up to the place where Isagani Paraiso carried AAA and placed on the ground? A More or less twenty (20) meters, sir.

Q And how far were you from the place where AAA was placed on the ground by Isagani Paraiso? A Q any? A Q A Q any? A Q A Q A More or less twenty (20) meters also, sir. And after AAA was placed on the ground by Isagani Paraiso, what happened next, if

I saw that he removed the shorts of the child, sir. And who removed the clothes of the child? Isagani Paraiso, sir. And while Isagani Paraiso was removing the clothes of the child, what happened, next, if

He raised the upper clothes of the child, sir. And after that, what happened, if any? I saw when he pulled down his pants, sir. To whom do you refer when you said he pulled down his pants? Isagani Paraiso, sir.

Q A Q A

And what happened after Isagani Paraiso pulled down his pants, if any? He placed himself on top of the child, sir. And what did Paraiso do while he was on top of the child? He already committed the rape (panghahalay), sir.

Q And while Isagani Paraiso was taking off the clothes of this child and he took off his clothes and placed himself on top of the child, what did the child do, if any? A Q The child could not anymore, sir. Why did you say that the child could not shout anymore?

ATTY. BONIFACIO: We would like to place on record that the witness took time in answering the question, Your Honor. (Question repeated to the witness). ATTY. BONIFACIO: We would like to place on record after the question was repeated to the witness, the witness is not yet answering the question. WITNESS: A Because Isagani is on top of her, sir.

PROSECUTOR MAGNO: Q You have made mention that Isagani Paraiso committed the act of panghahalay. What do you mean when you said panghahalay? A Q A He did something bad, sir. And what is that something bad? In short, sir, he raped her ginahasa, sir.

COURT: Put the word ginahasa.

PROSECUTOR MAGNO: Q And while Isagani Paraiso was on top of the child raping her, according to you, what did you do if you did anything? A Q A Q A Q any? A Q A Q A Q Q A I could not do anything because I became afraid, sir. Now, for how long did Isagani Paraiso rape this child, AAA? Maybe, more or less, five (5) minutes, sir. And after raping this child, what followed next, if any? After he had already raped her, he hacked AAA on her neck, sir. Now and after Isagani Paraiso hacked Arlene AAA on her neck, what happened next, if

Because of my fear, I ran to our house, sir. Now, when AAA was hacked by Isagani Paraiso,was AAA hit with the hack? She was hit, sir. On what part of her body was she hit? On the neck, sir. And where did this isagani Paraiso get his I withdraw that. What kind of weapon did Isagani Paraiso use in hacking AAA? A bolo which is as long as this, sir.

INTERPRETER: Witness demonstrating a length by stretching apart his hands which, upon actual measurement, is eighteen (18) inches.xxxvi[xiv][14] To recapitulate, prosecution witness Reoveros actually saw the loathsome defilement and brutal slaying of 13-year-old AAA by appellant Paraiso. In his distant house, he heard a young girls piteous cries, Diyos ko po, Diyos ko po, tama na po, tama na po, which impelled him to approach the place where the cries came from and look into what could be happening. About 15 meters from the house of his neighbor BBB, he saw his uncle, appellant Isagani Paraiso, carrying AAA, face down, to a shrubby area a few meters from the house and where he laid her on the

ground. Paraiso thereafter undressed the girl, ignominiously ravished her and, after satisfying his bestial lust, fatally hacked his victims neck with his 18-inch long bolo, almost severing her head. As stated earlier, the witness had no ill motive to testify against appellant. The trial court found him to be firm, spontaneous and categorical in his declaration that it was accused Isagani Paraiso whom he saw that afternoon brutally rape and kill AAA. Reoveros stood by his declaration, unshaken throughout the entire trial, and never showed any hesitation in his identification of accused. His positive identification is unerring, the judge observed. Axiomatic is the rule that factual findings of trial courts are accorded the highest respect and are generally not disturbed by the appellate court, unless they are found to be clearly arbitrary or unfounded, or some substantial fact or circumstance that could materially affect the disposition of the case was overlooked, misunderstood or misinterpreted.xxxvi[xv][15] This rule is founded on the fact that the trial judge has the unique opportunity to personally observe the witnesses and to note their demeanor, conduct and attitude on the witness stand, which are significant factors in evaluating their honesty, sincerity and credibility. Through its direct observations in the entire proceedings, the judge can be expected to reasonably determine whose testimony to accept and which witness to disbelieve.xxxvi[xvi][16] On the other hand, the reviewing magistrate has none of the advantages peculiar to the trial judges position, and could rely only on the cold records of the case and on the judges discretion.xxxvi[xvii][17] In the present case, we find no reason to deviate from these rules. The alleged inconsistencies and false averments of the principal prosecution witness are too trivial and inconsequential to merit consideration by the Court. The supposed variances in Reoveros testimony refer merely to minor collateral circumstances -- such as distances between and location, relative to the four cardinal directions, of his and his neighbors houses; when exactly and to whom he first revealed the identity of the assailant; and who first saw the victim on the night he reported the incident to barangay officials. Time-honored is the doctrine that discrepancies referring only to minor details and collateral matters do not affect the veracity of the witness declarations.xxxvi[xviii][18] In fact, they even indicate truthfulness and erase any suspicion of rehearsed testimony, xxxvi[xix][19] rather than impair the witness credibility. Indeed, errorless testimonies cannot be expected especially from a witness recounting the sordid details of a highly despicable and gory crime.xxxvi[xx][20] Moreover, the witness admittedly lacked formal education, not having been able to finish even the fourth elementary grade.xxxvi[xxi][21] Several times, he could not immediately answer questions propounded to him because he could not understand them. He was not even cognizant of the four cardinal directions. Slight variations in his testimony are, thus, not unexpected; and should be disregarded without diminishing his credibility.xxxvi[xxii][22] Appellant desperately assails the credibility of this lone eyewitness by averring that he falsely claimed to be a blood relative of appellant, whereas they are in truth only related by affinity. In this connection, Reoveros clearly stated during his direct examination that Isagani Paraisos

"wife is the sister of my mother."xxxvi[xxiii][23] In any case, whether they were related by blood or by affinity is hardly of significance. As to appellants assertion that the commission of such crime during broad daylight was highly improbable, it has been oft said that lust is no respecter of time and place. Rape can be committed in places where people congregate, in parks, alongside the road, within school premises, inside a house where there are other occupants, and even in the same room where there are other members of the family who are sleeping.xxxvi[xxiv][24] How much more in a remote hilly place where houses are distantly situated, such as in the instant case. While the defense tried to establish through prosecution eyewitness Reoveros that there were other houses near the victims, it has not shown that there were occupants present during the perpetration of the crime who could have witnessed or perceived it, but failed to. Nothing on record contradicts the eyewitness testimony as to the commission of the crime by appellant during that fateful hour and day at the place where the victim was found. Appellant merely claims that he was sleeping in his house some 2,000 meters away from 2:30 p.m. to 6:00 p.m. during that ill-fated afternoon of AAAs rape-slaying. His cousin, Letecia Buizon, corroborates his tale. She supposedly arrived at appellants house about 3:00 p.m. and saw him sleeping. When she left at 5:00 p.m., appellant was still sleeping. In the interval, however, she went out to gather bamboo trees. The defense of alibi, as a rule, is considered with suspicion and is always received with caution, not only because it is inherently weak and unreliable but also because it can be easily fabricated. It cannot prevail over the positive identification of the appellant by a credible eyewitness who has no ill motive to testify falsely. For such defense to prosper, it must be convincing enough to preclude any doubt on the physical impossibility of the presence of the accused at the locus criminis at the time of the incident.xxxvi[xxv][25] But, according to appellant, his house was merely about two thousand meters from that of the BBBs. Even by foot, such distance is not impossible to trek in less than an hour.xxxvi[xxvi][26] By the eyewitness account, the victims unlawful defilement took no more than five minutes and, immediately thereafter, appellant savagely hacked her neck. All these could, therefore, have happened when defense witness Buizon was out gathering bamboo trees. She simply presumed that appellant was asleep all throughout. Moreover, given the positive identification of appellant by a credible eyewitness -- his own nephew -- as the rapist-killer, his defense of alibi must necessarily fail. In addition, the testimony of the eyewitness is fully corroborated by the post mortem examination reportxxxvi[xxvii][27] of municipal health officer Manuel L. Salaveria, which stated as follows: FINDINGS

1. Wound, incised, both edges sharp, measuring 7 inches x 2 inches with a depth of 5 inches from the left posterior ear extending up to the right posterior ear, occipital area. Head with evisceration of the brain tissue. 2. Wound, incised, both edges sharp, measuring 4.5 inches x 1.5 inches with a depth of 1.5 inches, nape. 3. 4. 5. Wound, incised, 1 inch x 0.5 inch left parieto-occipital area. Wound, incised, 1.5 inch x 1 inch right parieto-occipital area. Hematoma, 2.5 inches 0.5 inch Right scapular area.

6. Wound, incised, 4.5 inches x 2.5 inches with a depth of 4 inches, anterior neck severing the esophagus. 7. 8. 9. 10. Wound, lacerated, 3 inches x 2 inches left deltoid area. Wound, incised, 1.5 inch x 0.5 inch left big finger. Wound, incised, 1 inch x 0.5 inch left index finger. Wound, incised, 1.5 inch x 0.5 inch Right middle finger. Internal examination: Normal external genitalia, vagina admits one finger with ease. On opening up the introitus there is perineal lacerations and minute hemorrhages at 3 oclock and 9 oclock positions. Hymen ruptured. Patient: Abused Cause of Death: Cardio Respiratory Arrest due to severe Internal and External Hemorrhage secondary multiple Hack Wounds. With all the foregoing circumstances, the prosecution has clearly adduced the requisite quantum of proof to find appellant guilty beyond reasonable doubt of raping and killing AAA. Additionally, appellant offered thirty thousand pesos (P30,000.00) to the victims father as settlement of the case and so that he could be released from confinement.xxxvi[xxviii][28] Such offer can only be taken to mean an admission of guilt. In criminal cases, except those involving criminal negligence or those allowed by law to be amicably settled or compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.xxxvi[xxix][29] Under Article 335xxxvi[xxx][30] of the Revised Penal Code, as amended, [w]hen by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. Being a single indivisible penalty, death is mandatorily imposed in the light of Article 47 of the Revised penal

Code regardless of the attendance of any mitigating or aggravating circumstance in the commission of the crime.xxxvi[xxxi][31] Four (4) Justices of the Court however continue to maintain the unconstitutionality of R.A. No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. As to civil indemnity ex delicto, the Court ruled in People v. Roblesxxxvi[xxxii][32] that in rape with homicide, in which the penalty imposed is death, the amount should be increased to P100,000.00. With respect to damages, the general rule is that the alleged pecuniary loss and the moral and mental suffering must be established by factual evidence before actual and moral damages, respectively, may be awarded.xxxvi[xxxiii][33] As an exception, in people vs. Prades,xxxvi[xxxiv][34] we held that moral damages may be awarded to victims of rape notwithstanding the absence of specific proof of the basis for its award. In the instant case, however, while the prosecution offered to present the victims mother, Melinda Recilla, to testify and prove the damages sustained by the family, the defense opted to simply admit the combined claim of actual and moral damages in the amount of P150,000.00.xxxvi[xxxv][35] WHEREFORE, the decision of the Regional Trial Court (Branch 61) of Gumaca, Quezon, finding appellant Isagani Paraiso guilty of rape with homicide and imposing upon him the death penalty is AFFIRMED. However, the award of indemnity ex-delicto is increased to P100,000.00 consistent with current jurisprudence, while the trial courts award of the stipulated moral and actual damages is AFFIRMED. Pursuant to Section 25 of R.A. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of his pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

EN BANC [G.R. No. 138045. March 14, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIETTA PATUNGAN y PULGA, EDGAR ACEBUCHE y CERVITO and ELMERTO PULGA y ACEBUCHE, accusedappellants. DECISION
GONZAGA-REYES, J.:

At about 10:00 p.m. of May 22, 1994, Antonio Altarejos and his girlfriend Antonia Eluzon with a few other friends were having a drinking spree beside the chapel along Laura Calderon St., Purok 2, Barangay Old Balara, Quezon City. Antonio and Antonia noticed the van of their neighbor Alejandro Patungan parked in front of the chapel and saw two men seated inside, one is the accused Elmerto Pulga at the drivers seat and the other is the accused Edgar Acebuche.xxxvi[1] Sometime that evening Elmerto Pulga drove the van away from the chapel and towards a vacant lot near Commonwealth Avenue to allow another car to park right in front of the chapel. After the drinking spree, at about 3:00 to 3:30 a.m., the following morning, the lovers Antonio and Antonia went to the basketball court to talk. Moments later they saw Alejandro Patungan and his wife Marietta come out of their house and walk toward the road. Marietta however, went back to their house while Alejandro proceeded without her.xxxvi[2] At about 3:45 p.m. of May 24, 1994, the decomposing body of Alejandro Patungan was found inside his van parked along Don Quixote St. Sampaloc, Manila. At 7:00 p.m. that day the cadaver was autopsied at the WPD-PNP Medico-Legal Section. The report states as follows: The body was bloated and in the state of decomposition. The face was dark colored, eyeballs, bulging, tongue half protruding and thick upper and lower lips. Bullae formation in the chest, abdomen and extremities with greenish discoloration in the inguinal regions spreading towards the abdomen. The abdomen was distended with gas. The following external injuries were noted. 1. Stab wound, with the point of entry at the left cheek, 59 inches from heel, 8 cm. From anterior midline, measuring 4 x 2 cm. And exited at the left sub-mandibular region, 54 inches from heel, 4 cm. From anterior midline measuring 2 x 0.6 cm.

2. Ligature mark around the neck measuring 0.5 cm. 3. 8 stab or punctured wounds, oval in shape, in the base of the left lateral neck, supra and infraclavicular region, with the average measurement of 0.3 x 0.5 cm. 4. 51 stab or punctured wounds, evenly distributed in the entire abdomen, oval in shape and with the average measurement of 0.3 x 0.5 cm. INTERNAL FINDINGS: 1. Lacerations of the sub-cutaneous tissues in the left cheek base of the left lateral neck, infra and supraclavicular regions. Three (3) stab or punctured wounds in the upper lobe of the left lung with massive bleeding in the left thoracic cavity. 2. Injuries to the liver, stomach, spleen, small and large intestines, kidneys, inferior vena cava and abdominal aorta, with massive bleeding in the peritoneal cavity. 3. About 1 glassfuls of partially digested rice with meaty materials and without alcoholic odor was recovered from the stomach. CAUSE OF DEATH: Multiple stab wounds and ligature strangulation.xxxvi[3] On August 16, 1994 an Information was filed against Marietta Patungan for parricide and against Elmerto Pulga and Edgar Acebuche for murder, to wit: The undersigned accuses MARIETTA PATUNGAN Y PULGA of the crime of PARRICIDE and EDGAR ACEBUCHE Y CERVITO and ELMERTO PULGA Y ACEBUCHE of the crime of MURDER, as committed as follows: That on or about the 22nd day of May, 1994 in Quezon City, Philippines, the said accused, Marietta Patungan Y Pulga being the legal wife of victim ALEJANDRO PATUNGAN Y RANGEL, conspiring and confederating together with her co-accused EDGAR ACEBUCHE Y CERVITO and ELMERTO PULGA Y ACEBUCHE and another person whose true name, identity and whereabouts have not as yet been ascertained and helping one another, with intent to kill, evident premeditation, treachery and with the use of motor vehicle, did, then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of ALEJANDRO PATUNGAN Y RANGEL by then and there strangling him with an electric wire and stabbing him with a bladed weapon on the different parts of his body, thereby causing upon him multiple stab wounds which were the immediate and direct cause of his death thereafter, to the damage and prejudice of the heirs of the victim. Contrary to law.xxxvi[4] On September 6, 1994 the three accused pleaded not guilty to the offense charged.xxxvi[5]

In addition to the testimonies of Antonio and Antonia, the prosecution presented the extrajudicial confession of the accused Elmerto Pulga, the testimonies of the police officers who took the statement, of the lawyer from the Integrated Bar of the Philippines, Quezon City Chapter, Atty. Pedro Rudio, who allegedly assisted the accused Elmerto Pulga during the custodial investigation and of the medico-legal officer who conducted the autopsy. The extra-judicial confessionxxxvi[6] of accused Elmerto Pulga dated August 11, 1994 linked Marietta to the killing of her husband. It states as follows: T. Bakit ka narito sa loob ng Integrated Bar of the Philippines, at nagbibigay ng malaya at kusang loob na salaysay? S. Ako po ay kusang sumuko sa mga pulis hinggil sa nalalaman ko sa pagkamatay ng aking bayaw na si ALEJANDRO PATUNGAN at kaya po akoy nandito ay upang sabihin ko ang aking nalalaman at katotohanan sa mga pangyayari. T. Sino ba itong si ALEJANDRO PATUNGAN at kailan, saan ba siya namatay o pinatay?

S. Siya po ay aking bayaw, asawa po siya ng aking kapatid na si MARIETTA PATUNGAN y PULGA at siya po ay pinatay ng ika 13 ng Mayo 1994, doon sa loob ng DAIHATSU VAN ng dalawang tao. T. S. T. Anong oras ba ito naganap? Humigit kumulang po sa alas 3:30 ng madaling araw ng petsa 23 ng Mayo 1994. Papaano mong nalaman ang mga bagay na ito?

S. Kaya ko po alam ang mga bagay na ito ay sapagkat kasama po ako dito sa pangyayaring ito, pero ito po ay nagawa ko lang dahilan sa inutusan ako ng aking kapatid na si MARIETTA upang patayin ang aking bayaw dahilan sa siya ay may kalaguyo na si JUNE ACEBUCHE na kaniyang kakutsaba at ang nakasama ko pa po dito ay ang aming pinsan na si EDGAR ACEBUCHE y Cervito na siyang sumaksak kay ALEJANDRO PATUNGAN. T. Maari mo bang isalaysay sa akin ang mga buod ng pangyayaring to?

S. Ako po ay kinausap ng aking kapatid na si MARIETTA ng mga buwan ng Nobyembre 1993 at ang sabi sa akin ay mayroon siyang problema sa buhay, at tinanong ko nga siya kung ano, ang sagot niya sa akin ay tungkol sa kaniyang kalaguyo na si JUNE ACEBUCHE at ang problema niyang talaga ay kung papaano silang magsasamang dalawa eh mayroong siyang asawa, (si ALEJANDRO PATUNGAN) at pilit niya akong kinukumbinsi na king maari ay iligpit ko si bayaw @ ALEX (ALEJANDRO) ayaw ko pong pumayag dahil sa takot po ako, pero tuwing magkikita kaming magkapatid ay lagi niya itong idinadaing sa akin at palagi na lang sinasabi na kung pwede ay patayin ko si ALEJANDRO na aking bayaw, at isang araw nga po ng buwan ng Abril 1994 ay kinausap na muli ako at sila na ngang pong dalawa na (MARIETTA AT JUNE ACEBUCHE) doon sa may JOLIBEE sa Farmers Plaza, Cuban, at pilit ng po akong

sinasabihan na iligpit si bayaw dahilan sa balakid ito sa kanila. At minsan pa sinabi sa akin ni MARIETTA na kung pwede ay magbayad na lang kami ng hired killer pero wala naman siyang pera kaya hindi ito natuloy, hanggang sabihin na lang niya sa akin na ako na lang ang gumawa at isama ko ang aming pinsan na si EDGAR ACEBUCHE. At ang plano ng po eh natuloy na, at kami nga eh nagpasya na yariin si bayaw ng ika 15 ng Mayo 1994, pero ito po ay hindi natuloy dahilan sa may mga tao doon sa aming pinagbalakang lugar kaya ito po ay inulit namin sa utos na muli nina MARIETTA at JUNE kaya ng sumapit ang ika 22 ng Mayo 1994, doon kami pinapunta ni MARIETTA sa Flower shop sa Farmers Plaza Market, at binigyan pa nga kami niya ng pera at ang susi ng DAIHATSU VAN para pagpunta namin doon sa Calderon kung saan sila nakatira ay madali kaming makakapasok doon sa loob ng sasakyan. Dumating nga po kami doon sa Calderon at sumakay kami ni EDGAR ACEBUCHE doon sa loob at nagintay sa aking bayaw sa paglabas niya sa madaling araw, pero habang iniintay namin siya ay may dumaang isang pulang kotse at ng hindi nakadaan ay minabuti ko na lang na ilagay sa Hi-way ang Van sa utos ni EDGAR ACEBUCHE. Maya-maya nga po eh dumating na si ALEJANDRO PATUNGAN kasama ang aking kapatid na ang weapon namin sa utos niya (MARIETTA) na kapag dumating na sila ay uuwi siya kunyari sa kanila at maiiwan si bayaw, at ganun na nga ang nangyari, naiwan si bayaw doon sa labas hanggang sa magtungo na siya sa loob ng Van at nagulat pa nga siya ng makita kaming dalawa doon sa loob, pero nagtanong pa siya kung sasama kaming dalawa sa kanilang magasawa, at ang sabi ko naman ay oo, at ganun na nga, ng nakaupo na si bayaw sa manubela ay inatasan akong palihim ni EDGAR na sakalin ko si ALEJANDRO ng dala kong kable (Electric wire) at ganun na nga po ang ginawa ko, sinakal ko si alejandro at habang sakal ko siya, nagpapapalag ay sinaksak siya ni EDGAR ng isang beses sa tagilirang leeg, at ng hindi mamatay-matay at pinagsasaksak na niya ng todo (madaming beses) at nalugmok si bayaw ay agad na hinila ni EDGAR sa bandang likuran ng Van at ako naman ay kaniyang inatasan na magmaneho at dadalin namin ang bankay sa Maynila (Sa DANGWA/DIMASALANG) ayon sa utos nina MARIETTA at JUNE ACEBUCHE na naayon sa plano nila, na papalabasin na itoy hinoldap sa pamimili ng bulaklak. At ganun na nga po, iniwan ko ang sasakyan sa may Don Quijote St, sa Maynila, (Sampaloc) at kami ni EDGAR ACEBUCHE ay umuwi na at naghiwalay lang kami sa aming bahay sa INC compound, Tangay and relo ni ALEJANDRO. T. Kailan ka ba sumuko sa mga pulis?

S. Ika 9 ng Agosto 1994 dahilan po sa nakukunsensiya ako sa mga pangyayaring ito na kakagawan ng aking kapatid at kalaguyo niya. T. Nais ko lang ipabatid sa iyo na sa iyoy walang sino mang pumilit, tumakot, o nangako ng ano mang bagay, upang gawin ang salaysay na ito, naiintindihan mo ba? S. Opo, naiintindihan ko po.xxxvi[7]

To establish the alleged motive in the killing of Alejandro, the prosecution also presented Adelaida Patungan, the sister of the deceased, who testified that her sister-in-law, the accused Marietta Patungan, had an affair with one of the helpers in the flower shop, who is her own cousin Jun Acebuche. Thus, witness stated that she saw the two eating together from the same plate and that she caught them holding hands. One time she saw Jun kiss Marietta. Her brother

allegedly found out about the affair and dismissed Jun from work but he forgave Marietta for the sake of their children.xxxvi[8] The mother of the victim testified to establish the amount of funeral expenses incurred at P80,000.00, which amount the defense admitted.xxxvi[9] For the defense, accused Marietta Patungan admitted in court that she was with her husband at early dawn of May 23, 1994 and were on their way to buy flowers for their flower shop but she went back to their house to get a betamax tape and that her husband proceeded without her.xxxvi[10] On August 9, 1994 she was invited by the police for questioning and that she was in fact questioned about her complicity in her husbands death at the police station without the assistance of counsel.xxxvi[11] The other accused Edgar Acebuche denied participation in the murder of the victim and stated that sometime on August 8, 1994 he went to his cousin Mariettas flower shop in Cubao to look for a job when the police mistook him for Jun Acebuche and arrested him. He was also subjected to custodial investigation without the assistance of counsel.xxxvi[12] In court, accused Elmerto Pulga repudiated his extra-judicial confession and stated that he was coerced by the police to admit participation in the murder of Alejandro Patungan and to implicate his sister Marietta as mastermind and cousin Edgar as co-conspirator. He narrated that he was arrested at around 9 a.m., August 9, 1994 and that he was detained and tortured by electrocution by the police until the following day, August 10, 1994, when he agreed to sign a prepared document. On August 11, 1994 he was brought to the IBP office where he met Atty. Rudio who signed the prepared extra-judicial confession as counsel for the accused.xxxvi[13] A motion to withdraw the plea of not guilty to the offense charged to a plea of guilty to a lesser offense i.e., homicide, was filed by counsel for the accused. The trial court denied the motion and treated it instead as a motion to recall the accused Elmerto Pulga for further testimony.xxxvi[14] On recall, accused Elmerto Pulga, admitted stabbing the deceased three times until he fell unconscious, after which he lost control of himself and stabbed the victim some more. He found a rope and pulled the victim by the neck to the back of the van. He stated that he alone was responsible for the death of his brother-in-law. The trial court upheld the validity of the extra-judicial confession and rendered judgment convicting the three accused guilty of the crime charged. The March 16, 1999 decision of the trial court reads as follows: WHEREFORE, the Court renders judgment finding all accused guilty beyond reasonable doubt as principal of the crime as charged, that is PARRICIDE for MARIETTA PATUNGAN and MURDER for accused ELMERTO PULGA and EDGAR ACEBUCHE, defined and penalized in Article 146 and Article 248, respectively, of the Revised Penal Code, as amended, with the attendant circumstances of treachery and evident premeditation alleged in the Information, sentencing them therefor to death, and ordering them to pay jointly and severally to the heirs of Alejandro Patungan the amount of Fifty Thousand (P50,000.00) Pesos as indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages, and P50,000.00 as moral damages.xxxvi[15]

The case is before us on automatic review. Counsel for the appellants assigns as error the trial courts appreciation of the testimonies of the prosecution witnesses and its finding in favor of the validity of the extra-judicial confession executed by Elmerto Pulga. The Medico-legal officer who conducted the autopsy on the victim at 7:00 p.m. of May 24, 1994 stated that considering the advanced stage of decomposition of the cadaver the victim must have been dead for thirty-six hours. Based on such findings it is submitted by the appellants that witnesses Antonio and Antonia could not have seen the deceased at 3:30 a.m. of May 23, 1994. The medical findings as to the approximate time of death and the injuries sustained by the victim are in accord with the testimony of Elmerto Pulga who admitted that he killed the victim at around 10:00 p.m. of May 22, 1994 and that he stabbed him thrice while he was seated at the drivers seat. In assailing the validity of the extra-judicial confession, the appellants contend that the trial court failed to appreciate the underlying admissions in the testimonies of SPO3 Villacorte and Atty. Rudio that the accused Pulga was in fact denied the assistance of counsel during custodial investigation. The appellants pray for the acquittal of accused Marietta Patungan and Edgar Acebuche and the conviction of accused Elmerto Pulga for the lesser offense of homicide. The Solicitor-General filed appellees brief praying for the affirmance of the decision of the trial court. It is maintained that the exact time of death of the victim is immaterial in view of the extra-judicial confession of Elmerto Pulga which dovetails with the findings in the autopsy report. What the appellee considers material is the timing when Marietta lured her husband into the van where the two co-conspirators were waiting to execute their murderous scheme. Appellee maintains that Elmerto Pulgas belated repudiation of his extra-judicial confession, his failure to present any evidence to support his claim of torture in the hands of his investigators and his apparent unwillingness to file any administrative charge against them militates against his claim that his extra-judicial confession was obtained through violence. The appellee asserts that confessions are presumed valid unless proven to have been obtained through violence, intimidation, threat or reward and that in view of the appellants failure to prove any of the aforementioned circumstances that vitiate consent, the trial court did not err in upholding the validity of Pulgas extra-judicial confession. Considering the totality of the evidence, it appears that the principal evidence presented by the prosecution to establish the alleged conspiracy among the appellants to commit murder is the extra-judicial confession of accused Elmerto Pulga. The rest of the evidence presented is at most circumstantial to establish motive and the presence of the appellants at or near the place of the commission of the crime. Section 12 (1), Article III of the Constitution provides: Sec. 12(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably his own choice. If the person cannot afford the services of counsel, he must be

provided with one. These rights cannot be waived except in writing and in the presence of counsel. (1) No torture, force violence threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (2) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. An extra-judicial confession to be admissible in evidence must be express and voluntarily executed in writing with the assistance of an independent and competent counselxxxvi[16] and a person under custodial investigation must be continuously assisted by counsel from the very start thereofxxxvi[17] The presence of counsel is intended to secure the voluntariness of the extrajudicial confession.xxxvi[18] The presence of a lawyer alone, will not suffice to fulfill the requirement of the constitutional provision. The assistance of counsel must be independent and competent that is, providing full protection to the constitutional rights of the accused.xxxvi[19] A lawyer who simply goes through the motion of reciting the rights of the accused, or acts as a witness to a pre-prepared document containing the extra-judicial confession of the accused or holds an interest contrary to that of the accused does not qualify as independent and competent counsel.xxxvi[20] To establish the validity of Pulgas extra-judicial confession, the police investigator PO3 Jovencio Villacorte testified that appellant Pulga voluntarily surrendered to the police and told them the whole story of how his younger sister appellant Marietta Patungan masterminded the murder of her husband to be able to marry her lover, and how he and his cousin appellant Edgar Acebuche accomplished Mariettas bidding.xxxvi[21] Atty. Pedro Rudio of the IBP, Quezon City Chapter, who supposedly assisted Pulga during the taking of the extra-judicial confession, testified that Pulga expressed his consent to be assisted by said counsel and signified that his confession is voluntary. Atty. Rudio stated that he even raised Pulgas shirt to check if he had been subjected to physical violence and found none.xxxvi[22] However, a closer examination of the transcript of stenographic notes regarding Pulgas extrajudicial confession is rather disturbing. PO3 Villacorte testified as follows: Q. And the person of Elmer Pulga was taken in custody or apprehended because that is the term used, arrested. That was the term used by Gacute on August 9, 1994, correct sir? A. Q. A. In our blotter, sir, it was August 10, August 10? Yes, sir.

Q. And it was on August 10 that you propounded questions to Elmer Pulga when he was referred to you by Gacute, correct, sir? A. Yes, sir.

Q. And do you know that once a suspect is arrested or surrendered for that matter, assuming that he surrendered, that custodial investigation will start immediately? A. Yes, sir.

Q. Do you know that a person who is undergoing custodial investigation is entitled to counsel? A. Q. Yes, sir. Did you provide him with a counsel when you talked to him?

A. No, sir. First of all, when I conducted the investigation on August 10, he denied to us because he pointed to us. (emphasis supplied). COURT: Ang tinatanong kung may abogado? WITNESS: No, sir, Without any counsel. ATTY. PRADO: Q: him? A. Do you know that a person under custodial investigation is entitled to counsel to assist

yes, sir.

Q. Why did you not provide or why did you not make it sure that this Elmer Pulga was assisted by counsel when you were conducting the custodial investigation on August 10, 1994? PROSECUTOR BAUTISTA: Objection, your Honor please, there is no showing that the police investigator, our witness, mentioned or investigated accused Elmerto Pulga on August 10. The questioning and interviewing was done in the office of the IBP on August 11 when he executed an extra-judicial confession.

COURT: You answer. A. Because when I questioned Elmer Pulga, he denied to us, sir. (emphasis supplied).

COURT: Q. A. Q. But did you give him a lawyer? No, sir. How come that there was a lawyer assisting Elmerto Pulga? How come?

A. Later in the morning when he tell us that he has already the evidence and then he is telling us the truth and then later I brought him to IBP to get a counsel there. Q. A. Q. A. Q. A. Who requested you to bring him to IBP? The block commander including Pulga, your Honor. So, the IBP provided the accused a counsel? Yes, your Honor. Did he object to the nomination given by IBP? No, sir.

COURT? Go ahead. ATTY. PRADO: Q. So, in short, Mr. Witness, from August 10 up to 2:00 oclock in the afternoon or August 11, 1994, accused Elmerto Pulga was not assisted by counsel more specifically of his own choice, correct, sir? A. Yes, sir.

Q. Do you know that once a person is under custodial investigation, he is immediately entitled to a counsel especially of his own choice? A. Yes, sir.

Q. And why did you not make it sure that from August 10 up to August 11 up to 2:00 oclock in the afternoon considering that this Elmer Pulga was already under custodial investigation he was not provided with counsel? A. Because, as I said, when he surrendered, he lied to us. He said he will confess but he even pointed one alleged suspect.xxxvi[23] Contrary to PO3 Villacortes assertion that Pulga was taken into custody on August 10, 1994, the police officer who actually took all three appellants into custody, SPO2 Orlando Gacute, testified that the appellants were all invited to the police station on August 9, 1994 and that they were all subjected to custodial investigation without counsel.xxxvi[24] This means that the appellants, and appellant Pulga, in particular, were in police custody and subjected to custodial investigation for two and a half days without the assistance of counsel before he decided to confess. Villacorte himself admitted that Pulga at first did not want to confess and pointed to another suspect as the perpetrator of the crime. This statement negates the polices claim of voluntary surrender and places in serious doubt the voluntariness of Pulgas extra-judicial confession. Pulga testified that he was arrested on August 9, 1994. He narrated in court that during custodial investigation he was blindfolded with hands tied behind him and was electrocuted by the police investigators while he was either sitting on a steel bar or had a piece of wet cloth placed on his feet, to compel him to admit commission of the crime charged. He simply cried and could not do anything else but to accede to his tormentors demand. He stated that he signed a pre-prepared document at the precinct before he was taken to the IBP office near the Sulo Restaurant in Quezon City on August 11, 1994.xxxvi[25] He explained that he narrated his ordeal only for the first time in court because he could not complain to the IBP lawyer, the fiscal nor to the medical officer out of fear of his police investigators and when he was taken to a medical officer for examination, the police escort answered the questions for him. None of his relatives visited him in jail and he only saw his lawyer in court.xxxvi[26] Until he was brought to court he had no one to confide to and he was at the mercy of the police investigators while he was detained at the Quezon City Jail.xxxvi[27] As a detention prisoner he was always escorted by the police when he was before the IBP lawyer, the fiscal and the medical officer and Pulga did not find the opportunity to complain to the authorities. To our mind, appellant Pulgas fear of his police escorts is well founded and his delay in revealing what he underwent during custodial investigation does not cast doubt on its veracity, as the prosecution suggests. We also note from the above testimonies that it was only after appellant Pulga verbally confessed at the police precinct, without the assistance of counsel, when he was brought to the IBP office allegedly for the actual transcription of his confession in writing in the presence of a lawyer. It would appear to us that whatever statement Pulga allegedly gave to the police for transcription in the presence of counsel is the product of two and a half days of coercive and uncounselled custodial investigation. We are inclined to believe that when he was brought to the IBP office his body and his will were in no position to raise any objection much less to complain to the IBP lawyer about what he has gone through. The situation was not at all alleviated by the counsel who was supposed to assist Pulga at the taking of the extra-judicial confession. Said lawyer admitted that he was working on an appeal in another case two to three meters away from the

police investigator who was then taking Pulgas statement. He stated that he was not totally concentrated on the appealed case because he could still hear the investigation being conducted then.xxxvi[28] Villacorte testified that while he was taking Pulgas statement the IBP lawyer was working on something else using two other tables four meters apart.xxxvi[29] The mere presence of a lawyer is not sufficient compliance with the constitutional requirement of assistance of counsel. Assistance of counsel must be effective, vigilant and independent.xxxvi[30] A counsel who could just hear the investigation going on while working on another case hardly satisfies the minimum requirements of effective assistance of counsel. Not only was Pulga subjected to custodial investigation without counsel, he was likewise denied effective assistance of counsel during the actual taking of his extra-judicial confession. For the reasons above stated, We find that the extra-judicial confession of appellant Elmerto Pulga is inadmissible in evidence for having been obtained without effective assistance of counsel. The other pieces of evidence presented by the prosecution fail to establish the charge of conspiracy among the appellants to murder the deceased. The prosecution relied heavily on Pulgas extra-judicial confession but the rest of the evidence presented fail to satisfy the required quantum of proof to establish conspiracy. The prosecution evidence simply establishes the presence of Pulga and Acebuche near or at the place where the victim was last seen alive. It is observed that Antonio and Antonia allegedly saw Pulga and Acebuche inside the van at around 10:00 p.m. and that the victim was last seen with Marietta at around 3:30 a.m. the following morning. There is no proof that Pulga and Acebuche were still inside the van at 3:30 a.m. and the only circumstance that might indicate that Marietta may have lured her husband to go inside the van to enable Pulga and Acebuche to kill him that morning was her alleged motive to get rid of her husband to marry her lover. It is on record that Marietta and her husband run a flower shop and it is not uncommon, much less suspicious, for them to buy flowers before dawn.xxxvi[31] The estimated time of death of the victim is nothing but such, an estimate. Due to the advanced stage of decomposition of the body of the victim when it was autopsied at around 7:00 p.m. of May 24, 1994, the medico-legal officer who conducted the autopsy testified that the victim must have been dead for about thirty-six hours.xxxvi[32] In an apparent attempt to show Mariettas implied admission of guilt, the prosecution presented one of the police officers who invited the appellants for questioning who testified that appellant Marietta tried to commit suicide after the investigation, i.e., that Marietta stabbed herself with a Batangas knife in the bathroom at the police precinct when she found out that her brother Elmerto pointed to her as the mastermind of the murder of her husband.xxxvi[33] However, no medical record was presented to substantiate this testimony and we note that the police officer did not testify that he saw Marietta stab herself. Marietta denied that she tried to commit suicide and testified that she woke up in the hospital.xxxvi[34] Whether or not she stabbed herself is not proven by the prosecution and can by no means be considered as an implied admission of guilt of appellant Marietta. We may add that even if she did attempt to commit suicide a female suspect under custodial investigation in a police-dominated atmosphere and without the assistance of counsel, Marietta cannot be expected to act rationally.

The evidence as it stands, without the extra-judicial confession of appellant Pulga, is not sufficient to support conviction for parricide against appellant Marietta nor for murder against appellant Acebuche. For this reason we are constrained to acquit them of the crimes charged. Only the judicial admission of Elmerto Pulga remains on record for consideration of the court. He testified as follows: Q: When you said you agreed to leave at 10:00 oclock in the evening on May 22, 1994, what did you actually do with your brother-in-law then? A: I was the one driving the car in going to Dangwa and while the car was running he told me, Bakit ka nakikialam pag sinasaktan ko ang asawa ko. Nakikisali ka. Q: A: Aside from you brother-in-law, who was with you then in that van you were driving? We were only two.

Q: What happened after your brother-in-law told you that statement, Bakit ka nakikialam pag sinasaktan ko ang asawa ko. Nakikisali ka. A: Q: Nauwi po yan sa pagtatalo dahil ayaw siyang pumayag sa aking paliwanag. After that pagtatalo or verbal tussle, what happened next?

A: When we arrived at Dangwa, I turned over the key to him and I told him that, Ikaw na lang ang umuwi. And after that, my brother-in-law got a screwdriver and stabbed me and I was able to grapple. Q: After that, when you were able to grapple that screwdriver from your brother-in-law, what did you do? A: Q: I stabbed him, sir. How many times, Mr. Witness?

A: Three times. After I stabbed him three times, I remember what he was doing to my sister and nawala ako sa aking sarili. Q: Are you telling the court, Mr. Witness that you recall having stabbed your brother-in-law three times and the rest you do not know anymore? A: I cannot remember, sir how may times I stabbed him. xxxvi[35]

ON CROSS-EXAMINATION, Pulga testified:

Q:

How many times did you stab Alejandro Patungan?

A: Three times, I stabbed him and then after he fell unconscious, I was not able to control myself. Q: A: Q: A: Q: A: Q: A: And so after stabbing him three times you left the place? No, maam. I lost control and binanatan ko siya ng binanatan. And you kept stabbing him? Yes, maam. And then you left the place, the premises? And I saw a rope that I put around his neck and pulled him back. So which occurred first, the stabbing or the strangulation? The stabbing, maam.xxxvi[36]

Pulgas admission that he stabbed the victim thrice coincides with the autopsy report that the victim sustained three stab wounds. Pulgas statement that he was seated at the drivers seat while the victim sat at the passengers seat which means that Pulga was at the left side of the victim also coincides with the medical finding which states that the stab wounds, except those on the victims abdomen, were all on the left side of the body of the victim. The prosecution tried to establish the impossibility of Pulga pulling the victim by himself to the back of the van but no competent evidence was presented to prove the theory. The autopsy report reveals that the victim was 63 inches tallxxxvi[37] and Pulga testified that he stands 5 feet 4 inches tall.xxxvi[38] The alleged impossibility was not proven by the prosecution with moral certainty. At any rate, we hold that there is no other evidence on record to show that Pulga was not alone in the commission of the crime. Pulgas admission can be sustained but he cannot be convicted for murder in the absence of proof of any of the qualifying circumstances alleged in the information, i.e., treachery and evident premeditation. The number of stab wounds sustained by the victim, fifty-one in the abdomen and three in the upper part of his body, by itself is not aggravating unless it was shown, and it was not herein shown, to have been intentionally inflicted to add suffering to the victim.xxxvi[39] On the contrary, Pulga testified that he countlessly stabbed the victim after he fell unconscious. Accordingly, Pulga is hereby convicted of homicide and to suffer the penalty of reclusion temporal.xxxvi[40] In the absence of any mitigating or aggravating circumstance, the said penalty is to be imposed in its medium periodxxxvi[41] of 14 years, 8 months and 1 day to 17 years and 4 months.

This court is not blind to the suffering of the victims family arising from his untimely death, but we are bound to uphold the constitutional rights of the accused. Let this be a stern lesson to the police authorities and to the prosecution to perform their sworn tasks with utmost regard to the mandates of the Constitution. Criminals cannot be apprehended, prosecuted and punished under the law by resorting to non-legal means. WHEREFORE, appellants Marietta Patungan and Edgar Acebuche are acquitted of the crimes charged against them and the judgment of conviction rendered by the trial court is hereby reversed and set aside. The judgment of conviction for murder against appellant Elmerto Pulga is hereby likewise set aside and a new one entered convicting him of the crime of homicide, and imposing the indeterminate penalty of 10 years of prision mayor in its medium period, as minimum to 17 years and 4 months of reclusion temporal in its medium period, as maximum. This Court affirms the pecuniary awards given by the trial court and orders the appellant Pulga to pay the heirs of the victim the sum of P50,000.00 as indemnity for death, P80,000.00 for actual damages and P50,000.00 for moral damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION [G.R. No. 134727. February 19, 2001] CESAR BARRERA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION
DE LEON, JR., J.:

This is a petition for review on certiorari of the Decisionxxxvi[1] of the Court of Appealsxxxvi[2] dated March 25, 1998 in C.A. G.R. CR No. 19650, and its Resolutionxxxvi[3] dated July 24, 1998 denying the motion for reconsideration. The petitioner, Cesar Barrera, and his erstwhile co-accused, Domingo Lazo and Celedonio Itape, were charged with the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, in an Information that reads:

That on or about May 24, 1981 in the evening at Brgy. Mayapa, Calamba, Laguna and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and jointly helping with (sic) each other, with evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and stab one Mario Anacay with a deadly weapon (knife) thereby inflicting upon the latter serious stab wounds at the back which immediately caused his death, to the damage and prejudice of the surviving heirs of the victim Mr. Mario Anacay. That the crime was committed with the aggravating circumstances of nighttime, evident premeditation and treachery in the commission thereof. CONTRARY TO LAW. Upon being arraigned on November 9, 1981, the three accused, assisted by counsel, separately entered the plea of Not guilty to the charge in the information. Thereafter, trial on the merits ensued. It appears from the evidence adduced that the victim, Mario Anacay, and his companion, Jojo Fernandez, were setting up a beto-beto stall when they met the group of herein petitioner Cesar Barrera, Domingo Lazo and Celedonio Itape, near the fair ground (periahan) on the ev e of the fiesta in Barangay Mayapa, Calamba, Laguna on May 24, 1981. Barera confronted Anacay about Domingo Lazo's cousin whom Anacay allegedly stabbed in Silang Cavite. As Anacay turned to leave with Fernandez, Barrera suddenly stabbed Anacay once on the back thereby causing the victim to fall on the ground. Afraid that he might also be stabbed, Fernandez ran away to seek help from their other companions.xxxvi[4] Police officers Cosme Malabanan, Juanito Fajardo and Eugenio Banaag went to the scene of the crime in Barangay Mayapa, Calamba, Laguna after receiving a report of the stabbing incident. Thereafter, they proceeded to the Canlubang Estate Hospital in Laguna where the victim was brought earlier. At the hospital, police officer Malabanan interrogated the victim, Anacay, who declared that Cesar Dictado, Doming and Dolong were his attackers. The declaration of the victim was put down in writing which he thumbmarked with his own blood. Anacay believed that he was going to die (Mamatay po ako.) when asked by police officer Malabanan how he felt as a result of his stab wound.xxxvi[5] Anacay also mentioned to prosecution witness, Lauro Ejeda, the same names of Cesar Dictado, Doming and Dolong as his attackers. Ejeda knew that Anacay was referring to Cesar Barrera, Celedonio Itape and Domingo Lazo whom he had known for a long time because they were engaged in the same business of beto-beto. Upon the request of Anacay, Ejeda accompanied the policemen back to Barangay Mayapa in Calamba, Laguna and helped them identify the victims attackers. Doming (Domingo Lazo) and

Dolong (Celedonio Itape) voluntarily surrendered to the policemen while the petitioner attempted to evade arrest but was prevented by Ejeda.xxxvi[6] Meanwhile, the victim was transferred to the Philippine General Hospital in Manila where he died on May 25, 1981 due to shock secondary to stab wound in the back.xxxvi[7] Petitioner Cesar Barrera denied that he stabbed Mario Anacay in the evening of May 24, 1981. He claimed that on the said occasion he was busy attending to his beto-beto business when a commotion occurred at the fair ground. Nevertheless, he never left his place and that he learned only later what actually happened when people began talking about the stabbing incident. xxxvi[8] On January 26, 1998, the trial court rendered its decision convicting herein petitioner of the crime of homicide but acquitting his two (2) co-accused of the crime charged in the information. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered1. CONVICTING Cesar Barrera but only for homicide, the prosecution having proved his guilt beyond reasonable doubt. He shall be sentenced to an indeterminate jail term of ten (10) years and one (1) day of prision mayor as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. He shall indemnify the heirs of Anacay the amount of P50,000.00 and shall be credited for time spent in jail. 2. ACQUITTING accused Domingo Lazo and Celedonio Itape, the quantum of proof for their conviction not having been met. SO ORDERED. Aggrieved by the decision of the trial court, the petitioner appealed to the Court of Appeals. On March 25, 1998, the Court of Appeals rendered its decision affirming the decision of the trial court. After his motion for reconsideration was denied on July 24, 1998 by the appellate court, the petitioner filed with this Court the instant petition for review on certiorari containing the following assignments of error, to wit: I THE HON. COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR WHEN IT RULED THAT PETITIONERS DENIAL OF THE CRIME CHARGED CANNOT PREVAIL OVER THE POSITIVE TESTIMONY OF THE PROSECUTION WITNESS JOJO FERNANDEZ, DESPITE THE FACT THAT FACTS AND CIRCUMSTANCES EXIST WHICH RENDER THE IDENTIFICATION OF THE PETITIONER AS BOUBTFUL AND CANNOT BE THE BASIS OF HIS CONVICTION.

II A DOCUMENT CONSISTING OF AN AFFIDAVIT HEREIN SUBMITTED WHICH ACCOMPANIES THE INSTANT PETITION IF ADMITTED WILL CERTAINLY EXCULPATE THE ACCUSED-PETITIONER OF THE CRIME CHARGED. III THE HON. COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR WHEN IT ACCORDED CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS JOJO FERNANDEZ DESPITE THE FACT THAT HIS TESTIMONY IS FULL OF CONTRADICTIONS AND INCONSISTENCIES WHICH CLEARLY IMPAIR HIS CREDIBILITY. IV THE HON. COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN NOT ACQUITTING THE ACCUSED-PETITIONER OF THE CRIME CHARGED, ESPECIALLY CONSIDERING THAT HIS CO-ACCUSED, DOMINGO LAZO AND CELEDONIO ITAPE, WERE ACQUITTED BY THE TRIAL COURT, THEIR GUILT NOT HAVING BEEN PROVED BEYOND REASONABLE DOUBT, AND THE ABOVE-MENTIONED AFFIDAVIT EXCULPATING THE ACCUSED OF THE CRIME CHARGED. In substance, the petitioner contends that there is doubt as to his identity as the perpetrator of the crime inasmuch as the victim, Mario Anacay, himself identified his attackers as "Cesar Dictado, Doming and Dolong." The said dying declaration of the victim was confirmed by a prosecution witness, police officer Cosme Malabanan who investigated the victim in the hospital where he was brought after the stabbing incident. Petitioner's contention is not impressed with merit. Prosecution eyewitness Jojo Fernandez positively identified the petitioner, Cesar Barrera, as the same person whom he saw stabbed Mario Anacay on the evening of May 24, 1981. Fernandez categorically declared on the witness stand that he was able to recognize petitioner Barrera for the reason that he (Fernandez) was with the victim, and the premises were well-lighted when the victim was stabbed by the petitioner. Regardless of whatever name Anacay may have known his attacker, the same is not sufficient to overturn the fact that petitioner Barrera was positively identified by prosecution eyewitness, Jojo Fernandez, as the perpetrator of the crime. Besides, another prosecution witness, Lauro Ejeda testified during the trial that he knew Cesar Dictado, who was referred to by Anacay in his dying declaration as his attacker, to be the same person as the herein petitioner, Cesar Barrera, whom he (Ejeda) had known for a long time.xxxvi[9] Consequently, the defense of denial by the petitioner pales in the light of the categorical identification made by the prosecution eyewitness, Jojo Fernandez. Positive identification where categorical and consistent and without any showing of ill-motive on the part of the eyewitness testifying on the matter, as in the case at bar, prevails over alibi and denial which, if not

substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.xxxvi[10] Petitioner assails the testimony of prosecution eyewitness Jojo Fernandez for being allegedly incredible. He contends that it would be contrary to human experience for the victim, who used to operate beto-beto business in Canlubang, Laguna, to put up his beto-beto stall in Brgy. Mayapa, Calamba, Laguna only on the eve of the fiesta; that it was highly improbable for the petitioner to exact revenge on Anacay when it was Domingo Lazo whose cousin was stabbed by the victim; that if Fernandez were indeed an eyewitness to the crime, he would not have deserted the wounded Anacay who was his kumpadre; and that his non-flight from the scene of the crime until the police officers arrived and arrested him and his erstwhile co-accused indicated his innocence. The above contentions refer to factual matters which have already been raised by the petitioner and thoroughly passed upon by the Court of Appeals in its Decision dated March 25, 1998 and hence do not warrant a reviewxxxvi[11] by this Court. We quote with approbation the appellate courts disquisition, thus: The arguments are, if not without basis in fact, clearly insubstantial and inconsequential. The fact, as testified to by Jojo Fernandez, that the three (3) accused and the victim and Jojo Fernandez set up their beto-beto tables at 10:00 oclock in the evening on the very day of the fiesta is not cause for disbelieving the testimony of the prosecution eyewitness Jojo Fernandez. While it is true that it is customary to put up the beto-beto stands on the eve of the fiesta, such customary practice does not make incredible that the three (3) accused, the victim and Fernandez put up their beto-beto stands at 10:00 oclock in the evening on the very day of the fiesta. After all, beto-beto stands are not difficult or expensive to put up and the decision to put them up naturally depends on the volume of the crowd or beto-beto players, even if already on the very night of the fiesta. That Fernandez and the victim are compadres does not by itself render the testimony of the former inadmissible or devoid of probative value. Fernandezs testimony that he was at the crime scene and was a witness to the crime is credible. That Fernandez volunteered to be a prosecution witness and that Anacay was his compadre did not render Fernandezs testimony unreliable, because his testimony, independent of their relationship, is not inherently improbable and neither is there proof that he might have been compelled by improper or evil motive in pointing to the accused-appellant as the assailant. We also have to reject appellants contention with respect to the lack of motive on his part to stab the victim. It is well-established rule that proof of motive is not crucial where the identity of the accused has been amply established. The fact that Fernandez ran away upon seeing the stabbing incident and did not help the fallen victim is not difficult to understand. Fernandez explained in his testimony why he ran away. He explained that he was overcome by fear that he would be stabbed next.

Finally, it is argued that all three (3) accused did not leave the peryahan even after the stabbing. To quote from a decision of the Supreme Court, Appellants pretended innocence is clearly non sequitur to his decision not to flee. Apart from the fact that there is no case law holding that non-flight is a conclusive proof of innocence, the argument does not hold weight in the light of the positive identification of the appellant.xxxvi[12] In a desperate attempt to escape criminal liability, the petitioner presented at this late stage an Affidavitxxxvi[13] dated September 3, 1998 allegedly executed by a certain Elena de Sagun vda. de Gatdula. The affidavit states, in substance, that affiant Gatdula met and befriended petitioner Cesar Barrera and his wife on June 1, 1996; that she learned from the petitioner of his conviction for the death of Mario Anacay; that she recalled and informed the Barrera couple of her alleged late husbands admission to the killing on May 24, 1981 of a certain person by the name of Mario Anacay; that she had no opportunity then to give her statement on the matter; and that she decided to do it now allegedly for the sake of truth and justice to petitioner. The said affidavit of Elena de Sagun vda. de Gatdula is patently hearsay, and therefore, carries no probative value.xxxvi[14] It appears therein that she learned of the identity of the alleged culprit when her husband, who died in 1983, purportedly admitted to her having killed Mario Anacay on May 24, 1981. In other words, she had no personal knowledge of the killing of Mario Anacay except for the information allegedly revealed to her by her late husband. It is an established doctrine that when the evidence is based on what was supposedly told the witness, the same is without any evidentiary value or weight, being patently hearsay.xxxvi[15] WHEREFORE, the instant petition is hereby denied for lack of merit. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

SECOND DIVISION [G.R. No. 132159. January 18, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR GIVERA y GAROTE, accused-appellant. DECISION MENDOZA, J.:

This is an appeal from the decisionxxxvi[1] of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs of the suit. The information in this case, dated April 10, 1995, charged as follows: That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused [CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y GERALDExxxvi[2] and ARTURO GAYON y GERALDE, and mutually helping one another who were charged with the same offense at the Regional Trial Court of Quezon City, Branch 104, and docketed as Criminal Case No. Q-93-44315, did, then and there, willfully, unlawfully and feloniously, with intent to kill, taking advantage of superior strength, with evident premeditation and treachery, attack, assault, and employ personal violence upon the person of EUSEBIO GARDON y ARRIVAS, by then and there stabbing him with a knife hitting him on the different parts of his body, and striking him with a piece of stone on the head, 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 EUSEBIO GARDON y ARRIVAS. CONTRARY TO LAW.xxxvi[3] Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon he was tried. Accused-appellants companions, namely Epifanio Gayon, Arturo Gayon, and Maximo Givera, were separately prosecuted and found guilty of murder by the Regional Trial Court, Branch 104, Quezon City in a decision, dated June 6, 1994, in Crim. Case No. Q-93-44315. The three were sentenced to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased the sum of P100,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs of the suit. On appeal to this Court, the decision of the trial court was affirmed with modification. The dispositive portion of the decision reads: WHEREFORE, the judgment appealed from is MODIFIED. We instead find accused-appellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond reasonable doubt of MURDER committed with grave abuse of superior strength and imposes upon each of them the penalty of reclusion perpetua with the accessory penalties provided by law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the amount of P100,000.00. Costs against accused-appellants.xxxvi[4] For the prosecution, the victims daughter Milagros Gardon and his niece Melinda Delfin were presented as witnesses. On the other hand, only accused-appellant testified in his defense.

The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura St., Old Balara, in Diliman, Quezon City. Milagros Gardon testified on direct examination:xxxvi[5] Q: A: Q: A: Q: Particularly about 4:00 p.m., were you at your residence at that time? Yes, sir. And what were you doing there at that time? I was in the house because I was watching my father, sir. What was your father doing at that time?

A: I let him go to sleep because he was a little bit drunk, and I was watching him so that he will not go outside. Q: Why do you say you were watching him so that he would not anymore go out?

A: Because he was warned by [accused-appellant Cesar Givera] that if he goes outside, he will kill my father. Q: .... A: Q: .... COURT: She mentioned that because her father was not coming out of the house, the accused started stoning the house. Q: A: Q: Who was stoning your house? Cesar Givera, sir. Was he alone at that time? [O]ur house was being stoned. Who was stoning your house? Could you tell us who was throwing stones to your house? At that time and place while you were watching your father, what else happened if any?

A: They were in a group, sir, but he was the only one stoning the house. And the other one, who was already arrested, by the name of Onying went inside the house. Q: You said a while ago that there was somebody with Cesar who went to your house, could you recall that somebody? A: Q: A: Onying [Epifanio Gayon], sir. You said he was already nakakulong? Yes, sir.

Q: Now, what happened after this person Cesar and the other one Onying went inside the house? A: Onying asked my father to go out of the house while Cesar was stoning the house. Onying led my father out of the house, and when they were already outside, Cesar was waiting for them. Then Cesar scampered away and my father followed him. Cesar caused my father to run after him until they reached the place where there was another person, and that person stabbed my father. Q: A: .... Q: .... A: Cesar was stoning the house. Then Onying got my father from the house. Turing [Arturo Gayon] told the other one to stab my father while the one who stabbed my father was waiting under the bridge. .... Q: A: What happened to your father after you said he was stabbed or mauled? After he was stabbed, the person who stabbed him ran away, sir. What did these 4 persons do when her father was with them if any? So how many persons in all have you seen? They were four in all, sir.

On cross-examination, Milagros Gardon said:xxxvi[6] Q: Who else were with you at that time?

A: Q: A:

My brother and sister, sir. They were Laura Gardon and Leonardo Gardon, correct? Yes, sir.

Q: And your father inside the house because he was already resting after having been from a drinking spree, correct? A: .... Q: A: And you were watching TV at that time, correct? Yes, sir. Yes, sir.

Q: And then suddenly you heard stones being thrown on the roof of your house, is that correct? A: .... Q: A: Q: A: Q: A: .... Q: At that time were you in a position so as to see him actually effect his entrance through the front door? A: Q: Yes, sir. Why? Where were you at that time? This Onying [Epifanio Gayon] suddenly entered your house, correct? Yes, sir. He was alone when he entered your house, correct? Yes, sir. How did he effect his entrance in your house? He went inside directly, sir. Yes, sir.

A: Q: A:

I was in the sala, sir. You were in the sala right next to your father, is that correct? Yes, sir.

Q: And likewise with your two other companions Laura and Leonardo, they were situated right near to your father, correct? A: .... Q: Now, when this Onying entered the house, did he call out the name of your father if you can remember? A: Q: A: Q: A: .... Q: A: .... Q: Then you together with your two other companions got back to watching the television show is that correct? A: Q: A: Q: No, sir. But you stayed inside the house, you and your two other companions? No, sir. Now, thereafter you heard stones thrown again towards your house, is that correct? And your father stood up and joined Onying in going out of the house? Yes, sir. Yes, sir. And your father, did he give any response thereto? Yes, sir. What was his response if any? He asked Onying if he need anything. And Onying asked him to go out with him. Yes, sir.

A: Q: A: .... Q: A: Q: A: .... Q: A: Q: A: Q: A: Q: A:

Yes, sir. But just the same, you did not peep out through any opening of your house for safety? We were already outside when they were stoning the house. We followed him outside.

Was Onying also hit by any of those stones? No, sir. Only my father and my sister. What is the name of that sister of yours who was also hit? Laura Gardon, sir.

And where was Laura hit? At her left shoulder, sir. And how many stones if you know hit Laura? Only one, sir, because while they were stoning they were running away. Who were these people running away? Onying and Cesar, sir. Are you saying that Onying also stoned your father? No, sir.

Q: Because he was right next by your father at that time, that is why he was not at all stoning your father, correct? A: .... Q: You saw Cesar Givera actually stoning towards the direction of your father, is that what you mean? A: Yes, sir. He was boxing him.

.... Q: A: Q: A: Q: A: Q: A: Q: And your father followed Cesar Givera, is that what you mean? Yes, sir. Likewise, with Onying, he followed Cesar Givera? Yes, sir. And they ran quite a distance, correct? Yes, sir. And then you lost sight of them yes or no? No, sir. But you stayed in the house, correct?

A: No, sir. I was outside the house. When the incident happened, I was already outside the house. Q: But because you did not state that you also followed your father as he ran after Cesar, does that mean that you just stayed in front of your house? A: We stopped because we already saw the place where my father was stabbed, that is why we did not follow them. Q: How far did they get, using as reference the front door of your house? How far did they get as they ran away? A: Q: A: Q: A: Q: A: About fifteen meters away, sir. Did they not turn corners? It is straight, sir. They only made a turn after the stabbing incident, sir. They turned a corner after your father was stabbed? Yes, sir, because they ran away, sir. Only one of the accused stabbed your father, correct? Yes, sir.

Q: A: Q: A:

And who was this? Bingo Givera [Maximo Givera], sir. Did you actually see him stab your father? Yes, sir.

On re-direct examination, Milagros said:xxxvi[7] Q: Madam witness, you said a while ago that you saw while your father was stabbed, and the name of that person is Onying who stabbed your father? A: .... Q: .... A: He was also at the same place, sir. Now, when you saw Maximo Givera stab your father, where was Cesar at that time? Maximo Givera, sir.

Q: And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where they were when Maximo was stabbing your father? A: They were also at that place, sir.

Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She said:xxxvi[8] Q: A: Q: A: rice. At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time? Yes, sir, I was about to reach the house of Eusebio Gardon. What was your purpose in going there? Eusebio Gardon called me up because he has just come from Bicol and he will give me

Q: You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on May 4, 1993, what did you notice or observe when you were about to arrived at that place of his residence?

A: I saw Onying [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon going out of their yard. (Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.) .... Q: A: What else did you notice? When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon. (Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio Gardon.) .... Q: What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio Gardon? A: Cesar boxed him and also Onying boxed him, they both helped each other in boxing Eusebio Gardon, and then they back to the house of Eusebio Gardon and my uncle followed them. Not quite far, Bingo [Maximo Givera] and Turing [Arturo Gayon] were there. .... Q: And what happened when you said this Bingo was there?

A: Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by Bingo, and they were also kicking Eusebio Gardon. Q: A: Q: A: Eusebio Gardon was boxed by Onying and Cesar Givera? Yes, sir. And stabbed by? Bingo, sir.

Q: Actually, how many persons were there when [Eusebio] Gardon was stabbed and being boxed? A: Q: A: I saw four of them, sir. Would you made these four (4)? Turing, Bingo, Cesar and Onying.

.... Q: And what happened to Eusebio Gardon, whom you said was boxed, mauled and then stabbed? A: He was lying down under the bridge for about thirty (30) minutes, and then his children arrived. .... Q: You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards the victims house, is that true? PROSECUTOR CONCHA: Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying and Cesar boxing - - ? WITNESS: Suntok, bato at sipa. ATTY. MASCALAS: Q: A: Q: A: Where did you see them doing these acts on Eusebio? Outside the premises, sir. Whose premises? The premises of Eusebio Gardon, sir.

Q: Did you not say earlier that Onying came out with Eusebio Gardon from the latters house? A: Q: A: I saw Onying, akbay-akbay niya.. You even saw Onying embracing Eusebio Gardon, correct? Yes, sir. .... Q: Were there stones being hurled to Onying and Eusebio?

A: Q: A: .... Q: A: Q: A: .... Q: A:

Yes, sir. Did you see who were throwing those stones? It was Cesar, sir.

Did you see if Gardon was hit by any of these stones? Yes, sir. And you also saw Onying hit by stones, correct? No, sir.

Who boxed your uncle? Cesar, sir.

Q: Are you saying that Cesar while throwing stones to your uncle was so close to him that he was able to box him? A: Because they were advancing towards my uncle and Onying. They were going towards them. .... Q: A: Q: A: Q: A: .... Q: And then Cesar Givera ran away and your uncle gave chase? And when they were able to come near, how near did Cesar get to your uncle? Maybe three to four meters, sir. That was when Cesar boxed your uncle? Not yet, sir. When did Cesar box your uncle? When they come near to my uncle.

A:

Yes, sir.

Q: And upon reaching the bridge which is about fifteen (15) meters away from the victims house, you saw Bingo stabbed your uncle? A: Yes, sir.

Q: There were only -- You said that there were only four (4) persons in that place where your uncle was stabbed and those persons do not include Milagros Gardon? A: Q: A: No, sir. Because Milagros Gardon was still in their house? She was already outside their house.

Q: She was outside their house -- although outside their house she was still inside the premises of their lot? A: She was still inside, but she saw the incident.

Q: And that premises of the victim was about 15 meters away from the bridge where the alleged incident took place? A: Q: A: .... Q: So you were also about 15 meters away from the bridge where the alleged incident took place? A: Q: A: Yes, sir. And that is your distance when you were claiming that you saw this incident? It was just a little less. (Makalampas lang ng konti). .... Yes, sir. Were you also with Milagros Gardon at the time that stabbing was done? We were not together but I was approaching their house.

Q: A: Q: A: ....

It was Turing Gayon [Arturo Gayon] whom you heard shout: Sige, todasin na yan! Yes, sir. And it was Bingo [Maximo Givera] whom you saw stabbed your uncle? Yes, sir.

Q: You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you saw it? A: Q: A: Q: A: Q: A: Yes, sir. What was Cesar Givera doing when the victim was stabbed by Bingo? They were kicking and boxing my uncle. Givera was doing that? I was asking you about Cesar Givera? He was boxing and kicking my uncle. Who, Eusebio Gardon, the victim? Yes, sir.

To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in evidence the testimonyxxxvi[9] of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal Case No. Q-93-44315. The testimony shows that the victim sustained one fatal stab wound possibly caused by a single bladed weapon.xxxvi[10] In addition, he sustained abrasions in his lower chin, possibly hitting a rough surface, as well as an incised wound caused by a bladed weapon, on his posterior middle left arm.xxxvi[11] The stab wound appears to be fatal because it pierced the pericardium and left ventricle of the heart, which could be the immediate effect of hemorrhage, shock and eventual death of the victim.xxxvi[12] A death certificatexxxvi[13] evidencing the death of the victim was presented by the prosecution. Accused-appellant testified in his behalf. He was a resident of Laura St., Old Balara, Quezon City at the time of the incident. He denied any involvement in the killing of the victim who was his relative by affinity.xxxvi[14] Accused-appellant claimed that at the time of the incident on May 2, 1993, at around 4:00 p.m., he was having a drink in his cousins house, some 30 meters away from the victims house. On the other hand, Maximo Givera and Arturo Gayon were in the victims house also having drinks. Accused-appellant said he was fetched by his cousin, Recto Gardon, because Maximo and the

victim Eusebio Gardon were having an altercation. He went to pacify the protagonists and then led the victim to his house. Without his knowledge, however, Eusebio went back and again engaged Maximo in a fist fight, as a result of which the victim Eusebio was knocked down. Accused-appellant said he was going to help the victim get up, but he saw the victims son, Ronilo Gardon, coming with a bolo. He, therefore, ran away and left the victim behind. He added, that he did not see if his three companions did anything more than box the victim.xxxvi[15] Accused-appellant said he learned that the victim had died only two days after the incident.xxxvi[16] Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical Center. He stated that the children of the victim implicated him in the killing of Eusebio Gardon only because he was present when the incident happened.xxxvi[17] On August 29, 1997, the trial court rendered its decision finding accused-appellant guilty of murder. The dispositive portion of its decision reads:xxxvi[18] WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond reasonable doubt of the crime of murder as charged. The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED. Hence, this appeal. Accused-appellants sole assignment of error is that DUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS COMMITTED AN ERROR IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED The appeal has no merit. First. The prosecution presented evidence which shows beyond reasonable doubt that accusedappellant and his companions (Epifanio Gayon, Arturo Gayon, and Maximo Givera), all of whom were convicted of murder in another case, were responsible for the killing of Eusebio Gardon on May 2, 1993. Milagros Gardons testimony, an excerpt from which is quoted at the beginning of this opinion, is spontaneous, detailed, and consistent. The defense tried to discredit through cross examination, but, as shown earlier, the defense only succeeded in enabling her to give further details of her testimony in chief. There are apparent lapses in the testimony of Milagros, as when she testified that she knew at the very beginning that it was accused-appellant who was stoning their house when in fact, as she admitted, she only knew this because the victim said so. Moreover, it may be doubted whether the victims other daughter, Laura, was hit by the stones hurled by accused-appellant as she came out of their house, since the door of the house was so narrow that only one person at a time could pass through it. Nonetheless, a close reading

of the records will show that indeed it was accused-appellant who was stoning the house because when the witness followed the victim outside, she saw accused-appellant throwing stones at their house. She then saw accused-appellant hitting the victim with stones. In the process, Laura was also hit. In any event, these discrepancies are minor and insignificant and do not detract from the substance of her testimony. This Court has time and again said that a few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details and not in actuality touching upon the central fact of the crime do not impair the credibility of the witnesses. Instead of weakening their testimonies, such inconsistencies tend to strengthen their credibility because they discount the possibility of their being rehearsed testimony.xxxvi[19] Thus, according to Milagros Gardon, accused-appellant taunted the victim and challenged him to come out of the house. After succeeding in drawing the victim out of his house, accusedappellant and his companions ganged up on him, kicking and pummeling him and finally stabbing him. Milagros testimony belies accused-appellants claim that he was merely trying to pacify the victim and Maximo Givera and that he ran away because the victims son, armed with a bolo, charged at him (accused-appellant). There was no reason for the victims son to want to attack accused-appellant, if the latter was merely trying to help the victim. Nor is it probable that accused-appellant did not see what his companions did to the victim aside from giving him fist blows and kicks, because according to accused-appellant, he ran away shortly after they had attacked the victim. As accused-appellant said he saw the assailants run way, this could only be after they had been done with their victim. The defense also tries to discredit the testimony of the other prosecution witness, Melinda Delfin. It is contended that, contrary to her claim, she was not really present at the incident. For this purpose, it is pointed out that she failed to give a sworn statement regarding said incident to the police. The contention has no merit. As Melinda explained, she did not give a statement to the police because she was told they would call on her later for her statement. Melinda testified:xxxvi[20] Q: The police did not get your statement because you did not tell them that you were an eyewitness and if it is true, correct? A: No, sir.

Q: You were only asked by your relatives - - You testified in this case in the sala of Judge Asuncion after the children of the victim asked you to? Correct? A: They did not tell me. I voluntarily testified, sir, because I saw the incident.

Q: What do you mean by saying that you voluntarily testified? Did you just come to court and asked the court to take you as witness in this case? A: No, sir, because in the police station the police told me that they will not take my statement. They will just ihahabol na lang ako. Q: Did you not inquire from them why your statement will not longer be taken and what do you mean by that ihahabol na lang ikaw? A: I did not ask because I do not know anything about that. That was the first time that incident happened to my life. It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and the other assailants, and that in fact some of them are related to the witnesses. Accused-appellant has not shown that these witnesses were motivated by ill will against him. As correctly observed by the trial court:xxxvi[21] [T]he court has no reason to doubt the testimonies of the prosecution witnesses. In the first place, accused Cesar Givera has not shown any motive on the part of the prosecution witnesses to testify as they did against said accused. Second, accused Cesar Givera and the other accused in this case are all residing within the vicinity where the crime was committed, and are even related by affinity to the deceased. There is, therefore, no reason to doubt their identification by the prosecution witnesses. All things considered, we think the trial court correctly dismissed accused-appellants claim and gave credence to the testimonies of the prosecution witnesses. From the fact that the victim died and that accused-appellant and his companions were the last persons seen with the victim before he died, it can be concluded that they are responsible for the victims death. Second. The allegations of conspiracy in the information have been established. The victim was at home sleeping after coming from a drinking session, when the accused-appellant and his companions stoned his house to force him to come out. When they failed, one of them, Epifanio (Onying) Gayon, went inside the victims house and told him to come out. Disoriented because he was drunk, the victim went with Onying. Once the victim was outside, accused-appellant pelted him with stones, while Onying started raining fistic blows on him. Then Onying and accused-appellant ran away to lure him to go toward the bridge where the other two, Arturo Gayon and Maximo Givera, were waiting. When the victim reached the place, he was attacked by the gang. He was kicked and boxed by Onying and when Arturo shouted Sige todasin na yan!, Maximo stabbed the victim. The evidence thus clearly and convincingly shows a coordinated action by the group in the execution of the crime. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all participants performed specific

acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring about the death of the victim. The act of each conspirator in furtherance of the common purpose is in contemplation of law the act of all. Consonant with this legal principle, accused-appellant is guilty of the crime of murder as if he himself dealt the deathblow that sent the victim to his grave.xxxvi[22] Third. However, evident premeditation cannot be appreciated in this case. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be appreciated.xxxvi[23] But in an implied conspiracy, such as in this case, evident premeditation cannot be appreciated in the absence of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it was carried out, so that it cannot be determined if the accused had sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences. There should be a showing that the accused had the opportunity for reflection and persisted in effectuating his criminal design which the prosecution failed to establish in the case at bar.xxxvi[24] Nor can the qualifying circumstance of treachery be taken into account. The trial court held:xxxvi[25] . . . [T]reachery will also be deduced from the evidence on record. The deceased was unarmed when he was stabbed by on Maximo Givera and boxed and kicked by accused Cesar Givera and two other accused. . . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked the deceased by throwing stones at him and then lured him to run after them towards the bridge where the other accused were lying in wait ready to pounce on the deceased without risk to themselves as the deceased was then defenseless. Treachery is the deliberate and unexpected attack on the victim, without any warning and without giving him an opportunity to defend himself or repel the initial assault. For treachery to be appreciated, it must be shown to be present at the inception of the attack, otherwise, even if present at a subsequent stage, it cannot be considered.xxxvi[26] In the instant case, the victim cannot be said to have been totally oblivious of the impending attack by all the group of accusedappellant. He thus had every opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to the stoning incident, the victim had been threatened with harm by accused-appellant the moment he went out of his house, which is why she stayed beside her father to make sure he did not go out of the house. Indeed, the victim had been forewarned of the danger posed by accused-appellant and his group. Moreover, by coming out of his house and running after two of the assailants, the victim showed that he was prepared for the attack by accused-appellant and his gang and could have been hardly surprised when he was actually attacked. Treachery must be proven by convincing evidence. The fact that the victim may have been surprised because he had not expected that he would be outnumbered when he saw two other attackers waiting for him under the bridge is not sufficient

to show that the victim was completely unaware of the attack that might come from his assailants.xxxvi[27] However, the presence of the qualifying circumstance of abuse of superiority was correctly appreciated in this case. The victim was unarmed and was clearly outnumbered by the four assailants, with one of them armed with a knife.xxxvi[28] Fourth. Accused-appellant claims that his arrest at the East Avenue Medical Center on May 4, 1996 was made without a warrant. This is not true. He was arrested by virtue of a warrant issued by the court on April 27, 1995. However, as the records show, the warrant of arrest was returned unserved by the arresting officer on June 7, 1995 as accused-appellant could not be found. He was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed to make the arrest. Unless specifically provided in the warrant, the same remains enforceable until it is executed, recalled or quashed. The ten-day period provided in Rule 113, 4 is only a directive to the officer executing the warrant to make a return to the court.xxxvi[29] At any rate, accused-appellant must be deemed to have waived his right to object thereto because he failed to move for the quashal of the information before the trial court, entered a plea of not guilty and participated in the trial.xxxvi[30] As this Court has held, any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.xxxvi[31] On the matter of the admissibility of the testimony of the medico-legal taken in the first case, involving the three other accused for the death of the same victim, offered in evidence in the case at bar, this Court must declare the same inadmissible. As correctly contended by the defense, because they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be used in evidence against accused-appellant. Indeed, where the opposing party failed to crossexamine a witness, this Court in several cases held:xxxvi[32] Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. Still and all, the fact and cause of death of the victim had been sufficiently proved by the accounts of the two eyewitnesses, corroborated by the offer in evidence of the death certificate of the victim. Fifth. The award of damages by the trial court in favor of the victim should be modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are entitled to an award of P50,000.00 as moral damages irrespective of proof thereof.xxxvi[33]

WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law is AFFIRMED with the MODIFICATION that, in addition to the amount of P50,000.00 to be paid as indemnity, accused-appellant is hereby ordered to pay to the heirs of Eusebio Gardon amount of P50,000.00 as moral damages, plus the costs of the suit. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC [G.R. No. 141767. April 2, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HILARION TEVES y CANTOR, accused-appellant. DECISION
DE LEON, JR., J.:

Before us on automatic review is the Decisionxxxvi[1] of the Regional Trial Court of Binan, Laguna, Branch 25, in Criminal Case No. 9620-B convicting the appellant, Hilarion C. Teves, of the crime of parricide and sentencing him to suffer the supreme penalty of death. The lifeless body of Teresita Teves y Capuchino was found by a group of barangay tanods in Barangay Macabling, Santa Rosa, Laguna in the late evening of August 25, 1996. The body of the victim bore strangulation marks around the neck and a stab wound just below the left armpit. During the investigation of the case, the husband of the victim, herein appellant, Hilarion C. Teves, was identified as the driver of the passenger jeep that was allegedly met by the barangay tanods shortly before they chanced upon the dead body of the victim on that fateful evening of August 25, 1996. It was also gathered by the police that the spouses purportedly had misunderstanding prior to the incident. On December 3, 1996, Hilarion Teves y Cantor was charged with the crime of parricide defined and penalized under Article 246 of the Revised Penal Code, as amended, in an Informationxxxvi[2] that reads: That on or about August 25, 1996, in the Municipality of Santa Rosa, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, accused HILARION TEVES y

CANTOR, while conveniently armed with a deadly weapon, with intent to kill his wife TERESA CAPUCHINO y TEVES (sic) with whom he was united in lawful wedlock, did then and there wilfully, unlawfully and feloniously stab and strangle the said TERESA CAPUCHINO TEVES with the aforesaid deadly weapon, stabbing the latter on the left side of her chest causing her instantaneous death, to the damage and prejudice of her surviving heirs. CONTRARY TO LAW. Upon being arraigned on January 13, 1997, herein appellant, assisted by his counsel, entered the plea of Not guilty to the charge as contained in the Information. Thereafter, trial on the merits ensued. It appears from the evidence adduced by the prosecution that on August 25, 1996 at around 10:30 oclock in the evening four (4) barangay tanods, namely: Milagros Tayawa, Jerry Pantilla, Angel Lapitan and Jose Bello, were patrolling on board a barangay patrol vehicle in Barangay Macabling, Santa Rosa, Laguna. Milagros was behind the steering wheel. From the old national highway, they entered the NIA road which was an isolated dirt road seldom used by commuters due to its narrow width. There were no houses and streetlights along the immediate vicinity as the road was bound by an irrigation canal on one side and a stretch of rice field on the other. Subsequently, they met a passenger jeep that was coming from the opposite direction. Milagros had to maneuver backward to accommodate the other vehicle.xxxvi[3] As the patrol vehicle advanced, the barangay tanods saw a body of a woman lying on the left side of the NIA road. The womans white polo shirt was raised above the chest exposing her right breast and a small wound just below her armpit; while her black pants were lowered down to her knees. Upon ascertaining that the woman was dead, Milagros and her companions immediately informed their chief before proceeding to the Santa Rosa, Laguna Police Station to report the incident.xxxvi[4] The police examined the cadaver, and then took the sworn statementxxxvi[5] of Milagros Tayawa on the same evening of August 25, 1996. Dr. Erwin Escal, medico-legal officer, conducted the autopsy on the body of Teresa Teves upon the request of PO2 Tony Gangano. Dr. Escal identified in court the Autopsy Reportxxxvi[6] which shows the following findings: Post Mortem Examination: Fairly developed, fairly nourished female cadaver in rigor mortem with post mortem lividity at the dependent portion of the body. Palpabral conjunctive are pale. Lips and nail beds are cyanotic. There are petechial hemorrhages on the face and neck and subconjunctival hemorrhage on the left lateral conthal region. Head, Neck, Trunk and Extremeties:

1. Hematoma 0.5 x 0.5 cm. mid-pariento occipital area left. 2. Hematoma 0.5 x 0.5 cm. parieto occipital area right. 3. Contusion hematoma right lateral neck, measuring 6 cm. x 0.1 cm. 4. Punctured wound triangular in shape at the mid-axillary line, left pectoralis region measuring 1 x 0.5 x 0.5 cm., non-penetrating. 5. Contusion hematoma 12 x 4 cm. right lateral abdominal region. 6. Abrasion 4 x 2 cm. right lumbar region. 7. Area of contusion hematoma with abrasion right buttocks measuring 7 x 6 cm. On opening up: The scalp was deflicted to expose the skull and was sawing it off coronally. No skull fracture noted and the brain was grossly normal. Conclusion: The cause of death is asphyxia by strangulation. According to Dr. Escal, the victim could have been strangled (binigti) with the use of a constricting material which may be a wire, a rope or a nylon cord and that the victim may have been dead for not less than thirty-six (36) hours when it was brought to him for autopsy examination at 5:00 oclock in the afternoon on August 26, 1996.xxxvi[7] On August 29, 1996 Milagros was invited to the Santa Rosa, Laguna Police Station by the PNP Provincial Director, Supt. Arthur Castillo, to identify a certain person and a passenger jeep in connection with the incident on August 25, 1996. She remembered the person, who turned out to be the husband of the victim, herein appellant Hilarion C. Teves, as the driver of the passenger jeep that they met on the NIA road in Barangay Macabling, Santa Rosa, Laguna shortly before they chanced upon the body of a dead woman later identified as Teresa C. Teves. She recognized the appellant when their respective vehicles momentarily stopped facing each other with their headlights switched on. She had also seen the appellant while the latter was sitting on a bench at the back of the Santa Rosa, Laguna Police Station when she came to verify the status of the case on August 27, 1996. Milagros likewise recognized the passenger jeepxxxvi[8] as the same vehicle being driven by the appellant when they met on the NIA road in the late evening of August 25, 1996. Milagros explained that she instructed her fellow barangay tanods to train their flashlight on its direction after the passenger jeep sped away and she read partly the plate number at the back as DJN 6 which she wrote on a cigarette foilxxxvi[9] (palara). She also noted the distinguishing features of the passenger jeep such as: a) the maroon paint on the bumper; b) the small lights attached to

the bumper; and c) the green reflectorized paints on the bumper. After identifying the appellant and the passenger jeep, Milagros executed another sworn statementxxxvi[10] before the police. Upon his detention on the same date of August 29, 1996, the appellant allegedly requested the aunt of the victim, Maria Alulod, who was present at the Santa Rosa, Laguna Police Station, to send his Tata Enteng (Vicente Alulod) to the police station and to bring money for a certain barangay tanod of Barangay Macabling so that his sentence for the commission of the crime would be reduced.xxxvi[11] Vicente turned down the request as he noted during the wake of Teresa that Hilarion was not actually sorry for his wifes death although he appeared worried (balisa).xxxvi[12] It also appears that before her untimely demise, Teresa was able to confide with an aunt, Paula Beato Dia, that she had a marital problem. Paula counseled her that it was natural for any husband and wife to have occasional problems. She even suggested to Teresa to seek the advice of her Tata Felix.xxxvi[13] In July 1996 Teresa approached her uncle, Felix Padua, to seek the latters advice concerning her marital problem. Apparently, her husband, herein appellant Hilarion Teves, proposed that they live separately. He also wanted to secure an arrangement regarding the custody of their children and his wifes consent regarding the disposition of their house and lot. Teresa could not recall any serious reason for her husbands behavior but she surmised that the appellant resented her comment that his peers were all dalaga and binata. Since Felix was busy at that time, he advised Teresa to visit him on another occasion so that they could discuss her problem thoroughly.xxxvi[14] In the same month of July, Teresa and the appellant went to the house of Felix Padua in Santa Rosa, Laguna. When asked about their problem, the appellant disclosed that he could no longer put up with Teresas jealousy that often caused him embarrassment before his friends. Felix tried to explain that it was common between any husband and wife to get jealous and that appellant should realize that his wife simply loved him very much. However, the appellant would not listen and even imputed that his wife had a bad character.xxxvi[15] On July 20, 1996 Paula Beato Dia learned from Teresa that the couple had finally decided to live separately after conferring with their Tata Felix. On July 30, 1996 Teresa informed Paula that the appellant became violent (nagwala) over her refusal to sell their properties. Paula then, advised her niece to bring the matter to the barangay officials.xxxvi[16] The evidence of the defense shows that the appellant stayed in their house during the day on August 25, 1996. He helped his wife, Teresa, washed their clothes. In the afternoon, he watched basketball game on the television and also helped his children with their school assignments. He started to ply the Binan-Cabuyao route with his passenger jeep at 6:30 oclock in the evening as it was his usual schedule. Before leaving however, he told his wife that he would spend the night in the house of his uncle Caloy in Barangay Tagapo, Santa Rosa, Laguna.xxxvi[17] It appears that the daughter of his uncle Caloy celebrated her debut which the appellant and his children

attended on August 24, 1996. When the party ended, he was requested by the family to help in returning some of the borrowed equipment on the following day. Teresa also left the house at about 8:30 oclock in the evening on the same day allegedly to confer with somebody. She instructed her daughter, Leizel, not to lock the door when they go to sleep. Leizel saw her mother board a tricycle behind the driver, inasmuch as there were already two passengers in its sidecar.xxxvi[18] Teresa was also seen by another tricycle driver, a certain Edwin Carapatan, at around 9:00 oclock in the evening while she was on board a tricycle behind the driver which was bound for the town proper. Both even greeted each other.xxxvi[19] Meanwhile due to heavy traffic, the appellant managed to ply his route 2 times only after which he proceeded to the house of his Tiyo Caloy in Barangay Tagapo, Santa Rosa, Laguna. Upon arrival at exactly 8:30 oclock in the evening, the appellant ate his supper. Thereafter, they arranged the things for him to bring home on the following day. Before going to sleep, the appellant joined the family in watching basketball game on the television until the same was over at 10:00 oclock in the evening.xxxvi[20] When the appellant arrived home in Barangay Sinalhan, Santa Rosa, Laguna on August 26, 1996, he was informed by his youngest child that his wife was not around. According to appellant, he thought that his wife left early on that day to look for a job. He learned that his wife left the house at 8:30 oclock in the previous evening upon arrival of his second eldest daughter, Lalaine, from school at 12:00 oclock noon.xxxvi[21] The appellant and his neighbors searched for Teresita in the entire afternoon but in vain. At 10:00 oclock in the evening, he heard of talks that a body of a dead woman was found in Barangay Balibago, Santa Rosa, Laguna. He went to Santa Rosa, Laguna Police Station together with a certain Lebong Dia and was instructed by the police to proceed to Funeraria Lim after hearing his description of his wife. At 11:30 in the evening, he saw the dead body of his wife at the funeral parlor which he brought home after midnight.xxxvi[22] On August 27, 1996, the appellant went back to the police station in Santa Rosa, Laguna where he was initially informed by a certain police officer Laurel that his wife might be a victim of gang rape. However, he learned later that he was a suspect in the killing of his wife when he was investigated by the police. On August 29, 1996, he returned to the police station in Santa Rosa, Laguna upon being informed that Supt. Arthur Castillo would investigate the case. Three (3) barangay tanods, namely: Angel Lapitan, Milagros Tayawa and Gerry Pantilla were present in the police station. Castillo requested them to identify the appellant; however, none of the three (3) was able to recognize him. The appellant was asked to sit behind the steering wheel of his passenger jeep and was even ordered to wave his hand while pictures of him were being taken. Subsequently, Castillo urged the three (3) barangay tanods to take a good look at the appellant to refresh their memory after which he asked: Ano sa tingin niyo? When no response from the tanods was forthcoming, Castillo again asked: Hindi pa ba ninyo nakikilala yan? After putting his hand on

the shoulder of Barangay Tanod Milagros Tayawa, the latter remarked: Parang kahawig niya. Thereafter, Col. Castillo ordered the appellants arrest.xxxvi[23] On December 7, 1999, the trial court rendered a Decision, the dispositive portion of which reads: WHEREFORE, this court finds accused Hilarion Teves y Cantor, GUILTY beyond reasonable doubt of the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code, restored in R.A. No. 7659, Imposing Death Penalty on Certain Heinous Crimes, and there being present the aggravating circumstances the herein accused killed his wife (a) during nighttime; (b) in an uninhabited place; and (c) with the use of a motor vehicle (jeepney), hereby imposes upon him the DEATH PENALTY and orders him to indemnify the heirs of Teresa Teves the sum of P100,00.00, as moral damages. The Provincial Jail Warden of Santa Rosa, Laguna is hereby ordered to transfer accused Hilarion Teves y Cantor to the National Penitentiary, New Bilibid Prison, Muntinlupa City, immediately upon receipt hereof. SO ORDERED. Aggrieved by the decision, Hilarion C. Teves appealed to this Court raising the following assignment of errors: I THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF PARRICIDE AS CHARGED IN CRIMINAL CASE NO. 9620-B DESPITE FAILURE OF THE PROSECUTION TO PROVE THE MATERIAL ALLEGATIONS IN THE INFORMATION. II THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT DESPITE THE INCOHERENCE, INCREDIBILITY AND INADEQUACY IN WEIGHT AND VALUE OF THE CIRCUMSTANTIAL EVIDENCE RELIED UPON. III THE TRIAL COURT ERRED IN CONCLUDING THAT THE ACCUSED IS THE PERPETRATOR OF THE CRIME CHARGED BASED ON THE TESTIMONIES OF MILAGROS TAYAWA AND MARIA ALULOD WHICH ARE INCREDIBLE BASED ON COMMON OBSERVATION AND HUMAN EXPERIENCE. IV

THE TRIAL COURT LIKEWISE ERRED IN INTERPRETING THE EQUIVOCAL TESTIMONY OF DR. EDWIN ESCAL IN FAVOR OF GUILT AND AGAINST THE INNOCENCE OF THE ACCUSED. V THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI. VI THE TRIAL COURT ERRED IN APPRECIATING THE PRESENCE OF AGGRAVATING CIRCUMSTANCES. In his brief,xxxvi[24] the appellant contends, in essence, that the prosecution failed to establish the identity of the perpetrator of the crime. Under the factual milieu of the case, Milagros could not have recognized the vehicle and its driver which she allegedly met on August 25, 1996. He also contends that the testimonies of prosecution witnesses Felix Padua and Paula Beato Dia to the effect that the appellant and his wife had a misunderstanding were basically anchored on mere suspicion. Moreover, the alleged implied admission by the appellant of his alleged guilt before Maria Alulod, who is an aunt of the victim is incredible as it contradicts common human experience. Lastly, the testimony of Dr. Edwin Escal suggests that several malefactors may be responsible for the killing of the victim. The facts of this case clearly show that nobody had actually witnessed the killing of the victim, Teresita Teves, in the evening of August 25, 1996. To prove its case of parricide against the appellant, the prosecution relied on circumstantial evidence. In order to convict an accused based on circumstantial evidence, it is necessary that: 1) there is more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.xxxvi[25] In other words, circumstantial evidence is sufficient to support a conviction where the multiple circumstances are proven and are consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that the accused is innocent as well as incompatible with every rational hypothesis except that of guilt on the part of the accused.xxxvi[26] In convicting the appellant of the crime of parricide based on circumstantial evidence, the trial court found that the testimonies of the prosecution witnesses were credible and sufficient. It is well-settled rule that the trial judges assessment of the credibility of witnesses testimonies is accorded great respect on appeal.xxxvi[27] Appellate courts will generally not disturb the factual findings of the trial courts since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is found that the trial courts have overlooked certain facts of substance and value that, if considered, might affect the result of the case.xxxvi[28]

After thorough review, however, we find sufficient basis to warrant the reversal of the assailed judgment of conviction. The trial court relied on the identification made by Milagros Tayawa during the trial of this case in finding that the appellant was the person driving the passenger jeep that was allegedly met by the four (4) barangay tanods along the NIA road in Barangay Macabling, Santa Rosa, Laguna in the late evening of August 25, 1996 shortly before they accidentally found the dead body of Teresita Teves. We note, however, the irregular manner by which the pre-trial identification of the appellant and his passenger jeep during the custodial investigation on August 29, 1996 was made by Milagros. At that time, the appellant, who was already a suspect in his wifes murder, was alone inside the investigation room of the Santa Rosa, Laguna Police Station and without his counsel. He was also ordered by Supt. Castillo to board his passenger jeep, extend part of his body outside of the vehicle while waving his hand, as if doing some kind of a re-enactment, to be observed by Milagros and two (2) other barangay tanods namely: Jerry Pantilla and Angel Lapitan. We agree with the Solicitor Generals observation that the pre-trial identification in which the prosecution witness was made to identify the suspect (herein appellant) in a one-on-one confrontation, was pointedly suggestive, generated confidence where there was none, activated visual imagination and, all told, subverted the identification of the appellant by the witness. This method of identification is as tainted as an uncounseled confession and thus, falls within the same ambit of the constitutionally entrenched protection.xxxvi[29] Besides, there is reason to doubt the reliability of the said testimony of Milagros Tayawa. Milagros allegedly recognized the appellant when their respective vehicles momentarily stopped facing each other while their headlights were switched on. In the ocular inspection conducted during the trial on July 2, 1997, it was demonstrated that the two (2) vehicles were initially twenty and one-half (20 ) feet apart when they stopped facing each other. When the barangay patrol vehicle backed off to accommodate the passenger jeep, the two (2) vehicles were thirty-six and one-half (36 ) feet apart, at which distance the trial court made the observation that the man behind the steering wheel was not cognizable in broad daylight.xxxvi[30] If the man on the drivers seat was not cognizable in broad daylight, this court is not convinced that an accurate identification of the driver of the passenger jeep, who was allegedly met by the barangay tanods at around 10:30 oclock in the evening on August 25, 1996, can be made even from a distance of twenty and one-half (20 ) feet by the prosecution witness. It must be pointed out that the two (2) vehicles were then passing along an isolated dirt road where there were no houses and streetlights in the immediate vicinity. Under the circumstances, clear visibility was practically improbable, if not impossible, from a distance. There is more reason to doubt the reliability of the testimony of Milagros Tayawa upon consideration of the sworn statementxxxvi[31] that she gave before the police authorities during the investigation of this case. Her sworn statement contains a narration of the circumstances leading to the discovery of Teresitas dead body. Significantly, no mention was made therein that she had seen the driver of the passenger jeep that they allegedly met in the late evening of August 25, 1996 on the NIA road, much less described his face or his other physical features.

It is absurd to believe that Milagros forgot or the police investigators had been so negligent as to overlook this omission in her affidavit. In the first place, the purpose of the investigation was to elicit basic information about the killing, such as the identity of the perpetrator thereof. It was only during the custodial investigation on August 29, 1996 that Milagros claimed in her subsequent affidavitxxxvi[32] that she had seen the driver of the same passenger jeep after the irregular one-on-one confrontation with the appellant and after unwarranted suggestions had been made to the said witness by the police officer. Notably, the prosecution failed to present the testimony of the other barangay tanods who were likewise present during the incident on August 25, 1996 to corroborate the testimony of Milagros. This is not difficult to understand considering that the statements elicited from Angel Lapitan during the investigation of the case run counter to the testimony that she gave during the trial, to wit: Tanong: Nakilala ba ninyo ang nagmamaneho at nakuha ba ninyo ang plaka nito?

Sagot: Hindi namin nakilala ang driver dahil patay ang kanyang ilaw sa loob at ng aming ilawan and kanyang likuran ay walang plaka.xxxvi[33] Due to the above statement of Angel Lapitan before the police investigator, even the testimony of Milagros Tayawa that she recognized the passenger jeep of the appellant as the same vehicle that they met along the NIA road shortly before having accidentally discovered the dead body of the victim, was also rendered doubtful. Besides, the passenger jeep of the appellant had been impounded at the Santa Rosa, Laguna Police Station since August 27, 1996 or two (2) days before the pre-trial identification of the said vehicle.xxxvi[34] We also doubt the testimony of Maria Alulod for being contrary to common human experience. It would be highly unlikely and contrary to common sense for the appellant to admit his guilt before this witness, who is an aunt of the victim, while vehemently denying to the police authorities any participation for the death of his wife. It is well-settled rule that evidence, to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself.xxxvi[35] The motive that allegedly drove the appellant to kill his wife, as testified by prosecution witnesses Felix Padua and Paula Dia, is not convincing. Both prosecution witnesses simply stated in general terms that the appellant and his wife were having a family problem out of the latters jealous attitude and that they decided to separate. These prosecution witnesses failed to furnish any specific incident to the effect that Teresita had actually feared for her life or that appellant had become so desperate as to will the death of his wife. At the most, their testimonies simply manifest a suspicion of appellants responsibility for the crime. Needless to state, however, suspicion no matter how strong can not sway judgment.xxxvi[36] On the other hand, the victims daughter, Leizel Teves, testified that her family was a normal and happy family. Leizels testimony was corroborated by the victims cousin, Minerva Diaz, who testified that the Teves family was a harmonious and happy family.xxxvi[37] Additionally, Rosita

Barreto, a friend of the Teves family and a neighbor for over seventeen (17) years, attested that the relations of the appellant and his wife were generally smooth.xxxvi[38] Even if we would assume that the testimonies of the prosecution witnesses were true, it can not be reasonably inferred therefrom that the appellant is responsible for killing his wife in the absence of any other circumstance that could link him to the said killing. To be sure, motive is not sufficient to support a conviction if there is no other reliable evidence from which it may reasonably be adduced that the accused was the malefactor.xxxvi[39] In view of the foregoing, we cannot sustain the appealed judgment of the trial court in the case at bar. The prosecution miserably failed to establish the circumstantial evidence to prove its case against the appellant beyond reasonable doubt. Consequently, we need not pass upon the merits of his defense of alibi.xxxvi[40] It is well-entrenched rule in criminal law that the conviction of an accused must be based on the strength of the prosecutions evidence and not on the weakness or absence of evidence of the defense.xxxvi[41] WHEREFORE, the appeal is GRANTED. The assailed Decision in Criminal Case No. 9620-B is reversed and set aside. The appellant Hilarion Teves y Cantor is acquitted of the crime of parricide on the ground of reasonable doubt. Unless convicted for any other crime or detained for some lawful reason, appellant Hilarion Teves y Cantor is ordered released immediately. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and Sandoval-Gutierrez, JJ., concur. Puno J., on official leave.

EN BANC [G.R. Nos. 132635 & 14387275. February 21, 2001] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAMBERTO VELASQUEZ, accused-appellant. DECISION
MENDOZA, J.:

This is an appeal from the decision,xxxvi[1] dated February 12, 1998, of the Regional Trial Court, Branch 59, Angeles City, convicting accused-appellant Lamberto Velasquez of (1) acts of

lasciviousness committed against his granddaughter Aira Velasquez and sentencing him to suffer imprisonment from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and to indemnify Aira Velasquez in the amount of P30,000.00; and (2) rape of his stepdaughter Mary Joy Ocampo and sentencing him to suffer the penalty of death and to indemnify Mary Joy Ocampo in the amount of P50,000.00. In another case for acts of lasciviousness, accused-appellant was acquitted, while two other ones, also for acts of lasciviousness, were dismissed by the court for lack of jurisdiction. In Criminal Case No. 97-307, it was alleged That sometime in the month of April, 1997, Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of AIRA G. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Airas vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.xxxvi[2] In Criminal Case No. 97-308, the charge was That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, then 13 years old, by inserting his finger into Mary Joys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.xxxvi[3] In Criminal Case No. 97-309, it was alleged That sometime in the month of April, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, a girl of 16 years of age, by then and there kissing her, caressing and fondling her private parts, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.xxxvi[4]

In Criminal Case No. 97-310, it was recited That sometime in the month of March, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of KIMBERLY O. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Kimberlys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.xxxvi[5] In Criminal Case No. 97-311, it was alleged That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously have carnal knowledge with one MARY JOY D. OCAMPO, then 13 years old, by means of force and against her will and consent. ALL CONTRARY TO LAW.xxxvi[6] Accused-appellant pleaded not guilty to the charges against him,xxxvi[7] whereupon the cases were consolidated and jointly tried. The prosecution presented Mary Joy Ocampo, Angelina Velasquez, Ma. Regail Velasquez, Mary Grace Velasquez, Dr. Edwin Manson, and NBI medico-legal officer Dr. Dominic Aguda as witnesses. On the other hand, the defense presented accused-appellant, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Rochelle Velasquez, Renato Cruz, and Roberto Velasquez as its witnesses. The evidence for the prosecution is as follows: Accused-appellant Lamberto Velasquez married Caridad Guevarra on March 14, 1965 and begot six children by her, namely, Randy, Rochelle,xxxvi[8] Regail, Ranold, Renel,xxxvi[9] and Ryan. During their marriage, he lived in common-law relation with Dolores Cabinan, by whom he had five children, namely, Robert, Rhea,xxxvi[10] Roan, Roel, and Judan. He lived with Dolores and their children for more than eight years in a house which they rented from Eladio Dungca.xxxvi[11] After Dolores died in 1984,xxxvi[12] accused-appellant lived in common-law relation with Eladios married daughter, Angelina.xxxvi[13] Angelina already had three children by her husband Roberto Ocampo, namely, Mary Grace, Mary Joy, and Edward.xxxvi[14] She begot two more children by accused-appellant, named Raymond and Raygel. In 1987, accused-appellants

wife, Caridad, died of cancer.xxxvi[15] On November 8, 1989, accused-appellant married Angelina Dungcaxxxvi[16] and brought his children by Caridad and Dolores to live with them in Angelinas three-bedroom house at 5069 New York Street, Don Cornelio, Dau, Mabalacat, Pampanga.xxxvi[17] In October 1994, Mary Joy Ocampo, then 13 years of age, slept in a room she shared with accused-appellant, her mother Angelina, and her two half-brothers, Raygel, 12, and Raymond, 5. When she woke up in the morning, she found accused-appellant beside her on the floor, her mother having left for the market. Accused-appellant kissed her on the mouth and the breasts. Then he raised her shirt, pulled down her shorts and underwear, and kissed her private parts. Afterward, accused-appellant inserted his middle finger into Mary Joys vagina. Mary Joy felt a sharp pain and tried to resist by kicking accused-appellant, which made the latter remove his finger although he continued kissing her. Accused-appellant then left, but not before warning her to keep quiet and not to tell anyone what he had done to her.xxxvi[18] Mary Joy ran to the bathroom and examined herself. Her underwear had bloodstains, and her vagina was bleeding. She felt pain when she washed herself. Her mother returned as she was about to go to school, but because of fear of accused-appellant she said nothing.xxxvi[19] Two weeks later, still in the month of October, while Mary Joy was watching television alone in the living room, accused-appellant approached her and, though she tried to evade him, he succeeded in forcing her to their room. He lowered her shorts and underwear, raised her shirt and bra, and started kissing her. Then he inserted his middle finger into her vagina and later had sexual intercourse with her. Mary Joy cried out in pain, prompting him to stop, although he continued kissing and fondling her.xxxvi[20] Up to April 1997, accused-appellant continuously molested Mary Joy, sometimes forcing her to masturbate him and at other times licking her vagina.xxxvi[21] Regail Velasquez, accused-appellants daughter by Caridad, has a daughter named Aira. On April 16, 1997, at 3 oclock in the afternoon, while Regail was folding clothes, Aira walked into the room crying. Aira complained that her grandfather did something to her, which she demonstrated by opening her right leg and moving one of her right fingers toward her vagina.xxxvi[22] Regail did not want to believe her daughter and thought that her father was just joking with the latter. However, Aira started to cry. In the days that followed, she noticed that Aira complained of pain in her vagina while taking a bath. When Regail asked her why her vagina hurt, Aira said it was because of the things her grandfather had been doing to her vagina, showing her mother what had been done to her.xxxvi[23] On April 28, 1997, Regail noticed pus coming out of Airas vagina. She also noticed that her daughter was running a fever, and that her vagina was red and swollen. She took Aira to Dr. Lydia Buyboy, a private physician, who told her that her daughter had lacerations in her vaginal

area and that she had probably been fingered. However, the doctor declined to give a medical certificate as she did not want to get involved in any case.xxxvi[24] Regail went home and told her stepmother everything. Angelina cried as she could not believe what she had been told. Remembering that a similar thing had happened to her sister-in-laws daughter, Regail talked to Mary Grace. Mary Grace Ocampo Velasquez, Angelinas daughter, married Ranold Velasquez, accusedappellants son by Caridad and Regails brother. Mary Grace testified that she had been molested by her father when she was nine years old. She recalled when, as a new couple, Angelina and accused-appellant spent the night at an aunts house in San Fernando, Pampanga. Mary Grace was with them. According to Mary Grace, accused-appellant went to her side, raised her clothes, and fondled her breasts. His hands went lower. She was unable to resist accused-appellants advances because of his strength and threats. To prevent a recurrence of the event, Mary Grace moved out of their house and went to live with her aunt in Angeles City.xxxvi[25] Kimberly was around Airas age, and Regail remembered hearing that pus had also come out of the childs vagina. When she told her about Dr. Buyboys findings, Mary Grace lost no time and took Kimberly to Dr. Buyboy, who made the same findings.xxxvi[26] That evening, Mary Grace told her husband Ranold about the doctors examination and findings. But they did not know what to do. They could not talk to accused-appellant as he was always drunk and they were afraid of him.xxxvi[27] On April 30, 1997, a despedida was held for Angelinas sister Loida Kellow, who was leaving for the United States. On that occasion, Regail told her aunt about Airas and Kimberlys ordeal. Angelina was brought in. They also called Mary Joy who, after drinking beer, began to tell everything. Mary Grace and Regail were summoned, and eventually they pieced together accused-appellants pattern of abuse. They decided to file a case against him. Early the next morning, Angelina and Loida went to the police station to make a report. They then went back to the house, fetched the children, and brought them to Dr. Lydia Buyboy for medical examination. However, Dr. Buyboy refused to examine the children. They next went to the Mabalacat District Hospital. Meeting the same rejection, they went to the Department of Social Welfare and Development (DSWD), where they obtained the assistance of a certain Mrs. Dimabuyu. They proceeded to the Ospital ng Angeles where, with Mrs. Dimabuyus help, they were able to prevail on Dr. Edwin Manson to conduct a physical examination of Aira, Kimberly, and Mary Joy. However, Dr. Manson told them that Sige, titingnan ko sila pero walang magandang resulta akong maibibigay sa inyo.xxxvi[28] After the examination, they went home. Accused-appellant was no longer there. They gathered their things and, with their relatives, checked in at the Monte Carlo Hotel in Dau, Mabalacat. There were over 40 of them. They went back to the Mabalacat Police Station and gave their statements.xxxvi[29]

They stayed at the Monte Carlo Hotel for over four days. When they returned home, accusedappellant had not returned. On May 9, 1997, at Loidas prompting, they went to the National Bureau of Investigation (NBI) for another physical examination. NBI medico-legal officer Dr. Dominic Aguda reported the following findings on Aira Velasquez: GENERAL PHYSICAL EXAMINATION: (Aira Velasquez) Height: 82 cms. Weight: _____ Fairly nourished/developed, conscious, coherent, ambulatory subject Breasts - underdeveloped, immature No extragenital physical injury noted on the subject. GENITAL EXAMINATION: Pubic hair - absent; Labia majora and minora, underdeveloped, coaptated; Hymennal opening - barely admits the tip of the small finger Hymen - short, thin, with old healed incomplete lacerations at 11 and 5 oclock position, corresponding to the walls of a clock; Fourchette-classically V-shaped. CONCLUSIONS: 1. No evidence of extragenital findings noted on the subject at the time of examination. 2. Genital findings compatible with penetration of an object, on or about the alleged date of commission.xxxvi[30] On the other hand, Mary Joy Ocampos medical examination yielded the following results: GENERAL PHYSICAL EXAMINATION: (Mary Joy Ocampo) Height: 410 Weight: 90 lbs. Well developed/nourished, conscious, coherent, ambulatory subject Breasts, developed, hemispherical, doughy, areolae, light brown, 2.0 cms. in diameter. Nipples, protruding, 0.9 cm. in diameter. GENITAL EXAMINATION: Pubic hair - thick, fully grown; Labia majora and minora -coaptated, Fourchette, V-shaped, tense. Vestibular mucosa, pinkish. Hymen-short, thin, with old healed lacerated wound complete at 11, 6 oclock; incomplete at 4, 9 oclock position, corresponding to the face of a clock. Hymenal orifice - admits a tube, 2.0 cms. in diameter with slight resistance. Vaginal walls - moderately tight. Rugosities - deep CONCLUSIONS: 1. No extragenital physical injuries noted on the subject at the time of examination. 2. The above described genital findings are compatible with sexual intercourse with man, on or about the alleged date of commission.xxxvi[31] The defense then presented the following evidence:

In 1965, accused-appellant worked as a photographer/laboratory technician in the Audio Visual American Company at Clark Air Field. In August 1967, as a result of a reduction of the labor force, he was forced to leave the company and thereafter worked as a jeepney driver until 1982 when he was reinstated.xxxvi[32] In 1988, he was transferred to the Department of Defense Police, with the rank of major, earning P560.00 a day. He worked at Clark Air Field in January 1991.xxxvi[33] At that time, he was living with Angelina. They earned a living as fish dealers while receiving financial help from relatives abroad.xxxvi[34] Accused-appellant remembered having met Angelina Dungca for the first time in the middle of 1984. Toward the end of that year, he started courting her, because he thought that her marriage was void as it had been performed by a barangay captain. It was only when he was already detained at the Angeles City Jail that he asked his brother to verify the legal status of Angelina Dungcas previous marriage.xxxvi[35] Accused-appellant denied the allegations against him.xxxvi[36] He said there were always several people in their house at any time, and so it was impossible for him to have an opportunity to molest any of the complainants.xxxvi[37] Accused-appellant believed that Mary Joy had accused him because he always noticed whenever she came home late and scolded her.xxxvi[38] As for Mary Grace Ocampos complaint, accusedappellant claimed he was in fact the one who caught Kimberly playing with her organ and that he reported this to Kimberlys parents.xxxvi[39] Accused-appellant believes that Regail filed the complaint against him because he had scolded her and punished her when she went out on a date with a married man, and again when she went out with her cousin after she had married Meryll Robertson.xxxvi[40] As to Roan, accused-appellant claimed he never molested her.xxxvi[41] Of his granddaughter Aira, accused-appellant said:xxxvi[42] COURT: How about this Aira, the daughter of Regale Velasquez, did you take care of your granddaughter Aira? A Yes, sir. Si Aira ay nagpunta sa amin noong galing siya sa mga auntie niya sa Mabalacat at ang nanay niya sometimes in January dahil pakakasal nga siya sa Amerikano. Noong napunta sa amin si Aira, si Aira ay isang maldita at lumalaban ng bata. Madaldal ang batang iyan. Ano man ang gawin mo sa kanya marunong nang magsinungaling. Kunin niya o mo ang pera at tanungin mo kung sino ang kumuha ng pera, ang sasabihin niyan si Tatay. Paluin mo maski hindi ikaw ang kumuha ng pera, ang sasabihin si tatay. Paluin mo maski hindi ikaw ang pumalo sasabihin niyan si Tatay. Pero may insidenteng nangyari diyan noong nagdumi siya sa labas, wala siyang panty. Sabi ko, pumasok ka sa loob at mag-panty ka dahil maraming sasakyang dumadaan diyan. Umasta siyang paganoon. Pinalo ko siya ng flies wiper (sic). COURT: That was the reason why she pointed to you?

A Maari po. Hindi lang po iyon. Noong sinasawata kong lumalaban siyang paganoon, sabi ko pumasok kat mag-panty, kinuha ko ang lighter. Sabi ko, susunugin ko iyan pekpek mo kako. Lumalaban pa at pinalo ko. Doon tumakbo siyang umiiyak. Q A Q A And you did what you threatened? No, sir. Pinalo ko lang ng flies wiper (sic). And Aira was then only less than two (2) years old? Opo. Madaldal na po iyan maski bata pa.

On April 30, 1997, during Loida Kellows despedida, he was drinking with his friends when he developed a headache and decided to sleep. At around 10 oclock in the evening, he was awakened by his son Renel who gave him glass of bitter liquid to drink. The drink contained sleeping pills.xxxvi[43] After taking one sip, he set it aside. When he woke up the next morning, he looked for
his family, but they were not around. He got home at 8 oclock in the evening, but there was still no sign of them.xxxvi[44]

The following day, he went to Manila. He pawned his watch and ring and bought a ticket on the Super Ferry 10. At 9 oclock that evening, he sailed for Cebu and stayed with his eldest son, Rolando Velasquez.xxxvi[45] Three weeks later, he learned of the cases filed against him from the newspapers and television. However, because he had no job and no money, he was unable to return to Pampanga to clear his name. He was found in Cebu and arrested in July.xxxvi[46] Accused-appellants younger brother, Adelaido Velasquez, a teacher by profession, testified that accused-appellant Lamberto Velasquez is a man of good repute and moral character. They respect and obey him.xxxvi[47] Sonia Velasquez, a younger sister of accused-appellant, described the latter as a brave and strict man with a loud voice. She also testified that he is a karate instructor, and could hurt another by merely holding him. According to her, Angelina Dungca had disclosed to her and to Adelaido accused-appellants abuses, but she never got around to confronting him.xxxvi[48] Rochelle, accused-appellants daughter by his first wife, also described her father as a disciplinarian. She testified that while her father was still married to her mother Caridad, he divided his time between her mother and Dolores. When Dolores died, her father lived with Angelina Dungca but occasionally visited her mother Caridad. She said that her sister Regail had told her what accused-appellant had done to Aira. Her brother Ranold Velasquez and sister-in-law Mary Grace Velasquez also told her that Kimberly had been molested by their father. Angelina and Loida then suggested that their father should be killed. As her brothers Ranold, Renel, and Roberto did not agree, Angelina and Loida decided to leave the house and escape from Lamberto Velasquez. xxxvi[49]

Renato Cruz, Rochelles husband, testified that, from the window in their house, he saw accused-appellant being given a drink containing a sleeping pill. He also testified that Loida and Angelina wanted accused-appellants children to cover their fathers mouth with a pillow while he was asleep, but they did not have the courage to do so.xxxvi[50] Roberto Velasquez, another son of Lamberto Velasquez, also testified for his father, saying that her aunt Loida ordered his brothers to kill their father but Renel did not agree and suggested instead to give him sleeping tablets.xxxvi[51] Mario Manarang, a barangay councilman of Dau, Mabalacat, Pampanga and a long-time friend and neighbor of Lamberto Velasquez, testified that he used to play cards and mahjong almost everyday after lunch with the Velasquez family. He admitted having asked Angelina Velasquez to have the cases dismissed and to settle things peacefully, but the latter refused. He was not familiar with the former women in accused-appellants life, only with Angelina, and admitted that, though he gambled with accused-appellant almost everyday, he was not very familiar with his friends family life.xxxvi[52] On April 14, 1998, the trial court rendered a decision,xxxvi[53] the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case No. 97-310, for insufficiency of evidence, the accused is hereby ACQUITTED of the crime charged in the Complaint; 2. Criminal Cases No. 97-308 and Criminal Case No. 97-309 are hereby DISMISSED for lack of jurisdiction; 3. In Criminal Case No. 97-307, the accused is found GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness and is hereby sentenced to suffer imprisonment ranging from twelve (12) years and one (1) day of reclusion temporal minimum as minimum to seventeen (17) years of reclusion temporal medium as maximum; 4. In Criminal Case No. 97-311, the accused is found GUILTY beyond reasonable doubt of the crime of Incestuous Rape and is hereby sentenced to suffer the supreme penalty of DEATH. Accused Lamberto Velasquez is further ordered to indemnify the victim Mary Joy Ocampo in Criminal Case No. 97-311 the sum of P50,000.00 and Aira Velasquez in Criminal Case No. 97307 the sum of P30,000.00. For review in these proceedings, therefore, is the trial courts decision in Criminal Case No. 97307 for acts of lasciviousness against accused-appellants granddaughter Aira Velasquez, and in Criminal Case No. 97-811 for rape against his stepdaughter Mary Joy Ocampo. Accusedappellant assigns the following errors as having been committed by the trial court:

The trial court erred in denying the accused of his right to preliminary investigation.

II. The trial court erred in admitting the testimony of Regail Velasquez even if it is hearsay evidence and polluted testimony. III. The trial court erred in holding there was rape on October, 1994 and erred in giving credibility to Mary Joy Ocampos testimony despite her unbeli[e]vable and inconsistent testimonies. IV. The trial court erred in not giving credence to the testimonies of Lamberto Velasquez, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Roselle Velasquez-Cruz, Renato Cruz and Roberto Velasquez. First. Accused-appellants claim that he was deprived of the right to a preliminary investigation deserves scant consideration. As the Solicitor General points out in his brief for the appellee: It is an established jurisprudence that the issue of lack of or a defective preliminary investigation should be raised before or during trial and such statutory right to a preliminary investigation is deemed waived when appellant, as in this case, failed to claim it before plea (People vs. Paras, 56 SCRA 248). Moreover, in appellants arguments, it is unclear whether this alleged motion for preliminary investigation which was denied by the trial court was anchored on the lack of it or merely a defect thereon or a mere motion for reinvestigation. When it does not appear from the record that a preliminary investigation was not granted the accused, it must be presumed that the proceedings in the trial court were in accordance with law. So that where no objection has been made at the trial, appellant must be taken to have waived his right to a preliminary investigation if in fact he was not given the benefit thereof. Failing to raise the issue of lack of preliminary investigation during the trial, appellant is now estopped to raise this issue (for) the first time on appeal. At any rate, absence of preliminary investigation merely affects the regularity of the proceedings but does not affect the trial courts jurisdiction or impair the validity of the information.xxxvi[54] Indeed, under Rule 112, 7(3) of the Revised Rules of Criminal Procedure, requests for preliminary investigation must be made to the trial court within five days from the time the accused learns of the filing of complaint or information. Here, the complaints against accusedappellant were filed in the Regional Trial Court of Angeles on May 22, 1997.xxxvi[55] By his own admission, accused-appellant learned of the filing thereof shortly thereafter, when he heard of the same on television and read it in the newspapers in Cebu City. Yet, he did not ask for preliminary investigation until September 3, 1997. The trial court, therefore, correctly denied his motion, thus: [I]t appearing that the accused was indeed aware of the filing of the charges against him several months ago before the Office of the City Prosecutor and that instead of participating in the said preliminary investigation, he went into hiding and [was] arrested only recently after the cases

were filed against him several months ago, the accuseds motion for reinvestigation and to defer arraignment was denied in open court. Upon being arraigned, the accused assisted by his counsel pleaded NOT GUILTY to all the charges filed against him.xxxvi[56] The case of People v. Rolito Go,xxxvi[57] which accused-appellant invokes, is different because there the accused asked the public prosecutors office for preliminary investigation on the same day the information for murder was filed in the trial court. In contrast, accused-appellant Lamberto Velasquez waited until he was arrested and brought to court before invoking his right to a preliminary investigation. He is obviously late in invoking his right. The presumption is that an investigation had been held but accused-appellant could not be found. Failing to invoke his right to a preliminary investigation during the trial, accused-appellant is deemed to have waived the same. Second. The trial court based its conviction of accused-appellant for acts of lasciviousness against Aira Velasquez on the testimony of Regail Velasquez, Airas mother, who testified on what her daughter had told her. Aira herself was not presented in court, being a mere child of two and a half years old. To aapreciate Regails testimony, the relevant portion of the same should be quoted: Q In the month of April 1997 at about 3:00 oclock in the afternoon, do you recall where were you? A Q A Opo. Where were you then on that time and day? Nasa kuwarto po ako nagtutupi ako ng sinampay.

Q While you were doing all those things, do you recall of any unusual incident that came into your personal knowledge? A Opo. Umakyat po sa kuwarto si Aira. Umiiyak po siya na nagsasabi siya sa akin na inaano po siya ng tatay ko, minomolestiya. Q you? What exactly did you notice when Aira went up to your room and reported this matter to

A Sinabi niya sa akin kung paano inaano ng tatay ko. Binukaka niya iyong isa niyang paa tapos inaano ang daliri sa ari niya. Q What do you mean by inaano?

Tinutusok ang daliri.

(Witness demonstrating how it was done by exactly opening her right foot and her finger pointing to her vagina and doing to and fro movement) PROS. PORNILLOS: You mean to tell us, she demonstrated how the act was done? A Q A Yes, sir. Will you please stand up and demonstrate how Aira demonstrated what was done to her? Ganoon nga po.

(Witness demonstrating by raising her right foot with the right finger pointing to her sex organ doing to and from movement towards her vagina) Q A Q A Did you come to know from her who was doing that? Opo. What did you receive from Aira was the one who was doing that? Tatay ko daw po. Ang tawag niya sa tatay ko ay tatang. . . . . Q Who is this Tatay or Tatang you are referring to? Siya po, si Lamberto Velasquez. (Witness pointing to Lamberto Velasquez) COURT: When was that when your daughter came to you? WITNESS: April po iyon. April 16, 3:00 oclock in the afternoon. COURT: How old was Aira then?

WITNESS: 2 years old and 4 months, po. Q A Q A Q 2 years old and 4 months? Opo. She went to you crying? Opo. What were the exact word uttered by that Aira?

A Mama, Mama sabi niya tapos umiiyak po siya, tapos sabi ko, ninano ka? I-tatang, itatang. Bakit ninanu na kang tatang sabi ko. Q A Q A Q A She was crying with tears flowing from her eyes? Opo. When she uttered, Mama what did you say? Ninanu ka. (What happened to you) What did Aira tell you? Si Tatang kakayan na ku pu.

INTERPRETER: Tatang is doing something on me. COURT: Then what happened next? WITNESS: Tinanong ko siya kung ano ang ginawa sa kanya, Binukaka ang paa. (Witness demonstrating that she slightly opened her foot and her finger pointing to her vagina making to and fro movement) COURT:

Then what happened next? WITNESS: Sinabi ko sa kanya baka niloloko ka lang, tapos umiiyak po siya. COURT: She was crying? WITNESS: Iyon nga po. Inaano daw po ng tatay ko, masakit daw ang ari niya. Q A Q A What is the exact word? Masakit ang pek-pek ko. (My vagina hurts) Then what did you do next? Hindi ko gaanong pinansin dahil baka binibiro lang siya ng tatay ko.

PROS. PORNILLOS: After that you said you did not mind the same because you said he was just joked upon or teased. After that April 16, 1997, what did you find out next? WITNESS: Noong sumunod na iyon, araw-araw ko siyang pinapaliguan dumadaing po siya, masakit daw ang kanyang ari, tapos tinanong ko siya kung bakit dahil wala naman akong alam na dahilan na ikakasakit ng ari niya. Iyon nga po laging sinasabi sa akin na inaano daw ng tatay ko. COURT: Ano ang eksaktong salita ng bata. WITNESS: Sabi niya. I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya. WITNESS (Interpretation) (Tatang is doing something on me on my vagina)

COURT: Did you ask her what her tatang did to her vagina? WITNESS: Opo. Ganoon din po dinemonstrate kung paano. Q A Q A The answer, she will demonstrate? Opo. How? Binuka iyong isang paa. Ginanon o.

(Witness demonstrating how it was done by slightly opening her right foot or raising her foot and by using her right finger pointing to her vagina with a to and fro movement) Q A Q A Q any? What did you notice on the vagina of your daughter? My lumalabas na nana. Did you inspect the vagina? Opo. Pulang-pula tapos may lumalabas na nana sa vagina. When you notice this nana on the vagina of your daughter, what action did you take, if

A Nilalagnat po siya noon, tapos dinala ko siya sa doctor Pinatignan ko po siya. Dinala ko kay Dra. Lydia Buyboy Sa private doctor, po. Q What happened at the clinic of Dra. Buyboy?

A Sinabi niya na may laceration iyong ari ng anak ko tapos may impeksiyon po siya.xxxvi[58] As the Solicitor General contends, Airas acts and statements constitute exceptions to the hearsay rule because they were part of the res gestae. The inculpatory and spontaneous statements were: (1) Si Tatang kakayan na ku pu. (Tatang (accused-appellant) has been doing something to me.) (2) I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya. (Because Tatang has been doing something to my private part, that is why it hurts.) (3) She showed her mother her private part, which was swollen and oozing with pus, and then she gestured, by slightly opening or raising her right foot and using her right finger, to show what accused-appellant had done to it.

In People v. Cloud,xxxvi[59] Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her daughter's head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boys face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boys grandmother, cried and repeatedly screamed, "Pinatay siya ng sariling ama!" (He was killed by his own father.) The old woman told the people inside the emergency room that the boy's father had beaten him up, tied his hands, and stabbed him. On the question of the admissibility of Mrs. Aguilars testimony, this Court ruled: Insofar as the statements of Rufina Alconyes are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim.xxxvi[60] We hold, therefore, that Airas statements and acts constitute res gestae, as it was made immediately subsequent to a startling occurrence, uttered shortly thereafter by her with spontaneity, without prior opportunity to contrive the same. Regails account of Airas words and, more importantly, Airas gestures, constitutes independently relevant statements distinct from hearsay and admissible not as to the veracity thereof but to the fact that they had been thus uttered. Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.xxxvi[61] Accused-appellant seeks to discredit the testimony of Regail Velasquez by attempting to prove that she is a woman of loose morals. We fail to see, however, how proof of her past relationships with other men can have any bearing on her credibility as a witness in her daughters trial. As the trial court reminded accused-appellants counsel, the witness is not the accused in this case.xxxvi[62] Regails testimony is buttressed by Dr. Agudas testimony and medico-legal report. While he admitted that the pus in the vagina could be caused by an infection, bad hygiene, or improper urination, he also said the infection could have been caused by the insertion of the finger. Dr. Aguda testified: WITNESS:

I am referring to the findings of the hymen. Since an examination of the hymen, it was found out that there is an incomplete laceration at 11 o'clock and 5 oclock position. Meaning that there was an object that forcefully entered into the hymenal opening causing the incomplete laceration. Q: A: Like what? Finger but not erected penis.xxxvi[63]

Accused-appellant also questions the fact that when Aira was examined on May 9, 1997, Dr. Aguda discovered an old healed laceration, which usually indicates that the injury was inflicted more than one month prior to the examination, whereas the date of the alleged molestation was on April 16, 1997, one week short of a month. This discrepancy was already explained by Dr. Aguda to the satisfaction of the trial court. According to the doctor, the medical classifications and periods were based on adult cases, whereas Aira was a little child with a very small hymen, and the laceration was very superficial. Understandably, then, the results varied slightly. xxxvi[64] The Court is not unaware of the caution to be observed when circumstantial evidence is to be considered as inculpatory indicia in a criminal prosecution. That is why it has spent an unusual amount of time and effort to reflect upon all the circumstances which the lower court accepted as an unbroken chain of events, reinforced by corroboration and yielding a conclusion of guilt, all consonant with the requisites therefor.xxxvi[65] But, in this case, the chain of facts cannot but produce an inference consistent with guilt and not with innocence. It is highly unlikely that a child of Airas age would be able to concoct such a depraved tale and compliment it with such disturbing gestures with only the fantastic intention of implicating her grandfather. To sum up, the following circumstances establish accused-appellants guilt: Regails account of her daughters words and actions, her personal knowledge of the pus discharged from her daughters vagina and the NBI medico-legal report confirming it, and accused-appellants bare denials, compounded with his unexplained flight to Cebu, bringing little more with him than the clothes on his back.xxxvi[66] Taken together, these are sufficient to convince us of the truth of the allegations against accused-appellant. The rule is settled that we give due deference to the observations of trial courts on questions of credibility of witnesses since they have a better opportunity for observation than appellate courts. For this reason, the trial courts evaluation of testimonial evidence is accorded great respect.xxxvi[67] Aira is a two-year old child. The penalty imposable for acts of lasciviousness against children under 12 years of age should be that provided by R.A. 7610, which is reclusion temporal in its medium period. Accused-appellant is Airas grandfather. His relationship to his victim aggravates the crime, and, as provided by R.A. 7610, Section 31, the penalty shall be imposed in the maximum period when the perpetrator is an ascendant, parent, guardian,

stepparent or collateral relative within the second degree of consanguinity or affinity. Hence, the maximum period of reclusion temporal medium should be imposed. Applying the provisions of the Indeterminate Sentence Law, the minimum of the penalty to be imposed should be reclusion temporal minimum.xxxvi[68] In Criminal Case No. 97-307, the trial court sentenced accused-appellant to suffer a prison term ranging from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and to indemnify complainant Aira Velasquez in the amount of P30,000.00. This is correct, and we, therefore, affirm it. Third. The trial court convicted accused-appellant for the rape of Mary Joy Ocampo based on her testimony and the physical evidence presented. Indeed, the accused may be convicted solely on the basis of the testimony of the rape victim, if such testimony is credible, natural, convincing, and consistent with human nature and the normal course of things. We adhere to this principle in the case at bar. Accused-appellant questions the credibility of Mary Joy Ocampo because of a three-year delay in reporting the alleged rape. Delay in reporting an incident of rape is not necessarily an indication that the charge is fabricated.xxxvi[69] In these cases, the delay was caused by fear. It is apparent from the testimony of witnesses, both of the prosecution and of the defense, that accused-appellant was a man to be feared. He brooked no disobedience even from his own brothers and sisters and was so feared that, even when his life and his freedom were gravely threatened, nobody, not even his own brother, was willing to wake him and confront him with the accusations. His wife, his children, and close relatives fled their home and lived in a hotel for four days to escape his ire. Physically, he was intimidating. He is a black belter in karate and, according to his own sisters testimony, he could hurt a person merely by holding his hand. In fact, accused-appellant threatened Mary Joy with harm if she told anyone what accused-appellant had done to her.xxxvi[70] It is, therefore, easy to see why Mary Joy kept her silence. Accused-appellant contends that there were several inconsistencies in the testimony of Mary Joy Ocampo. As the trial court said, however: Similarly, Mary Joys alleged inconsistent testimonies as to whether or not she knew Jesus Tootsie Mendoza or Robertson is inconsequential. At any rate, Mary Joy clarified these points: 1. If this Robertson is a family name, she knew (him) as the person who will marry her sister (p. 41, tsn, December 31, 1997). 2. As to Jesus Mendoza alias Tootsie, Mary Joy claims that she does not know Jesus Mendoza although her mother declared that Mary Joy knew Tootsie Mendoza. It is apparent that Mary Joy knew of a Tootsie Mendoza, but not a Jesus Mendoza.

So, also, Mary Joys alleged inconsistent testimony as to whether her mother was in the market or asleep in the house when she was raped is readily explicable or reconcilable. Mary Joy testified that the first time Lamberto inserted his finger on her sexual organ, her mother was in the market and when appellant finally succeeded in inserting his sexual organ into Mary Joys, nobody was at home except her other brothers who were asleep. Evidently, in both instances, Mary Joys mother was not in the house.xxxvi[71] Inconsistencies on minor or inconsequential matters do not impair the essential integrity of the prosecutions evidence as a whole, nor detract from the witnesses testimony. On the contrary, they strengthen rather than weaken the credibility of the prosecution witnesses because they erase the suspicion of a rehearsed testimony.xxxvi[72] A rape victim cannot be expected to keep an accurate account of her traumatic experience. Discrepancies could be caused by the natural fickleness of human memory.xxxvi[73] Mary Joys testimony is corroborated by medical findings of hymenal lacerations, which the trial court found meritorious. Dr. Aguda testified on cross examination: ATTY. CLEMENTE: You mentioned about this conclusion that the above description genital findings were compatible on sexual intercourse with a man on or about the alleged date of commission. When you said date or commission when was that? A As I stated earlier, the types of laceration were old and healed and it [is] possible that those laceration[s] were made on the victim at the time of the commission of the crime. As relayed to me it started on October 1994 up to April 1997, it is possible. Q You mentioned that the described findings were possible with sexual intercourse with a man and you confirmed to this Honorable court that the most logical object that entered the female organ of Mary Jane was the penis of a man? A Yes an erected penis, sir.

Q In degree of compatibility, how much percent sure that it is an erected penis that entered the female organ of Mary Joy? A 80%, sir. . . . . Q A So the most probable is male organ? Yes, sir.xxxvi[74]

On the other hand, accused-appellant merely makes a bare denial of the charges against him. Yet, despite the fact that he had no money and no extra clothes to bring with him for a long trip, he hastily left for Cebu City. His only excuse was that masama ang loob koxxxvi[75] and that he feared for his life. He did not, however, report the alleged attempt on his life, nor did he surrender himself to the Cebu authorities when he learned of the cases filed against him. Accused-appellant said that there was always a large number of people in their house, such that he would have had no opportunity to commit the crimes charged against him. Rape has been known to be committed in places ordinarily considered as unlikely. The scene of the rape is not always nor necessarily isolated or secluded. It can be committed in places where people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in a room where other members of the family are sleeping. Among couples with big families who live in cramped quarters, the presence of other members of the family is not necessarily a deterrent to the commission of this crime.xxxvi[76] In this case, it is not impossible for the rape to have taken place inside a small room with five occupants therein, including accused-appellant and Mary Joy. Nor is there merit in accused-appellants claim that Angelina instigated their children to file these cases so she can be free to marry an American. As we have observed, it is unnatural for a parent, especially a mother, to use her offspring as an engine of malice and expose her daughters to the pity attached to rape victims simply for a stab at a better life.xxxvi[77] Besides, accusedappellants children are already grown up, and Regail is not even Angelinas daughter. At the time of the trial, Regail was 28, Mary Joy was 17, and Mary Grace, who testified on Airas behalf and admitted she too had been molested as a child, was 20, lived in another house, and had a family of her own. It is inconceivable that they would concoct a story of defloration and expose either themselves or their daughters to public trial unless they were motivated by the desire to have the culprit apprehended and punished.xxxvi[78] Fourth. The penalty imposed by the trial court on accused-appellant in Criminal Case No. 97311 must be modified. Art. 335 of the Revised Penal Code, as amended by 11 of R.A. 7659, provides in pertinent part: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. The concurrence of the minority of the victim and her relationship to the offender being a special qualifying circumstance, which increases the penalty (distinguished from a generic aggravating circumstance which only affects the period of the penalty), should be alleged in the information, consistent with the constitutional right of the accused to be informed of the nature and cause of the accusation against him.

In People v. Manggasin,xxxvi[79] the information charged the accused with the rape of his stepdaughter but the evidence showed that the accused and the complainants mother were not married but had merely been living in common-law relationship. The accused was convicted of simple rape only. Thus, although a common-law husband is subject to punishment by death in case he commits rape against his wifes daughter, nevertheless the death penalty cannot be imposed on accused-appellant in this case because the relationship alleged in the information in Criminal Case No. 97-311 against him is different from that actually proven. Accordingly, accused-appellant must be held liable only for simple rape and sentenced to reclusion perpetua as the proper penalty. In this case, the information in the Criminal Case No. 97-311 alleged that accused-appellant, who is the stepfather of the complainant, succeeded in having carnal knowledge of the latter, who was then 13 years old. However, while it appears that accused-appellant married Angelina Dungca on November 8, 1989 (Exh. F), the Court has serious doubts about the validity of their marriage, considering that Angelinas previous marriage to Roberto Ocampo, the father of Mary Joy Ocampo, was still subsisting at that time. In fact, Mary Joy admitted that her father Roberto Ocampo was still alive when her mother contracted her second marriage. As to the civil liability of accused-appellant, the Court finds that the award of P50,000.00 for civil indemnity is in order. In addition, however, he should be ordered to pay P50,000.00 as moral damages which requires no proof because it is assumed that the victim has suffered moral injuries entitling her to such an award.xxxvi[80] WHEREFORE, in Criminal Case No. 97-307, the decision of the Regional Trial Court, Branch 59, Angeles City, finding accused-appellant Lamberto Velasquez guilty of acts of lasciviousness and sentencing him to suffer the penalty of imprisonment ranging from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and ordering him to indemnify Aira Velasquez in the sum of P30,000.000, is hereby AFFIRMED. In Criminal Case No. 97-311, the decision of the same court finding accused-appellant Lamberto Velasquez guilty of rape and sentencing him to death is hereby MODIFIED. Accused-appellant Lamberto Velasquez is found guilty beyond reasonable doubt of simple rape and sentenced to reclusion perpetua and ordered to pay P50,000.00 in moral damages in addition to the amount of P50,000.00 as civil indemnity ordered by the trial court to be paid by him. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

THIRD DIVISION [G.R. No. 129534 & 141169xxxvi[1]. June 6, 2001] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NESTOR MACANDOG, EDDIE MACANDOG, RENATO MACANDOG and BERNARDO IBAEZ, accused.

NESTOR MACANDOG, accused-appellant.

DECISION
GONZAGA-REYES, J.:

Accused-appellant Nestor Macandog together with co-accused Eddie Macandog, Renato Macandog and Bernardo Ibanez were charged with the crimes of FRUSTRATED MURDER (Criminal Case No. 5985) and MURDER (Criminal Case No. 5986) in two separate Informationsxxxvi[2] filed before the Regional Trial Court of Legaspi City, Branch 3, which respectively read as follows: 1. Criminal Case No. 5985 - Frustrated Murder That at or about 8:00 P.M. of the 19th day of July 1992 at Brgy. San Roque, Municipality of Jovellar, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, said accused with intent to kill and armed with long rifles and bolos, conspiring and confederating with each other, did then and there, willfully, unlawfully and feloniously with evident premeditation, treachery and abuse of superior strength, shoot one EMILIO ATIVO, hitting him in the lower left temple and passing thru his right cheek, thus the perpetrators performed all the acts of execution which would produce the felony of murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of their will, that is, due to the timely medical attention accorded the victim, to his damage and prejudice. 2. Criminal Case No. 5986 - Murder That at or about 8:00 P.M. of the 19th day of July 1992 at Brgy. San Roque, Municipality of Jovellar, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, said accused with intent to kill and armed with long rifles and bolos, conspiring and confederating with each other did then and there, willfully, unlawfully and feloniously with evident premeditation, treachery and abuse of superior strength, shot to death one GLORIANO BAGAMASBAD, to the damage and prejudice of his legal heirs. Upon arraignment on April 26, 1993xxxvi[3] accused Nestor Macandog, assisted by counsel, pleaded NOT GUILTY to the charges against him. On October 26, 1993, accused Eddie

Macandog was arrested and upon his arraignment on November 17, 1993xxxvi[4] also pleaded not guilty. The other co-accused have remained at large. The evidence for the prosecution established the following facts: At around 8:00 oclock in the evening of July 19, 1992, Emilio Ativo was having a drinking spree with Juan Ativo and Gloriano Bagamasbad at the latters house at San Roque, Jovellar. Albay.xxxvi[5] Suddenly, a shot rang out and the bullet hit the left face of Emilio causing him to lie flat on the ground. Emilio then saw accused Eddie Macandog pointing his rifle at him while Renato Macandog and Bernardo Ibanez were standing near the house holding their bolos.xxxvi[6] Two more shots were fired and Gloriano Bagamasbad was hit and fell to the ground. A few minutes after, sensing that all the accused had already left, Emilio, with blood oozing from his wounded face, helped Gloriano, who was also wounded on his back, stood up and they both proceeded to the nearby house of Ederlina Abardo, Glorianos sister.xxxvi[7] While they were at a distance of about 7 to 8 meters to the house of Ederlina, they stopped as Gloriano was so weak and could hardly walk. At that instance, Emilio asked Gloriano if the latter knew the person who shot him, to which Gloriano replied Nestor Macandog.xxxvi[8] Emilio then shouted for help. Ederlina Abardo testified that at around 8:00 p.m. of July 19, 1992, she was inside her house located a few meters from the house of Gloriano when she heard three (3) gunshots.xxxvi[9] She peeped through the closed window of her house and saw Nestor Macandog and Eddie Macandog with long firearms slung over their shoulders, while Bernardo Ibanez and Renato Macandog who were holding bolos, were coming from the direction where the house of Gloriano was located and walking towards the Centro or Poblacion of Jovellar.xxxvi[10] After a while, she heard her brother Gloriano call her name; thus she went down her house and saw Gloriano and cousin Emilio Ativo lying on the street bathing in their own blood.xxxvi[11] With the help of Emilio, Ederlina lifted Gloriano and brought him to her house. She then asked Gloriano the persons who shot him to which the latter replied that he was shot by Eddie and Nestor Macandog because of a land dispute.xxxvi[12] She intimated that the Macandogs were ejected from two parcels of land owned by their family by virtue of a decision in a forcible entry case filed by her mother, Paz Bagamasbad, against the Macandogs. Ederlina added that after talking to Gloriano for 30 minutes, her brother expired. Emilio Ativo however, was brought to the Albay Provincial Hospital for treatment on the following day. She then reported the incident to the police authorities of Jovellar, Albay and to the Human Rights Commission. Dr. Joana Manatlao, Albay Rural Health Physician, conducted the autopsy on the cadaver of the victim Gloriano Bagamasbad on July 20, 1992 and issued an autopsy report with the following findings:xxxvi[13] Wound, gaping, measuring 10 x 27 cms, extending from the distal third of right arm to the distal third of right forearm with exposure of muscles and bones at this side and transaction of right radial artery and vein was noted. Wound, 3 x 5.5 cms located at the 6th ICS right anterior axillary line, 2.5 cms away from the right lower quadrant of right breast. On further examination, it penetrated the inferior

border of the lower lobe of the right lung. There was maceration of the superior pole of the right lobe of the liver. Hemothorax and hemoperitoneum was also noted. Wound, 0.5 x 0.5 cm, left paravertebral line, between level of T10 and T11. The cause of death was cardiorespiratory arrest due to hemorrhagic shock due to gunshot wounds. Teresita Bagamasbad, widow of victim Gloriano, testified on the expenses she incurred as a result of her husbands death and asked for P50,000 damages.xxxvi[14] Paz Bagamasbad, mother of deceased Gloriano, testified that on June 3, 1992, the herein accused together with their relatives armed with firearms forcibly entered her parcels of land located at San Roque, Jovellar, Albayxxxvi[15] which prompted her to file a forcible entry case against them before the Municipal Trial Court of Camaligxxxvi[16] where a decision dated April 20, 1993 was rendered in her favor.xxxvi[17] On the other hand, accused Nestor Macandog interposed the defense of alibi. He averred that from 6:00 oclock to 9:00 oclock in the evening of July 19, 1992, he was watching betamax in the house of Gabriel Arcangel situated at Barangay Mercado;xxxvi[18] that the last time he was in Barangay San Roque was in 1986 and since then had not returned back as he was wanted by the NPA for being a rebel returnee;xxxvi[19] that Barangay Aurora is about six (6) kms. away from Brgy. San Roque and would take two hours to go there at nighttime.xxxvi[20] GABRIEL ARCANGEL corroborated the alibi interposed by accused Nestor Macandog that the latter was in his house on July 19, 1992 at around 6:45 P.M. viewing betamax.xxxvi[21] ANTONIO ARISPE of PAGASA, Legaspi City was presented to show the weather condition in Albay on July 19, 1992. He testified that on July 19, 1992 Public Storm Signal No. 1 was in effect over the Bicol Region due to the presence of Tropical Storm Ditang; that the weather condition was light to moderate and rain fell over the area almost the whole twenty-four-hour period with very low visibility from almost zero to not more than 1,000 meters during periods of rain stoppage;xxxvi[22] that the illumination was too low due to overcast skies and falling precipitation.xxxvi[23] EMILIO ATIVO was presented by the defense as hostile witness; he was asked to confirm his sworn statement given to the police authorities stating that he only saw Eddie Macandog, with long firearm while Renato Macandog and Bernardo Ibaez were holding bolos on the night of the incident. After a joint trial, the court a quo on December 27, 1996 rendered its decisionxxxvi[24], the dispositive portion of which reads as follows:xxxvi[25] WHEREFORE, in view of the foregoing considerations, this Court finds accused EDDIE MACANDOG and NESTOR MACANDOG GUILTY BEYOND REASONABLE DOUBT of

the crime of FRUSTRATED MURDER as charged in Criminal Case No. 5985. Accused NESTOR MACANDOG is hereby sentenced to suffer taking into consideration the mitigating circumstance of voluntary surrender, to an indeterminate penalty ranging from six (6) years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum. With respect to accused EDDIE MACANDOG, no mitigating or aggravating circumstance having been appreciated for or against him, he is hereby sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. Both accused are ordered to indemnify the victim Emilio Ativo the amount of P55,000.00 as hospitalization and medical expenses incurred by Emilio Ativo for the injuries suffered by him and the amount of P20,000.00 representing loss of income in consequence thereof as a farmer. Likewise, this Court finds both accused EDDIE MACANDOG AND NESTOR MACANDOG GUILTY BEYOND REASONABLE DOUBT of the crime of MURDER as charged in Criminal Case No. 5986 and are hereby sentenced to suffer the penalty of reclusion perpetua. They are further ordered to indemnify the heirs of the victim Gloriano Bagamasbad the following amounts: a) P50,000.00 as civil indemnity; b) P50,000 as moral damages, and c) P35,000.00 as expenses related to the death and burial of the victim Gloriano Bagamasbad. The trial court rejected the defense of alibi and denial raised by accused Nestor and Eddie Macandog stating that they failed to show physical impossibility of their presence at the scene of the crime. It also found the ante-mortem statement of Gloriano to have fully met the requirements of a valid dying declaration hence admissible; that there was the presence of conspiracy among the accused, i.e., that the prosecution had shown that the two accused with intent to kill and armed with long rifles and bolos conspired with each other to kill Gloriano Bagamasbad and Emilio Ativo. Accused Eddie Macandog did not appeal hence his conviction in the two criminal cases had become final and executory. On the other hand, accused Nestor Macandog filed his notice of appeal for his conviction only in Criminal Case No. 5986 for murder,xxxvi[26] thus the decision in Criminal Case No. 5985 (frustrated murder) from which he had not appealed has also become final and executory. In his brief, accused-appellant Nestor Macandog alleges that the trial court gravely erred in convicting him despite insufficiency of evidence as his guilt was not proved beyond reasonable doubt; and in finding that he conspired with the other accused in this case.xxxvi[27] Accused-appellant Nestor Macandog claims that the trial court relied heavily on the dying declaration of deceased Gloriano Bagamasbad despite the fact that not all the requisites for the

admissibility of a dying declaration had been met. Appellant further alleges that it was highly improbable for the deceased Gloriano Bagamasbad to have seen the one who fired at him considering that the attack was so sudden and unexpected and after being hit, he was immediately thrown flat to the ground, thus the deceased was not a competent witness. Accusedappellant also points out that he was not among the persons seen by victim Emilio Ativo after the shooting incident. The appeal has no merit. When the issue is one of credibility of witnesses, the appellate courts will generally not disturb the findings of the trial court, considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it had plainly overlooked certain facts of substance and value that if, considered, might affect the result of the case.xxxvi[28] A review of the records of the case and the arguments raised by accused-appellant in his brief provide no cogent reason why we should deviate from the factual finding of the trial court that accused-appellant Nestor Macandog and co-accused Eddie Macandog were the ones who shot the deceased Gloriano Bagamasbad. We agree with the trial court when it upheld the admissibility of the dying declaration of Gloriano, to wit:xxxvi[29] However, to be valid and admissible in evidence, the following requisites must concur: (a) that the declaration must concern the cause and surrounding circumstances of the declarants death; (b) that at the time the declaration was made, the declarant was under a consciousness of an impending death; (c) that the declarant is competent as a witness; and (d) that the declaration is offered in a criminal case in which the declarant is the victim. It is evident from the facts that a valid dying declaration is present in these cases and therefore the dying declaration of Gloriano Bagamasbad is admissible. First, the declaration of Gloriano concerns the cause and surrounding circumstances of his death, that he was shot by accused Eddie and Nestor Macandog because of a land dispute (TSN, Pages 31-32, June 3, 1993, Ederlina Abardo); second, at the time the declaration was made, Gloriano was under the consciousness of an impending death. As a matter of fact, he died within thirty (30) minutes after making his declaration. (TSN, Pages 31-32, & 71, June 3, 1993, Ederlina Abardo); third, that at the time Gloriano made his declaration, he was a competent witness since he was still conscious and could still speak competently although he was already dying, and fourth, the declaration of Gloriano was offered in a criminal case for Murder in which he was himself the victim.

Contrary to appellants claim that Gloriano was not a competent witness because he was not able to see his assailants, the testimonies of Ederlina Abardo, to whom the dying declaration was given, which was also heard by Emilio Ativo, clearly showed that Gloriano was categorical in pointing to appellant Nestor Macandog and Eddie Macandog as the persons who shot him. Gloriano even provided for the reason why the accused shot him, i.e., because of a land dispute between his family and the family of the accused. Thus Ederlina testified as follows:xxxvi[30] Q: Now having found Emilio Ativo and Gloriano Bagamasbad bathing in their own blood, outside your house, what did you do? A: Q: A: Because Gloriano Bagamasbad could not stand up anymore, we lifted him, sir. Where did you bring his body? We brought his body inside my house, sir.

PROSECUTOR TOLOSA: Q: And how about Emilio Ativo?

WITNESS: A: Emilio was able to walk in going inside my house, sir.

Q: Now, what transpired next when Gloriano Bagamasbad and Emilio were already inside your house and both of them bloodied? A: While Gloriano Bagamasbad was inside my house, we were able to talk with each other for around thirty (30) minutes, sir, after which, he expired. Q: A: Q: What did you and Gloriano Bagamasbad talk about? I asked him what happened to him and he answered me that he was shot, sir. And what else did you ask of him?

A: I asked him who shot him and according to him he was shot by Eddie and Nestor Macandog, sir. Q: What else did you ask him?

WITNESS: A: I ask him why Eddie and Nestor Macandog shot him.

PROSECUTOR TOLOSA: Q: A: Q: What was his reply? According to him this is the case of our land where they said blood will spill. What is that case about regarding the land as mentioned by Gloriano Bagamasbad?

ATTY. GIANAN: Objection, your honor. This is supposed to be trial of a case for murder and frustrated murder, your honor. COURT: Witness may answer. WITNESS: A: This was a case over the land wherein the Macandogs and cousins entered our property and so my brother filed a case against them, sir. On some clarification from the Court:xxxvi[31] COURT: Q: According to you, your brother was serious. Was he dying?

WITNESS: A: He was already in a serious condition, your honor, because of the wounds that were inflicted on his body. He was almost dying of the wounds that he had, your honor. Q: Now, one last question. Was he conscious that he was dying?

A: Yes, your honor. He was still conscious that time. He was almost dying, your honor. And he even said Maybe I am dying already. Emilio Ativo, also a victim in the same shooting incident and who was with Gloriano when they went to Ederlinas house, heard the conversation between Gloriano and Ederlina and testified as follows:xxxvi[32] Q: Now, what did you do since Gloriano was already very weak before he reach the house of Ederlina?

A: Q: A: Q:

I shouted and sought help. Was there any help or assistance given you after you called for? Ederlina, sir. By the way, at that time how far were you already from the house of Ederlina?

A: From the place where Im seated up to that door, sir, which is around 7 to 8 meters, more or less. PROSECUTOR TOLOSA: Q: Now, what help did Ederlina give you and Gloriano?

WITNESS: A: Q: A: Q: A: Q: A: Q: A: Gloriano Bagamasbad was lifted by Ederlina Bagamasbad and I just walk, sir. Towards where did Ederlina bring this Gloriano Bagamasbad? Inside her house, sir. How about you, where did you proceed? I also got inside the house of Ederlina, sir. Now, what did Ederlina do after bringing Gloriano Bagamasbad inside her house? Ederlina investigated Gloriano Bagamasbad, sir. By the way, do you know if Ederlina hold any position in the barangay? Shes a Barangay Councilwoman, sir.

PROSECUTOR TOLOSA: Q: Councilwoman of Barangay San Roque?

WITNESS: A: Q: Yes, sir. And this is within the Municipality of Jovellar?

A:

Yes, sir.

Q: Now, this house where you, Juan Ativo and Gloriano Bagamasbad drank is also within the area of Barangay San Roque? A: Yes, sir.

Q: Now, you said that Ederlina is a Barangay Councilwoman who investigated Gloriano, were you also present when she profounded questions to Gloriano? A: Q: A: Q: Yes, sir, I was also around. And what were the questions asked to Gloriano Bagamasbad by Ederlina Bagamasbad? Ederlina asked Gloriano, who shot you, and he answered it was Nestor. What other questions did Ederlina ask?

WITNESS: A: Why were you shot?

PROSECUTOR TOLOSA: Q: A: Q: A: And was there a reply from Gloriano? Gloriano answered because of land dispute between Nestor and Gloriano. Now, what happened that evening to Gloriano Bagamasbad? He died, sir.

Q: Do you know how many minutes after he was brought inside the house of Ederlina when Gloriano died? A: Q: A: Yes, sir. How many minutes? Around one-half (1/2) hour, sir.

The positive declaration of the deceased as to the identity of his assailants, given with the consciousness that death is imminent is undoubtedly entitled to great weight considering the seriousness of his wounds and his very weak physical condition as shown by the fact that death

supervened thirty minutes after his disclosure to Ederlina. Under the circumstances, there was a great improbability that Gloriano would have trifled with the truth.xxxvi[33] Appellants claim that he was not among those persons seen by prosecution witness Emilio Ativo during the shooting incident is not convincing, and does not detract from Glorianos dying declaration. It bears stress that although Emilio Ativo testified that he had not seen appellant, he also stated that there were other persons aside from Eddie and Renato Macandog and Bernardo Ibanez. In fact, Emilio testified that while the rifle of accused Eddie Macandog was pointed at him while he was lying flat on the ground, two more shots were heard whereupon Gloriano fell to the ground, which established that another person with a rifle was present in the place of the shooting. In his dying declaration, Gloriano categorically identified Nestor and Eddie Macandog as the persons who shot him; such a positive identification of his own assailants cannot be destroyed by the incompleteness of Emilios testimony. Moreover, Ederlina Abardos testimony corroborated Glorianos declaration as to the presence of appellant Nestor Macandog at the crime scene. She testified that on the night of July 19, 1992, the time when the crime was committed, she heard three gunshots and when she peeped through her window, she saw appellant Nestor Macandog and Eddie Macandog with firearms slung on their shoulders and Bernardo Ibanez and Renato Macandog holding bolos as they passed by her house coming from the place where Glorianos house was situated and going to Centro Jovellar, Albay. She further testified on cross examination that the distance between her house and the road where the accused passed by was only two metersxxxvi[34] and although there was only little illumination coming from the moon, there was sufficient light coming from her tocalor, a kind of lightning equipment made of bottle with cloth and kerosene insidexxxvi[35]. She could not have been mistaken as to the identities of the accused considering that she had known them from the time they were bornxxxvi[36] because they were all residents of Barangay San Roque, Jovellar, Albay, a place where she used to live before the shooting incident. The fact that Ederlina is the sister of deceased Gloriano Bagamasbad does not per se make her a biased witness. Mere relationship of the victim to a witness does not automatically impair her credibility and render her testimony less worthy of credence where no improper motive can be ascribed to her for testifying.xxxvi[37] On the contrary, such relationship lends more credence to a witness testimony considering her 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.xxxvi[38] We agree with the trial courts rejection of appellants defense of alibi considering that Barangay Mercado, the place where he was allegedly watching betamax on the night of the shooting incident, was only six kilometers away from San Roquexxxvi[39], a distance which does not preclude the physical possibility for accused-appellant to be at the scene of the crime. Although defense witness Gabriel Arcangel was presented to corroborate accused-appellants alibi that he was in Barangay Mercado watching betamax on the night in question, Arcangel testified in the cross-examination that he could not remember the other dates when appellant Nestor Macandog viewed films in his house but he remembered the date July 19, 1992 because

appellant went to his house on July 20, 1992 to tell him that he viewed the film on July 19, because he was suspected of being the one involved in the shooting incident.xxxvi[40] The credible testimonies of Ederlina Abardo, victim Glorianos sister, and Emilio Ativo who both testified on the ante-mortem statements of the victim convincingly establish the guilt of accused-appellant beyond reasonable doubt. Although the trial court failed to discuss the presence or absence of the qualifying circumstances of treachery, evident premeditation and abuse of superior strength which were alleged in the Information for murder, we find that treachery attended the killing of Gloriano Bagamasbad. The sudden and unexpected shooting of Gloriano, who was unarmed and unsuspecting as he was only having a drinking spree with his companions at his own (Gloriano) house, insured his killing without any risk to his assailants. It rendered the victim completely unable to defend himself. Evident premeditation is not attendant as no proof has been adduced to show that accused had previously planned the shooting of Gloriano Bagamasbad. Abuse of superior strength is absorbed in treachery.xxxvi[41] We, however, hold that the aggravating circumstance of dwelling, although not alleged in the Information, should be properly appreciated in the death of Gloriano Bagamasbad considering that he was killed inside his house. A persons abode is regarded as a sanctuary which should be respected by everybody.xxxvi[42] This aggravating circumstance was however offset by the mitigating circumstance of voluntary surrender as appellant appeared in the trial court before the warrant of his arrest was served upon him.xxxvi[43] In a case, it was held that the fact that the warrants had already been issued is no bar to the consideration of this mitigating circumstance, because the law does not require that the surrender be prior to the order of arrest.xxxvi[44] We affirm appellants conviction for murder. The killing was qualified by treachery. Considering the presence of the aggravating circumstance of dwelling which was offset by the mitigating circumstance of voluntary surrender, 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.xxxvi[45] We also affirm the trial courts award of P50,000 civil indemnity and P50,000 moral damages considering the grief and sorrow suffered by the heirs of the deceased. However, the award for actual damages is reduced to the amount of P9,500 for burial expenses since the only receipt presented by the prosecution was for the payment made to Funeraria Nuestra Sra. De Salvacion of Guinobotan, Albay. To justify an award of actual damages, it is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss.xxxvi[46] We note that the notice of appeal filed by accused-appellant Nestor Macandog was only for Murder (Criminal Case No. 5986) but the case was assigned with two docket numbers, i.e., G.R.

Nos. 129534 and 141169. Hence case records should be corrected with the deletion of the later docket number. WHEREFORE, the appealed decision convicting appellant for the crime of murder in Criminal Case No. 5986, imposing the penalty of reclusion perpetua and awarding fifty thousand pesos (P50,000) by way of civil indemnity and fifty thousand pesos (P50,000) moral damages is AFFIRMED with the modification that the award of actual damages is reduced to P9,500. The Clerk of Court is ordered to delete GR. No 141169 from the title of the case. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION [G.R. No. 132025. January 16, 2001] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARGARITO GALO, JUNE TOTO SANAYAN, RODRIGO DIGOY SANAYAN, and ANACLETO TITO ASAS, accused-appellants. DECISION MENDOZA, J.: This is an appeal from the decisionxxxvi[1] of the Regional Trial Court, Branch 4, Tagbilaran City, finding accused-appellants Margarito Galo y Bernacer, June Toto Sanayan y Sernikula, Rodrigo Digoy Sanayan y Segoro, and Anacleto Tito Asas y Quimson guilty o f murder and sentencing each of them to suffer the penalty of reclusion perpetua and to pay to the heirs of the victim, Argeo Cuizona, the amount of P50,000.00 as civil indemnity and P30,000.00 as actual and moral damages. The informationxxxvi[2] against accused-appellants alleged That on or about the 27th day of September, 1994, in the municipality of Mabini, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating, and mutually helping each other, with intent to kill and without any justifiable cause, with treachery by employing craft, and with abuse of superior strength (the victim being unarmed), did then and there willfully, unlawfully, and feloniously attack, assault, and strike with the use of a club, bamboo, and pestle one Argeo Cuizona thereby inflicting upon

his body mortal wounds which resulted [in] his instantaneous death; to the damage and prejudice of the heirs of the victim in the amount to be proved during the trial. Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659. Accused-appellants pleaded not guilty to the crime charged, whereupon they were tried.xxxvi[3] The prosecution presented the following as witnesses: Aniano Amoroto, Felicitas Vallecer, Marcelo Vallecer, Sr., Rizalina Recorba, Dr. Oscar Fudalan, SPO3 Virgilio Vergara, Marcelo Vallecer, Jr., Vicente Vallecer, and Socorro Sarabosing. Their testimonies show the following: On September 27, 1994, at around 2 oclock in the afternoon, in Barangay San Jose, Mabini, Bohol, accused-appellants Margarito Galo, June Sanayan, Rodrigo Sanayan, and Anacleto Asas, all working at the ranch owned by Robert Nazareno, had a drinking session at the store of Rizalina Recorba. After staying there for 30 minutes, they transferred to a waiting shed in front of the store. At around 3 oclock, Galo, June Sanayan, and Asas went to the house of Argeo Cuizona and invited him to join them. Argeo Cuizona went with accused-appellants. June Sanayan bought two more bottles of rhum from the store of Recorba. Later, he went back to the store to borrow a knife from Recorba, but he was not given one. He tried to borrow from Prudencio Vallente and Lino Boiser, none of whom gave him a knife. He returned to the waiting shed and resumed drinking with his companions.xxxvi[4] At around 5 oclock that afternoon, Aniano Amoroto, who happened to pass by, saw Argeo Cuizona having drinks with accused-appellants. Amorato himself was offered drinks, which he accepted. After some time, however, he heard June Sanayan saying that he would have killed Argeo Cuizona had he been able to borrow a knife. Amoroto was disturbed by what he heard, and he told the group to go home. He warned Argeo Cuizona that his life was in danger, but the latter dismissed the warning, saying that he had nothing to fear from June Sanayan. At 6 oclock in the afternoon, Amorotos wife came and fetched him, but, although he went with her, Amoroto nonetheless returned to the waiting shed at about 7 oclock that evening, worried that June Sanayan might carry out his threat. He was told by Ondoy Gulasito and Dodong Vallente that the group had already left.xxxvi[5] On the other hand, Felicitas Vallecer said she was in her house preparing supper at about 7 oclock in the evening when June Sanayan came looking for a bolo. As June Sanayan could not find one, he took her husbands night stick. Felicitas noticed that Rodrigo Sanayan, Anacleto Asas, Margarito Galo, and Argeo Cuizona were in her yard, talking in Tagalog. Although she did not actually see them, she recognized them through their voices because she had known them for a long time. After June Sanayan had gone out of the house, Felicitas Vallecer heard a commotion in the yard. She heard Argeo Cuizona cry for help, Help me, Ting. (Ting is Vicente, Felicitas Vallecers husband.) Felicitas shouted at the men outside to stop, but the beating continued for about half an hour more.xxxvi[6]

At around 7 oclock that same night, Vicente Vallecer arrived home and saw a dead person lying in his yard. His wife told him what had happened and that she heard familiar voices in the yard. Vicente Vallecer then fetched the barangay captain and Aniano Amoroto, a barangay tanod. With the use of a flashlight, the barangay captain identified the dead person to be Argeo Cuizona. Found near the body of Argeo Cuizona were a night stick, three bamboo sticks, and a pestle, all of which belonged to Vicente Vallecer. They had been used to kill Argeo Cuizona. Vicente decided to take his family to his fathers house.xxxvi[7] SPO3 Virgilio Vergara was one of the policemen who responded to the report of the killing. He found the dead person lying on the ground, about 20 meters from the house of Vicente Vallecer. Near the body of the victim were a night stick, bamboo sticks, and a pestle, all of which had bloodstains. A pestle was found around six to 10 meters away from the body. A grassy area, six to 10 meters away from the crime scene, showed signs of struggle. SPO3 Vergara found Argeo to have suffered injuries in the head.xxxvi[8] That same evening, accused-appellants went to the house of Marcelo Vallecer, Sr., the father of Vicente. Accused-appellant Rodrigo Digoy Sanayan told Marcelo Vallecer, Sr. that they had killed Argeo Cuizona. After accused-appellants had left, Vicente and his wife and child arrived. Vicente told his father that Argeo Cuizona was found dead in his yard.xxxvi[9] Marcelo Vallecer, Jr., 13 years old, overheard the four accused-appellants when they told his father that they had killed Argeo Cuizona. On October 24, 1994, he executed an affidavit on what he knew of the incident. Marcelo, Jr. explained that the delay in the execution of his affidavit was due to the fact that one of the accused-appellants, June Toto Sanayan, took him to the ranch on September 29, 1994, trying to persuade him not to testify against him. Marcelo, Jr. said, however, that he was not prevented from leaving the ranch nor threatened if he testified.xxxvi[10] Vicente Vallecer was charged with murder, along with herein accused-appellants, for the death of Argeo Cuizona.xxxvi[11] However, he was later excluded from the charge for insufficiency of evidence.xxxvi[12] Dr. Oscar Fudalan, the Municipal Health Officer who conducted the postmortem examination on the body of Argeo Cuizona, issued a reportxxxvi[13] which reads: DATA: ARGEO A. CUIZONA, 44 years old, farmer, residing at San Jose, Mabini, Bohol. FINDINGS: The cadaver was about 5 ft. 6 inches long weighing 85 kilograms which was already in RIGOR MORTIS. 1. 2. Lacerated wound, C-shaped, 5 cm. long, cheek, right Abrasions, multiple, superficial, frontal area

3. Fractures, multiple, occipito-parietal regions, postero-lateral, left, with small fragments of bone . . . detached and parts of the brain protruding through the wound and fractures. 4. 5. NOTE: Injuries Nos. 3 and 5 were the ones responsible for the death of the above-mentioned individual. Dr. Fudalan testified that the body of Argeo Cuizona was already in a state of rigor mortis when he conducted the examination at 9 oclock in the morning of September 28, 1994. He estimated that death occurred more than six hours prior to the autopsy, so that it was possible Argeo Cuizona died in the evening. He said wound no. 1, which was found on the cheek of the victim, could have been caused by any of the weapons presented in evidence, i.e., night stick, the bamboo sticks, or the pestle. On the other hand, wound no. 2 consisted of superficial abrasions on the forehead of the victim. These abrasions could have been caused by sand particles if the victim were lying on his back. It is also possible that the victim was dragged, Dr. Fudalan explained. With respect to wound no. 3, he said some of the brain tissues were protruding from the wound at the left side portion of the victims head. According to Dr. Fudalan, any blunt instrument could have caused these fractures, such as the pestle or the night stick. He said that wound no. 3 could not have been caused by a sharp-bladed instrument because the lips of the wound are uneven but that it was possible that the night stick caused the same because of the night sticks sharp edge. Wound no. 4 was a lacerated wound running from the left portion of the ear to its base, almost severing the ear. In wound no. 5, part of the brain was already destroyed because of the fractures. Dr. Fudalan was of the opinion that wound nos. 3 and 5 were the fatal wounds as these involved the brain. Dr. Fudalan stated that it was possible that the injuries were caused by more than one person. On cross-examination, however, he said it was possible that the injuries were caused by only one person, depending on the victims position, and by only one instrument. He admitted that he did not see the alleged weapons when he conducted the postmortem examination. Dr. Fudalan explained that it was possible there would be no bloodstain on the weapons because the blood would not come out immediately, unlike in stab wounds. Dr. Fudalan explained that wound no. 4 could have been inflicted before wound no. 3 and vice-versa. However, if wound no. 4 had been inflicted beforehand, Dr. Fudalan admitted that the instrument inflicting wound no. 3 would have been stained with blood.xxxvi[14] Socorro Sarabosing, the deceased victims sister, testified as to the burial and other expenses incurred by the victims family. For the burial, nightly prayers, and other expenses connected to her brothers death, she stated that they spent approximately P10,000.00. They also spent P500.00 when they requested that a warrant be issued against the four accused. They spent P500.00 during the preliminary investigation, while they set aside P1,000.00 for every trial date, the latter amount being due to the fact that they had to bring witnesses. The transportation fare Lacerated wound, ear (almost detached), left Ce[re]bral injuries, multiple, occipito-parietal lobes, brain

from their barrio to Tagbilaran City, where the trial was held, was P35.00 per person. All in all, Socorro Sarabosing testified, they incurred expenses in the amount of P24,200.00.xxxvi[15] Accused-appellants Margarito Galo, Rodrigo Sanayan, June Sanayan, and Anacleto Asas testified in their defense. All of them admitted that they had drinks with Argeo Cuizona, but they denied killing him.xxxvi[16] On March 21, 1997, the trial court rendered its decision finding accused-appellants Margarito Galo, Rodrigo Sanayan, June Sanayan, and Anacleto Asas guilty of murder. The dispositive portion of the decision reads: WHEREFORE, the Court finds accused Margarito Galo y Bernacer, June Sanayan y Sernikula, Rodrigo Sanayan y Sagoro, and Anacleto Asas y Quimson guilty beyond reasonable doubt of the crime of Murder contrary to the provisions of Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, and sentences EACH of them to suffer the penalty of reclusion perpetua, to solidarily and jointly pay to the heirs of the deceased victim Argeo Cuizona the sum of P50,000.00 as death indemnity and another sum of P30,000.00 in the concept of actual and moral damages. SO ORDERED.xxxvi[17] Hence this appeal. Accused-appellants contend that: I. THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER ON CIRCUMSTANTIAL EVIDENCE. II. THE COURT A QUO ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE COMMISSION OF THE CRIME. III.THE COURT A QUO ERRED IN ORDERING THE ACCUSED-APPELLANT TO SOLIDARILY AND JOINTLY PAY THE HEIRS OF VICTIM THE SUM OF P50,000.00 AS DEATH INDEMNITY AND P30,000.00 AS ACTUAL AND MORAL DAMAGES.xxxvi[18] First. Accused-appellants question the trial courts evaluation of the testimonies of prosecution witnesses Aniano Amoroto, Marcelo Vallecer, Sr., and Felicitas Vallecer. Accused-appellants say that it is unbelievable for accused-appellant June Sanayan to tell Aniano Amoroto that he wanted to kill Argeo Cuizona. With regard to the testimony of Marcelo Vallecer, Sr., accusedappellants point out that the formers affidavit was executed only on February 15, 1995, almost four months after the incident. And with respect to Felicitas Vallecer and Marcelo Vallecer, Sr., accused-appellants claim that the two testified for the prosecution to save Vicente Vallecer from prosecution for the death of Argeo Cuizona.xxxvi[19] Vicente Vallecer is the husband of Felicitas Vallecer and the son of Marcelo Vallecer, Sr.

The evaluation of the testimonies of witnesses is chiefly the function of the trial court. When there is no indication that patent inconsistencies have been overlooked or that the conclusions reached are unsupported by the evidence, the trial courts evaluation of the credibility of witnesses must be accorded the highest respect. This is for no other reason than that the trial court had the opportunity to observe the demeanor of the witnesses while testifying.xxxvi[20] In this case, the trial court found the following: The Court does not give credence to the version of the four (4) accused denying the charge alleging that Argeo Cuizona accompanied them in the evening of September 27, 1994 on their way to the Nazareno farm as Cuizona would drop by the house of Vicente Vallecer to dress a chicken. With utmost objectivity, as between a mere denial of the accused and the chronologically detailed declarations of the prosecution witnesses, the Court gives more evidentiary value to the latter. In a spirit of vindictiveness, the four accused deceptively invited Argeo Cuizona to go with them to the ranch of the Nazarenos where they were working on the pretext that they would dress a chicken when in fact they had bad intention against the victim Argeo Cuizona and the victim realizing such bad intention of the accused on their way to the ranch, an altercation between Cuizona on one hand and the four (4) accused on the other hand ensued when they were near the house of Vicente Vallecer where the four accused decided to finish off Argeo Cuizona and that during which time, June Sanayan went up the house of Vicente Vallecer to look for a bolo, but unable to find a bolo, brought a night stick instead, which he found in Vicente Vallecers house. The aforecited circumstances constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the fact that the four accused, confederating and mutually helping each other, attacked and struck the victim with the use of a night stick, pestle, and pieces of bamboo in the road and after realizing that he is already dead, they dragged the body of the victim towards the front yard of the house of Vicente Vallecer causing multiple abrasions on the frontal area of the body of the victim to make it appear that it was Vicente Vallecer who killed the victim. This factual setting would clearly indicate that the four accused acted in conspiracy regarding the commission of a crime, i.e., to kill Argeo Cuizona in vengeance against him who sometime in September 13, 1994, or two weeks before the incident in question, had slapped accused June Sanayan, a co-worker at the Nazareno ranch.xxxvi[21] Accused-appellants have not shown any reason for us to overturn these findings of the trial court. Aniano Amorotos testimony that he heard June Sanayan say that he wanted to kill Argeo Cuizona was corroborated by Rizalina Recorba who said that accused-appellant tried to borrow a knife from her and from other people. Aniano Amoroto was so worried about the safety of Argeo Cuizona that he returned to the waiting shed looking for accused-appellants and Argeo Cuizona.xxxvi[22] His testimony was corroborated by Vicente Vallecer.xxxvi[23] These

witnesses had no motive to testify falsely against accused-appellants. Hence, their testimonies are entitled to full faith and credit.xxxvi[24] On the other hand, Felicitas Vallecer testified as follows: Q And when you heard voices outside your house, as you said you heard voices from the yard of your house, you never saw a person who was at your yard? A I did not see, but I heard their voices, especially the voices of Toto Sanayan.

Q Can you tell the Honorable Court what did you hear from them, if you heard from them anything? A I did not hear what they were talking about.

COURT: Q A Q A Q A Q A Q You did not hear, but you are familiar with the voices you heard? Yes, your Honor. And who was that person who allegedly entered your house? Toto Sanayan. What did he do when he entered your house? He was looking for his elder brother because he was looking for a weapon. Did he tell on any member of the household what kind of weapon? Bolo. Did he tell you what did he do with the bolo?

A Toto Sanayan or June Sanayan told me that he wanted to borrow the bolo because he wants to kill Argeo Cuizona. .... ATTY. MAGALLANO: Q A Was he able to borrow a bolo from you? No, sir.

Q A Q A Q A

Then, what did he do next? He was looking for anything and he got the night stick of my husband. Why did your husband possess a night stick? What is his function in the barangay? He is a member of the Barangay Tanod. And the husband of yours is Vicente Vallecer? Yes, sir.

Q Was your husband detained in connection with this case filed against him by the Judge in MTC, Mabini, Bohol? A Q A Yes, sir. When was that? October 1, 1994. .... ATTY. MAGALLANO: My question is: When your husband was arrested, the night stick was in your wall. WITNESS: It was not hanging. ATTY. MAGALLANO: Q So, where was [it] specifically placed, and how was it placed at your wall on October 1, 1994 when your husband was arrested? A It was found in the road.

COURT: Q A Q Where? In our yard. How far from your house did that night stick lay?

About four (4) arm length from our door.

ATTY. MAGALLANO: After Toto Sanayan got the night stick from your wall in the night of September 27, 1994 and he went out, and after you heard a commotion outside your house. Is that correct? A Yes, sir.

Q But because the yard of your house was very dark, and you remained inside your house which is about 4 arm lengths from your yard, you did not see the people who had caused the commotion? A I did not see them personally, but I am certain that the voices I heard were theirs.

Q Earlier you testified that you did not hear what they were talking about. But how come that you became familiar of their voices. [sic] A Because the words that they uttered were very clear to me because I am familiar with their voices.xxxvi[25] As already stated, Felicitas Vallecer is the wife of Vicente Vallecer who was initially charged with murder together with accused-appellants. It is now claimed that her testimony was given to save her husband from prosecution. It is contended that it was inconsistent for her to say that she heard accused-appellants as they allegedly gathered in the yard of her house but did not hear what they were talking about.xxxvi[26] This contention has no merit. It was quite possible for anyone to hear people talking and yet not understand what they are talking about. What is important is that Felicitas recognized accusedappellants by their voices. The sound of the voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years.xxxvi[27] In the instant case, Felicitas Vallecer explained that she is familiar with accused-appellants voices because they passed by her house almost everyday. In fact, accused-appellant June Sanayan is married to the sister of Felicitas husband, Vicente Vallecer.xxxvi[28] Moreover, the credibility of a witness is not affected by inconsistencies or improbabilities in her testimony if it does not appear that she has willfully perverted the truth as may be gleaned from the tenor of her testimony and found by the trial judge from her demeanor and behavior on the witness stand.xxxvi[29] This principle holds true in the case of Felicitas Vallecer. With respect to the fact that Marcelo Vallecer, Sr. gave his affidavit only on February 15, 1995, almost five months after the killing of Argeo Cuizona, we are inclined to believe that Marcelo Vallecer, Sr. failed to execute an affidavit earlier because of oversight. After all, his son, Marcelo Vallecer, Jr., had earlier executed an affidavit on October 24, 1994, containing

substantially the same matters covered in his (Marcelo, Sr.s) affidavit, i.e., that accusedappellants went to the house of Marcelo, Sr. and that accused-appellant Rodrigo Sanayan told him that they had killed Argeo Cuizona.xxxvi[30] With respect to the fact that Marcelo Vallecer, Jr. executed his affidavit only on October 24, 1994, almost a month after the incident, Marcelo Jr. explained: PROSECUTOR NAMOCATCAT: Q Could you tell the Court why you [executed] your affidavit only on October 24, 1994, instead of earlier, because the incident happened almost a month ago before the actual taking of your affidavit? .... WITNESS: It was delayed because I was brought by Toto Sanayan to the ranch. PROSECUTOR NAMOCATCAT: Q When was that when you were brought by Toto Sanayan as the cause of the delay to execute your affidavit? [sic] A September 29, 1994. .... PROSECUTOR NAMOCATCAT: Q Why? Why did he bring you [to the ranch] on September 29, 1994? .... WITNESS: I was brought to the ranch by Toto Sanayan because he did not want me to testify. .... Q Why did you finally decide to testify against Toto Sanayan when, as you said, he did not want you testify? In fact, he brought you to his ranch? A I have decided to testify against Toto Sanayan because my elder brother was already in prison.xxxvi[31]

It has been held that the delay of a witness in revealing the identity of the perpetrator of a felony does not affect his credibility if such delay is adequately explained.xxxvi[32] In this case, June Sanayan is the brother-in-law of Marcelo Vallecer, Jr. Marcelo Vallecer, Jr. had been asked by June Sanayan not to testify against him. Although Marcelo, Jr. subsequently testified in court, it was only when his own brother, Vicente Vallecer, was implicated in the killing that he decided to break his silence. Both Marcelo Vallecer, Sr. and his son Marcelo, Jr. testified that accused-appellants went to the house of the older Vallecer where accused-appellant Rodrigo Sanayan admitted that they had killed Argeo Cuizona.xxxvi[33] Although these witnesses did not actually see the killing of Argeo Cuizano, their testimonies are admissible not for their truth but for their tenor, the same being relevant to the question of the cause of the death of the victim.xxxvi[34] In other words, the testimonies of Marcelo Vallecer, Sr. and Marcelo Vallecer, Jr. have probative value not because accused-appellant Rodrigo Sanayans admission was true but because such an admission was actually made by him. In sum, the following circumstances relating to Argeo Cuizonas death point to accusedappellants as the persons responsible therefor, to wit: (1) Accused-appellants invited Argeo Cuizona to a drinking session.xxxvi[35]

(2) After taking Cuizona with them, June Sanayan tried to get a knife from Rizalina Recorbas store. When he failed to do so, he tried to borrow from Prudencio Vallente and Lino Boiser, both of whom also refused to lend him a knife.xxxvi[36] (3) Aniano Amoroto, who had also been invited to the drinking session, heard accusedappellant June Sanayan saying that he would have killed Argeo Cuizona had he been able to borrow a knife.xxxvi[37] (4) The victim was last seen alive with accused-appellants going to the ranch.xxxvi[38]

(5) At around 7 oclock in the evening, June Sanayan went to the house of Felicitas Vallecer, looking for a bolo, and, unable to find one, took the night stick of Vicente Vallecer (Felicitas Vallecers husband).xxxvi[39] (6) At about the same time, Felicitas Vallecer heard accused-appellants Rodrigo Sanayan, Anacleto Asas, Margarito Galo, and the victim Argeo Cuizona talking in the yard of her house. A commotion broke out and she heard someone being beaten with a stick.xxxvi[40] She recognized Argeo Cuizonas voice, crying Help me, Ting, as he called Vicente Vallecer for help.xxxvi[41] (7) Argeo Cuizona was found dead in the yard of Vicente Vallecer.xxxvi[42] Found near the body of the victim were a night stick, bamboo sticks, and a pestle, apparently used against the victim because they were bloodstained.xxxvi[43] Dr. Fudalan opined they could have caused the injuries sustained by the victim.xxxvi[44]

(8) Accused-appellants went to the house of Marcelo Vallecer, Sr. the same night, and Rodrigo Sanayan admitted to the latter that they had killed Argeo Cuizona.xxxvi[45] Marcelo Vallecer, Jr. overheard Rodrigo Sanayans confession.xxxvi[46] Second. Accused-appellants would make it appear that Vicente Vallecer was the killer, because Argeo Cuizonas body was found in the yard of his house and the instruments used in killing Cuizona belonged to him (Vicente Vallecer). However, the extent of injuries suffered by the victim and the number of weapons used against him indicate that several persons were responsible for the death of Argeo Cuizona, and not an individual acting alone. Nor did Vicente Vallecer have any motive to kill Argeo Cuizona. On the other hand, accusedappellants had a motive to commit the crime. As accused-appellant June Sanayan himself testified, two weeks before the incident, he and Argeo Cuizona had an altercation arising from the fact that cows from the Nazareno ranch, where June Sanayan works, had destroyed Cuizonas plants. It appears that Argeo Cuizona hit June Sanayan on the shoulder as he sternly told the latter to keep the cows in Nazarenos ranch properly fenced in so they would not be able to destroy other peoples plants.xxxvi[47] Apparently, accused--appellant June Sanayan resented being told so, and he vowed to take revenge. However, June Sanayan was no match for Argeo Cuizona, who was taller and heavier. As accused-appellant Anacleto Asas admitted, any of accused-appellants, alone, could not have beaten the victim in a fight.xxxvi[48] Accused-appellant June Sanayan, therefore, sought the help of accused-appellants Galo, Rodrigo Sanayan, and Anacleto Asas. A conspiracy existed among accused-appellants as shown by the conduct of accused-appellants before, during, and after the commission of the crime. Such conduct shows a joint purpose and design, concerted action, and community of interest, to wit: (1) Various weapons, i.e., the pestle, the night stick, and the bamboo sticks, were used to kill the victim; (2) As Felicitas Vallecer testified, accused-appellants were in her yard when she heard a commotion and the victim crying for help; (3) SPO3 Vergara testified that a grassy area located six to 10 meters from the crime scene bore signs of a struggle; and (4) The extent and number of injuries sustained by Argeo Cuizona indicate that several persons attacked him. Third. Considering the manner in which Argeo Cuizona was attacked, we find that his killing was committed with abuse of superior strength. Accused-appellants made use of their superiority not only in number but also in arms. By simultaneously beating the victim with their various weapons, accused-appellants clearly took advantage of their superiority in number and arms.xxxvi[49] Murder is punishable by reclusion perpetua to death.xxxvi[50] As there were neither mitigating nor aggravating circumstances, accused-appellants were correctly sentenced by the trial court to reclusion perpetua in accordance with Art. 63(2) of the Revised Penal Code. The trial court awarded P30,000.00 as actual and moral damages. Actual damages under Art. 2199 of the Civil Code are different from moral damages under Article 2217 of the same. The

Court has held that in every case, trial courts must specify the award of each item of damages and make a finding thereon in the body of the decision.xxxvi[51] In this case, with regard to the question of actual damages, only the testimony of Socorro Sarabosing, the victims sister, was presented to prove the amount of the same. Such testimony is insufficient to support the claim for actual damages.xxxvi[52] Actual damages must be substantiated by documentary evidence, such as receipts, in order to prove burial expenses and loss of income incurred as a result of the death of the victim.xxxvi[53] Consequently, the award of actual damages must be disallowed. The award of P50,000.00 as civil indemnity is correct and is in accordance with our present rulings.xxxvi[54] In addition, moral damages in the amount of P50,000.00 should be awarded to the heirs of the victim, also in consonance with our recent rulings.xxxvi[55] WHEREFORE, the decision of the Regional Trial Court, Branch 4, Tagbilaran City, is AFFIRMED with the MODIFICATION that the award of P30,000.00 as actual and moral damages is deleted but accused-appellants are ORDERED to pay to the heirs of Argeo Cuizona the amount of P50,000.00 as moral damages, in addition to the award of P50,000.00 as civil indemnity for the death of Argeo Cuizona. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

SECOND DIVISION [G.R. No. 127129. June 20, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO CABAYA, MAMERTO ORBASAYAN, accused,

ROLANDO CABAYA, accused-appellant.

DECISION
BUENA, J.:

For the death of Disan Dubria, an information for murder was filed against Mamerto Orbasayan, Romeo Samperoy, Remy Orbasayan and appellant Rolando Cabaya. The informationxxxvi[1] reads:

That on or about the 26th day of January, 1993 at about 9:00 oclock in the evening, more or less, at Barangay Colongolo, Municipality of Surallah, Province of South Cotabato, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill, treachery and abuse of superior strength, while armed with a bladed weapon and a gun conspiring, confederating together and helping one another, did then and there wilfully, unlawfully and feloniously attack, assault, stab and shoot DISAN DUBRIA, hitting and wounding him on the different parts of his body which caused his instantaneous death. CONTRARY TO LAW. Upon arraignment, all the accused, except Remy Orbasayan who is still at-large, entered a plea of not guilty. Thereafter, trial ensued. Prosecution witness Ulysis Calawigan, the victims brother-in-law, testified that at around 7:00 in the evening of January 26, 1993, he went to the house of Juan Orbasayan to watch a television show. There, he saw Mamerto Orbasayan, Jr., Romeo Samperoy, Remy Orbasayan and appellant Rolando Cabaya with the victim having a drinking spree. Later, Calawigan went home. After having supper, he closed the gate of their house. While closing the gate, he saw Mamerto Orbasayan, Jr., holding the left shoulder of the victim while appellant Rolando Cabaya was holding the victims right shoulder, apparently pulling the latter. The group was allegedly moving towards the direction of the United Church of Christ in the Philippines [UCCP for brevity] which is about 300 meters away from Calawigans house.xxxvi[2] In the same evening, Jelly Bahi-an, sister-in-law of the victim, claims that she was at the UCCP church accompanying the UCCP pastor who will be sleeping at the parsonage. At about 8:30 that evening, she heard a cry for help which prompted her to go out of the parsonage. Outside, she allegedly saw the victim being held on both hands by two unidentified persons. Thereafter, appellant Rolando Cabaya, Jr. stabbed the victim. When the victim fell, accused Mamerto Orbasayan, Jr., shot him in the chest. For their part, the four accused denied the charge filed against them and invoked the defense of alibi. They alleged that at about 6:00 in the evening of January 26, 1993, they were at the house of Juan Orbasayan at Colongolo, Surallah, South Cotabato drinking tuba. Later, at around 6:30 in the evening, the victim arrived together with Calawigan. The two ordered tuba and joined in the drinking. After about 30 minutes, the victim left, followed later by Calawigan. The rest of the accused stayed behind and continued their drinking until 10:00 in the evening. After trial, Mamerto Orbasayan, Jr. and appellant Rolando Cabaya were found guilty of the crime of murder to which they were sentenced to suffer reclusion perpetua and were ordered to solidarily pay the heirs of the victim the sum of P50,000.00 as death indemnity, while Romeo Samperoy was acquitted of the charge. The dispositive portion of the trial courts decision reads: WHEREFORE, the Court finds the accused Rolando Cabaya and Mamerto Orbasayan, JR. guilty beyond reasonable doubt of the murder of Disan Dubria and each of them is hereby

sentenced to the penalty of reclusion perpetua and to solidarily indemnify the heirs of Disan Dubria the sum of P50,000.00 for the victims death. The accused Romeo Samperoy is hereby acquitted. SO ORDERED.xxxvi[3] On account of the judgment of conviction, appellant Cabaya now comes to us alleging that the trial court erred in I. GIVING CREDENCE TO THE BIASED AND INCREDIBLE TESTIMONIES OF THE VICTIMS BROTHER-IN-LAW AND SISTER-IN-LAW WHO DID NOT NAME THE ACCUSED-APPELLANT AS ONE OF THE ASSAILANTS IMMEDIATELY AFTER WITNESSING THE KILLING; II. CONVICTING THE ACCUSED-APPELLANT DESPITE THE EXISTENCE OF A SERIOUS AND WELL-FOUNDED REASONABLE DOUBT AS TO HIS GUILT. Prosecution witness Jelly Bahi-an testified that she was able to see the perpetrators of the crime. The trial court accorded full faith and credence to her testimony as to the commission of the crime and the identity of the perpetrators, rejecting the defenses of denial and alibi proffered by the four (4) accused. It ruled: xxx xxx Bahi-an testified also that the two accused Rolando Cabaya and Mamerto Orbasayan were the assailants of the victim Disan Dubria. Bahi-an could not be wrong on the identities of accused Rolando Cabaya and Mamerto Orbasayan, Jr. as she had known them for about 20 years before she had testified. The place of the killing was favorably lighted. In corroboration to Bahi-ans testimony is the testimony of Ulysis Calawigan that when he closed the gate of his house he saw Disan Dubria held by two persons who were the accused Rolando Cabaya and Mamerto Orbasayan, Jr. as if forcing the victim to follow them. And all the accused were passing by his house that evening going to the UCCP church. Calawigan in his sworn statements also identified accused Rolando Cabaya and Mamerto Orbasayan, Jr. to have placed their hands over the shoulder of the victim when they passed by Calawigans house. With the presence of light on the way to the UCCP church from the house of Juan Orbasayan where one passes by the house of Ulysis Calawigan, there is no doubt of an apparent visibility of witnesses Bahi-an and Calawigan to identify all the accused. xxx xxx xxx

The Court finds the testimony of Jelly Bahi-an credible. She had not been shown to be biased as against the two accused Rolando Cabaya and Mamerto Orbasayan, Jr. whom she had known

for already 20 years at Colongolo. Her identifying them to have stabbed and shot the victim was favored with the lights present that evening just near where the crime was committed on the road just outside the fence she peeped through. No ulterior motive has been shown to have actuated her to testify against Rolando Cabaya and Mamerto Orbasayan, Jr., thus her testimony shall be given full faith and credit. Likewise, the court believes the testimony of Ulysis Calawigan who had, as early as of January 28, 1993 given statements to the police pointing at the two accused Rolando Cabaya and Mamerto Orbasayan, Jr. to have placed their hands in the victims shoulder and appeared to have used force in making the victim go with them towards the UCCP church. Besides, Calawigan appeared to have told the truth and nothing more was added in his testimony to what he revealed in his sworn statements. It is not in conformity with human behavior or experience for a relative to implicate an innocent person so as to make the guilty escape punishment. Calawigan is a bother-in-law of the victim. The defense of the accused is alibi. They claimed that they were at the house of Juan Orbasayan still drinking tuba when a gunburst was heard at about 8:00 oclock that evening. The house of Juan Orbasayan was only about eight hundred meters to the UCCP church where the victim was killed. With that distance it was not impossible for the accused to repair to said place then to kill the victim and immediately be back at Juans place. Besides, alibi cannot prevail over the positive identification by the prosecution witnesses of the authors of the crime. And a witness would not falsely impute to an accused a serious criminal offense if it is not the untarnished truth. Between the positive testimonies of the two witnesses of the prosecution and the denial of the accused and their witnesses of the killing of the victim, greater weight is given to the former.xxxvi[4] Appellant assails the above findings of the trial court in giving credence to the testimony of the prosecution witnesses. Generally, appellate courts will not disturb the trial courts assessment of the credibility of witnesses in the absence of proof that some fact or circumstance of substance has been overlooked, or its significance misinterpreted which, if properly appreciated, would affect the disposition of the case.xxxvi[5] Upon examination of the records, we find cogent reason to depart from the general rule. Prosecution witness Jelly Bahi-an asserts that she saw a man being held by two (2) persons when stabbed by appellant Cabaya. When the man fell to the ground, Mamerto Orbasayan shot him.xxxvi[6] She did not initially recognize the victim. She only identified the victim when the latter fell down.xxxvi[7] The incident happened on the road outside the UCCP parsonage. The parsonage is adjacent to and two meters away from the UCCP church.xxxvi[8] Enclosing the church and parsonage is a concrete fence, about five feet tallxxxvi[9] which is cemented up to the waistline,xxxvi[10] with bamboo slots placed vertically.xxxvi[11] Fronting the church on the northern part is a

road.xxxvi[12] There is also a road on the eastern part which is 3 meters away from the wall or fence enclosing the church property.xxxvi[13] The incident happened on the eastern road.xxxvi[14] According to Bahi-an, the victim being held by two persons was 3 meters away from the fence.xxxvi[15] She claims that she was able to recognize appellant Cabaya stab the victim, and see Mamerto Orbasayan shoot the victim because of the light coming from the electric bulb in front of the church,xxxvi[16] and which is three (3) meters from where the victim was stabbed and shot.xxxvi[17] As estimated by the trial court, the bamboo pole with the electric bulb was about 1 meters from the groundxxxvi[18] and the electric bulb was placed below the top of the bamboo pole.xxxvi[19] That electric pole was near the gate of the church which is found on the north road.xxxvi[20] Thus, there was no light on the eastern part.xxxvi[21] The incident happened at the junction along the road on the northern boundary and the road on the eastern boundary of the church property.xxxvi[22] The road where the witness Bahi-an saw the victim was a descending road.xxxvi[23] Only a single electric post lights the area which is only 1 meters high, found at the northern part of the road. The trial court gave credence to the testimony of witness Bahi-an as to the identity of the perpetrator because of the light present near the crime scene.xxxvi[24] She testified that the victim was about 3 meters away from the electric post. Assuming that the bamboo pole with the electric bulb can illuminate such distance, the possibility, nonetheless, of positively identifying the victim and the accused is still clouded. The victim was only identified after he fell. Even then, when the victim fell, the possibility of proper identification of the perpetrators becomes elusive as to the witness perspective or view because the road where the incident happened is a descending one. Reading from the testimonies of the witness, it was not clear when she was able to recognize the victim, whether in the act of falling on his back, or lurching forward frontally. From the records on hand, it was only stated therein that the recognition was made only when the victim fell down. Even assuming arguendo that the witness was able to identify the victim, it is still doubtful on whether she was able to recognize the assailant. Recognition or identification of the victim by the witness does not necessarily follow that the same witness had recognized or identified the assailants. The post-mortem examination revealed that both the stab and gunshot wounds where inflicted frontally. The victim received one gunshot wound with serrated boarders on the left chest and a stab wound on right chest below the right nipple.xxxvi[25] The nature of the wound inflicted on the victim reveal that the assailants were in front of the victim. If the victim was facing the witness when attacked, necessarily, the person who inflicted the stab wound and the one who shot the victim, appellants Cabaya and Mamerto Orbasayan, respectively, were in front of the victim with their back towards the witness. Under such circumstance, since the assailants were not facing the victim, it was not clearly established by the prosecution as to when the proper identification was made. Unless the assailants looked back and faced the direction of the witness, only then can the witness speak of a trustworthy identification. Also, the victim is the husband of witness Bahi-ans sister. The incident happened on January 26, 1993.xxxvi[26] She only revealed what she saw a month later, or on February 26,

1993.xxxvi[27] She said that she executed the sworn statement only after three weeks because she was afraid.xxxvi[28] Thus, she testified to the following Q: After seeing what you witnessed you go (sic) back to that room where you sleep? A: Yes, I returned but I cannot sleep because I was afraid. Q: You did not go to the room of the preacher? A: I did not, Sir. Q: The following morning did you tell the story of what you saw to the preacher? A: The following morning I woke up the preacher and then I asked permission from her that I will go home and I told her that somebody was killed there and the preacher told me that it was better I had not awaken her because she has nervous. (sic)xxxvi[29] x x x x x x COURT Q: What did you tell the preacher the following morning? A: I told her: I will go home because there was somebody who was killed there. Q: No more? A: Yes sir. Q: You did not tell the preacher that Roberto Cabaya stabbed the person? A: I did not. Q You did not also tell the preacher that Mamerto Orbasayan shot that person who is now dead? A: I did not. Q: What time did you arrive in your home the following morning? A: 5:00 oclock dawn. x x x x x x xxx xxx

Q: Did you talk to your parents when you arrived?

A: I informed my parents that Disan Dubria was killed. Q: What more? A: That is what I told them. I did not tell them that I saw the incident. Q: You did not tell also your parents that Rolando Cabaya stabbed Disan Dubria? A: I did not tell them. Q: You did not likewise tell them that Mamerto Orbasayan shot Disan Dubria? A: I did not. x x x x x x COURT: Q: Did you go to your younger sister from your home, the wife of Disan Dubria? A: She slept at the house of my mother. Q: Did you talk to her that morning? A: We have not conversed. Q: You did not tell your sister that her husband is dead? A: I did not converse with her.xxxvi[30] While it is true that there is no standard behavior for persons confronted with a shocking incident and that the workings of the human mind when placed under emotional stress are unpredictable and cause different reactions to men,xxxvi[31] still, the relationship of the witness to the victim will logically impel her to spill the truth for the sake of her sister whose husband was murdered. The fear she wants this Court to believe was not sufficiently established to convince us of her long silence from the day of the incident. She did not even inform her sister that the latters husband or her own brother-in-law was killed. The Court cannot help but cast a scrutinizing eye on the testimonies offered by the said prosecution witness. Evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.xxxvi[32] As for the testimony of prosecution witness Ulysis Calawigan, brother-in-law of the victim, the trial court believed his narration in view of the fact that he gave statements to the police two days after the incident or on January 28, 1993. However, what was narrated to the police and testified xxx

to in court was the fact that he allegedly saw appellant Cabaya as well as Mamerto to have placed their hands in (sic) the victims shoulders and appeared to have used force in making the victim go with them towards the UCCP church.xxxvi[33] Such testimony is not a direct evidence nor does it point to any culpability though it could have been considered as circumstantial evidence. By itself, however, it is insufficient to satisfy proof beyond reasonable doubt. Circumstantial evidence is a proof of facts from which, taken collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence.xxxvi[34] Even then, certain guidelines must be followed in appreciating circumstantial evidence such that (1) it should be acted upon with caution; (2) all the essential facts must be consistent with the hypothesis of guilt; (3) the facts must exclude every other theory but that of guilt; and (4) the facts must establish such a certainty of guilt of the accused as to convince the judgment beyond a reasonable doubt that the accused is the one who committed the offense.xxxvi[35] The fact that prosecution witness Calawigan saw the accused and the appellant with the victim is not alone sufficient to convict them of the crime charged. In fact, where the accused are charged of acting in conspiracy, as in this case, the Court has held that mere presence, even with approval but without active participation, is not enough for purposes of conviction.xxxvi[36] In criminal prosecutions, the identification of the offender is crucial to defeat the defense of alibi. Positive identification must nonetheless be established beyond reasonable doubt. Absent such clear and positive identification, the doctrine that the defense of alibi cannot prevail over positive identification of the accused must yield to the constitutional presumption of innocence. As every crime must be established beyond reasonable doubt, it is also paramount to prove, with the same quantum of evidence, the identity of the perpetrator. Necessarily, courts should not precipitately conclude that a person is guilty when his alibi appears weakxxxvi[37] for it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. A guilty verdict must depend on the weight of the evidence for the prosecution and should not be allowed to draw strength from the weakness of the evidence for the defense. Our legal culture demands the presentation of proof beyond reasonable doubt before any person may be convicted of any crime and deprived of his life, liberty or even property. The hypothesis of his guilt must flow naturally from the facts proved and must be consistent with all of them.xxxvi[38] Accordingly, the Court has no recourse but to reject the trial courts assessments on the credibility of the witness testimony for being contrary to the ordinary course of nature and the ordinary habits of life.xxxvi[39] When the prosecutions evidence does not fulfill moral certainty, the accused is entitled to an acquittal because the presumption of innocence is not rebutted. Therefore, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt.xxxvi[40]

Since the alleged culprits for the killing of the victim were not positively identified, motive becomes an important consideration. It has been ruled that motive assumes significance only when there is no showing of who the perpetrator of crime might have been.xxxvi[41] With the weakness of the prosecutions evidence, it is necessary to prove motive because, if the inculpatory facts are capable of two interpretations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, it fails to meet the test of moral certainty and is insufficient to support a conviction.xxxvi[42] From the records, no motive can be attributed to appellant. Lastly, the imputed culpability of Mamerto Orbayasan and appellant Cabaya stems from the identification made by the prosecution witness which this Court has set aside on the ground of reasonable doubt. The former should necessarily benefit from the acquittal of the latter who appealed. An accused who did not appeal benefits from a judgment obtained by those who instituted an appeal, if the same are favorable and applicable to him,xxxvi[43] as in this case. WHEREFORE, in view of the foregoing, the appealed decision dated September 14, 1994 is REVERSED and SET ASIDE. Appellant Rolando Cabaya and accused Mamerto Orbasayan are ACQUITTED. Their IMMEDIATE RELEASE from detention is hereby ORDERED, unless they are being held for some other lawful cause. The Director of the Bureau of Corrections is DIRECTED to implement this Decision and to report to this Court immediately the action taken hereon, but not later than five (5) days from receipt hereof. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.

SECOND DIVISION [G.R. No. 117406. January 16, 2001] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO GARCIA y BOTON, accused-appellant. DECISION MENDOZA, J.:

This is an appeal from the decisionxxxvi[i][1] of the Regional Trial Court, xxx finding accusedappellant Alberto Garcia guilty of rape and sentencing him to suffer the penalty of reclusion perpetua, to pay the victim P20,000.00 as moral damages, and to pay the costs. The informationxxxvi[ii][2] against accused-appellant alleged: That on or about the 11th day of December, 1992 in xxx, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant against her will and consent. Contrary to law. Upon arraignment on February 2, 1993, accused-appellant pleaded not guilty, whereupon he was tried. Complainant AAA is the daughter of accused-appellant. She and her mother, BBB, testified as follows: In the afternoon of December 10, 1992, accused-appellant arrived home from work, drunk. Except for AAA, then 13 years of age, nobody else was home. AAA was resting in her room when accused-appellant lay (pumatong) on top of her. Accused-appellant held AAAs hands with one hand while he fondled her private parts with the other. AAA screamed at accusedappellant as she asked, Tatay, why are you doing this to me when I am your daughter?xxxvi[iii][3] She punched accused-appellant but he hit her back on the right jaw with such force that she lost consciousness. Accused-appellant then got up, took off his clothes, and undressed complainant, and again lay on top of her, kissing her and mashing her breasts.xxxvi[iv][4] Then, accusedappellant inserted his penis into AAAs vagina, which made AAA cry.xxxvi[v][5] When he was through, accused-appellant told AAA not to tell anyone what he had done to her or he would kill her, her mother, and her elder sister. But shortly after the incident, AAA told her mother what accused-appellant had done to her. On December 12, 1992, accompanied by her mother and sister, AAA went to the xxx Police Station to report the incident. They then proceeded to Camp Crame for a medical examination where AAA was examined by Dr. Vladimir V. Villaseor, Medico-Legal Officer of the Crime Laboratory Service, Philippine National Police.xxxvi[vi][6] Dr. Villaseors testimony was dispensed with after stipulations were made in open court that he was the one who examined the victim and that the findings of his examination are stated in Medico-Legal Report No. M-1917-92, dated December 14, 1992 (Exh. A).xxxvi[vii][7] After the prosecution rested its case on November 15, 1993, the defense prayed for and was granted a period of 15 days within which to file a demurrer to evidence without leave of

court.xxxvi[viii][8] However, the defense failed to do so within the period granted to it. Hence, on January 21, 1994, the defense was ordered to present its evidence.xxxvi[ix][9] On March 8, 1994, the court reconsidered its order on motion of accused-appellant who claimed that the stenographer failed to complete the transcript of stenographic notes of the proceedings. Accused-appellant was granted 10 days within which to file a demurrer to evidence.xxxvi[x][10] But accused-appellant again failed to file a demurrer to the evidence, prompting the court to declare him to have waived the right to present his evidence and consider the case submitted for decision.xxxvi[xi][11] Accused-appellant moved for a reconsideration alleging that there was no Judge to preside over the case because Judge CCC had been appointed to the Court of Appeals.xxxvi[xii][12] But the new judge, Honorable DDD, found the excuse to be without merit and accordingly denied accused-appellants motion.xxxvi[xiii][13] On February 26, 1996, Judge DDD rendered a decision, the dispositive part of which states:xxxvi[xiv][14] WHEREFORE, foregoing considered, accused Alberto Garcia y Boton is found guilty beyond reasonable doubt for the crime of rape and is sentenced to suffer the penalty of reclusion perpetua and to indemnify the offended party, AAA, the amount of P20,000.000, and to pay the costs. SO ORDERED. Hence this appeal. Accused-appellant contends:xxxvi[xv][15] I. THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE COMPLAINANT WHOSE TESTIMONY IS TAINTED WITH DOUBTS AND CONTRADICTIONS. II. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF RAPE WITHOUT HIS GUILT PROVEN BEYOND REASONABLE DOUBT. We find these contentions to be without merit. First. In adjudging rape cases, the Court is guided by the following principles: (a) an accusation of rape can be made with facility, it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) in view of the nature of the crime in which only two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.xxxvi[xvi][16] This review will be confined to the evidence presented by the prosecution because, as already stated, accused-appellant failed to present his evidence. It has been held that the accused may be convicted solely on the testimony of the victim, provided such testimony is credible, natural, convincing, and consistent with human nature and the normal course of things.xxxvi[xvii][17]

The trial courts assessment of the credibility of witnesses is accorded great respect because of its opportunity to hear their testimonies and observe their demeanor and manner of testifying. The exception is when it has overlooked or misapplied some facts which could have affected the result of the case.xxxvi[xviii][18] In this case, AAAs testimony, both on direct and on cross-examination, is clear and spontaneous. She narrated how accused-appellant had raped her on or about December 11, 1992 and her narration was made with such richness of detail as only one telling the truth could do so. On direct-examination, she stated:xxxvi[xix][19] Q: Now, what happened next after your father undressed you?

A: He la[y] on top of me, kissed me, mas[h]ed my breasts and then he inserted his penis inside my vagina. Then, he continued mashing my breast[s], he kissed my entire body. . . . . Q: A: Q: A: And what did you fe[e]l after your father inserted his penis into your vagina? I felt pain, ma[a]m. After that what else happened? After that from his penis came out white sticky fluid.

Q: And after that white, sticky fluid came out [of] the private part[s] of your father, what happened next if any? A: [It was as if] my private part[s] (vagina) [were] being cut with a knife.

On cross-examination, she was equally firm and clear:xxxvi[xx][20] Q: A: Q: A: And, because also, you hate your father, you also wanted him to be put in jail, is it not? Not because of that, but because he really raped me, sir. And also, your mother would do everything just to [end] their affair, is it not? My mother did not tell us what she would do about it, sir. . . . . Q: Dont you pity your father?

A: Q: A: Q: A:

I pity my father, sir. Then, why do you [want him to be put] in jail, when you say you pity him? I pity him, but I pity myself inasmuch as he raped me, sir. So you really [want] him to be in jail? If the court [finds it warranted], yes, sir.

Q: Please look again at your father, dont you feel pain seeing that your father [is] thinner now? A: No, sir.

When asked by the defense if she filed charges against her father because she hated him for his womanizing which resulted in frequent quarrels between him and her mother, AAA replied, All I need is justice because he abused me, sir.xxxvi[xxi][21] When asked again if she accused her father of committing a crime because she pitied her mother, Grace reiterated that she did so because he really raped me.xxxvi[xxii][22] When the defense persisted in asking what she felt for her father and the reason why she accused him of a heinous crime, Aaas eyes welled up with tears.xxxvi[xxiii][23] In another case, this Court said that the crying of the victim during her testimony is evidence of the credibility of the rape charge with the verity born out of human nature and experience.xxxvi[xxiv][24] In this case, the misty eyes of the victim revealed the depths of shame and suffering she endured when her personhood was violated, giving credibility to her testimony. Second. Accused-appellant contends that AAAs testimony is inconsistent with that of her mother. Accused-appellant points out that, after being asked where she was in the afternoon of December 11, 1992, AAA said she was in their house and that was when her father raped her. She was alone in the house with her father. Her mother was in her office and did not arrive home until around 7 p.m. AAA said she told her mother what happened to her in the afternoon of December 12, 1992.xxxvi[xxv][25] But, it is contended, when her mother BBB testified, the latter said that AAA told her about the incident in the afternoon of December 11, 1992 but she took complainant to the hospital for examination in the morning of the same date. And when the fiscal asked for a clarification with respect to the date when the crime was committed, BBB said she had actually been told by her daughter that the latter had been raped by her father on December 7 and that December 11, 1992 was the date when they saw a doctor. BBB said she did not immediately bring her daughter to the hospital because her daughter went to school on December 7, 1992.xxxvi[xxvi][26] Indeed, there are apparent inconsistencies not only between the testimony of the victim and that of her mother but also in statements made by the victim, as the following portion of the victims testimony shows:xxxvi[xxvii][27]

FISCAL: Ms. Witness, you said on cross examination that your father on December 11, 1992 went to work and left your house that time at 6:00 p.m. and returned back home at 7:00 a.m. the following day. Do you remember that? A: Yes, Maam.

Q: Now, your complain[t] is about [the manner by which] your father abused you. What time did your father ma[k]e that abuse on your person? . . . . A: Q: A: me. Q: 5:00 oclock in the afternoon, Maam. Of what date? December 11, 1992, Maam. At 5:00 p.m. in the afternoon that day, he already abused

Tell us why he was there at home at that time.

A: He was there at home and drinking wine, Maam. And, at 5:00 oclock in the afternoon of December 11, 1992, he abused me. Left the house at 6:00 a.m., December 12, 1992 and returned at 7:00 p.m., Maam. COURT: I still do not understand. Now, let us clear this. What time did your father leave the house on December 11, 1992? A: 6:00 a.m., your Honor.

Q: How could he abuse you when you said that he left your house that time and returned at 7:00 p.m.? A: It is like this, your Honor. He arrived home at 7:00 p.m. Then [he] slept and woke up at 6:00 a.m., the following day. Ate breakfast and slept again. He woke up at 12:00 noon that day, and woke up at 4:00 p.m. Started drinking wine at 4:30 p.m. and, at exactly 5:00 p.m., he already abused me, your Honor. COURT: So, it is not December 11, 1992, but December 10, 1992?

A: Yes, your Honor. COURT: I think, it is clear now. The date is December 10, 1992, and not that stated in the Information. The date there is December 11, 1992, when in fact, upon questioning, the witness made this Court understand that the crime was committed upon her person on December 10, 1992. Proceed. . . . . COURT: And why was he there at home by 5:00 p.m., December 12, 1992? A: Q: A: He was still there abusing me, Maam. And what time was your father drinking wine? 4:30 p.m., December 12, 1992, Maam.

Q: What do you mean by the [phrase] he left me in the house after abusing me and when he returned home, it was already around 7:00 p.m.? A: Because that is the usual time that he comes home from work, Maam. After abusing me, he left the house and when he returned home, it was already 7:00 p.m. of December 12, 1992, Maam. However, these contradictions, which relate to the date when the latter was raped, do not concern material facts. They are irrelevant to the issue of whether the elements of rape are present in the case. But, on material points, the testimonies of AAA and her mother BBB are consistent. The prosecution presented Luzviminda Garcia to prove that she is the mother of private complainant and that she was aware of the present case filed against AAAs father, as well as to prove damages.xxxvi[xxviii][28] Her testimony is consistent with that previously given by AAA. BBB said, My youngest daughter, AAA, complained to me that her father approached her already nude and started to mash her breasts. He forced her to undress and lie down and once lying down her father forced his organ into my daughters organ.xxxvi[xxix][29] In People v. Ayo,xxxvi[xxx][30] reiterating what had been said in other cases, we held that when a woman claims that she was raped, she says in effect all that is necessary to show that rape has been committed and that if her testimony meets the test of credibility, the accused can be convicted on the basis thereof. Unless she is motivated by truth, no woman, much less an eightyear old girl, would subject herself to the rigors of a public trial, describing before total strangers the shameful, humiliating and degrading experience of the sexual assault. The testimony of AAA establishes the fact that, through force and intimidation, her father succeeded in abusing

her. AAA testified that her father pinned her on the bed and punched her on the jaw when she resisted. Her testimony is corroborated by the medico-legal report of Dr. Villaseor which states that the hymen of the victim had shallow healed lacerations at 3 and 8 oclock positions.xxxvi[xxxi][31] Indeed, as held in People v. Lim,xxxvi[xxxii][32] the date of the commission of rape is not an essential element of the crime. In this case, AAA stated in her complaint that she had been raped on or about the 11th day of December, 1992.xxxvi[xxxiii][33] Rule 110 of the Rules of Court (before these were amended by the Rules on Criminal Procedure that took effect on December 1, 2000) provides: Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the acts may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. Since time is not a material element of rape, it is sufficient that complainant alleged in the complaint that the crime was committed on or about December 11, 1992. What this Court said in People v. Maglente,xxxvi[xxxiv][34] another case of incestuous rape, applies to this case: It is indeed incumbent upon the prosecution to establish the guilt of the defendant beyond a reasonable doubt but to justify acquittal based on reasonable doubt, the doubt should relate to the facts constitutive of the crime charged. Discrepancies should touch on significant facts which are crucial to the guilt or innocence of an accused. Conversely, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime are not grounds for acquittal. We stress that the exact date when complainant was sexually abused is not an essential element of the offense of rape. What is material in a rape case is the commission of the rape by the accused-appellant against the complainant. At all events, the defense should have taken steps to impeach the credibility of the testimonies of the two witnesses. However, the defense failed to do so. It did not ask AAA whether she had previously made statements contradictory or inconsistent with her testimony nor did it make her explain any inconsistency. The credibility of the testimonies of the victim and her mother could only be questioned if they fail to explain the inconsistencies. Such procedure was not followed in this case, where the defense even decided not to cross-examine complainants mother. Third. Considering the evidence in this case, we are convinced beyond a shadow of doubt that accused-appellant is guilty of rape committed against his own daughter. Even without the use of force, the conviction of accused-appellant for rape would be justified because, as a result of his relationship to the victim, accused-appellant exercised moral ascendancy over her. This fact takes the place of intimidation. However, the award of P20,000.00 as indemnity to complainant should be increased to P50,000.00 in line with our current rulings.xxxvi[xxxv][35] In addition, complainant should be awarded moral damages amounting to P50,000.00 as held in several cases.xxxvi[xxxvi][36]

WHEREFORE, the decision of the Regional Trial Court finding accused-appellant Alberto Garcia guilty of rape and imposing upon him the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that the award of civil indemnity should be increased to P50,000.00 and, in addition, accused-appellant is ORDERED to pay complainant the amount of P50,000.00 as moral damages. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

FIRST DIVISION [G.R. No. 113079. April 20, 2001] ENERGY REGULATORY BOARD, petitioner, vs. COURT OF APPEALS and PETROLEUM DISTRIBUTORS AND SERVICES CORPORATION, respondents. [G.R. No. 114923. April 20, 2001] PILIPINAS SHELL PETROLEUM CORPORATION, petitioner, vs. COURT OF APPEALS and PETROLEUM DISTRIBUTORS AND SERVICES CORPORATION, respondents. DECISION YNARES-SANTIAGO, J.: The propriety of building a state-of-the-art gasoline service station along Benigno Aquino, Jr. Avenue in Paraaque, Metro Manila is the bone of contention in these consolidated petitions for certiorari under Rule 45 of the Rules of Court. Petitioners assert that the construction of such a modern edifice is a necessity dictated by the emerging economic landscapes. Respondents say otherwise. The factual antecedents of the case are matters of record or are otherwise uncontroverted.

Petitioner Pilipinas Shell Petroleum Corporation (Shell) is engaged in the business of importing crude oil, refining the same and selling various petroleum products through a network of service stations throughout the country. Private respondent Petroleum Distributors and Service Corporation (PDSC) owns and operates a Caltex service station at the corner of the MIA and Domestic Roads in Pasay City. On June 30,1983, Shell filed with the quondam Bureau of Energy Utilization (BEU) an application for authority to relocate its Shell Service Station at Tambo, Paraaque, Metro Manila, to Imelda Marcos Avenue of the same municipality. The application, which was docketed as BEU Case No. 83-09-1319, was initially rejected by the BEU because Shells old site had been closed for five (5) years such that the relocation of the same to a new site would amount to a new construction of a gasoline outlet, which construction was then the subject of a moratorium. Subsequently, however, BEU relaxed its position and gave due course to the application. PDSC filed an opposition to the application on the grounds that: 1.] there are adequate service stations attending to the motorists requirements in the trading area covered by the application; 2.] ruinous competition will result from the establishment of the proposed new service station; and 3.] there is a decline not an increase in the volume of sales in the area. Two other companies, namely Petrophil and Caltex, also opposed the application on the ground that Shell failed to comply with the jurisdictional requirements. In a Resolution dated March 6, 1984, the BEU dismissed the application on jurisdictional grounds and for lack of full title of the lessor over the proposed site. However, on May 7, 1984, the BEU reinstated the same application and thereafter conducted a hearing thereon. On June 3, 1986, the BEU rendered a decision denying Shells application on a finding that there was no necessity for an additional petroleum products retail outlet in Imelda Marcos Avenue, Paraaque. Dissatisfied, Shell appealed to the Office of Energy Affairs (OEA). Meanwhile, on May 8, 1987, Executive Order No. 172 was issued creating the Energy Regulatory Board (ERB) and transferring to it the regulatory and adjudicatory functions of the BEU. On May 9, 1988, the OEA rendered a decision denying the appeal of Shell and affirming the BEU decision. Shell moved for reconsideration and prayed for a new hearing or the remand of the case for further proceedings. In a supplement to said motion, Shell submitted a new feasibility study to justify its application. The OEA issued an order on July 11, 1988, remanding the case to the ERB for further evaluation and consideration, noting therein that the updated survey conducted by Shell cited new developments such as the accessibility of Imelda Marcos Avenue, now Benigno Aquino, Jr. Avenue, to Paraaque residents along Sucat Road and the population growth in the trading area.

After the records of BEU Case No. 83-09-1319 was remanded to the ERB, Shell filed on March 3, 1989 an amended application, intended for the same purpose as its original application, which was docketed as ERB Case No. 89-57. This amended application was likewise opposed by PDSC. On September 17, 1991, the ERB rendered a Decision allowing Shell to establish the service station in Benigno Aquino, Jr. Avenue. The dispositive portion of the Decision reads: WHEREFORE, premises considered, the application for authority to relocate a Shell service station from Tambo to Benigno Aquino Avenue, Paraaque, Metro Manila is hereby approved. Applicant is hereby directed to: 1. Start the construction and operation of the retail outlet at the actual approved site appearing in the vicinity map previously submitted to the Board within one (1) year, from the finality of this Decision and thereafter submit a sworn document of compliance therewith; 2. Submit photographs showing the left side, right side and front view of the retail outlet within fifteen (15) days from completion of the construction work; 3. Submit to the Board a report on the total volume of petroleum products sold each month during the first six (6) months of the operation of the station. The report shall be submitted in the form of an affidavit within ten (10) days after the end of the six-month period; 4. Inform the Board in writing and the general public through a notice posted conspicuously within the premises of the station of the (a) intention of applicant or its dealer to stop operation of the retail outlet for a period longer than ninety (90) days; or (b) notice of shutdown of operation of the retail outlet that will likely extend beyond thirty (30) days. Such notice must be given fifteen (15) days before the actual cessation of operations in the case of (a) and in the case of (b) within the first five (5) days of an unplanned stoppage of operations. SO ORDERED. PDSC filed a motion for reconsideration of the foregoing Decision. The motion was, however, denied by ERB in an Order dated February 14, 1992. Aggrieved, PDSC elevated its cause on April 1, 1992 to the Court of Appeals, where the same was docketed as CA-G.R. SP No. 27661. Thereafter, in a Decision dated November 8, 1993,xxxvi[1] the appellate courts Tenth Division reversed the ERB judgment thus: WHEREFORE, the challenged Decision dated September 17, 1991, as well as the Order dated February 14, 1992, both of the respondent Energy Regulatory Board in ERB Case No. 89-57, are hereby REVERSED and SET ASIDE. Correspondingly, the application of respondent Pilipinas

Shell Petroleum Corporation to construct and operate the petroleum retail outlet in question is DENIED. SO ORDERED. A motion for reconsideration was denied by the Court of Appeals in a Resolution dated 6 April 1994.xxxvi[2] Dissatisfied, both Shell and ERB elevated the matter to this Court by way of these petitions, which were ordered consolidated by the Court in a Resolution dated July 25,1994.xxxvi[3] It appears, however, from the record that even as the proceedings in CA-G.R. SP No. 27661 were pending in the appellate court, Caltex filed on January 24, 1992 a similar application for the construction of a service station in the same area with the ERB, docketed as ERB Case No. 87393. This application was likewise opposed by respondent PDSC, citing the same grounds it raised in opposing Shells application in ERB Case No. 89-57. In the aforesaid case, petitioner ERB thereafter rendered a Decision dated June 19, 1992 approving the application of Caltex. This ERB Decision was challenged by PDSC, again on the same grounds it raised in CA-G.R. SP No. 27661, in a petition for review filed with the Court of Appeals, where the same was docketed as CA-G.R. SP No. 29099. Subsequently, the appellate courts Sixteenth Division dismissed PDSCs petition in a Decision dated May 14, 1993.xxxvi[4] As grounds for the petition in the instant case, ERB asserts that (1) THE EVIDENCE UPON WHICH THE ERB BASED ITS DECISION IS NEITHER STALE NOR IRRELEVANT AND THE SAME JUSTIFIES THE ESTABLISHMENT OF THE PROPOSED PETROLEUM OUTLET. (2) THE EVIDENCE PRESENTED BY APPLICANT SHELL REGARDING VEHICLE VOLUME AND FUEL DEMAND SUPPORTS THE CONSTRUCTION OF THE PROPOSED OUTLET. (3) THE ESTABLISHMENT OF THE SERVICE STATION WILL NOT LEAD TO RUINOUS COMPETITION. For its part, Shell avers that I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING FINDINGS OF FACTS CONTRARY TO THOSE OF THE ENERGY REGULATORY BOARD WHOSE FINDINGS WERE BASED ON SUBSTANTIAL EVIDENCE.

II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE FEASIBILITY STUDY SUPPORTING PETITIONERS APPLICATION TO CONSTRUCT A SERVICE STATION BEFORE THE ENERGY REGULATORY BOARD HAS BECOME IRRELEVANT FOR HAVING BEEN PRESENTED IN EVIDENCE ABOUT TWO (2) YEARS AFTER IT WAS PREPARED. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN PASSING JUDGMENT AND MAKING PRONOUNCEMENTS ON PURELY ECONOMIC AND POLICY ISSUES ON PETROLEUM BUSINESS WHICH ARE WITHIN THE REALM OF THE ENERGY REGULATORY BOARD WHICH HAS A RECOGNIZED EXPERTISE IN OIL ECONOMICS. IV. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE PROPOSED SERVICE STATION OF PETITIONER WOULD POSE RUINOUS COMPETITION TO PRIVATE RESPONDENTS SERVICE STATION BASED MAINLY ON EVIDENCE SUBMITTED FOR THE FIRST TIME WITH THE SAID COURT AND WITHOUT CONDUCTING A HEARING THEREON. V. ASSUMING THE HONORABLE COURT OF APPEALS HAS THE POWER TO CONSIDER NEW EVIDENCE PRESENTED FOR THE FIRST TIME BEFORE SAID COURT, IT SHOULD HAVE REFERRED SUCH MATTER TO THE ENERGY REGULATORY BOARD UNDER THE DOCTRINE OF PRIOR RESORT OR PRIMARY JURISDICTION. The issues raised by the parties in these consolidated cases bring to the fore the necessity of rationalizing or reconciling two apparently conflicting decisions of the appellate court on the propriety of building gasoline service stations along Benigno Aquino, Jr. Avenue in Paraaque, Metro Manila. Considering that the questions raised concern within the oil industry, whose impact on the nations economy is pervasive and far-reaching, the Court is constrained to look into the policy and purposes of its governing statutes to resolve this dilemma. The policy of the government in this regard has been to allow a free interplay of market forces with minimal government supervision. The purpose of governing legislation is to liberalize the downstream oil industry in order to ensure a truly competitive market under a regime of fair prices, adequate and continuous supply, environmentally clean and high-quality petroleum products.xxxvi[5] Indeed, exclusivity of any franchise has not been favored by the Court,xxxvi[6] which is keen on promoting free competition and the development of a free market consistent

with the legislative policy of deregulation as an answer to the problems of the oil industry.xxxvi[7] The Court finds the petitions impressed with merit. The interpretation of an administrative government agency like the ERB, which is tasked to implement a statute, is accorded great respect and ordinarily controls the construction of the courts.xxxvi[8] A long line of cases establish the basic rule that the courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies.xxxvi[9] More explicitly Generally, the interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great respect and ordinarily controls the construction of the courts.xxxvi[10] The reason behind this rule was explained in Nestle Philippines, Inc. vs. Court of Appeals,xxxvi[11] in this wise: The rationale for this rule relates not only to the emergence of the multifarious needs of a modern or modernizing society and the establishment of diverse administrative agencies for addressing and satisfying those needs; it also relates to the accumulation of experience and growth of specialized capabilities by the administrative agency charged with implementing a particular statute. In Asturias Sugar Central, Inc. v. Commissioner of Customs,xxxvi[12] the Court stressed that executive officials are presumed to have familiarized themselves with all the considerations pertinent to the meaning and purpose of the law, and to have formed an independent, conscientious and competent expert opinion thereon. The courts give much weight to the government agency or officials charged with the implementation of the law, their competence, expertness, experience and informed judgment, and the fact that they frequently are drafters of the law they interpret. As a general rule, contemporaneous construction is resorted to for certainty and predictability in the laws,xxxvi[13] especially those involving specific terms having technical meanings. However, courts will not hesitate to set aside such executive interpretation when it is clearly erroneous, or when there is no ambiguity in the rule,xxxvi[14] or when the language or words used are clear and plain or readily understandable to any ordinary reader.xxxvi[15] Stated differently, when an administrative agency renders an opinion or issues a statement of policy, it merely interprets a pre-existing law and the administrative interpretation is at best advisory for it is the courts that finally determine what the law means.xxxvi[16] Thus, an action by an administrative agency may be set aside by the judicial department if there is an error of law, abuse of power, lack of jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of the law.xxxvi[17]

However, there is no cogent reason to depart from the general rule because the findings of the ERB conform to, rather than conflict with, the governing statutes and controlling case law on the matter. Prior to Republic Act No. 8479, the downstream oil industry was regulated by the ERB and from 1993 onwards, the Energy Industry Regulation Board. These regulatory bodies were empowered, among others, to entertain and act on applications for the establishment of gasoline stations in the Philippines. The ERB, which used to be the Board of Energy (BOE), is tasked with the following powers and functions by Executive Order No. 172, which took effect immediately after its issuance on May 8, 1987: SEC. 3. Jurisdiction, Powers and Functions of the Board. When warranted and only when public necessity requires, the Board may regulate the business of importing, exporting, reexporting, shipping, transporting, processing, refining, marketing and distributing energy resources. xxx The Board shall, upon prior notice and hearing, exercise the following, among other powers and functions: (a) Fix and regulate the prices of petroleum products;

(b) Fix and regulate the rate schedule or prices of piped gas to be charged by duly franchised gas companies which distribute gas by means of underground pipe systems; (c) Fix and regulate the rates of pipeline concessionaires under the provisions of Republic Act No. 387, as amended, otherwise know as the Petroleum Act of 1949, as amended by Presidential Decree No. 1700; (d) Regulate the capacities of new refineries or additional capacities of existing refineries and license refineries that may be organized after the issuance of this Executive Order, under such terms and conditions as are consistent with the national interest; (e) Whenever the Board has determined that there is a shortage of any petroleum product, or when public interest so requires, it may take such steps as it may consider necessary, including the temporary adjustment of the levels of prices of petroleum products and the payment to the Oil Price Stabilization Fund created under Presidential Decree No. 1956 by persons or entities engaged in the petroleum industry of such amounts as may be determined by the Board, which will enable the importer to recover its costs of importation.xxxvi[18] A distinct worldwide trend towards economic deregulation has been evident in the past decade. Both developed and developing countries have seriously considered and extensively adopted various measures for this purpose. The country has been no exception. Indeed, the buzzwords of the third millenium are deregulation, globalization and liberalization.xxxvi[19] It need not be overemphasized that this trend is reflected in our policy considerations, statutes and jurisprudence. Thus, in Garcia v. Corona,xxxvi[20] the Court said:

R.A. 8479, the present deregulation law, was enacted to implement Article XII, Section 19 of the Constitution which provides: The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. This is so because the Government believes that deregulation will eventually prevent monopoly. The simplest form of monopoly exists when there is only one seller or producer of a product or service for which there are no substitutes. In its more complex form, monopoly is defined as the joint acquisition or maintenance by members of a conspiracy, formed for that purpose, of the power to control and dominate trade and commerce in a commodity to such an extent that they are able, as a group, to exclude actual or potential competitors from the field, accompanied with the intention and purpose to exercise such power.xxxvi[21] xxx xxx xxx xxx

It bears reiterating at the outset that deregulation of the oil industry is policy determination of the highest order. It is unquestionably a priority program of Government. The Department of Energy Act of 1992xxxvi[22] expressly mandates that the development and updating of the existing Philippine energy program shall include a policy direction towards deregulation of the power and energy industry. xxx xxx xxx xxx

Our ruling in Tatadxxxvi[23] is categorical that the Constitutions Article XII, Section 19, is antitrust in history and spirit. It espouses competition. We have stated that only competition which is fair can release the creative forces of the market. We ruled that the principle which underlies the constitutional provision is competition. Thus: Section 19, Article XII of our Constitution is anti-trust in history and spirit. It espouses competition. The desirability of competition is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair competition, and the reason for regulation of unmitigated monopolies. Competition is thus the underlying principle of Section 19, Article XII of our Constitution which cannot be violated by R.A. No. 8180. We subscribe to the observation of Prof. Gellhorn that the objective of anti-trust law is to assure a competitive economy based upon the belief that through competition producers will strive to satisfy consumer wants at the lowest price with the sacrifice of the fewest resources. Competition among producers allows consumers to bid for goods and services and, thus matches their desires with societys opportunity costs. He adds with appropriateness that there is a reliance upon the operation of the market system (free enterprise) to decide what shall be produced, how resources shall be allocated in the production process, and to whom various products will be distributed. The market system relies on the consumer to decide what and how much shall be produced, and on competition, among producers who will manufacture it.xxxvi[24]

Tested against the foregoing legal yardsticks, it becomes readily apparent that the reasons relied upon by the appellate court in rejecting petitioners application to set up a gasoline service station becomes tenuous. This is especially clear in the face of such recent developments in the oil industry, in relation to controlling case law on the matter recently promulgated to address the legal issues spawned by these events. In other words, recent developments in the oil industry as well as legislative enactments and jurisprudential pronouncements have overtaken and rendered stale the view espoused by the appellate court in denying Shells application to put up the gasoline station. In reversing the ERB, the Court of Appeals first avers in sum that there is no substantial evidence to support ERBs finding of public necessity to warrant approval of Shells application. The Court disagrees. On the contrary, the record discloses that the ERB Decision approving Shells application in ERB Case No. 89-57 was based on hard economic data on developmental projects, residential subdivision listings, population count, public conveyances, commercial establishments, traffic count, fuel demand, growth of private cars, public utility vehicles and commercial vehicles, etc.,xxxvi[25] rather than empirical evidence to support its conclusions. In approving Shells application, the ERB made the following factual findings and, on the basis thereof, justified its ruling thus: In evaluating the merits of the application, the first question that comes to mind is whether there is indeed an increase in market potential from the time this very same application was disapproved by the then Bureau of Energy Utilization up to the present time that would warrant a reversal of the former decision. The history of this case serves to justify applicant Shells position on the matter. After a little over a year from vigorously opposing the original application, Caltex and Petron filed their respective applications to construct their own service station within the same vicinity. The figures in the applicants feasibility study projects a scenario of growth well up to the year 1994. Where the applicant listed only thirty-five commercial establishments, oppositor is servicing sixty-five. The development of subdivisions along the area provides for a buffer of market potential that could readily be tapped by the applicant service. Although the applicants witness could have done better in accentuating this fact, the oppositor did not do well either in downplaying the potentials of the area. The main gist of PDSCs contention is premised on the rising overhead cost of (increase in salaries and rent) in relation to the establishment of new competition. The proposed station expects to target a total volume of 460,151 liters per month with a projected increase of 2.6% per annum and presumably expects to make a corresponding profit thereof. Oppositor PDSC, on the other hand, with its lone Caltex Service Station, expects to suffer income loss even with a projected volume of 600,000 to 800,000 liters per month (Exhibit 5).

Considering this premise, it should be noted that the Board is tasked to protect existing petroleum stations from ruinous competition and not to protect existing establishments from its own ghost. The Board does not exist for the benefit of any individual station but for the interest of the public and the industry as a whole. In its first application, the applicants projection was to realize only 255,000 liters per month or some 20 percent of the total potential demand. With its amended application, the 460,151 liters it hopes to realize is almost twice the former volume representing a smaller percentage of the present overall potential demand. With further growth and development of the businesses in the area, the fuel potential will tremendously increase and the presence of strategically located service stations will greatly benefit the local community as well as the transient motoring public. The Board believes that the construction and operation of the Shell Station will not lead to ruinous competition since [the] additional retail outlet is necessary. Time and again this Court has ruled that in reviewing administrative decisions, the findings of fact made therein must be respected as long as they are supported by substantial evidence, even if not overwhelming or preponderant; that it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of the witnesses or otherwise substitute its own judgment for that of the administrative agency on the sufficiency of evidence; that the administrative decision in matters within the executive jurisdiction can only be set aside on proof of grave abuse of discretion, fraud or error of law.xxxvi[26] Petitioner ERB is in a better position to resolve petitioner Shells application, being primarily the agency possessing the necessary expertise on the matter. The power to determine whether the building of a gasoline retail outlet in a trading area would benefit public interest and the oil industry lies with the ERB not the appellate courts. In the hierarchy of evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing evidence, preponderance of evidence and substantial evidence, in that order.xxxvi[27] A litany of cases has consistently held that substantial evidence is all that is needed to support an administrative finding of fact.xxxvi[28] It means such relevant evidence as a reasonable mind might accept to support a conclusion.xxxvi[29] Suffice it to state in this regard that the factual landscape, measured within the context of such an evidentiary matrix, is strewn with well-nigh overwhelming proof of the necessity to build such a gasoline retail outlet in the vicinity subject of the application. In denying Shells application, the Court of Appeals next pointed to the alleged staleness of Shells feasibility study because it was submitted in evidence about two (2) years after it was prepared in early 1988.xxxvi[30] Again, this Court is not persuaded.

The record shows that the feasibility studyxxxvi[31] is accompanied by the following data, namely: 1.] Annual Projection of Estimated Fuel Demand, Base Area; 2.] Projected Volume of the Proposed Shell Station; 3.] Projected Fuel Volume Derived From Base Area; 4.] Estimated Fuel Demand Base Projection 1993; 5.] Estimated Fuel Demand Base Projection 1994; 6.] Annual Projection of Population; 7.] Annual Projection Growth of Private Cars in the Area; 8.] Annual Projection Growth of Public Utilities in the Area; and 9] Annual Projected Growth of Commercial Vehicles in the Areaxxxvi[32] projects a market scenario from 1989 to 1994. While the Court of Appeals was initially unconvinced that Shells feasibility study was up-todate and proceeded to render the assailed judgment, its attention was subsequently called, in Shells motion for reconsideration, to the ERBs Decision dated June 19, 1992xxxvi[33] approving a similar application by Caltex to build a gasoline retail outlet in the same vicinity. Said decision was appealed by PDSC to the Court of Appeals (CA-G.R. SP No. 29099), and was affirmed by the latter in a Decision dated May 14, 1993.xxxvi[34] The Decision in Caltexs application, where PDSC was the lone oppositor, was challenged before the appellate court on the very same grounds it proffered in opposing Shells application.xxxvi[35] In rejecting PDSCs contentions in CA-G.R. SP No. 29099, the Court of Appeals Sixteenth Division ruled: As to the first ground xxx xxx xxx xxx

The petitioner had assumed that the entire Sucat Road (starting from as far away as its intersection with the South Expressway going towards Alabang and further South), Quirino Avenue, Domestic Road (which passes in front of the Domestic Terminal), MIA Road, and Ninoy Aquino Avenue, constitute what it refers to as the trading area. Thus, the herein petitioner invites attention to the fact that in Sucat Road there are five existing gasoline stations; two along Quirino Avenue (from Sucat Road); four along Domestic Road; and two along MIA Road, one of which is the Caltex-Nayong Pilipino station at the corner of MIA Road and Benigno Aquino Avenue. Except for the gas station at one end of Benigno Aquino Avenue (located in front of the Nayong Filipino), the petitioner admits that there has been as yet no gasoline station existing along the entire stretch of the said Benigno Aquino Avenue, although the ERB had recently approved Shells application to put up one therein. This court is of the view that the aforementioned assumption adopted by petitioner is fallacious or incorrect considering the conclusion of ERBs Manuel Alvarez in his Ocular Inspection Report and In-Depth Analysis of Feasibility Study that no outlet presently exists along the whole stretch of the Ninoy Aquino Avenue (Rollo, p. 126) and that the outlets along Sucat Road are far from the proposed site, a distant several kilometers away along Dr. A. Santos Avenue in Sucat which can already be considered a different trading area (ibid., underscoring supplied) Assuming in gratia argumenti that the entirety of the above-specified road/avenues may be considered as a single trading area, the petitioner had failed to show why Caltexs 9.7% share of the total market potential, as found in Alvarezs Market Study, is not attainable or that

it would result in ruinous competition. As pointed by the respondents (citing MD Transit & Taxi Co., Inc. v. Pepito, 6 SCRA 140 and Raymundo Trans. Co. v. Cervo, 91 Phil. 313), even if a new station would bring about a decline in the sales of the existing outlets, it need not necessarily result in ruinous competition, absent adequate proof to that effect. As to the second and third grounds Concerning the averment that the evidence of Caltex is stale, this Court notes that the said evidence refers principally to a revalidation study conducted by ERBs Alvarez who undertook an ocular inspection of the proposed site on November 23 to 27, 1987. The hearings of the instant case continued up to early 1992 (ERB Decision, p. 4). The Decision was rendered on June 19, 1992 (Rollo, p. 36). It may be conceded that substantial time had elapsed since the time of the aforementioned revalidation study. However, it is this courts view that unless the petitioner is able to prove by competent evidence that significant changes have occurred sufficient to invalidate the afore-stated study, the presumption is that the said study remains valid, as found by the ERB in its decision. Bare and self-serving manifestations cannot be accepted by Us as proof; especially if We take into account that hearings (as in the case at bar) would take time and it would be quite absurd if what was once applicable and acceptable evidence would be ipso facto rendered stale through mere lapse of time absent any controverting evidence. Sound procedural policy requires that the burden of proof relative to the present invalidity of the Alvarez report rests not with Caltex but on the herein petitioner. The petitioner had attempted to make comparisons between the figures specified in the 1987 study and those of the Bureau of Energy Utilization or BEU (which were given earlier in 1986). Thus, the petitioner points out that while the BEUs decision indicated that 9,034 cars on the average passed by going in both directions along Ninoy Aquino Avenue, the Alvarez revalidation study gave an average car traffic of only 8,395 resulting in a decline of 639 cars. The petitioner, however, conveniently ignored or failed to note that the 9,034 figure was that given by applicant Shell and not be the government agency itself. The BEU refers to the said figure as the applicants estimated potential demand. It is natural to expect that an applicant would try to give up as high an estimated potential demand as possible to support its application. The contention of the petitioner that the Alvarez study/report is hearsay on the ground inter alia that Alvarez was not presented as a witness deserves scant consideration by this Court. In the first place, the ERB is not bound by technical rules of procedure as contained in the Rules of Court, the latter being made applicable to ERB only in a suppletory character (Rule 16 of the Rules of Practice and Procedure Governing Hearings Before the ERB). More importantly, Section 2, paragraph 2 and Section 7, paragraph 2 of the above-mentioned ERB Rules provides as follows: The Board may, in the disposition of cases, before it, take judicial notice of any data or information existing in its judicial records, that may be relevant, pertinent or material to the issues involved, x x x x

The Board may also, on its own initiative or upon a motion of a party, conduct such investigation or studies on any matter pertinent, related or material to the issues involved in a case the results of which may be sued by the Board as bases for the proper evaluation of the said issues. (Rollo, pp. 205-207 underscoring supplied) The petitioner asserts that the island divider along Benigno Aquino Avenue in front of the proposed site was not taken into consideration in the 1987 survey. It could not be denied that the construction of such divider could have an effect on the matter of potential demand. Neither can it be denied however that the gas station that would be affected would be Caltex itself. It is not alleged that there exists a divider along the whole of Sucat Road for example. Hence, the existing outlets have no reason to complain about the divider. The contention that when construction is completed (connecting Sucat Road to the coastal road), a good number of vehicles would pass through the coastal road instead of along Benigno Aquino [Avenue] appears to Us as speculative. There is no need for the petitioner, which it failed to do, to show qualitatively and convincingly that the effect would be such as to make the sales level go down to such an extent that the viability of the existing outlets would be seriously endangered or threatened. The foregoing pronouncement of the Court of Appeals Sixteenth Division is more in keeping with the policy of the State and the rationale of the statutes enacted to govern the industry. In denying Shells application, the Court of Appeals finally states that the proposed service station would cause ruinous competition to respondent PDSCs outlet in the subject vicinity. We remain unconvinced. It must be pointed out that in determining the allowance or disallowance of an application for the construction of a service station, the appellate court confined the factors thereof within the rigid standards governing public utilility regulation, where exclusivity, upon the satisfaction of certain requirements, is allowed. However, exclusivity is more the exception rather than the rule in the gasoline service station business. Thus, Rule V, Section 1, of the Rules and Regulations Governing the Establishment, Construction, Operation, Remodelling and/or Refurbishing of Petroleum Products Retail Outlets issued by the Oil Industry Commission,xxxvi[36] and adopted by the ERB, enumerates the following factors determining the allowance or disallowance of an application for outlet construction, to wit: (a). The operation of the proposed petroleum products retail outlet will promote public interest in a proper and suitable manner considering the need and convenience of the end-users. (b) Reasonable expectation of a commercially viable operation.

(c) The establishment and operation thereof will not result in a monopoly, combination in restraint of trade and ruinous competition.

(d)

The requirements of public safety and sanitation are properly observed.

(e) Generally, the establishment and operation thereof will help promote and achieve the purposes of Republic Act No. 6173.xxxvi[37] While it is probable that the operation of the proposed Shell outlet may, to a certain extent, affect PDSCs business, private respondent nevertheless failed to show that its business would not have sufficient profit to have a fair return of its investment. The mere possibility of reduction in the earnings of a business is not sufficient to prove ruinous competition.xxxvi[38] Indeed In order that the opposition based on ruinous competition may prosper, it must be shown that the opponent would be deprived of fair profits on the capital invested in its business. The mere possibility of reduction in the earnings of a business is not sufficient to prove ruinous competition. It must be shown that the business would not have sufficient gains to pay a fair rate of interest on its capital investment.xxxvi[39] Mere allegations by the oppositor that its business would be ruined by the establishment of the ice plants proposed by the applicants are not sufficient to warrant this Court to revoke the order of the Public Service Commission.xxxvi[40] It would not be remiss to point out that Caltex, PDSCs principal, whose products are being retailed by private respondent in the service outlet it operates along the MIA/Domestic Road in Pasay City, never filed any opposition to Shells application. All told, a climate of fear and pessimism generated by unsubstantiated claims of ruinous competition already rejected in the past should not be made to retard free competition, consistently with legislative policy of deregulating and liberalizing the oil industry to ensure a truly competitive market under a regime of fair prices, adequate and continuous supply, environmentally clean and high-quality petroleum products. WHEREFORE, in view of all the foregoing, the challenged Decision of the Court of Appeals dated November 8, 1993, as well as the subsequent Resolution dated April 6, 1994, in CA-G.R. SP No. 27661, is REVERSED and SET ASIDE, and another one rendered REINSTATING the Order dated September 17, 1991 of the Energy Regulatory Board in ERB Case No. 89-57, granting the amended application of Pilipinas Shell Petroleum Corporation to relocate its service station to Benigno Aquino Jr., Avenue, Paranaque, Metro Manila. SO ORDERED. Davide, Jr., C.J. (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

FIRST DIVISION

[G.R. No. 128105. January 24, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUDRING VALDEZ, ALLEN VALDEZ, JOSE TABOAC, JR. and AMANDITO T. TABION, accused.

LUDRING VALDEZ, accused-appellant.

DECISION PARDO, J.: The case before the Court is an appeal from the decisionxxxvi[1] of the Regional Trial Court, Pangasinan, Branch 45, Urdaneta convicting Ludring Valdez and Jose Taboac, Jr., of murder, sentencing them to reclusion perpetua and to pay jointly and severally the heirs of the deceased Eusebio Ocreto in the amount of P50,000.00, as indemnity for the death of the victim, P20,000.00 as actual damages, P200,000.00 as moral damages, and costs. On May 17, 1993, Assistant Provincial Prosecutor Jaime V. Veniegas of Pangasinan filed with the Regional Trial Court, Pangasinan, an information charging Ludring Valdez, Jose Taboac, Jr., Allan Valdez, and Amandito T. Tabion with murder, committed as follows: That on or about the 9th day of January, 1993, in the evening, at barangay Sto. Domingo, municipality of Urdaneta, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with big stone (Boulder) and sharp pointed bladed weapons, conspiring, confederating and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, taking advantage of superior strength and nighttime, did then and there willfully, unlawfully and feloniously attack, assault, kick, hit with big stone (boulder), stab, Eusebio Ocreto in the vital parts of his body and head inflicting upon him fatal injuries and decapitate him, which directly caused his death, to the damage and prejudice of his heirs. The crime was committed by the accused with the aggravating circumstances of use of superior strength, nightime and cruelty, by decapitating the victim. CONTRARY to Art. 248, par. 6, Revised Penal Code.xxxvi[2] At the arraignment on April 21, 1994, accused Ludring Valdez and Jose Taboac, Jr., pleaded not guilty.xxxvi[3] Accused Amandito Tabion reportedly died, but no certificate of death was submitted to the court. Accused Allan Valdez, son of accused Ludring Valdez, remained at large. Subsequently, trial on the merits ensued. The facts are as follows: On January 9, 1993, at around 11:00 in the evening, Amanda Tabion, public school teacher, was in her house in Sto. Domingo, Urdaneta, Pangasinan, when she heard a motorcycle stop in front

of her house and loud voices outside. One of the voices sounded as if someone was being tortured, so Amanda went out of her house to investigate. Amanda stepped out to the back of her house and saw four men surrounding Eusebio Ocreto, whom she knew since childhood. Wondering what the men were up to, Amanda hid behind a plant and watched them. Moonlight illuminated the four accused, Allan Valdez, Ludring Valdez, Itong Tabion and Jose Taboac, Jr. Amanda recognized them from a distance of 10 meters. Accused Ludring Valdez, who was facing Amanda, repeatedly hit Eusebio Ocreto on the head and body, using large stones or boulders. The other accused looked on. Eusebio remained lying on the ground, unmoving. After a few seconds, accused Ludring Valdez stopped hitting Eusebio. Thereafter, the four accused carried the body of Eusebio on their shoulders and boarded a tricycle. They headed towards the provincial road leading to Nancayasan, Urdaneta, Pangasinan. Amanda returned to her house, shivering with fear. She learned the following morning that Eusebio Ocreto was missing. On January 10, 1993, at 5:00 in the afternoon, the headless body of a man was found. It was brought immediately to the funeral parlor for autopsy. Dr. Ramon Gonzales, municipal health officer of Urdaneta, Pangansinan,xxxvi[4] conducted a postmortem examination of the body which policemen identified as Eusebio Ocretas. Dr. Gonzales observed that the victim sustained thirteen stab wounds at the back of the body and opined that the different sizes of the wounds showed that they might have been inflicted by two or more assailants.xxxvi[5] He was not able to determine which of the stab wounds were fatal because of the decapitation. He was not able to examine the head of the deceased.xxxvi[6] The decapitated head of Eusebio Ocreto was discovered two days afterwards. It was buried one foot deep, more than one hundred meters away from where the body of the victim was found. When it was dug up, it was in a state of decomposition. The place where the victim was attacked and assaulted was fifty meters away from where his head was found, and fifteen meters away from where the body was located.xxxvi[7] Accused Ludring Valdez denied the accusations and testifiedxxxvi[8] that on January 9, 1993, he was at the house of Gregorio Saculles in Barangay Sto. Domingo, San Manuel, Pangasinan. The daughter of Saculles was getting married, so the friends of the father of the bride gathered to celebrate. At around 9:00 in the evening, after consuming several bottles of beer, accused Ludring Valdez left the party, together with Renato Rebebes, Juanito Tabion, Gil Tabion, Jose Taboac, Jr. and Allan Valdez. They rode a tricycle and parted ways at the crossing of Sto. Domingo, Urdaneta, Pangasinan. Afterwards, accused Ludring Valdez and his son, Allan, walked approximately fifty meters to their house. They reached their house at around 10:00 in the evening. Accused Ludring Valdez went to sleep and did not leave his house thereafter. The following day, accused Ludring Valdez, Jose Taboac, Jr., Amandito Tabion, Allan Valdez, Vilma Valdez and Remedios Romero rode a tricycle to San Manuel, Pangasinan, to attend the wedding ceremony of Saculles daughter. The ritual began at 9:00 in the morning and ended two

hours later. After the ceremony, they proceeded to the house of Gregorio Saculles to eat and drink more beer. The reception ended at around 2:00 in the afternoon. They returned to Sto. Domingo, Urdaneta, Pangasinan at around 3:00 in the afternoon. They stayed in the house of accused Ludring Valdez until 4:00 in the afternoon. When his friends left, accused Ludring Valdez stayed home. It was only on January 10, 1993 that accused Ludring Valdez learned of Eusebio Ocretos death. He knew the deceased because they used to attend town occasions such as birthday parties. He claimed to have a good relationship with the deceased, not having any misunderstanding, quarrel or animosity with each other. He knew Amanda Tabion who testified against him and alleged that they were not on speaking terms even before the incident. He claimed that Amanda hated him because of his financial success with the cattle market and his meager donation of five pesos to her daughters solicitation envelope at one time. On March 14, 1993, he went to Ilocos Sur with his son, Allan Valdez, because they were suspected of killing Eusebio Ocreto. He stayed in Ilocos for several months, fearful of the threats of relatives of the deceased against his life.xxxvi[9] Accused Jose Taboac, Jr. dispensed with the presentation of his evidence and submitted the case for decision.xxxvi[10] On March 7, 1996, the trial court rendered a decision, the dispositive portion of which states: WHEREFORE, the Court renders judgment, declaring the accused LUDRING VALDEZ and JOSE TABOAC, JR., GUILTY beyond reasonable doubt of the crime of MURDER and hereby sentences them to suffer imprisonment of RECLUSION PERPETUA EACH and to pay jointly and severally the heirs of the deceased Eusebio Ocreto, the following: P50,000.00 as indemnity for the death of the victim; P20,000.00 as actual damages; P200,000.00 as moral damages and to pay the costs. SO ORDERED.xxxvi[11] Only accused Ludring Valdez filed an appeal.xxxvi[12] In his appellants brief, accused-appellant Ludring Valdez contends that the trial court should not have given credence to the testimony of prosecution witness Amanda Tabion, imputing illmotive on her part against him.xxxvi[13] In numerous cases, the Court has stated that it will not interfere with the trial courts assessment of the credibility of witnesses, in the absence of any indication or showing that the trial court overlooked some material facts or gravely abused its discretion.xxxvi[14] This case is no exception. Amanda Tabion was in a position to witness the incident, considering her proximity to the scene of the crime, her familiarity with accused-appellant, and the illumination provided by the

moonlight over accused-appellant. Though subjected to rigorous cross-examination, she neither faltered in her positive identification of accused-appellant nor did she give any statements materially inconsistent with her entire testimony. The motive imputed to her is too trivial to be taken seriously. We find her testimony worthy of credit. Accused-appellant alleges that the trial court should have credited his alibi. However, for alibi to prosper, accused-appellant must prove that he was somewhere else when the crime was committed and that 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.xxxvi[15] The distance from the house of Gregorio Sacolles to the scene of the crime is only 200 meters. Such distance does not preclude the accused-appellant from being at the place of the crime at the time of its commission. Moreover, accused-appellants own alibi placed him at the scene of the crime on the date in question precisely around the time of the killing, for he admitted at he was at the crossing of Sto. Domingo, Urdaneta, Pangasinan approximately an hour before the victims death. Although the witness failed to see the actual killing, circumstantial evidence in this case established accused-appellants involvement in the death of the victim. Circumstantial evidence suffices for sustaining a conviction if the following requisites are present: (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.xxxvi[16] In this case, the prosecution witness saw him stoning the victim and later was one of the persons carrying the body of the deceased to a place nearby. The body of the deceased was found at the place where the accused-appellant was on the night in question, near the place where the head of the deceased was found. Accused-appellant admitted that he was in the vicinity of the crime scene on that fateful night. Also, the victim was last seen alive in the company of the accused-appellant. Hence, considering the pieces of evidence pointing to accused-appellant as the person who committed the crime charged, he must be held liable for the death of the victim. The question now is whether accused-appellant should be charged with homicide or murder. The trial court found that the killing was attended with cruelty, because the deceased was stoned, stabbed and beheaded. We agree. There is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act.xxxvi[17] The test is whether accused-appellant deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse.xxxvi[18] In this case, evidence showed that the deceased was inflicted with numerous wounds before he was killed. Such acts increased the victims suffering and caused unnecessary physical pain before his death. Considering that the crime occurred on January 9, 1993, before the effectivity of Republic Act No. 7659 which amended the Revised Penal Code, the prescribed penalty for murder in this case is reclusion temporal in its maximum period to death.xxxvi[19] In the absence of aggravating or mitigating circumstances, the medium period, or reclusion perpetua shall be imposed.xxxvi[20]

The amounts awarded as indemnity for the victims death and actual damages supported by receipts are sustained. However, moral damages awarded may be reduced to fifty thousand pesos (P50,000.00), keeping in mind that the purpose for awarding moral damages is not to enrich the heirs of the victim but to compensate them for injuries to their feelings.xxxvi[21] WHEREFORE, the Court affirms the decision of the Regional Trial Court, Pangasinan, Branch 45, Urdaneta convicting accused-appellant Ludring Valdez of murder, sentencing him to reclusion perpetua, and to pay the heirs of the victim Eusebio Ocreto the amount of fifty thousand (P50,000.00) pesos as indemnity for the death of the victim, the amount of twenty thousand (P20,000.00) pesos as actual damages, the amount of fifty thousand (P50,000.00) pesos as moral damages and the costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

EN BANC [G.R. No. 132676. April 4, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO, accused-appellants. DECISION
PER CURIAM:

The accused might as well have borrowed the famous line of Shakespeare How this world is given to lying!xxxvi[1] - when they impute error to the trial court for relying on the testimony of a single witness in convicting them of multiple murder complexed with attempted murder for the death of Florentino Dulay, Norwela Dulay and Nissan Dulay, and the wounding of Noemi Dulay.xxxvi[2] The challenged testimony of witness Ruben Meriales follows:xxxvi[3] On 25 August 1996 at about 8:00 o'clock in the evening while he was watching television with his family his dogs barked. His mother who was apprehensive that their cow might be stolen prodded him to check the disturbance. To allay her fears he stood up, took his flashlight and trudged the unpaved path towards his cow that was tied to a mango tree. Then the noise grew louder thus arousing his suspicion that something was really wrong. After transferring his cow nearer to his house, he

went inside the kitchen, stood atop the concrete washbasin, hid himself behind the bamboo slats and peeped outside to observe. The darkness helped conceal him from outside view while the light from the two (2) bulbs positioned at about three (3) meters from where he stood filtered through the slats and illumined the surroundings. There was also moon in the sky. A few minutes later, he saw barangay captain Jaime Carpo together with Warlito Ibao suspiciously stooping near his barn. He knew Jaime and Warlito very well. Jaime was his uncle and Warlito lived in his neighborhood. Warlito's son Roche was also there; he was standing by the mango tree. They were all looking in the direction of Florentino Dulay's house which was about a meter to the south from where he was. He also saw Oscar Ibao, another son of Warlito, striding towards Dulay's hut. As soon as he reached the hut Oscar lifted the sawali mat near the wall and hurled something inside. Oscar then scurried off towards the nearby creek with Roche following him. Seconds later, a loud explosion shook the entire neighborhood and Teresita Dulay's screams broke into the night. Ruben Meriales, rushed outside. He ran towards Florentino's hut but was deterred by darkness. He returned home to take his flashlight and raced back to lend aid to Teresita. Inside the hut he was stunned by the terrifying gore that greeted him - a bloodied Florentino cradled in the arms of his weeping widow, Norwela and Nissan lying side by side on a cot both doused in blood, and a motionless Norma whose head was oozing with blood. Realizing the exigency of the situation, he left the crime scene to borrow the jeepney of Brgy. Kagawad Edgardo Marquez for the hapless victims. The neighbors milling around at once gave up hope on Florentino so that only Norwela, Nissan and Noemi were loaded in the jeepney and rushed to the Eastern Pangasinan District Hospital. On their way, Norwela who had injuries on her chest and lower appendage died. Nissan who was five (5) years old and the youngest of the victims died later due to "shock from pains" caused by the shrapnel wounds in her left shoulder, abdomen and lower extremities.xxxvi[4] Noemi luckily survived. Her attending physician, Dr. Emiliano Subido, testified that Noemi was semi-conscious and vomiting although ambulatory at the time he examined her. But due to the seriousness of her wounds and the hospital's lack of facilities she was taken to another hospital in Dagupan City.xxxvi[5] In the course of their investigation, the policemen questioned the people who might have witnessed the carnage. Fearful however that the culprits would return, Ruben Meriales refused to give any statement but intimated to Police Officer Guillermo Osio that he would go to the police station after the burial. On 4 September 1996, or a week later, Ruben kept his promise and went to the police station where he gave his statement to Police Officer Osio. He named Jaime Carpo, Warlito lbao, Oscar lbao and Roche Ibao as the perpetrators of the crime. He further said that Florentino was killed because he was about to testify against Roche Ibao for the murder of his brother Delfin Meriales.xxxvi[6] On 3 October 1996, solely on the basis of Ruben's testimony, a criminal complaint for the murder of Florentino Dulay and his two (2) daughters Norwela, and Nissan as well as the

frustrated murder of his daughter Noemi was filed against Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao. Warrants for their immediate arrest were issued by the municipal circuit trial court. On 25 October 1996 Jaime Carpo was taken into custody by the police, while Roche Ibao eluded arrest until 9 December 1996 when he was apprehended by police officers in La Union. With Roche's arrest, Oscar and Warlito realized the futility of hiding and surrendered themselves to the National Bureau of Investigation (NBI) in La Union. At the trial, the prosecution presented Ruben, Noemi, Dr. Rosalina O. Victorio, Dr. Emiliano Subido and Police Officers Virgilio dela Cruz, Jovencio Tapac and Guillermo Osio as witnesses. Police Officer Osio testified that on the night of 25 August 1996 after receiving a report of an explosion in Brgy. Baligayan, he together with Police Officers Julius Aurora, Ricardo Lugares and Jovencio Tapac immediately responded. They were able to gather several grenade shrapnels and a grenade shifting lever from the crime scene. He spoke with the weeping Teresita Dulay who told him that she suspected the accused of having perpetrated the assault. He likewise conferred with Ruben Meriales who named the same set of suspects and who promised to give his statement to the police after the funeral. After speaking with Teresita and Ruben, he summoned his colleagues to go with him to Warlito Ibao's house which was just across the road. Warlitos house was dark and its front door was locked. He called out but there was no answer. They then proceeded to Oscar's house which was also padlocked and unoccupied. He went to Roche's house and peeped inside before they left.xxxvi[7] Against their positive identification by Ruben, the four (4) accused interposed alibi claiming that they were somewhere else when the Dulay hut was blasted. They likewise assailed Ruben's testimony for being a fabrication and insisted that he lied to get back at them because Roche was a suspect in the killing of his brother Delfin Meriales. Jaime and his wife Veronica Carpo were one in testifying that in the evening of 25 August 1995 Jaime was at home in Brgy. Libsong, a hundred and fifty (150) meters away from the house of the Dulays in Brgy. Baligayan. When he heard the loud explosion, he summoned his tanods to check whether the blast happened within their barangay. When he learned that the explosion occurred in the adjoining Brgy. Baligayan, he went home to sleep. Brgy. Baligayan is separated from his barangay by a creek and could be reached in ten (10) minutes. However, on the night of the incident, the creek was neck deep such that one had to make a detour through a mountainous route for about thirty (30) minutes to reach Brgy. Baligayan.xxxvi[8] Jaime testified that Ruben implicated him because the latter was angry at him. Ruben's grudge supposedly started when Jaime sided with the Ibaos in the murder case instituted by the Merialeses against Roche for the death of Delfin Meriales. As a matter of fact on 10 December 1996 while he was incarcerated at the Balungao District Jail, Ruben supposedly visited him asking his forgiveness for having named him as one of the perpetrators of the crime. Ruben subsequently pleaded with him to reveal the names of those responsible but when he claimed ignorance, Ruben left in a huff.

Warlito, Oscar and Roche Ibao testified that on the night of the explosion their family was having a farewell party for the family's only girl Maribel Ibao who was leaving for Hongkong. They heard the blast but they did not bother to check. They denied having heard the police officers call for them an hour after the explosion. Roche further asserted that he did not have a house in Brgy. Baligayan as reported because he lived with his parents-in-law in Brgy. Libsong. However, on the night of the blast, he slept at his parents' house as all of his siblings and their families were there. He only learned of the bloodbath the following morning when they went home to his in-laws. His wife Jovelyn corroborated his testimony in the same manner that Remedios supported the story of her husband Warlito.xxxvi[9] In convicting Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao of the multiple murder of Florentino, Norwela and Nissan Dulay and the attempted murder of Noemi Dulay the trial Court gave full credit to the testimony of Ruben.xxxvi[10] It accepted his straightforward testimony and ruled that "at no instance throughout the twin testimonies of Meriales did the Court notice a twitch of falsehood on his lips."xxxvi[11] Accordingly, in accordance with Sec. 6, RA 7659, and Art. 48 of The Revised Penal Code the trial court imposed upon all of the accused the supreme penalty of death and ordered them to solidarily indemnify the heirs of the deceased as well as Noemi Dulay in the amount of P600,000.00.xxxvi[12] Forthwith, the case was elevated to this Court for automatic review. After the filing of briefs, the accused filed an Addendum to Appellant's Brief urging that the favorable results of their lie detector tests with the NBI be admitted into the records.xxxvi[13] A lie detector test is based on the theory that an individual will undergo physiological changes, capable of being monitored by sensors attached to his body, when he is not telling the truth. The Court does not put credit and faith on the result of a lie detector test inasmuch as it has not been accepted by the scientific community as an accurate means of ascertaining truth or deception.xxxvi[14] The explosion by means of a hand grenade on the night of 25 August 1996 resulting in the death of Florentino, Norwela and Nissan Dulay and in the wounding of Noemi Dulay is an admitted fact. The identity of the perpetrators, as tenaciously questioned by the accused, depends upon the credibility of Ruben Meriales. In this appeal, accused-appellants challenge the veracity of the testimony of Ruben Meriales primarily on two (2) grounds: first, Ruben's testimony in court is different from and is contradictory to his affidavit of 4 October 1996; and second, Ruben is not a disinterested witness because he has a grudge against the Ibaos. Consistent with giving due deference to the observations of the trial court on credibility of witnesses, we agree with the court a quo when it believed Ruben Meriales more than the defense witnesses.xxxvi[15] Indeed, the trial court is best equipped to make an assessment of witnesses, and its factual findings are generally not disturbed on appeal unless it has overlooked, misunderstood or disregarded important facts,xxxvi[16] which is not true in the present case.

The twin arguments therefore raised by accused-appellants against the testimony of Ruben Meriales are devoid of merit. A scrutiny of the records reveals that his testimony is not inconsistent with his affidavit of 4 October 1996 inasmuch as the former merely supplied the details of the event which the latter failed to disclose. But assuming that there was any inconsistency, it is settled that whenever an affidavit contradicts a testimony given in court the latter commands greater respect.xxxvi[17] Such inconsistency is unimportant and would not even discredit a fallible witness.xxxvi[18] The mere fact that Ruben admitted harboring resentment against the Ibaos for the murder of his brother Delfin does not confirm that he fabricated his story. His frankness in admitting his resentment against the Ibaos should even be considered in his favor.xxxvi[19] There is likewise nothing unnatural in Ruben's attitude of concealing himself behind the kitchen wall instead of warning the Dulays of the looming danger to their lives. It is a well-known fact that persons react differently to different situations - there may be some who will respond violently to an impending danger while there may be others who will simply assume a cravenly demeanor. In this case, Ruben was ruled by his fear rather than by his reason, but for this alone, his credibility should not be doubted. Apropos Jaime's imputation that Ruben had admitted to him while in jail that he lied in his testimony, we find this accusation farcical as nothing was ever offered in support thereof. The lone corroborative testimony, which was that of Roche, does not inspire belief since Roche himself admitted overhearing the conversation while Jaime together with other prisoners was constructing a hut outside of his cell at about three (3) meters away. As correctly hinted by the prosecution, the noise generated by the construction made it unlikely for Roche to hear conversations three (3) meters away.xxxvi[20] The defense proffered by the accused is alibi. But this is futile. By his own admission, Jaime was only a hundred and fifty (150) meters away from the scene of the crime. In fact, it would only take him thirty (30) minutes, at the most, to be at the place of the Dulays. More so for the Ibaos who acknowledged that they were having a party just a stone's throw away from the crime scene at the time of the explosion. Curiously though, if they were indeed reveling inside their house on that fateful night, then we cannot comprehend why they did not go out to investigate after hearing the blast. Besides, it was rather strange for the Ibaos not to have joined their neighbors who had instantaneously milled outside to view the mayhem. Their conduct indeed betrayed them. Further, the immediate flight and tarriance of the Ibaos to La Union until Roche's arrest cannot but demonstrate their guilt and desire to evade prosecution.xxxvi[21] The trial court also correctly ruled that accused-appellants conspired in perpetrating the offense charged. From the detailed account of Ruben, Jaime and Warlito positioned themselves near the hay barn while Roche casually stood by the mango tree. As observed by the trial court, the presence of Jaime, Warlito and Roche inescapably gave encouragement and a sense of security to Oscar, the group's preceptor. Surely, the latter was emboldened to commit the crime knowing that his co-conspirators were not far behind.

Under the doctrine enunciated in People v. Tayo,xxxvi[22] the crime committed may otherwise be more approriately denominated as murder qualified by explosion rather than by treachery. However, since it was treachery that is alleged in the Information and appreciated by the trial court, the explosion of the grenade which resulted in the death of Florentino, Norwela and Nissan, and the wounding of Noemi can only be multiple murder complexed with attempted murder.xxxvi[23] The crime committed against Noemi Dulay was correctly denominated by the trial court as attempted murder considering that none of her injuries was fatal. Her attending physician even made conflicting statements in the assessment of her wounds, to wit: although he said that Noemi could have died from the shrapnel wound in her head, he specifically ruled out the possibility of "intercerebral hemorrhage"xxxvi[24] and despite the seriousness of the possible complications of her injuries she would suffer from physical incapacity for only ten (10) to fourteen (14) days. As none of her wounds was severe as to cause her death, accused-appellants not having performed all the acts of execution that would have brought it about, the crime is only attempted murder.xxxvi[25] Since the three (3) murders and attempted murder were produced by a single act, namely, the explosion caused by the hurling of a grenade into the bedroom of the Dulays, the case comes under Art. 48 of The Revised Penal Code on complex crimes. Article 48 provides that the penalty for the more serious crime, which in the present case is reclusion perpetua to death, should be applied in its maximum period. As the crime was complexed, the death penalty was properly imposed by the trial court. At this point, we take exception to the court a quo's award of damages in the "negotiated amount of P600,00.00." It appears that under the auspices of the trial court counsel for the defense entered into an oral compromise with the public prosecutor, which was subsequently ratified by the private complainant, limiting the amount of civil liability to P600,000.00. We note the discourse between the court and the counsel for both parties regarding the award. PROS. CORPUZ: x x x x (W)e would like to enter into stipulation the civil aspect of the case. COURT: Are the accused confident that they could be acquitted in this case? Atty Sanglay? ATTY. SANGLAY: I think so, your Honor. COURT: What about Atty. Rafael? ATTY. RAFAEL: We are confident, your Honor. COURT: All right. So you can easily stipulate. First of all, how much do you want Fiscal? PROS. CORPUZ: P1,282,740.00, your Honor x x x x COURT: x x x x Agree gentlemen of the defense?

ATTY. SANGLAY: P600,000.00, your Honor. COURT: Do you agree Fiscal? PROS. CORPUZ: Yes, your Honor. COURT: All right so P600,000.00 is the agreed liquidated amount in case of conviction without necessarily having to interpret this stipulation as admission of guilt on the part of any of the accused. All right so we will dispense with the testimony on the civil aspect x x x x COURT: x x x x Are you the private complainant in this case? TERESITA DULAY: Yes, sir. COURT: If the accused get convicted and I will hold them severally liable for you of damages in the liquidated sum of P600,000.00 as agreed upon by the counsel, will you be satisfied? x x x x TERESITA: Yes, sir. COURT: So let that be of record. Will you sign the note so that there will be evidence. (At this juncture private complainant Teresita Dulay affixed her signature at the bottom right margin of the stenographic notes page 2 hereof).xxxvi[26] Article 1878 of the Civil Code and Sec. 23 of Rule 138 of the Rules of Court set forth the attorney's power to compromise. Under Art. 1878 of the Civil Code, a special power of attorney is necessary "to compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired." On the other hand, Sec. 23, Rule 138 of the Rules of Court provides, "(a)ttorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeal, and in all matters of ordinary judicial procedure, but they cannot, without special authority, compromise their clients' litigation or receive anything in discharge of their clients' claims but the full amount in cash." The requirements under both provisions are met when there is a clear mandate expressly given, by the principal to his lawyer specifically authorizing the performance of an act. xxxvi[27] It has not escaped our attention that in the present case counsel for both parties had no special power of attorney from their clients to enter into a compromise. However, insofar as Teresita was concerned, she was apprised of the agreement and in fact had signed her name as instructed by the court, thereby tacitly ratifying the same. As for accused-appellants, the aforecited dialogue between the court and counsel does not show that they were ever consulted regarding the proposed settlement. In the absence of a special power of attorney given by accused-appellants to their counsel, the latter can neither bind nor compromise his clients' civil liability. Consequently, since Atty. Sanglay and Atty. Rafael had no specific power to compromise the

civil liability of all accused-appellants, its approval by the trial court which did not take the precautionary measures to ensure the protection of the right of accused-appellants not to be deprived of their property without due process of law, could not legalize it. For being violative of existing law and jurisprudence, the settlement should not be given force and effect. In light of the foregoing, the award of damages must be set aside and a new one entered with all the circumstances of the case in mind. For the death of Florentino, Norwela and Nissan Dulay, civil indemnity at P50,000.00 each or a total amount of P50,000.00 is awarded to their heirs. This is in addition to the award of moral damages at an aggregate amount of P150,000.00 for their emotional and mental anguish. With respect to Noemi, an indemnity of P30,000.00 would be just and proper. All taken, an award of P330,000.00 is granted. Four (4) members of the Court maintain their position that RA 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. WHEREFORE, the assailed Decision of the trial court finding accused-appellants JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO GUILTY of the complex crime of multiple murder with attempted murder and sentencing them to the supreme penalty of death is AFFIRMED with the MODIFICATION that they are ordered to pay the heirs of the deceased Florentino, Norwela and Nissan, all surnamed Dulay, P50,000.00 as death indemnity and P50,000.00 as moral damages for each death or an aggregate amount of P300,00.00. In addition, accused-appellants are ordered to pay Noemi Dulay P30,000.00 as indemnity for her attempted murder. Costs against accused- appellants. In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of executive clemency or pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION [G.R. No. 125901. March 8, 2001]

EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs. COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents. DECISION
QUISUMBING, J.:

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners. Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila. According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry. When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelitas house in Tondo, Manila, but did not find them there. Angelitas maid told Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to Angelitas house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance. Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts. Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.xxxvi[1] She avers that Angelita refused to return to her the boy despite her demand to do so. Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She

supported her testimony with her clinical records.xxxvi[2] The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his childbearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.xxxvi[3] For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.xxxvi[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989. On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.xxxvi[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof. Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez. SO ORDERED.xxxvi[6] Angelita seasonably filed her notice of appeal.xxxvi[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.xxxvi[8] On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,xxxvi[9] and disposed of the case, thus: IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita

Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein. SO ORDERED.xxxvi[10] Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging: I THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN. II THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR HABEAS CORPUS AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.xxxvi[11] In our view, the crucial issues for resolution are the following: (1) Whether or not habeas corpus is the proper remedy? (2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners? We shall discuss the two issues together since they are closely related. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.xxxvi[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.xxxvi[13] It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person. In this case, the minors identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is

the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minors biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.xxxvi[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor. True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.xxxvi[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts. A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted. Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring. Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.xxxvi[16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a common-law wife.xxxvi[17] This false entry puts to doubt the other data in said birth certificate. Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes.

Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.xxxvi[18] Needless to stress, the trial courts conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned. Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners. All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child. A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA testxxxvi[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.xxxvi[20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.xxxvi[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.xxxvi[22] Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues. WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

THIRD DIVISION [G.R. No. 140011-16. March 12, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUSTAQUIO TAQUIO MORATA y BIDOL, accused-appellant.

DECISION
GONZAGA-REYES, J.:

In a Decision dated July 28, 1999, the Regional Trial Court, Branch 63, Calabaga, Camarines Sur, convicted accused-appellant Eustaquio Morata (accused-appellant) of the two charges of rape out of the six rape charges filed against him by the victim, his sister-in-law, Marites Alamani (Marites). Accused-appellant now seeks exoneration from the two rape charges. The two charges of rape for which accused-appellant was convicted are embodied in these Informations in Criminal Case No. RTC98 220 and Criminal Case No. RTC98 224, which respectively read as follows: INFORMATION The undersigned 4th Assistant Provincial Prosecutor of Camarines Sur upon a sworn complaint of the offended party Marites Alamani accuses EUSTAQUIO TAQUIO MORATA Y BIDOL of the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, committed as follows: That during the month of April, 1997 at Barangay Antipolo, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Marites Alamani y Balimbing, an 11-year old (sic) minor, against her will and to her damage and prejudice. ACTS CONTRARY TO LAW.xxxvi[1] INFORMATION The undersigned 4th Assistant Provincial Prosecutor of Camarines Sur upon a sworn complaint of the offended party Marites Alamani accuses EUSTAQUIO TAQUIO MORATA Y BIDOL of the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, committed as follows: That on the 9th day of June, 1997 at midnight at Barangay Antipolo, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Marites Alamani y Balimbing, an 11-year old (sic) minor, against her will and to her damage and prejudice. ACTS CONTRARY TO LAW.xxxvi[2] Upon arraignment, accused-appellant pleaded not guilty. During trial, the prosecution presented Victoria Tagum, a social worker of the Lingap Center, Sorsogon, Sorsogon who conducted

counseling sessions with the victim and prepared the case study report; Marites, the victim herself; Dr. Salvador V. Betito, Jr. (Dr. Betito), the physician who examined the victim; and Maria Myrna Sarate, another social worker. The defense for its part presented accused-appellant himself, Salve Morata, the sister-in-law of accused-appellant and Shirley Abiog, who knows both accused-appellant and Maritess. The Office of the Solicitor General (OSG) recounts the version of the prosecution of the rapes allegedly perpetrated by accused-appellant against the then 11-year-old victim in this manner: Sometime in April 1997, about midnight, in appellants house, private complainant was roused from her sleep by the former who was in the act of undressing her. She was gripped with fear. Appellant ordered her to keep quiet and she did not have a choice as he gagged her by putting a handkerchief in her mouth. Her moves were also restrained as appellant held her hands and lay on top of her. Appellant then inserted his penis into private complainants vagina, causing pain in her genitalia. He warned her not to tell anybody about what had just happened. Then, appellant left private complainant, who was so scared. (TSN, June 26, 1998, pp. 3-7). Little did she know that her harrowing experience would be repeated many times over within the next couple of months. At a subsequent time, again about midnight in the house of appellant, private complainant was lying down when he approached her. He was holding an air rifle which he poked at her. Private complainant naturally got scared. After appellant undressed her and himself, he lay on top of her and attempted to insert his penis into her vagina. His sexual organ, however, touched only the outer part of her genitalia. Shortly, appellant left private complainant, crying in a corner. (TSN, June 26, 1998, pp. 8-11). At another time, private complainant was left home with appellant and his eldest child, Joey. Emmaxxxvi[3] left the house early in the morning of that day to bring her younger child to the physician. Appellant again attempted to force himself on private complainant but she was able to bite his ear causing him to stop what he was doing and leave. (TSN, June 26, 1998, pp. 1213). There was also a time when appellant approached private complainant while she was cleaning the house. He lifted her, making her lie on the floor in a room. Both of them were wearing shorts. Positioning himself on top of private complainant, appellant was in the course of removing her clothes, as he in fact had pushed down her shorts below the waistline. His dastardly act, however, was interrupted by Joey, who hit him at the buttocks with a coconut stalk. (TSN, June 26, 1998, pp. 14-17). Appellant subjected private complainant to his vile sexual designs on other occasions, the last sexual intercourse he had against her will occurring on June 9, 1997. It was then midnight when he took the liberty of entering the bedroom of private complainant and again forced himself on her. (TSN, June 26, 1998, pp. 22-23).xxxvi[4]

Accused-appellant maintained that he did not rape Marites and interposed the defense of denial. On the alleged dates of the rapes, April 1997 and June 9, 1997, accused-appellant claimed that he went to sleep at 7:00 p.m. and wake up 6:00 a.m. the next day. Accused-appellant attributed to another person the rapes committed against Marites. Allegedly, it was Mariano Espartines, also a brother-in-law of Marites, who brought Marites to a grassy place and defiled her. Accusedappellant imputed ill motive on the part of Marites for filing the charges of rape against him. According to accused-appellant, he once spanked Marites after he found out that it was she who had tied a rope around his left ankle with the end of the rope tied to the post of the bed while he was asleep. After trial, the court a quo rendered the now assailed decision the dispositive portion of which reads: WHEREFORE, in view of the foregoing, for failure of the prosecution to prove beyond reasonable doubt the guilt of the accused in Crim. Cases Nos. RTC98-219, 221, 222 and 223, accused Eustaquio Morata is hereby ACQUITTED of the offense charged. The prosecution having proven the guilt of the accused beyond reasonable doubt in Crim. Cases Nos. RTC98220 and 224, the accused Eustaquio Morata is hereby found guilty of the offense of rape. He is hereby sentenced to suffer the following penalties: 1. In Crim. Case No. RTC98-220, he is sentenced to suffer the penalty of Reclusion Perpetua and to indemnify the victim Marites Alamani the amount of P50,000.00; 2. In Crim. Case No. RTC98-224, he is sentenced to suffer the penalty of Relcusion Perpetua and to indemnify the victim Marites Alamani the amount of P50,000.00; 3. No pronouncement as to costs. SO ORDERED.xxxvi[5] In this appeal, accused-appellant anchors his prayer for an acquittal on this lone assignment of error: THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF TWO (2) COUNTS OF RAPE.xxxvi[6] Accused-appellant calls attention to the pronouncement of the trial court that he was charged with six counts of rape and was being acquitted of four and convicted of only two. Accusedappellant then argues that he should have been consequently acquitted of the two other remaining charges because Marites narrated only four of the alleged rapes. The following portions of the direct testimony of Marites supposedly proves his claim: Pros. Cu:

Q: You have already told us at least 4 incidents which has (sic) a bearing in there (sic) cases. Marites Alamani, do you still have other complaints against Eustaquio Morata aside from these cases which you have already related? A: No more, sir.

Pros. Cu: That would be all, your Honor. (TSN, June 26, 1998, pp. 18-19)xxxvi[7] Accused-appellant limits his arguments in this appeal for the reversal of the assailed judgment of conviction to the foregoing premise. He concludes that his acquittal should have been forthcoming considering that there is no other remaining evidence against him. The appeal is partially meritorious. The testimonies of witnesses must be examined in their entirety and must not be merely selected to conveniently suit the claims of a party. In this case, while Marites narrated in her testimony only four of the six counts of rape, two of these four instances of rape she testified on included the rape incidents in April 1997 and on June 9, 1997 for which accused-appellant was convicted. Admittedly, during direct examination, Marites was unable to recall the exact dates when the rapes occurred, except for the year, which is 1997. However, on cross-examination, she affirmed some portions of the sworn statements she had previously made, statements that pertain specifically to the rapes committed in April 1997 and on June 9, 1997. The confirmation of Marites in open court that the rapes happened in April 1997 and on June 9, 1997 weakens the contention of accused-appellant that these two charges are part of the four charges for which the trial court acquitted him. More importantly, the trial court clearly set out in its decision the respective criminal charges for which accused-appellant was being acquitted and convicted. The trial court expressly declared that it was acquitting accused-appellant from the rape charges in Criminal Case Nos. RTC 98219, 221, 222 and 223 on the ground that the prosecution failed to prove beyond reasonable doubt the guilt of the accused.xxxvi[8] Equally categorical was the ruling of the trial court holding accused-appellant guilty of the rapes charged in Criminal Case Nos. RTC 98-220 and 224, the prosecution having proven beyond reasonable doubt the guilt of accused-appellant.xxxvi[9] Criminal Case Nos. RTC 98-220 and 224 respectively cover the rapes that occurred in April 1997 and on June 9, 1997. Thus, accused-appellant cannot claim that the appealed cases are included in the four rape charges for which he was acquitted considering that Marites testified on the two rape charges now under review and the trial court made it quite clear as to which particular cases he was being convicted for. In convicting accused-appellant, the trial court accorded great weight to the testimony of Marites. While the testimony of Marites is far from being perfect in all details, the imperfections tend to reinforce the unrehearsed character of her testimony. The fact that Marites consistently

pointed to accused-appellant as the one who raped her undermines the defense of accusedappellant consisting merely of bare denial. Denial is an intrinsically weak defense which must be buttressed by strong evidence of non-culpability to merit credence.xxxvi[10] Furthermore, between an affirmative testimony and a negative testimony, the former is considered far stronger than the latter, especially so when it comes from the mouth of a credible witness.xxxvi[11] Accused-appellants attempt to ascribe ill motive on the part of Marites for filing the charges is a feeble one. It is inconceivable for Marites, a child victim, to have woven an intricate story of defilement if only to allegedly get even with accused-appellant for spanking her because of a prank she had played on him. It bears stressing that when it comes to the issue of credibility, the trial court judge is in the best position to rule on this matter considering that he has the vantage point of observing first hand the demeanor and deportment of the witnesses.xxxvi[12] In the absence of proof that the trial court had overlooked or disregarded arbitrarily certain facts and circumstances of significance in the case, as in the case at bar, its appreciation of the credibility of witnesses will not be altered on review.xxxvi[13] It must also be pointed out that Marites was only twelve years old when she testified. We have held that when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified is not true.xxxvi[14] Based on the evidence on hand, the trial court correctly convicted accused-appellant of the first incident of rape that occurred in April 1997. The following portions of the testimony of Marites narrates the first incident of rape, viz: PROS. CU: The purpose for which we offer the testimony of Marites Alamani is to prove that on several occasions she was raped by herein accused Eustaquio Morata your Honor. The first incident occurred way back in the month of April, 1997; the other incident your Honor, occurred in the year 1997 also but which the witness seemed to have not a good recollection as to the specific dates when this occurred but the witness had a vivid recollection of the last incident of rape against her which might have happened sometime June 1997, your Honor. The present witness will also testify that force and intimidation attended the commission of the rape incidents your Honor. Lastly, your Honor, she will testify on all other points which are material to the main purpose for which we offer her testimony. With the permission of the Honorable Court. COURT: Proceed.

PROS. CU: Do you know Eustaquio Morata, Marites Alamani? A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Yes, sir. Why do you know him? He is my brother-in-law. And do you know Eustaquio Moratas wife? Yes, sir. Who is the wife of Eustaquio Morata? Ate Emma. How are you related to this Ate Emma? She is my sister (sic) sir. Do you live with your Ate Emma sometime April 1997? Yes, sir. Presently, Marites Alamani, under whose care are you now? DSWD. Do you know the person of Victoria Tagum? No, sir.

Q: Do you know the Social Welfare officer who is in charge to (sic) you at the DSWD Center for Girls at Sorsogon? A: Q: A: Q: Yes, sir. Mama Vicky. Do you know the real complete name of Mama Vicky? No, sir. Marites Alamani, what is your complaint if any against Eustaquio Morata?

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

He undress (sic) me sir. And in what place did that happen Marites Alamani? At our house sir. Where, exactly? In Antipolo. Timambac, are your referring to that place? Yes, sir. When this incident happened, was it in the morning, afternoon or in the evening?

ATTY. TAYER: Objection. The question is leading. COURT: Sustained. PROS. CU: Q: A: Q: What time was it in your estimate that this incident took place? Midnight. This took place on April 1997?

ATTY. TAYER: Objection, your Honor, leading. COURT: Sustained. Q: A: Q: When did this happen Marites Alamani? I cannot remember anymore sir. What about the year, was it this year or last year?

A:

Last year sir, 1997.

A: (sic) Tell us Miss Marites Alamani, immediately before you were undress (sic) by Eustaquio Morata on that night, what if anything were you doing? A: Q: A: Q: A: I was sleeping sir. So, when you were undress (sic) by Eustaquio Morata, what if anything did he tell you? He told me sir to keep quiete (sic) because my ate (sic) might be awakened. And what if anything did you feel when you were told that way? I felt pain.

Q: Now, Marites Alamani, when you were being undressed (sic) by Eustaquio Morata what if anything did you feel? ATTY. TAYER: Make it of record that the witness find (sic) a hard time in answering the question. A: I got scared sir.

PROS. CU: Q: A: Q: What if anything did Eustaquio Morata do after you were undressed already? He placed himself on top of me sir. And when he placed himself on top of you (sic) was he still wearing his dress or not?

ATTY. TAYER: Leading. COURT: Sustained. PROS. CU: Q: A: When Eustaquio Morata placed himself on top of you, what if anything did you do next? He was (sic) inserting his penis into my vagina.

Q: A:

Was he able to insert his penis into your vagina? Only a little sir.

Q: What if anything did you feel when he has slightly penetrated his penis into your private organ? A: Q: It is (sic) painful sir. In what part is (sic) it painful?

PROS. CU: I think the presence of Atty. Tayer is . . . COURT: The voice of the witness is very low, that is why Atty. Tayer is there. WITNESS: A: My vagina.

PROS. CU: Q: Now, why did you not shout Marites Alamani when accused Eustaquio Morata placed himself on top of you and inserted slightly his penis into your vagina? ATTY. TAYER: Objection, there is no basis. It is only presuming that the witness did not shout, when there is no testimony that she did not shout. COURT: Lay the basis. PROS. CU: Q: When he undressed you and he placed (sic) on top of you, (sic) inserted his penis slightly into your vagina, did you shout? A: Q: I could not shout sir (sic) because there was a hankie placed on my mouth. Who placed that hankie on your mouth?

A: Q: A:

Eustaquio Morata, sir. Do you still recall how this hankie (sic) tied on your mouth? Yes, sir.

Q: Marites Alamani, using this hankie as a medium, please demonstrate to us how this hankie (sic) placed by Eustaquio Morata in your mouth? A: The hankie was used to gag my mouth.

ATTY. TAYER: Q: As remembered by this representation, the witness just placed the folded handkerchief and placed it on her mouth parallel to the lips and while the handkerchief is being handled by the hands of the witness in the opposite direction. PROS. CU: Q: Was this handkerchief tied around your mouth and jaw?

ATTY. TAYER: The handkerchief was tied around his ... COURT: Witness may answer. WITNESS: A: Yes, sir.

PROS. CU: Q: A: Q: A: Who tied it? He, sir. What is the name of this person who tied this hankie on your mouth? Eustaquio Morata, sir.

Q: How long do you think was Eustaquio Morata on top of you (sic) inserting his penis into your vagina?

A: Q:

Not very long sir. And did you cry?

ATTY. TAYER: Objection, your Honor. Leading. COURT: Sustained. PROS. CU: Q: What if anything was happening to you when Eustaquio Morata undressed you, placed (sic) on top of you and inserted his penis into your vagina? A: I could not move because my hands were being held by him.

PROS. CU: Q: A: And immediately before Eustaquio Morata left you, what if anything did he tell you? That if ever I told anybody about what happened to me he will kill me.

Q: Having been threatened by Eustaquio Morata that if you tell what happened to you on that night, he will kill you, what if anything did you feel when he said that to you? A: Q: A: I got scared sir. If Eustaquio Morata is around in court can you be able to identify him? Yes, sir.

Q: Please point at Eustaquio Morata whom you alleged undress (sic) you, placed (sic) on top of you and slightly inserted his penis into your vagina? INTERPRETER: Witness pointed to the person who when asked his name answered Eustaquio Morata.xxxvi[15] True, Marites affirmed on cross-examination a portion of her affidavit wherein she stated that there was no penile penetration in the rape that took place in April 1997. However, Marites confirmed on direct examination that accused-appellant slightly inserted his penis into her vagina and that she felt pain. The affirmation of Marites on cross-examination that she had made said

statements in her affidavit cannot prevail over her testimony in open court detailing the consummation of this first incident of rape. Sworn statements or affidavits are generally subordinated in importance to open court declaration because the former are often executed when an affiants mental faculties are not in such a state as to afford the affiant a fair opportunity of narrating in full the incident which has transpired.xxxvi[16] More so in this case when the affiant is a child. It can be reasonably assumed that at the time Marites executed her affidavit she was not aware of the extent of the penetration; nonetheless, her straightforward testimony in court indicates that the rape passed the stage of consummation. It is doctrinal that penetration, no matter how slight, or the mere introduction of the male organ into the labia of the pudenda constitutes carnal knowledge.xxxvi[17] Hence, even if the penetration in this case is only slight, the fact that Marites felt pain points to the conclusion that the rape was consummated.xxxvi[18] This conclusion is supported by the testimony of Dr. Betito, the medico-legal who examined Marites. Dr. Betito testified that Marites vaginal orifice easily admitted two fingers when it would have been difficult to insert a foreign object in the sexual organ of a girl her age. Based on these findings, Dr. Betito concluded that Marites has had sexual intercoursexxxvi[19] and that she could have lost her virginity on the first incident of rape.xxxvi[20] However, we are constrained to acquit accused-appellant in Criminal Case No. RTC-98 224, the case covering the last rape allegedly committed by accused-appellant against Marites on June 9, 1997. We have searched in vain for evidence to prove that accused-appellant defiled Marites on said date but the records simply fail to support a finding of conviction. First, the testimony of Marites narrating the last incident of rape does little to establish the crime charged. Marites testified that accused-appellant was unable to undress her as Joey, her nephew, interrupted them and struck accused-appellants butt with a coconut stalk.xxxvi[21] When asked what happened next, Marites merely answered No more sir.xxxvi[22] Clearly, the precipitate interruption of Joey foiled the attempt of accused-appellant to rape Marites. Second, we cannot convict accused-appellant for the June 9, 1997 charge of rape if the sole basis is the affirmation of Marites on cross-examination that she executed an affidavit stating that from June 1 to 9, 1997, accused-appellant entered her bedroom and repeatedly had sexual intercourse with her. What Marites merely affirmed was the fact that she executed said affidavit; however, to prove the guilt of accused-appellant beyond reasonable doubt for the June 9, 1997 rape of Marites, would require more than an affirmation. Nor can we inferentially conclude that the two other rapes narrated by Marites refer to the June 9, 1997 rape charge when Marites could not recall when these two alleged episodes of rape took place. To do so would amount to a conviction by conjecture. We cannot over emphasize the basic tenet that in criminal cases, the prosecution has the burden of proving every element of the crime charged specifically carnal knowledge in rape cases. For the June 9, 1997 charge of rape, the failure of the prosecution to prove beyond reasonable doubt that accused-appellant had carnal knowledge of Marites on this specific date is fatal to the conviction of accused-appellant. We are precluded from ruling for a conviction when the

evidence fails to support the specific allegations in the Information. True, time is not an essential element of the crime of rape.xxxvi[23] However, the date assumes importance when it creates serious doubt on the commission of the rape or the sufficiency of the evidence for purposes of conviction, as in the case at bar.xxxvi[24] The conviction of accused-appellant for the April 1997 rape charge does not carry with it the penalty of death because only the minority of the victim was alleged in the Information while the relationship of accused-appellant with the victim was not alleged. The twin special qualifying circumstances of the victims age and the relationship between the victim and the culprit are part of the seven modes of committing rape introduced by Republic Act 7659, the proper allegation of which would warrant the imposition of the death penalty.xxxvi[25] For the rape to be qualified as heinous, both the circumstances of the minority of the victim and her relationship with the offender must be alleged in the information.xxxvi[26] The Office of the Solicitor General correctly pointed out that the award of damages by the trial court consisting only of civil indemnity in the amount of P50,000.00 for each count of rape is not in line with current rulings. Aside from the P50,000.00 civil indemnity, moral damages in the amount of P50,000.00 must be automatically granted in rape cases, separate and distinct from the indemnity.xxxvi[27] Hence, in addition to the P50,000.00 indemnity awarded by the trial court in Crim. Case No. RTC-98 220, Marites is also entitled to moral damages worth P50,000.00. WHEREFORE, the appealed judgment is AFFIRMED insofar as it found accused-appellant Eustaquio Taquio Morata y Bidol guilty beyond reasonable doubt of the crime of rape in Criminal Case No. RTC-98 220, and sentencing him to suffer the penalty of reclusion perpetua, but it is MODIFIED in that he is ordered to pay civil indemnity to Marites Alamani in the amount of P50,000.00 and another P50,000.00 as moral damages. Accused-appellant is ACQUITTED of the rape charged in Criminal Case No. RTC-98 224 for the failure of the prosecution to prove beyond reasonable doubt the guilt of accused-appellant. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION [G.R. No. 136731. January 18, 2001] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR ROBLES y COMBATE, accused-appellant.

DECISION MENDOZA, J.: This is an appeal from the decision,xxxvi[1] dated April 14, 1998, of the Regional Trial Court, Branch 12, Lipa City, finding accused-appellant Cesar Robles y Combate guilty of murder and sentencing him to suffer the penalty of reclusion perpetua, to indemnify the heirs of Antonio Lumbera in the amount of P50,000.00 for his death, and to pay to the said heirs the amount of P44,000.00 as actual damages, P20,000.00 as moral damages, and the costs. The informationxxxvi[2] against the accused-appellant alleged: That on or about the 4th day of April, 1987 at about 11:30 a.m. at P. Torres Street, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with bladed weapon (balisong), with intent to kill, without justifiable cause, with treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously attack, assault and stab with said deadly weapon one ANTONIO LUMBERA suddenly and without warning, thereby inflicting upon the latter stab wound on the abdomen which directly caused his death. CONTRARY TO LAW. When arraigned, accused-appellant pleaded not guilty,xxxvi[3] where-upon trial was held. The prosecution presented as witnesses Naxinsino Lumbera, the attending physician Dr. Nemesio K. Villa, and Josefa Robles. Accused-appellant testified in his own behalf. Lumbera is a nephewxxxvi[4] of the deceased. He testified that on April 4, 1987, at 11:30 a.m., he was at a jeepney terminal on P. Torres St., Lipa City, waiting for a ride home to San Francisco, Lipa City. According to him, he saw the victim Antonio Lumbera hanging on to the rear portion of a jeepney which was bound for San Celestino when accused-appellant Cesar Robles came from behind and stabbed him (the victim) once on his right chest with a balisong and then ran away.xxxvi[5] Lumbera claimed he was four meters away from the victim when the incident happened. According to him, his uncle fell to the ground and was later taken to the Villa Hospital in Lipa City by other onlookers. After going to the hospital, he went to the barrio to inform their relatives of the incident.xxxvi[6] Dr. Nemesio Villa attended to the victim. The victim was operated on, but he went into cardiac arrest and died shortly thereafter.xxxvi[7] Dr. Villa testified ten years after the incident. For this reason, he said that in testifying he was relying on what remained of the medical records of the case and that, based on these records, the victim died of two stab wounds: one on the left chest wall and the other at the back, to the left of the posterior mid-line.xxxvi[8]

The victims widow, Josefa Robles, testified as to the amount spent on funeral expenses. However, all she could present was a list she dictated to her daughter. She could not show any receipt as proof of the alleged transactions. As already stated, accused-appellant testified in his defense. He denied having killed Antonio Lumbera. He claimed that at 7:30 in the morning on April 4, 1987, he was in Dallas Mountain in Labo, Camarines Norte, mining for gold. His daily schedule was going home to Barangay Masalong, Labo, Camarines Norte at 11:30 for lunch and returning to the mine at 1:30 in the afternoon.xxxvi[9] Accused-appellant claimed that to go from Labo, Camarines Norte to Lipa City and back would take about one day of travel.xxxvi[10] Accused-appellant claimed that he and Naxinsino Lumbera, the sole eyewitness, were not in good terms. According to accused-appellant, Naxinsino harbored some resentment against him because Naxinsino used to buy coconuts harvested from the land of accused-appellants father, but because he was unable to pay a huge debt incurred in 1996, accused-appellant took his place as buyer of coconuts. On April 14, 1998, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, the court finds the accused, CESAR ROBLES y COMBATE, guilty beyond reasonable doubt, as principal by direct participation, of the crime of Murder, as defined and penalized under Article 248 of the Revised Penal Code and sentences him to suffer the penalty of Reclusion Perpetua, to indemnify the heirs of Antonio Lumbera in the amount of P50,000.00 for his death, to pay the amount of P44,000.00, as actual damages, to pay the amount of P20,000.00 as moral damages and to pay the costs.xxxvi[11] Accused-appellant contends that the trial court erred: (1) in giving credence to the testimony of Naxinsino Lumbera; (2) in rejecting the defense of alibi interposed by him which is more credible; and (3) assuming arguendo that accused-appellant killed the victim, in holding that there is sufficient evidence to prove that the killing was attended by the qualifying circumstance of treachery so as to render him liable for murder. We find this appeal to be well taken. First. Naxinsino Lumberas testimony says too little too late. Lumbera did not give any statement to the police despite the fact that he allegedly saw the killing of his uncle. For ten years he kept quiet about the incident. Although he explained it was because he was afraid, there is no evidence that accused-appellant or anyone acting for the latter ever threatened Lumbera. The Solicitor General argues that the natural reluctance of a witness to get involved in a criminal case and to provide information to the authorities is a matter of judicial notice. He cites the decision in People v. Villanueva,xxxvi[12] in which it was held that an eyewitness account cannot be disregarded by reason of the delay in its reporting so long as the delay is justified. He also invokes the ruling in People v. Villamorxxxvi[13] that fear of reprisal is a sufficient

explanation for the delay of a witness in divulging what he knows about the commission of a crime. However, there are material differences between the cases cited and the case at bar. In Villamor, in which the witness took four years to disclose what he knew of the crime, it was shown that he came forward when accused-appellant was arrested and charged. On the other hand, in Villanueva the witness testified one year after the incident owing to fear of the two accused who were members of the police. In the foregoing cases, the Court noted the straightforward testimonies of the witnesses which were consistent with the physical evidence. The report of the medico-legal expert regarding the nature and location of the wounds sustained by the victims confirmed the testimony of both witnesses. But, in this case, the physical evidence and the testimony of the attending physician are inconsistent with the testimony of the alleged eyewitness. Thus, Lumbera testified that accused-appellant struck the victim once in his right chest before running away. However, the attending physician testified based on the medical records that the victim died of two fatal stab wounds, one inflicted on the lower left chest wall penetrating the abdominal cavity and the other on the back, to the left of the posterior mid-line.xxxvi[14] Even if Naxinsino Lumbera only mistook the location of the stabbing and the number of wounds inflicted on the victim, his account of the events still is highly suspect. The assailant, whom Lumbera said came from behind, would have to be in a very awkward position to inflict such wounds as the victim was hanging on from the rear portion of a running jeepney.xxxvi[15] On the other hand, Dr. Villa himself, when asked to tell the court the position of the victim in relation to the assailant, said: The assailant if right handed could be in front of the victim and with his right hand he could possibly stab the victim in his left side because I am not a witness to the actual event, it is possible also he could be on the side or even to the left or back if he twist(s) his right hand and stab his side it is very difficult for me to say which one.xxxvi[16] As no other witness was presented to prove that accused-appellant committed the offense charged, his conviction by the trial court must be considered without any basis. Second. We note in passing an affidavit executed by one Nolito Bautista on April 20, 1987 which tends to corroborate the testimony of Naxinsino Lumbera. However, this affidavit was not offered in evidence, nor was Bautista presented as a witness. The affidavit is thus hearsay,xxxvi[17] and, what is more, cannot be considered in this case. That the affidavit formed part of the record of the preliminary investigation does not justify its being treated as evidence because the record of the preliminary investigation does not form part of the records of the case in the Regional Trial Court, Branch 12. To be considered part of the records of this case, the record of the preliminary investigation must be introduced as evidence during trial.xxxvi[18] The prosecution having failed to present Nolito Bautista as a witness, his sworn statement given during the preliminary investigation is inadmissible and deserves no consideration at all.

Third. Accused-appellants testimony is not without inconsistencies. When he testified on February 2, 1998, he could recall with certainty all that he did more than ten years before, on April 4, 1987, although nothing spectacular was supposed to have occurred. And yet when asked about other matters, such as when he changed residences, he had a very poor recollection of such dates and events. His alibi is not entitled to credit, as he presented no one to corroborate his claim that, at 11:30 a.m., on April 4, 1987, he was in Labo, Camarines Norte working in the mines. Nevertheless, having ascertained the affidavit of Nolito Bautista to be inadmissible, and considering the conflicting testimonies of prosecution witnesses Naxinsino Lumbera and Dr. Nemesio Villa, we hold that the prosecution failed to present sufficient evidence to warrant the conviction of accused-appellant. Our legal culture demands the presentation of proof beyond reasonable doubt before any person may be convicted of any crime and deprived of his life, liberty, or even property. It is not sufficient for a conviction that the evidence establishes a strong suspicion or a probability of guilt. Before an accused can be convicted, the hypothesis of his guilt must flow naturally from the facts proved and must be consistent with all of them.xxxvi[19] WHEREFORE, the decision of the Regional Trial Court of Lipa City, Branch 12, finding accused-appellant Cesar Robles y Combate guilty of murder and sentencing him to suffer the penalty of reclusion perpetua is REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt. The Director of the Bureau of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is lawfully held for another cause and to inform the Court accordingly within ten (10) days from receipt hereof. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC [G.R. No. 135109-13. December 18, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE PAJO y BAGTONG and IMELDA LIQUIGAN y KASIBAYAN, accused-appellants. DECISION PER CURIAM:

Jose Pajo y Bagtong was found guilty beyond reasonable doubt and convicted of three counts of rape and two counts of acts of lasciviousness in Criminal Cases Nos. 97-233, 97-664 to 97-667 while his co-accused, Imelda Liquigan y Kasibayan, was found guilty beyond reasonable doubt as an accomplice of the crime of rape in Criminal case No. 97-664 by the Regional Trial Court (RTC) of xxx.. Due to the imposition of the death penalty in Criminal Cases Nos. 97-233, 97-664 and 97-665, the Decisionxxxvi[i][1] of the RTC dated July 6, 1998 imposing the death penalty therein is now before us on automatic review. On February 21, 1997, an Informationxxxvi[ii][2] for rape was filed against the accused Jose Pajo y Bagtong (PAJO) upon the complaint of his daughter, AAAxxxvi[iii][3] committed as follows: "The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt CCC, a copy of which is hereto attached as Annex "A", accuses JOSE PAJO y BAGTONG of the crime of Rape (Art. 335, R.P.C., in relation to R.A. 7610), committed as follows: That on or about the 31st day of January 1997, in the City of XXX, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of said AAA, a 13 year old minor, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will, to her damage and prejudice." The case was docketed as Criminal Case No. 97-233. Upon arraignment, the accused with the assistance of counsel entered a plea of not guilty.xxxvi[iv][4] Thereafter, trial ensued. During the pendency of the trial, four more informations were filed against PAJO upon the complaint of AAA and his other daughter, BBB, as follows: In Criminal Case No. 97-664, PAJO together with his co-accused Imelda Liquigan y Kasibayan were charged, as principal and accomplice respectively, with the crime of rape commited against AAA as follows: "The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt CCC, a copy of which is hereto attached as Annex "A", accused JOSE PAJO Y BAGTONG as principal and IMELDA LIQUIGAN Y KASIBAYAN as accomplice, of the crime of Rape in relation to R.A. 7610, committed as follows: That in or about during the month of August 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, JOSE PAJO, being the father of said AAA, a 13 year old minor by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will while accused

Imelda Liquigan cooperated in the said act, by holding her legs open, to facilitate the commission thereof by accused Jose Pajo y Bagtong, to her damage and prejudice." In Criminal Case No. 97-665, PAJO was charged with the crime of rape committed against AAA as follows: "The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt CCC, a copy of which is the crime of Rape (Art. 355, RPC in relation to R.A. 7610, committed as follows: That on or about the 18the day of September 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of said AAA, a 13 year old minor, by means of force, violence and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will, to her damage and prejudice." In Criminal Case No. 97-666, PAJO was charged with the crime of acts of lasciviousness committed against BBB as follows: "The undersigned Assistant Prosecutor on the basis of the sworn statement of BBB, 12 years old, assisted by her Aunt CCC, a copy of which is hereto attached as Annex "A", accuses JOSE PAJO y BAGTONG of the crime of Acts of Lasciviousness, in relation to Sec. 5 (b), Article III, R.A. 7610, committed as follows: That in or about the month of August 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there willfully, unlawfully and feloniously commits acts of lasciviousness upon one BBB, a 12 year old minor, by then and there ordering her to hold and suck his sex organ against her will and consent, to her damage and prejudice." In Criminal case No. 97-667, PAJO was charged with the crime of acts of lasciviousness committed against AAA as follows: "The undersigned Assistant Prosecutor on the basis of the sworn statement of AAA, 13 years old, assisted by her Aunt CCC, a copy of which is hereto attached as Annex 'A", accuses JOSE PAJO y BAGTONG of the crime of Acts of Lasciviousness in relation to Sec. 5 (b), Article III, R.A. 7610, committed as follows: That on or about the 15th day of November 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon one AAA, a 13 year old minor, by then and there touching and holding her vagina, against her will and consent, to her damage and prejudice."

On June 4, 1997, both PAJO and his co-accused Imelda Liquigan y Kasibayan (LIQUIGAN) with the assistance of counsel pleaded not guilty to the crimes charged.xxxvi[v][5] Subsequently, on June 23, 1997, Judge DDD ordered the consolidation of Criminal Cases Nos. 97-664, 97-665, 97-666, 97-667 with Criminal Case No. 97-233.xxxvi[vi][6] The trial court stated the facts of the case viz: "Accused JOSE is an ex-convict. He served a prison term for the crime of theft. Accused IMELDA is his live-in partner. Complainants AAA and BBB are the minor children of JOSE with EEE. AAA is now 14 years old while BBB is 12. (Exhibits "I" and "J"). their natural mother left them when they were still very young. Upon being released from prison, JOSE moved in with IMELDA at their present residence at xxx. Subsequently, JOSE took back AAA and BBB from his brother who took care of them while he was in prison. The family occupied the room at the 2nd floor of their house. The ground floor is rented out to some boarders. At night, JOSE and IMELDA, together with their two-year old baby would sleep together in bed while AAA and BBB would sleep on the floor. At times, only a curtain would separate the bed from the floor where the sisters would be sleeping. JOSE drinks a lot and is frequently drunk. He would usually drink two bottles of beer before going to bed. On February 18, 1997, CCC had a chance to talk to BBB, her niece. BBB then confided to CCC how their father had been molesting her and her sister (AAA). The following day, CCC and FFF, their youngest brother brought BBB and AAA to the barangay center. There, they related the ordeal of the two sisters. The Complaint Center, in turn, notified the Office of the Department of Social Welfare and Development (DSWD). With DSWD Social Workers, the group of CCC proceeded to Police Precinct No.7 at xxx city and sought police assistance for the arrest of JOSE and IMELDA. The two suspects were arrested and their case referred to the Station Investigation Division of the xxx Police.

SPO1 Lilia Hogar and Police Inspector Angelita Alvarico of the Women's Desk Section, investigated the complaint. The written statements of AAA and BBB were taken (Exhibits "A" and "B"). thereafter, AAA was referred to the National Bureau of Investigation and PNP Crime Laboratory for examination (TSN, March 17, 1997). On February 20, 1997, the Final Investigation Report was issued by SPOI Lilia Hogar with the recommendation that the complaint of AAA and BBB be referred to the City Prosecutor for proper disposition (Exhibit "C"). After inquest, the preliminary investigation, the xxx Prosecution Office filed with the Court three informations for Rape against JOSE (Criminal Case Nos. 97-233, 97-664 and 97-665) and 2 counts of Acts of Lasciviousness (Criminal Case Nos. 97-666 and 97-667). IMELDA was indicted as an accomplice in the charge for rape in Criminal Case No.97-664. AAA narrated in court how she and her younger sister BBB have been molested by their father on different occasions between August 1996 to January 1997. She testified that the first incident occurred in the night of August 18, 1996. They were all inside their common sleeping area. She was already fearful as her father was them again drunk. JOSE and IMELDA were already without clothes and in bed when her father called her. She was ordered to undress and to climb in bed. BBB has been ordered by JOSE to stand guard at their door. Once in bed, JOSE told IMELDA to spread open AAA s legs. JOSE then called BBB to come near and to suck his penis so he could have an erection. BBB obeyed her father's command. Thereupon, JOSE laid on top of AAA while IMELDA was holding her legs apart. AAA felt her lower abdomen moving up and down. She told her father that she was hurting already. But still, he did not withdraw his penis. After a while, JOSE told IMELDA to lie down. JOSE then withdrew from AAA and went on top of IMELDA. While JOSE and IMELDA were copulating, JOSE told AAA to suck IMELDA's breast. The abominable scene finally stopped when they heard some noises outside. AAA further testified that this incident was repeated on September 18, 1996. She was then watching a VHS tape at their uncle's place when her father told her to go upstairs to their room.

Inside their room, JOSE and IMELDA started to take off their clothes. JOSE ordered AAA to take off hers too. Her father was again drunk. He laid on top of her while IMELDA held her legs apart. JOSE would even slap IMELDA whenever she fails to hold AAA's legs apart. Again, the detestable incident ended with JOSE and IMELDA having sexual intercourse. The father again molested AAA in November 1996. AAA though could not remember the exact date. She testified that she woke up one night when she felt someone touching her most private part. She discovered her father beside her on the floor. She became upset. Her father withdrew her hand. Fortunately for AAA, her father desisted from pursuing his woeful intentions. JOSE climbed back to his bed and slept beside IMELDA. According to AAA, the last incident happened on January 31, 1997 at about 12:00 o'clock in the evening. She was awaken (sic) by someone tapping her feet. It was her father again. She was told to go the bathroom downstairs. She thought she would just be asked to fetch water. When she entered the bathroom, her father was already there and naked. She was told to remove her shorts and underwear. Her father was drunk again. AAA was told to lean back on the wall and open her legs. Thereupon, JOSE proceeded to penetrate AAA. Then she felt pain, and deep inside her she wished her father would die so that her ordeal would stop. Her father stopped when he heard their dog barking. He then instructed her daughter to bring a pail of water upstairs. JOSE then woke up IMELDA and told her to prepare coffee. Thereafter, IMELDA told AAA to go back to sleep. AAA went to sleep with IMELDA massaging JOSE. (TSN, April 28, 1997, pp. 18-39; April 30, 1997, pp. 2-22; August 11, 1997, pp. 11-34; August 15, 1997, pp. 3- 15). BBB, the other victim, narrated too in Court how she and her sister were molested by her father and his live-in partner in August 1996. She was only 12 years old then. They were all inside their one-room quarters. Her father was drunk. She was told to stand guard at their door by her father. later, she was called by her father to the bed and ordered to suck his penis so he could have an erection. AAA was already in bed and without clothes, and so was her father. JOSE then laid on top of AAA while IMELDA was holding AAA's legs apart.

In the meantime, BBB was again told to stand guard at the door (TSN, August 18, 1997, pp. 2-33). AAA and BBB are one in telling the Court that they are fearful of their father, especially when he is drunk. They were often beaten up by their father should they refuse or fail to obey his command or wishes. They strongly believe too that their father is on drugs. Dr. Tomas Suguitan, the Medico-legal Officer from the PNP Crime laboratory, identified his report on the examination conducted on BBB (Exhibit "C"). He confirmed that the "subject is in non-virgin state physically" with "deep healed laceration at 6 o'clock and shallow healed lacerations at 3, 7 and 10 o'clock" in her fleshy-type hymen. However, the prosecution failed to clarify what appears to be a contradictory report rendered by the NBI Medico-legal Division (Exh. "D") showing that subject's hymen is "intact and its orifice small (2.0 cm. in diameter) as to preclude complete penetration by an average sized adult male organ in full erection without producing genital injury". Further, in Exhibit "C", witness Suguitan found no external signs of application of any form of violence". While in Exhibit "D", "physical injuries were noted on the body of the subject at the time of examination", consisting of, - scar, brownish 0.8 x 0.3 cm., left temple area; scars brownish, two (2) in number, one is 1.0 x 0.3 cm., the other 1.0 x 0.4 cm. left leg, upper 3rd, anterior aspect, and scar, reddish, 4.0 x 6.0 cms. right gluteal area. Prosecution witnesses CCC and SPO1 lilia Hogar testified too in court. CCC narrated how she discovered the sexual abuse committed by her brother JOSE and IMELDA on her nieces (TSN, March 17, 1997, pp. 2-17). SPO1 Hogar testified on the investigation conducted by the Criminal Investigation Division of the XXX Police Station on the complaint lodged by the victims (TSN, April 23, 1997, pp. 2-19). Accused JOSE AND IMElDA denied the imputations against them. They advanced the following reasons as possible motive for the false accusations, to wit a) He (JOSE) chastised AAA and BBB for "stealing" P2,000.00 in school; b) His brother and sister are interested in having possession of their house; and c) His brother and sister are envious of his work entitled "Destiny Philippines 2000" which he allegedly tried to have then President Fidel Ramos and Vice President Joseph Estrada be interested in."xxxvi[vii][7] On July 6, 1998 the RTC rendered a decision finding both accused guilty beyond reasonable doubt of the crimes charged. The dispositive portion of the decision reads:

"WHEREFORE, the Court finds Jose Pajo y Bagtong and Imelda Liquigan y Kasibayan GUILTY beyond reasonable doubt of the offenses charged. Accordingly, accused Jose Pajo y Bagtong is hereby sentenced to suffer the following penalties, 1. DEATH for consummated rape as charged in Criminal Case No. 97-97-233; 2. DEATH for consummated rape as charged in Criminal Case No. 97-664; 3. DEATH for consummated rape as charged in Criminal Case No. 97-665; 4. TEN (10) YEARS & ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS & FOUR (4) MONTHS of reclusion temporal as maximum for acts of lasciviousness as charged in Criminal Case No. 97-666; and 5. TEN (10) YEARS & ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS & FOUR (4) MONTHS of reclusion temporal as maximum for acts lasciviousness as charged in Criminal Case No.97-667. Accused Imelda Liquigan y Kasibayan is hereby sentenced to a prison term of TWELVE (12) YEARS & ONE (1) DAY to FOURTEEN (14) YEARS & EIGHT (8) MONTHS of reclusion temporal as an accomplice in the crime of rape as charged in Criminal Case No. 97-664. Jose Pajo y Bagtong is ORDERED to INDEMNIFY complainants AAA Joy Pajo and BBB Joy Pajo in the amount of P50,000.00 each for each count of rape and acts of lasciviousness committed, and to pay the costs. SO ORDERED."xxxvi[viii][8] At the outset, we resolve to dismiss the appeals in Criminal Cases Nos. 97-666 and 97667, wherein the RTC convicted PAJO of two counts of acts of lasciviousness and sentenced him to ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum for each count, considering that PAJO failed to file notices of appeal for said cases. Under Section 1 (b), Rule 122 of the Rules on Criminal Procedure, the appeal of a judgment rendered by the regional trial court in its original jurisdiction sentencing the accused to other than life imprisonmentxxxvi[ix][9] or death must be taken to the Court of Appeals by the filing of a notice of appeal with the court which rendered the judgment or order appealed from, and by serving a copy thereof on the adverse party.xxxvi[x][10] We likewise dismiss the appeal of PAJO's co-accused, LIQUIGAN, for the reason that she similarly failed to file a notice of appeal of the judgment convicting her as an accomplice to the crime of rape in Criminal case No. 97-664. The appeal to the

Supreme Court in cases where the penalty imposed is life imprisonmentxxxvi[xi][11] or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed shall be by filing a notice of appeal with the court which rendered the judgment or order appealed from, and by serving a copy thereof upon the adverse party.xxxvi[xii][12] Inasmuch as both PAJO and LIQUIGAN have taken no appeal with respect to these cases, they became final and executory after the lapse of fifteen (15) days, the period for perfecting an appeal.xxxvi[xiii][13] On the other hand, Criminal Cases Nos. 97-233, 97664 and 97-665 are now before this Court on automatic review in view of the imposition of the death penalty. It is only in cases where the accused is sentenced to death when the appeal of the decision to the Supreme Court is automatic.xxxvi[xiv][14] We thus limit our discussion to Criminal Cases Nos. 97-233, 97-664 and 97- 665 where the death penalty was imposed on PAJO. In his brief, PAJO assigns the following error allegedly committed by the RTC: "THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY OF THE CRIMES CHARGED, WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND A SHADOW OF A DOUBT.xxxvi[xv][15] PAJO maintains that the prosecution failed to establish his guilt beyond reasonable doubt. In support of this claim, PAJO asserts that: 1. In her testimony, AAA was uncertain as to whether or not her father penetrated her on August 18, 1996. 2. He merely used his two daughters to arouse him in order for him to "trigger" his libido and "to put in action and activate his admitted onset of impotency" caused by his state of alcoholism in order to satisfy the passion of his live-in partner. 3. It is unlikely that he committed the alleged rapes and acts of lasciviousness because they admittedly transpired inside their house and in the presence of all the other members of the family. There was no evidence on record to prove that PAJO was sick of some form of medical perversion or that showed him to be of such a detestable human nature. 4. It is unbelievable that it took AAA exactly six (6) months and one (1) day or after being assaulted three times and only after her younger sister, BBB revealed the commission of the crime against her that she revealed the assaults committed against her by her father.

5. AAA and BBB filed the cases against their own father due to the improper suggestions and desire for revenge of their aunt and uncle (the brother and sister of PAJO) who reared and took care of AAA and BBB. 6. Had the cases been filed with the noblest intention of seeking justice, then it would have been for the best interest of the two children to include LIQUIGAN as co-principal in the alleged crimes of rape and not merely as an accomplice to the rape allegedly committed on August 18, 1996. 7. There is an irreconcilable conflict between the findings of the physical examination conducted on AAA by the National Police Commission - Philippine National Police Crime Laboratory Group (PNP) and that conducted by the National Bureau of Investigation (NBI) contained in the two medical reportsxxxvi[xvi][16] submitted to the RTC. The report of the PNP showed that there was no external signs of application of any form of violence while in the NBI report, physical injuries were noted on the body of AAA at the time of her examination. Further, the NBI report showed that the hymen of AAA was intact and its orifice small as to preclude complete penetration by an averaged sized adult male organ in full erection without producing genital injury. Based on the foregoing arguments, PAJO prays for his acquittal for failure of the prosecution to prove his guilt beyond reasonable doubt.xxxvi[xvii][17] After a meticulous review of the case, we resolve to affirm the judgment of the RTC. The prosecution convincingly established the commission of the three rapes by PAJO against AAA through her testimony wherein she identified the accused-appellant PAJO as her father and narrated the manner by which he thrice raped her sometime in August 1996, September 18, 1996 and January 31, 1997. AAA first testified in Criminal Case No. 97-233 to prove the rape committed on January 31, 1997 as follows: "PUBLIC PROSECUTOR: Could I request the assistance of Court Interpreter. And do you know the accused Mr. Pajo in this case? WITNESS: Yes, Sir. PUBLIC PROSECUTOR: Why do you know him? WTNESS:

Because he is my father, Sir. PUBLIC PROSECUTOR: Could you point your father, Mr. Pajo, if he is here in this court INTERPRETER: Witness, is pointing to a male person seated on the second row wearing a yellow T-shirt who response in the name of Jose Pajo. PUBLIC PROSECUTOR: Why did you file this complaint against your father? WITNESS: Because I don't want him to attack me more than 4 times, Sir. PUBLIC PROSECUTOR: Let's go to specific, on January 31, 1997 at 12:00 in the evening, could you recall, where were you? WITNESS: I was in the house sleeping, Sir. PUBLIC PROSECUTOR: Kindly tell the court where is your house located, street, number or city? WITNESS:
xxx

PUBLIC PROSECUTOR: Okay, while you were sleeping inside your house, at xxx, could you recall any unusual incident, occur? WITNESS: Yes, Sir.

PUBLIC PROSECUTOR: Kindly, tell the court what was the unusual incident which occurred? WITNESS: My father arrived and he woke me up by tapping me on my feet and he whispered and told me to go down to the bathroom, so I went down to the bathroom thinking that he would ask me to fetch water and as I went inside the bathroom he was already naked. PUBLIC PROSECUTOR: What else happened after you went down to the bathroom and saw your father already naked? WITNESS: As he told me, he instructed me to remove my short and my panty, Sir. PUBLIC PROSECUTOR: Did you follow the order of your father to remove your panty and short? WITNESS: Yes, Sir. PUBLIC PROSECUTOR: Why did you follow the order of your father to remove your underwear? WITNESS: Because, I was afraid of him. PUBLIC PROSECUTOR: Why are you afraid of him? WITNESS: Because, whenever he is drunk, he spanks us, he electrocutes us, he even tie cord around our neck, Sir.

PUBLIC PROSECUTOR: This things that your father did to you, since when did it start to happen to you? ATTY. OLIVA: At this state, Your Honor, I would like to put strike off, the case being heard on January 31, 1997 was immediately. COURT: Answer may remain on record. It is part of the narration being made by the witness as to how all this things happen. PUBLIC PROSECUTOR: I would like to make it clear to counsel, that I am only doing this January 31, 1997 incident. However, the other incident could not be entouched specially the elements thereof, only this January 31, 1997 incident. ATTY. OLIVA: We submit, Your Honor. WITNESS: The first time, my father treated me harshly, when he frustrate me when I was sleeping he kept confitting (sic) me with the pillow on my face and then covering it. PUBLIC PROSECUTOR: Could you recall what was that incident, more or less the date and the year? WITNESS: Yes, Sir. August of 1996. PUBLIC PROSECUTOR: In what place did it occur? WITNESS: In the house, Sir of xxx City.

PUBLIC PROSECUTOR: Likewise, a while ago, you mentioned or referred that on the word "PINAPARUSAHAN KAMI", to whom are you referring, aside from you? WITNESS: My sister and I, Sir, are the one being maltreated. PUBLIC PROSECUTOR: What is the name of your, sister? WITNESS: BBB, Sir. PUBLIC PROSECUTOR: How old is she? WITNESS: She is 12 years old, Sir. PUBLIC PROSECUTOR Aside from the sister of yours, do you have any brothers and sister? WITNESS: I have another brother who is in xxx, Sir . PUBLIC PROSECUTOR: Why is he in xxx? WITNESS: My aunties and my uncles told me that my mother left my father, because my father always hurt my mother. PUBLIC PROSECUTOR: Could you know more or less, when did your mother left your father?

WITNESS: They told me that I was very young and small, Sir at that time when she left us. PUBLIC PROSECUTOR: AAA, this residence you mentioned at xxx, when this incident occurred, who are the persons staying the house? WITNESS: My Tita CCC and my uncle GGG, Sir. PUBLIC PROSECUTOR: Lets go back to the incident on January 31, 1997, in the evening, kindl y tell the court what happen (sic) after you followed the order of your father to remove your panty and short? What happened next, if any? WITNESS: When I took off my short and panty he told me to SUMANDAL DAW PO AKO SA DINGDING and he was trying to insert his penis, Sir. PUBLIC PROSECUTOR: While he was trying to insert his penis on your vagina, what did you do? WITNESS: I was in standing position and when I told him that It hurts, he does not want to remove it, Sir. PUBLIC PROSECUTOR: What was hurting you? WITNESS: In my vagina, Sir. There was an object going up and down. PUBLIC PROSECUTOR: What was this object going up and down inside your vagina?

WITNESS: All I felt, Sir, it was very painful and there was something going up and down in my vagina. PUBLIC PROSECUTOR: Did the accused Mr. Pajo, was he able to insert his penis to your vagina? WITNESS: Yes, sir. PUBLIC PROSECUTOR: For how long, did he insert his penis to your vagina? WITNESS: I could not remember it, Sir. PUBLIC PROSECUTOR: What did you do during the time he was inserting his penis to your vagina? WITNESS: I kept silent. I was thinking and I kept it to my mind that I hope, he die to stop him from doing like this. PUBLIC PROSECUTOR: Madam Witness, could you stand up and could you demonstrate, what was your position inside the bathroom when accused fit you on the wall? INTERPRETER: Witness demonstrating leaning of the courtroom wall and mentioned that accused instructed her to open her legs. PUBLIC PROSECUTOR: How about your two hands, where was in position at the time when the accused was forcing you at the wall and insert his penis in your vagina?

WITNESS: The accused instructed me to put my hands over his back. PUBLIC PROSECUTOR: Ms. Witness, after that, he was able to insert his penis to your vagina, what did he do? WITNESS: He heard our dog bark loudly and then he instructed me to get a pail of water, Sir."xxxvi[xviii][18] After the cases were ordered consolidated, AAA again testified on the two prior rapes committed against her by PAJO. The pertinent portions of AAA's testimony are quoted hereunder: "Q: How many times were you raped by your father? A: Three (3) times, Sir. Q: Let's go to specific, when was the first time that your father raped or abused you? A: The first incident did my father abuse me was on August. Q: On what year, AAA? A: 1996, Sir. Q: In what place where you abused by your father? A: At xxx. Q: Could you recall more or less what was the time? A: around 8:00 o'clock in the evening. Q: Kindly narrate briefly what happened during the night of August 18, 1996 at your house? A: Everybody at that time were in the house. And my father called me and he told me to remove my short and panty. Q: You said, 'EVERYBODY', who were the persons in your house?

A: My father, my mother, my sister BBB and my two (2) year old sister and myself, Sir. Q: By the way, your referred to your Mama, what is the name of your Mama? A: Imelda Liquigan, Sir. Q: Is she inside the Courtroom? A: Yes, Sir. COURT INTERPRETER: Witness is pointing to a female person seated on the second row wearing a yellow shirt and as mentioned by the witness-she is Imelda Laquigan. PUBLIC PROSECUTOR: Q: What's the name of your father? A: Jose Bagtong Pajo, Sir. A: Is he inside the Courtroom? A: Yes, Sir. COURT INTERPRETER: Witness is pointing to a male person wearing a yellow shirt and seated on the second row and as mentioned by the witness- he is Jose Pajo. PUBLIC PROSECUTOR: Q: By the way, is Imelda is your natural mother? A: No, Sir. Q: Why do you call her Mama? Q: Where is your natural mother? A: She is in xxx, Sir. She got separated with my father, Sir. Q: When was that? A: When we were still small, Sir.

Q: When did Imelda come to your house? A: I could not recall, Sir because we were not staying at that house when Mama Imelda arrived. Q: Let's go back to the night of August 18, 1996 incident, when your father ordered you to undress, where was your father at that time? What portion of the house? A: She was also at the bed, Sir. Q: How about BBB, your sister, where was she at that time? A: She was told by my father to watch the door, Sir. Q: Did you follow the order of your father to undress? A: Yes, Sir. Q: What kind of dress were you wearing at that time? A: I was just wearing T -Shirt, Sir. Q: Did you remove our T-shirt at that time? A: I removed my T-Shirt when I was about to lay down, Sir. Q: How about your underwear, did you also remove your underwear? A: Yes, Sir. Q: Why did you follow the order of your father? A: Because he was drunk at that time and I'm afraid to him whenever he is drunk, Sir. Q: Why, What does he do to you when he is drunk? A: Because when he is drunk he hits us on the heads, Sir. Q: After undressing, you went to the bed with your father, what else happened after that? A: My father told my Mama to spread my legs. Q: Did, you are referring to Imelda, did Imelda indeed spread or open your legs as told by your father?

A: Yes, Sir. Q: Imelda, your Mama and Jose Pajo were both lying at the bed at that time when he ordered you to open your legs or Imelda opened your two thighs. A: Yes, Sir. Q: AAA, what were they wearing at that time Jose and Imelda? A None, Sir. Q: You mean all of them are already naked at that time? A. Yes, Sir. Q: How about you, when Imelda open your legs, you were also naked? A: Yes, Sir. Q: What else happened after Imelda open your legs at that time? A: Before my father inserted his penis of my genital, my father called upon BBB my sister. Q: Did BBB follow the order of your father? A: Yes, Sir. Q: What did your father ordered BBB to do if any at that time? A: My father told my sister BBB 'come here and suck my penis I just want to know if you could give me an erection. Q: Did BBB follow the order of your father? A: Yes, Sir. Q: After that what else happened? A: After my sister suck my father's penis he inserted his penis to my vagina. Q: What was your position at that time that your father inserted his penis to your vagina? A: I was lying down on the bed while my Mama Imelda was holding my legs apart.

Q: How about your father, what was his position when he inserted his penis to your vagina when you are lying on the bed and your two legs were open by your Mama Imelda? A: My father was lying on top of me while he was inserted (sic) his penis to my vagina. Q: Was he able to insert his penis to your vagina? A: I am not sure anymore, Sir, if he penetrated me. All I felt was my lower abdomen going up and down, Sir. Q: While he was inserting his penis to your vagina, why did you not resist? A: He kept on whispering that I may not be noisy or else something happen to me, Sir. Q: Where was BBB at that time that your father inserted his penis to your vagina? A: He told BBB to go back to that door. Q: How long did your father inserted his penis in your vagina? A: I could no longer recalled how long it took but I told him that it already hurts and at that time he is still not remove yet his penis and after sometime he inserted his penis to Mama Imelda Q: Where was Imelda at that time that your father inserted his penis in your vagina? A: At that time my Mama Imelda was behind my father while she was holding my legs apart and then my father told her to lie down and that is the time that his penis inserted to my Mama Imelda. Q: After that, when your father went to Imelda and inserted his penis, what did you do? A: He told me to suck the breast of my Mama Imelda. Q: Did you suck the breast of your Mama Imelda? A: No, Sir. I only touched her breast. Q: You mean, AAA you touch the breast of Imelda by your lips? A: Yes, Sir. Q: How long?

A: I remove it whenever my father would tell me. Q: After touching the breast of Imelda with your lips, what else happened? A: Natigil po iyong pag-ano ng Papa ko dahil po sa ingay sa labas. Q: Okay, let's go to another incident. After that night on August 18, 196 when the first rape by your father and Imelda assisting him, did this incident occurred? A: Yes, Sir. Q: When was that incident again occurred? A: September, Sir. Q: September, of what year or month? A: 1996, Sir. COURT: September 1996. A: Yes, Your Honor. September 18, 196 before I had my menstruation on the 23rd, Your Honor. It was September 18, 1996 the second incident. COURT: The second incident was September 18, 1996. PUBLIC PROSECUTOR: Kindly again narrate and tell the Court how were you abused by your father on September 18, 1996? A: At that time my Mama Imelda and my father were upstairs and I and my two other sisters were watching VHS downstairs at my uncle's place, Sir. Q: What time was that? A: Evening, Sir. Q: What time, give time? A: Around 8:00 o'clock in the evening, Sir.

Q: Who were again the persons insider your house? A: Me and my mother. Q: And this two year old baby of Imelda was also inside your house? A: Yes, Sir. She was with us. Q: The three of you including the two year old girl and BBB were watching VHS inside your house? A: We were watching VHS at my uncle's house, Sir. Q: Where is your uncle's house located? A: -My father's house is a two storey house and my uncle's means at the ground floor. Q: While you were watching VHS together with your sisters, what else happened after that? A: My father called me and told me to go upstairs. Q: And did you follow the order to go upstairs? A: Yes, Sir. Q: What happened if anything when you went upstairs? A: He told me to remove my panty and short, Sir. Q: Where was your father at that time, what portion of the house? A: My father and my Mama Imelda were laid down on the bed. Q: Where these two people wearing anything at that time? A: They removed their clothes, Sir. Q: How about you, did you remove your clothes as ordered by your father? A: Yes, Sir. Q: By the way, what were you wearing at that time? A: 'Wala na po'.

Q: What did you remove? A: Panty, short and T -Shirt. Q: Why did you follow again the order of your father? A: He was drunk. Q: What he do to you when he was drunk? A: He again told my Mama Imelda to open my legs, Sir. Q: What else happened after that? A: My father lay down on top of me and whenever my Mama Imelda wasn't spreading my legs my father slap Mama Imelda. Q: That night of September 18, 1996, did Jose Pajo your father slap Imelda? A: Yes, Sir. Q: At the time does Imelda was spreading your legs, what did you do? A: I was just lying down on the bed, Sir. Q: You did not try to resist? A: I could not resist, Sir because I am very afraid at that time. Q: After your father Jose Pajo slap Imelda what else happened after that? A: When my Mama Imelda the way she open my legs that is the time my father penetrated me and when I was hurting already my Mama Imelda laid down on top of me while my father was behind my Mama I melda . Q: What was your father doing to your Mama Imelda at that time in that position? A: While my father's penis was inside Mama Imelda's vagina he was ordering me to also insert my fingers inside the vagina of Mama Imelda. Q: What else happened after that? A: While my other hand was inside Mama Imelda's vagina, my other hand was holding the breast of her.

Q: What else happened after that? A: 'May naramdaman po akong bumulwak sa ari nilang dalawa, kulay puti na mabaho'. Q: What else happened after that? A: They still didnt stop what they were doing, Sir. They only stop when the lights went off. Q: AAA, after that September 18, 1996, incident, did this special abuse again happened to you? A: It's a different thing, Sir. Q: On what date or time? A: November, Sir. Q: Of what year? A: The end of November, Sir. Q: In what place did I occur? A: Still in our house, Sir. Q: What was that incident? A: I was sleeping at that time and my father laid beside me. Q: What time did it happen? A: Past 9:00 o'clock, Sir, almost 10:00. Q: In the evening? A: Yes, Sir. Q: In what portion or place of the house? A: Upstairs, Sir. Q: In the bed of your father? A: No, Sir on the floor.

Q: Who were the persons at that time? A: My mama Imelda ad my two year old sister were on the bed and I and my sister BBB were on the floor. Q: What did your father do to you? A: He held my vagina, Sir. Q: What were you wearing at that time or did you wear at that time? A: There was, Sir. Q: What were you wearing at that time? A: Panty, short and t-shirt. Q: What were you doing at that time? before your father held your vagina? A: I was sleeping, Sir. Q: And, what did you do when you noticed that your father was holding our vagina. A: I was upset, Sir. Q: What else happened after that? A: May father off his hand and he went back beside Mama Imelda. Q: What did your father do after that to Imelda? A: They slept, Sir. Q: After that November 5, 1996. did it occur again this sexual abuse? A: January, Sir. Q: January of what year? A: 1997. A: That was the incident which your earlier testified? A: Yes, Sir.

PUBLIC PROSECUTOR: For the record, Your Honor, she testified on that January 31, 1997. COURT: In that testimony, case number is? PUBLIC PROSECUTOR: 97-233 accused Jose Pajo only, Your Honor."xxxvi[xix][19] The testimony of AAA is corroborated fully by the testimony of her younger sister, BBB, who was also a victim of PAJO's sexual assault.xxxvi[xx][20] The denial of PAJO cannot prevail over the categorical testimony of AAA and BBB that he raped the former. There was no showing that they were motivated to falsely implicate him in the commission of such a heinous crime and the absence of convincing evidence showing any improper motive on the part of the principal witnesses for the prosecution strongly tends to sustain the conclusion that no such improper motive exists, and that their testimonies are worthy of full faith and credit.xxxvi[xxi][21] Moreover, it is long settled by jurisprudence that the determination of the competence and credibility of a child to testify rests primarily with the trial judge who sees the witness, notices her manner, her apparent possession or lack of intelligence, as well as her understanding of the obligation of an oath.xxxvi[xxii][22] The findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless the court a quo overlooked substantial facts and circumstances, which if considered, would materially affect the result of the case.xxxvi[xxiii][23] The evaluation or assessment made by the trial court acquires greater significance in rape cases because from the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the complainant's testimony.xxxvi[xxiv][24] In the present case, we find no cogent basis to disturb the trial court's finding disregarding the testimonies of the defense witnesses and upholding the credibility of the complainants AAA and BBB who stood firm on their assertions and remained unfaltering in their testimony on the unfortunate incidents. PAJO's claim that there was no evidence to show that he was sick of some form of medical perversion or that showed him to be of such detestable human nature to enable him to rape AAA in the presence of other persons deserves no sympathy. It has been repeatedly held that lust is no respecter of time or place.xxxvi[xxv][25] Besides, the mere act of a father of raping his daughter is abhorrent and this Court strongly condemns the perverse acts committed by PAJO against his daughters and is appalled by his defense that he merely used them to arouse him in order for him to "trigger" his libido and "to put in action and activate his admitted onset of impotency" caused by his state of

alcoholism to enable him to satisfy the passion of his live-in partner.xxxvi[xxvi][26] The bestiality in man whose conscience has been seared by his insatiable greed for lust shows no respect for blood or close kinship with his victim.xxxvi[xxvii][27] PAJO's claim that AAA and BBB filed the cases against their own father due to the improper suggestions and desire for revenge of their aunt and uncle is not believable. PAJO's and LIQUIGAN's bare assertion that the cases were filed against him to allegedly get back at him for scolding AAA and BBB for stealing two thousand (P2,000.00) from their teacher and that his brother and sister were allegedly envious of him because they wanted his house and because he was being commissioned by the then President Fidel V. Ramos to write a book entitled Destiny 2000 is uncorroborated and is highly unbelievable. It has been consistently held that no member of a rape victim's family would dare encourage the victim to publicly expose the dishonor to the family unless the crime was in fact committed.xxxvi[xxviii][28] Given the circumstances of the resent case, it is most unlikely that AAA nor her aunt, CCC who happens to be the sister of PAJO, would subject AAA to the embarrassment and stigma incident to a rape trial if the charges were not true. Pajo's inistence that LIQUIGAN should have been charged as a co-principal in all three rapes and not merely an accomplice to one rape, does not affect the culpability of PAJO for the crimes charged and is not enough reason to acquit him. In criminal prosecutions, it is the prosecution that determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information.xxxvi[xxix][29] It is basically the fiscal's function to the fiscal to determine what degree of complicity to the commission of a crime a person should be charged with, whether as principal, accomplice or accessory. PAJO makes much of the fact that it took AAA exactly six (6) months and one (1) day or after being assaulted three times and only after her younger sister, BBB revealed the commission of the crime against her that she revealed the assaults committed against her by her father. However, this Court has time and again ruled that the fact that the failure of the complainant to report the rape to the immediate members of her family or to the police does not detract from her credibility for her hesitation can be attributed to her age and the moral ascendancy of the accused and his threats against the former.xxxvi[xxx][30] We find this to be true in the present case. Finally, the alleged inconsistency between the findings of the medical examinations conducted on AAA contained in the medical reports prepared by the PNPxxxvi[xxxi][31] and the NBIxxxvi[xxxii][32] is not sufficient to warrant the reversal of the judgment of conviction. The overwhelming evidence consisting of the testimonies of both AAA and BBB, which were thoroughly consistent with each other, is sufficient to establish PAJO's guilt beyond reasonable doubt. Moreover, the inconsistency between the two medical reports only gives rise to the question of whether AAA was subjected to force and violence as shown by the presence of external signs of physical injuries. Even assuming that no physical injuries were found on AAA's body, such does not negate that PAJO raped her

nor does it render the evidence submitted by the prosecution insufficient to establish the element of force or violence. When a father commits rape against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence or intimidation.xxxvi[xxxiii][33] In sum, AAA's clear and straightforward testimony, as corroborated by that of BBB, leads to the inescapable conclusion that the crimes of rape have been committed and PAJO is guilty of these crimes. Article 335 of the Revised Penal Code, as amended by Republic Act No.7659, provides: "The death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim." The three informations charging, PAJO with three counts of rape clearly alleged that he had carnal knowledge with his daughter, AAA, who was 13 years old at the time of the rapes as shown by her certificate of live birthxxxvi[xxxiv][34] having been born on April 13, 1983. Her birth certificate likewise shows that PAJO is her father. Moreover, the prosecution presented AAA's aunt, CCC, who testified that AAA was her niece and that she was the daughter of PAJO who is her brother.xxxvi[xxxv][35] Moreover, PAJO in his testimony admitted that AAA was his daughter.xxxvi[xxxvi][36] The concurrence of minority of the AAA and her relationship to PAJO, having been alleged in the information and duly proved with certainty and clearness as the crime itself during trial, constrains the Court to affirm the conviction of PAJO of three counts of qualified rape, justifying the imposition of the death penalty for each count on him. As to PAJO's civil liability, we award AAA the amounts of P75,000.00 as civil indemnity and P50,000.00 as moral damages for each count of rape considering that the crime was committed under circumstances which justify the imposition of the death penalty in accordance with prevailing jurisprudence.xxxvi[xxxvii][37] Four justices of the Court maintain that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the appealed decision of the Regional Trial Court finding the accused JOSE PAJO y BAGTONG guilty beyond reasonable doubt of three counts of qualified rape in Criminal Cases Nos. 97-233, 97-664 and 97-665 is AFFIRMED. The accusedappellant is hereby sentenced to DEATH and he is further ordered to pay the victim,

AAA, the amounts of P75,000.00 as civil indemnity and P50,000.00 as moral damages for each count of rape. The appeals of JOSE PAJO y BAGTONG in Criminal Cases Nos. 97-666 and 97-667 and the appeal of IMELDA LIQUIGAN y KASIBAYAN in Criminal Case No. 97-664 are hereby DISMISSED and the decisions therein are final and executory. Upon finality of this decision, let certified true copies thereof as well as the records of this case be forthwith forwarded to the Office of the President for possible exercise of his pardoning power. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, JJ., concur.

FIRST DIVISION [G.R. No. 141060. September 29, 2000] PILIPINAS BANK, petitioner, vs. COURT OF APPEALS, HON. ELOY R. BELLO, In his capacity as Presiding Judge, RTC-Manila, Branch 15, And MERIDIAN ASSURANCE CORPORATION, respondents. DECISION KAPUNAN, J.: Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision of the Court of Appeals, Sixth Division, dated July 30, 1999 in CA-G.R. S.P. No. 29749xxxvi[1] which dismissed petitioner Pilipinas Bank's petition for certiorari,xxxvi[2] and the Resolution, dated September 17, 1999xxxvi[3] denying petitioner's Urgent Motion for Extension of Time to file Motion for Reconsideration, Manifestation and Motion to Admit Motion for Reconsideration. The facts of the case are as follows:

On January 8, 1995, petitioner obtained from private respondent Meridian Assurance Corporation a Money Securities and Payroll Comprehensive Policy which was effective from January 13, 1985 to January 13, 1986. On November 25, 1985, at about 9:15 a.m., while the policy was in full force and effect, petitioner's armored vehicle bearing Plate No. NBT 379 which was on its way to deliver the payroll withdrawal of its client Luzon Development Bank ACLEM Paper Mills, was robbed by two armed men wearing police uniforms along Magsaysay Road, San Antonio, San Pedro, Laguna. Petitioner's driver, authorized teller and two private armed guards were on board the armored vehicle when the same was robbed. The loss suffered by petitioner as a result of the heist amounted to P545,301.40. Petitioner filed a formal notice of claim under its insurance policy with private respondent on December 3, 1985, invoking Section II of the Policy which states: Section II-MONEY AND SECURITIES OUTSIDE PREMISES The Company will subject to the Limits of this Section as hereinafter provided indemnify the insured against loss by any cause whatsoever occuring (sic) outside the premises of Money and Securities in the personal charge of a Messenger in transit on a Money Route x x x.xxxvi[4] and the warranty/rider attached to the Policy which provides thatWARRANTED that in respect of PILIPINAS BANK Head Office and all its branches, pick-up and/or deposits and withdrawals without the use of armored car, company car, or official's car shall be covered by this policy. x x xxxxvi[5] Private respondent denied petitioner's claim and averred that the insurance does not cover the deliveries of the withdrawals to petitioner's clients. Petitioner thereafter filed a complaint against private respondent with the Regional Trial Court of Manila. Private respondent filed a motion to dismiss which was later granted by the RTC. Petitioner then moved to reconsider the trial court's order, but the same was denied. Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals assailing the RTC's order dismissing the complaint.xxxvi[6] The appellate court granted the petition and remanded the case to the RTC for further proceedings. Private respondent filed with this Court a petition for review of the appellate court's decision, but the same was dismissed in a Resolution dated July 5, 1989. After the case was remanded to the RTC and the latter set the case for pre-trial, petitioner filed its Pre-Trial Brief, stating among others, that it would present as one of its witnesses Mr. Cesar R. Tubianosa to testify on the existence and due execution of the insurance policy, particularly on the negotiations that were held prior to the execution thereof, including negotiations that led to the attachment warranties, to prove that the loss subject of petitionerss claim is covered by the Policy. Petitioner identified the issues of the case as follows:

1.

Whether or not the loss due to the hold-up/robbery is covered by the Insurance Policy;

2. In the affirmative, whether or not, defendant is liable to plaintiff for said loss, inclusive of other damages prayed for in the Complaint. On September 18, 1991, when petitioner was about to present Mr. Tubianosa to testify, private respondent objected and argued that said witness testimony regarding the negotiations on the terms and conditions of the policy would be violative of the best evidence rule. However, private respondents objection was overruled and Tubianosa was allowed to take the stand. Private respondent again objected to the questions regarding the negotiations on the terms and conditions on the policy, and the trial court sustained the objection in part and overruled it in part by allowing petitioner to adduce evidence pertaining to the negotiations other than what appears in the insurance policy. Tubianosas testimony was completed on said date. On June 18, 1992, petitioner filed a Motion to Recall Witness, praying that it be allowed to recall Tubianosa to testify on the negotiations pertaining to the terms and conditions of the policy before its issuance to determine the intention of the parties regarding the said terms and conditions. Private respondent objected thereto, on the ground that the same would violate the parol evidence rule. The RTC issued an Order dated July 24, 1999, denying petitioners motion to recall Tubianosa to the witness stand, ruling that the same would violate the parol evidence rule. Petitioners motion for reconsideration was also denied by the lower court. On December 21, 1992, petitioner filed a petition for certiorari with the Court of Appeals assailing the aforementioned Orders of the RTC. In its Decision dated July 30, 1999, the appellate court dismissed the petition and held that there was no grave abuse of discretion on the part of respondent judge. It held that there is no ambiguity in the provisions of the Policy which would necessitate the presentation of extrinsic evidence to clarify the meaning thereof. The Court of Appeals also stated that petitioner failed to set forth in its Complaint a specific allegation that there is an intrinsic ambiguity in the insurance policy which would warrant the presentation of further evidence to clarify the intent of the contracting parties. Hence, the present petition. We find no cogent reason to disturb the findings of the Court of Appeals. Petitioners Complaint merely alleged that under the provisions of the Policy, it was entitled to recover from private respondent the amount it lost during the heist. It did not allege therein that the Policys terms were ambiguous or failed to express the true agreement between itself and private respondent. Such being the case, petitioner has no right to insist that it be allowed to present Tubianosas testimony to shed light on the alleged true agreement of the parties, notwithstanding its statement in its Pre-Trial Brief that it was presenting said witness for that purpose.

Section 9, Rule 130 of the Revised Rules of Court expressly requires that for parol evidence to be admissible to vary the terms of the written agreement, the mistake or imperfection thereof or its failure to express the true agreement of the parties should be put in issue by the pleadings.xxxvi[7] As correctly noted by the appellate court, petitioner failed to raise the issue of an intrinsic ambiguity, mistake or imperfection in the terms of the Policy, or of the failure of said contract to express the true intent and agreement of the parties thereto in its Complaint. There was therefore no error on the part of the appellate court when it affirmed the RTCs Order disallowing the recall of Tubianosa to the witness stand, for such disallowance is in accord with the rule that when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such other terms other than the contents of the written agreement.xxxvi[8] The rationale behind the foregoing rule was explained in Ortanez vs. Court of Appeals,xxxvi[9] where we stated: The parol evidence herein introduced is inadmissible. First, private respondents oral testimony on the alleged conditions, coming from a party who has an interest in the outcome of the case, depending exclusively on human memory, is not as reliable as written or documentary evidence. Spoken words could be notoriously undesirable unlike a written contract which speaks of a uniform language. Thus, under the general rule in Section 9 of Rule 130 of the Rules of Court, when the terms of an agreement were reduced to writing, as in this case, it is deemed to contain all the terms agreed upon and no evidence of such terms can be admitted other than the contents thereof. xxx.xxxvi[10] WHEREFORE, the instant petition is hereby DENIED. The Decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

SECOND DIVISION

[G.R. No. 129667. July 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERIC BAID Y OMINTA, accused-appellant. DECISION MENDOZA, J.: This is an appeal from the decisionxxxvi[1] of the Regional Trial Court, Branch 95, Quezon City, finding accused-appellant Eric Baid y Ominta guilty of the crime of rape against Nieva Garcia y Saban, a mental patient, and sentencing him to suffer the penalty of reclusion perpetua and to pay the victim the amount of P50,000.00 as moral damages. The information against accused-appellant, based on the complaint filed by the offended woman and her mother, alleged That on or about the 22nd day of December 1996, in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there [willfully], unlawfully and feloniously undressing one NIEVA GARCIA y SABAN, a mental patient suffering [from] schizophrenia and put himself on top of her, and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW.xxxvi[2] When arraigned, accused-appellant entered a plea of not guilty, whereupon trial of the case on the merits proceeded. The prosecution presented three witnesses, namely, the complainant, Dr. Herminigilda Salangad, the complainant's attending psychiatrist, and Dr. Emmanuel Reyes, the medico-legal officer who examined the complainant. Complainant is a 27-year old single woman, who was diagnosed as having suffered from schizophrenia since 1988. In December 1996, she was confined at the Holy Spirit Clinic in Cubao, Quezon City because of a relapse of her mental condition.xxxvi[3] On the other hand, accused-appellant was a nurse-aide of said clinic. On December 22, 1996, at around 3 a.m., accused-appellant sneaked into the patients' room. He woke the complainant up and offered her a cigarette, at the same time touching her foot. Complainant took the cigarette. As she smoked it, accused-appellant caressed her. Apparently, she was aroused, because she afterward removed her pants. It turned out she was not wearing any underwear. Accused-appellant also removed his pants and the two had sexual intercourse. Afterwards, they transferred under the bed and continued their sexual intercourse. Complainant said she felt accused-appellant had an orgasm. A female patient who had been awakened tried to separate the two, and, as she failed to do so, she went out to call the two nurses on

duty. The nurses responded but, when they arrived, accused-appellant had left, while complainant had already put on her pants.xxxvi[4] Complainant was brought later during the day before Dr. Emmanuel Reyes for medicolegal examination. She told him what happened. Dr. Reyes reduced her narration of the incident into writingxxxvi[5] and then gave her a physical examination. His report stated:xxxvi[6] FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, and coherent female subject. Breasts are hemispherical with pale brown areola and nipples from which secretions could be pressed. Abdomen is flabby and soft. GENITAL: There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pale brown labia minora presenting in between. On separating the same disclosed an abraided posterior fourchette and an elastic, fleshy-type hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice offers moderate resistance to the introduction of the examining finger and the virgin-sized speculum. Vaginal canal is wide with flattened rugosities. Cervix is normal in size, color and consistency. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of violence. REMARKS: Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa. Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the complainant's genitalia, could have been recently caused by a hard blunt object, such as an erect penis during sexual intercourse, or by the insertion of a finger. Dr. Reyes found that complainant was suffering from mental illness and that she had lapses in the course of her interview.xxxvi[7] Accused-appellant testified in his behalf. He stated that he had been a nurse-aide of the Holy Spirit Clinic since September 18, 1995. His job was to watch the patients,

especially when they become violent. He also fetched them from their homes. He admitted that he knew the complainant but claimed he did not know the reason for her confinement. He denied the allegations against him. He testified that, on the date and time referred to by the complainant, he was asleep in the nurse-aide quarters located about ten meters from the room where complainant was staying. He admitted, however, that to go to the patients' room, he did not have to pass by the nurses' station. He said he knew that, at the time in question, there were two nurses on duty and ten patients in the room. He described the patients' room as having an area of about eight by five square meters with wooden beds arranged one foot apart from each other.xxxvi[8] Accused-appellant was questioned by the trial court. He testified that on December 22, 1996, he was on duty from 4 p.m. to 12 midnight. He was a stay-in nurse-aide of the clinic. He stated that the clinic consisted of two floors and five rooms. The room where complainant and the other patients were staying and his quarters were both on the ground floor of the building. He admitted that the clinic was for the mentally ill and that, as a nurse-aide, he was supposed to know the status of every patient and his job was to watch them and pacify them whenever they become violent. He said he was very well acquainted with the behavior of the patients considering the length of time he had been working in the clinic. He claimed, however, that he did not specifically know from what ailment complainant was suffering, but only that she was undergoing treatment because of mental deficiency.xxxvi[9] On cross-examination, accused-appellant admitted that he knew it was prohibited to give cigarettes to patients. He further admitted that, as a nurse-aide, he could enter the patients' room anytime to check their condition and see to it that the lights were turned off when they were not needed. He further stated that he was not investigated by the police when he was invited to their headquarters.xxxvi[10] On June 20, 1997, the trial court rendered its decision,xxxvi[11] the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y Ominta GUILTY beyond reasonable doubt of the crime of rape defined in and penalized by Art. 335 of the Revised Penal Code, as amended by Rep. Act 7659, and hereby sentences the said accused to suffer the penalty of reclusion perpetua. The accused is further ordered to indemnify the victim Nieva Garcia y Saban the amount of P50,000.00, as moral damages. IT IS SO ORDERED. Accused-appellant contends that the trial court erred in convicting him of rape.xxxvi[12] Complainant is suffering from schizophrenia, a psychotic disorder of unknown etiology, characterized by disturbance in thinking involving a distortion of the usual logical

relations between ideas, a separation between the intellect and the emotions so that the patient's feelings and his or her manifestations seem inappropriate to his or her life situation, and a reduced tolerance for the stress of interpersonal relations so that the patient retreats from social intercourse into his or her own fantasy life and commonly into delusions and hallucinations, and may, when untreated or unsuccessfully treated, go on to marked deterioration or regression in his or her behavior though often unaccompanied by further intellectual loss.xxxvi[13] The following are the symptoms of schizophrenia: A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated): (1) (2) (3) (4) (5) delusions hallucinations disorganized speech (e.g., frequent derailment or incoherence) grossly disorganized or catatonic behavior negative symptoms, i.e., affective flattening, alogia, or avolition Note: Only one criterion A symptom is required if delusions are bizarre or hallucinations consist of a voice keeping up a running commentary on the person's behavior or thoughts, or two or more voices conversing with each other. B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the level achieved prior to the onset (or when the onset is in childhood or adolescence, failure to achieve expected level of interpersonal, academic, or occupational achievement). C. Duration: Continuous signs of the disturbance persist for at least 6 months. This 6-month period must include at least 1 month of symptoms (or less if successfully treated) that meet criterion A (i.e., active-phase symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in criterion A present in an attentuated form (e.g., odd beliefs, unusual perceptual experiences). D. Schizoaffective and mood disorder exclusion: Schizoaffective disorder and mood disorder with features have been ruled out because either (1) no major depressive, manic, or mixed episodes have occurred concurrently with the active-phase symptoms;

or (2) if mood symptoms, their total duration has been brief relative to the duration of the active and residual periods. E. Substance/general medical condition exclusion: The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition. F. Relationship to a pervasive developmental disorder: If there is a history of autistic disorder or another pervasive developmental disorder, the additional diagnosis of schizophrenia is made only if prominent delusions or hallucinations are also present for at least a month (or less if successfully treated).xxxvi[14] Schizophrenia is classified into five subtypes, namely, paranoid, disorganized (hebephrenic), catatonic, undifferentiated, and residual.xxxvi[15] Dr. Herminigilda Salangad, the complainant's attending psychiatrist and consultant at the Medical Center in Muntinlupa, the Perpetual Help Medical Center, the Philippine National Police, and the Holy Spirit Clinic, was presented as an expert witness. According to her, complainant was, at the time of the incident, suffering from an undifferentiated type of schizophrenia, described as having the characteristic symptoms of schizophrenia but does not fit the profile for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that complainant seemed to shift from one type of schizophrenia to another. Complainant was catatonic when she first treated her, a situation where the patient shows waxy flexibility (e.g., when a limb is repositioned, that limb remains in that position for a prolonged period of time as if the patient is made of wax), mutism or agitation, and the patient mimics words and actions during examination. Later, complainant became paranoid, i.e., suspicious, hostile and aggressive. She also manifested a behavior where she mumbled and smiled to herself.xxxvi[16] It is contended that as complainant is a schizophrenic, her testimony should not have been given credence by the trial court. It is argued that: (1) there were serious inconsistencies between her sworn statement and her testimony in court; (2) the prosecution failed to present witnesses to corroborate her testimony; (3) complainant failed to identify accused-appellant; (4) the results of the medico-legal examination were negative for spermatozoa; (5) the healed lacerations showed that complainant had sexual intercourse seven days before the alleged incident; and (6) the probability was that her allegations of rape were merely a product of her fantasy.xxxvi[17] We disagree. Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could perceive and was capable of making known her perceptions to others.xxxvi[18] Her testimony indicates that she could understand questions

particularly relating to the incident and could give responsive answers to them. Thus she testified: PROSECUTION: (to the witness) Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City? A Not anymore, sir.

Q On December 22, 1996, do you know whether you are at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City? A Q Yes, sir. Why were you there, Miss Witness?

A My mother asked me if I want to be confined at the Holy Spirit Clinic and I chose to be confined at the Holy Spirit because during that time, I was then taking my medicine. Q At around three o'clock in the morning of December 22, 1996, do you know where were you? A Yes, I was lying on the bed inside the Holy Spirit Clinic.

Q And while lying on the bed, inside the Holy Spirit Clinic, do you know what happened then, Miss Witness? A At that time, there was a person shorter than the person (witness pointing to the person dressed in yellow t-shirt whose name when asked, answered the name Eric Baid) and that person is smaller than the person inside the courtroom was disturbing "kinakalabit" another person inside the room. Q And what happened after that first man entered the room at the Holy Spirit Clinic? A The girl was trying to avoid the other person because at that time, the accused Eric Baid was entering the room. Q And what happened after Eric Baid entered the room?

A When Eric Baid entered the room as if he knew me already and he asked me, "Nieva, gusto mo ng sigarilyo?", at the same time, Eric Baid was touching my foot.

ATTY. VENTURANZA: I would just want to manifest that the witness while testifying, she was smiling. PROSECUTION: (to the witness) Q And after he asked you whether you like a stick of cigarette and touched your foot, what happened next, Madam Witness? A Q A I said yes. And what happened next after you said yes, I liked cigarette? After that, he caressed me.

COURT: (to the witness) Q A How did he caress you? He went on top of me.

COURT: (to the prosecutor) Go ahead. PROSECUTION: (to the witness) Q How about the other man who entered earlier, what happened him?

A The smaller person went in and out of our room twice, the first time that he went, he touched the other woman beside me on the foot but the woman resisted and shouted. After that, the second time, the other man went inside the room, he touched the other woman but the woman shouted and that smaller one went outside of the room. Q A When Eric Baid placed himself on top of you, where was that other man? He was no longer there. . PROSECUTION: (to the witness) Q When Eric Baid was already on top of you, do you know if the small man entered again your room?

A Q A Q A

No, sir. And then, what happened when Eric Baid placed himself on top of you? I agreed. Agreed to what? I agreed to the sex.

Q You mean to say that you and Eric Baid has sexual intercourse while on top of your bed? A Yes, sir.

Q And what happened during the sexual intercourse while both of you were on top of the bed? A Somebody was awakened and told me, "Hoy, asawa mo ba iyan? Kinukubabawan ka." and I answered no. Q And was Eric Baid, was he able to consummate that sexual intercourse, Miss Witness? A Q A Yes, sir. And more or less, how long did the sexual intercourse last, Miss Witness? Around three to five minutes.

COURT: (to the witness) Q A Why, was he able to insert his private organ into your private organ? Yes, your Honor.

Q What did he do when he was able to insert his private organ into your private organ? A Q A As if his orgasm suddenly appeared. Do you understand when you say as if his orgasm suddenly appeared? They are like what they call, your Honor, as if "naiputok".

Q A Q A Q A Q A Q A Q A

And what did he do when according to you "naiputok"? As if it was okay for him. You were wearing an underwear? None, your Honor. You were actually naked? I was wearing pants but I have no panty. But who removed your pants? I was the one, your Honor. What about Eric Baid, what was he wearing? He was also wearing pants. Who removed the pants of Eric Baid? He was the one.xxxvi[19]

When complainant was questioned on cross and redirect examination, she explained how she was able to identify accused-appellant, to wit: ATTY. SALATANDRE: Q You said a while ago that when the sex affair happened it was dark so all throughout you did not see the face of the accused? A During that time it was dark but the latter part when he opened the light, I saw his face, sir. Q A Q A Q When the light was opened, he was about to leave the room? About to leave, sir. He was already facing the door? Yes, Sir. And you were at his back left inside the room?

A Q A Q A

No, Sir. Where were you then? I was just inside the room in my bed not at his back, sir. You were already on your bed when he was about to leave the room? Yes, Sir.

Q At that time that sex affair transpired between you and the accused, you did not even know his name? A Q A Yes, Sir. You were only told later on about this person? Yes, Sir.

ATTY. SALATANDRE: (to the Court) That will be all, Your Honor. COURT: Any redirect? PROSECUTION: Yes, your Honor. COURT: Go ahead. PROSECUTION: Q You said that you were only able to identify the accused when he put on the lights, when he was about to leave the room, how far were you from the accused? A Q A This distance, sir. (parties stipulated a distance of four meters, more or less) You said that you saw his face at that time? Yes, sir.

Q And before this incident of December 22, 1996, were there any other occasion that he had any sexual intercourse with you? A Q A None, sir. And you often saw him as attendant in that clinic? Yes, sir.

Q And when you said that room was dark, is it totally dark or was it only a little dark? A Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw)

Q So the time that you had sexual intercourse with the accused at that time, you can identify the face of this person? A Yes, sir.

COURT: (to the witness) Q You said that medyo may ilaw, where was the light emanating at about 3:00 in the morning? A From the window outside, the room can be illuminated through the window, Your Honor. Q So when the light came from outside, was the source from the moon, from the bulb of the Meralco post or from another light coming from another building or house? A It is the light actually coming from the ceiling of the building of the clinic which was outside the window, Your Honor.xxxvi[20] Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during her testimony, such as by smiling when answering questions, her behavior was such as could be expected from a person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent. Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory,xxxvi[21] it is established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of memory.xxxvi[22] It has long been settled that a person should not be disqualified on the basis of mental handicap alone.xxxvi[23]

With regard to the alleged inconsistencies between complainant's sworn statementxxxvi[24] and her testimony as to the number of times she and accusedappellant had sexual intercourse and where they did the same, an examination of the evidence for the prosecution, particularly complainant's sworn statement and her interview with the examining medico-legal officer, shows that accused-appellant had sexual intercourse with her in different positions at various places in the same room. When complainant testified, she stated that, aside from the fact that accused-appellant had sexual intercourse with her on her bed, he made her transfer later under the bed. Be that as it may, complainant has consistently established in all of her statements that he had sexual intercourse with her on her bed. Whether or not he had sex with her near the window and while facing him is of no moment and does not negate the finding of rape. Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that complainant's testimony was unrehearsed, and rather than diminish the probative value of her testimony, they reinforce it.xxxvi[25] In the case at bar, the rape of complainant occurred in a room where other patients were sleeping. This circumstance, it is argued, is antithetical to the possibility of the commission of rape. As this Court has repeatedly said, lust is no respecter of time and place and the crime of rape can be consummated even when the malefactor and the victim are not alone.xxxvi[26] The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial, so much so that, if the testimonies so far presented clearly and credibly established the commission of the crime, corroborative evidence would only be a mere surplusage.xxxvi[27] In this case, the trial court gave credence to the testimonies of the prosecution witnesses on the basis of which it adjudged accusedappellant guilty. In the absence of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to their credibility are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness stand.xxxvi[28] Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since ejaculation is never an element thereof.xxxvi[29] What consummates the felony is the contact of the penis of the perpetrator, however slight, to the vagina of his victim without her consent.xxxvi[30] Neither is it required that lacerations be found in the victim's hymen. We have held that a medical examination is not a requisite for a rape charge to prosper as long as the victim categorically and consistently declares that she has been defiled.xxxvi[31] In this case, aside from complainant's positive testimony, the medical examination of the complainant showed an abrasion on her labia minora, indicating that she had recent sexual intercourse.xxxvi[32] That the deep healed lacerations found on the complainant's genitalia may have been caused seven days prior to December 22, 1996 is immaterial and irrelevant considering that she is a nonvirgin.

Accused-appellant also claims that complainant could have been hallucinating in alleging that she had sexual intercourse with him on December 22, 1996. In answer, suffice it to say that complainant was steadfast and consistent in stating that she was raped by accused-appellant. She maintained her allegation of rape when she was physically examined by the medico-legal officer, when she made her statement to the police and again when she testified in court.xxxvi[33] Accused-appellant assails the trial court's finding of lack of consent on the part of the complainant to the sexual act. As the facts show, complainant herself admitted that she agreed to have sex with him after he gave her a stick of cigarette. However, it should be stressed that complainant was in no position to give her consent. As Dr. Salangad said in her testimony: COURT: Q If you claim that the private complainant is suffering from this kind of illness, schizophrenia, and manifests behavior to the effect that she can not be active during lucid intervals now if she is suffering from this kind or mental state, can she give an intelligent consent considering that the private complainant is already above 20 years of age? A In her case, I would say no, Your Honor.

Q I will rephrase my question. Because when I asked to give an intelligent consent, you might be referring to acts that are very important to her like, for example, "do you want to eat?" of course, she will give an intelligent consent. "Do you want to sleep?" of course, she will give an intelligent consent? A Yes, Your Honor.

Q But things that would destroy her honor or reputation like for example having sex with her, can she give an intelligent consent? A No, Your Honor.

Q In other words, she would not know the consequences of her consenting to such a proposal to have sex? A Yes, Your Honor. .... ATTY. SALATANDRE: Q She can not give an intelligent consent to sex, your patient?

A Q A Q

Yes, sir. Meaning she will just agree? She has said so when I asked her. She was just offered a cigarette. Meaning if she opens her legs, she does not understand what she was doing?

A She probably knew what she was doing but when we say an intelligent consent, she has weighed the pros and cons on an action and its future significance and also based on the upbringing, sir. Q That she was on top of the bed, then the accused allegedly opened the zipper of his pants and pulled down the pants up to his knees and placed himself on top of the patient and tried to insert his organ to her organ and the girl said she agreed to it because she likes it, does it mean all those things that transpired she does not know or understand what was happening? A She knew what was happening but there is a difference in her judgment, in her discernment. A child can be asked to lie down and knows that somebody was on top of him or her and that is the thing of being aware. But the judgment of the consent itself, the significance, the effect, we all know that a normal person does not do these unless he or she contemplates it. Q I just do not know if I am correct, my interpretation about what you are saying is that physically they are doing that, meaning the organ of the accused was inserted into the organ of the patient allegedly but the girl did not resist, the girl did not comment whatsoever because she did not understand what is happening? COURT: No, she did not say that she did not understand what was happening, she can not discern. A Let me give you a little information. In the psychological state of mentally ill patients, the basic instinct of a person is very prominent. They respond, they eat and they can have sex, that is normal and they are just responding on the level of their basic instinct. When you are a mature person or a normal person and you have attained maturity and clearness of mind, you now, of course, try to put things into their proper perspective, socially and morally, that is where upbringing and education come in. I would say that the patient's case, she is more responding in an instinctual level without the use of intellect.xxxvi[34] Accused-appellant questions in this appeal the qualifications of Dr. Salangad as an expert witness. However, he cannot do this now as he did not raise any objection to Dr.

Salangad's qualifications in the trial court. On the contrary, he even cross-examined her on the matters on which she testified. In accordance with Rule 132, 36, objections not timely raised are deemed waived. The fact that Dr. Salangad was hired by the family of complainant to give expert testimony as a psychiatrist did not by that fact alone make her a biased witness and her testimony unworthy of consideration. As has been said: . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.xxxvi[35] It has not been shown in this case that the trial court abused its discretion in appreciating the testimony of Dr. Salangad so as to justify setting aside its findings. Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides: ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. (1) (2) (3) By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; and When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. .... To warrant a conviction for rape under paragraph (2) of Art. 335, a woman need not be proven as completely insane or deprived of reason. The phrase "deprived of reason" has been construed to include those suffering from mental abnormality or deficiency or

some form of mental retardation, those who are feebleminded although coherent.xxxvi[36] That the complainant was suffering from schizophrenia at the time of the rape is shown by the fact that she was in the clinic precisely because of such illness and by her behavior at the trial, during which she would smile for no reason at all while answering the questions. Though she may not have totally lost her memory, it was shown that she was suffering from an impairment of judgment, which made her incapable of giving, an intelligent consent to the sexual act. It has been held that where the rape victim is feeble-minded, the force required by the statute is the sexual act itself.xxxvi[37] Even assuming then that the complainant consented to have sexual intercourse with accused-appellant, the copulation would fall under the third paragraph of Art. 335 of the Revised Penal Code in view of the fact that complainant was mentally ill. Sexual intercourse with an insane, deranged, or mentally deficient, feebleminded, or idiotic woman is rape, pure and simple.xxxvi[38] At any rate, complainant said in her sworn statement that she was afraid of accusedappellant because of the nature of his job as a nurse-aid. Thus she stated: 28. Tanong : Ikaw ba ay natatakot kay Eric? Sagot : Kaunti lang, dahil sa trabaho niya.xxxvi[39] As Dr. Salangad explained: ATTY. SALATANDRE: . Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay tinakot o sinaktan ni Eric? S - Hindi naman po." This is her own answer, nobody threatened her at that time? A Yes, sir, but may I add. There was no direct threat but in her situation she was brought there for confinement and treatment and for safekeeping. She is in a situation wherein the attendants and the nurses are all authorities around her, who dictate what to do. I believe that there was some kind of threat or force in that level, although there was no direct threat in the action. COURT: Q In the mind of Nieva Garcia, who were those that might be threatening to her?

A The accused somehow had made the threat. Because in their daily activity, the attendants and nurses dictate the things to do, they follow, they are bosses in the clinic, they are in that kind of situation always, Your Honor. Q That explains your presence during the investigation?

A To assist her in order that she is not afraid and in response to earlier question of counsel if the patient was directly threatened or intimidated during the act, I am giving you a general situation in an institution, in this kind of institution. Sometimes they are restrained if they go out of line, they are ones who restrain them, the attendants and the nurses do these, Your Honor.xxxvi[40] As already stated, accused-appellant invoked alibi in his defense. He claimed that, at the time of the incident, he was in his quarters at the Holy Spirit Clinic sleeping. For the defense of alibi to be believed, the following requisites must be met: (a) his presence at another place at the time of the perpetration of the offense must be proven; and (b) it was physically impossible for him to be at the scene of the crime.xxxvi[41] Accused-appellant's testimony itself demonstrates the untenability of his alibi. First, his declaration that he was in another room of the clinic is uncorroborated. Second, the room in which he said he was sleeping at that time of the incident was only a few meters away from the patients' room where complainant was confined. Third, he admitted that, as a nurse-aide, he was allowed to enter the patients' room anytime for purposes of checking on the patients. Above all, his alibi cannot be given credence because complainant has pointed to him as the culprit of the rape. In cases in which the accused-appellant was identified by the victim herself who harbored no ill motive against him, the defense of alibi was rejected.xxxvi[42] The trial court correctly awarded moral damages in the amount of P50,000.00, in accordance with our recent rulings that moral damages may be awarded in rape cases without any need of proof of moral suffering. However, in addition, civil indemnity in the amount of P50,000.00 should have been awarded the complainant consistent with the ruling that rape victims are entitled to such an award without need of proof except the fact of the commission of the offense.xxxvi[43] On the other hand, the plea of the prosecution that the indemnity should be raised to P75,000.00 cannot be granted because such amount is awarded only in cases of qualified rape. In this case, there were no qualifying circumstances raising the penalty to death.xxxvi[44] WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon City is AFFIRMED with the modification that, in addition to the award of P50,000.00 for moral damages made by the trial court, complainant should be indemnified in the amount of P50,000.00. SO ORDERED.

Quisumbing, Buena, and De Leon, Jr., JJ., concur. Bellosillo, J., (Chairman), on leave.

SECOND DIVISION [G.R. No. 136113. August 23, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIE QUIBIDO, RUEL QUIBIDO, and JOHN DOE, (All At Large)

RODOLFO MONTEMAYOR ALIAS DOLFO, accused appellant.

DECISION DE LEON, JR., J.: Before us on appeal is the Decisionxxxvi[1] of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40, in Criminal Case No. C-3971, convicting herein appellant, Rodolfo Montemayor, and his co-accused, Ruel Quibido, of the crime of robbery with homicide. The lifeless body of Sofio Verguela was discovered inside his house in Bagong Silang, Victoria, Oriental Mindoro, lying face down on the floor in a pool of blood, in the early morning of February 16, 1993. His head was bashed with a blunt instrument fracturing the skull and exposing parts of his brain tissues. It was also discovered that one (1) blanket, one (1) radio and a wallet containing undetermined amount of money, all belonging to the victim, were missing.xxxvi[2] On February 24, 1993, Luciano M. Vergara and Pedrito B. de Lara executed separate sworn statements before PO3 Herbert Tabernero of the Victoria, Oriental Mindoro police. Vergara stated in his sworn statement that he saw Willie Quibido, Jr., Ruel Quibido, a certain alias Dolfo, and another unidentified person, acting suspiciously while in the act of coming out of the house of the victim, at about the same time the killing incident happened at 9:00 oclock in the evening on February 15, 1993. On the other hand, de Lara was able to recognize from the group Willie Quibido, Jr. only.xxxvi[3] Consequently, the accused Willie Quibido, Jr., Ruel Quibido, a John Doe and a Peter

Doe were charged with the crime of robbery with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code, in an information that reads: That on or about the 15th day of February 1993, at around 9:00 oclock in the evening, in Barangay Bagong Silang, Municipality of Victoria, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, taking advantage of the darkness of the night, with evident premeditation and by means of violence, did then and there wilfully, unlawfully and feloniously enter the house of SOFIO VERGUELA also known as SOFIO VERGUERA and once inside, wilfully, unlawfully and feloniously, with the use of violence, with intent to gain and against the will and consent of the owner thereof, took and carried away one (1) radio, one (1) blanket, one (1) wallet and undetermined amount of money all belonging to the latter, to the damage and prejudice of the said owner in the value of properties aforementioned; That on the occasion of said robbery and for the purpose of enabling them to take, steal and carry away the properties above-mentioned, the herein accused, in pursuance of their conspiracy and taking advantage of their superior strength, did then and there wilfully, unlawfully, feloniously and treacherously, with intent to kill and evident premeditation, attack, assault and hit on the head with a hard object the said SOFIO VERGUELA also known as SOFIO VERGUERA, thereby inflicting on the latter severe brain injury due to skull fracture resulting in his untimely death. CONTRARY TO LAW. Willie Quibido, Jr. was never apprehended and remains at large up to the present. Herein appellant Rodolfo Montemayor who was initially denominated as John Doe in the information in this case, and his co-accused, Ruel Quibido, were arrested on August 29, 1994 and September 5, 1994, respectively. Upon being arraigned on September 28, 1994, Rodolfo Montemayor, alias Dolfo, and Ruel Quibido, xxxvi[4] both assisted by counsel de oficio, separately entered the plea of Not guilty. Meanwhile, Emil Berganio was arrested by the police on November 11, 1994. After having agreed to testify in favor of the prosecution, Berganios name was not included in the information as one of the accused in this case. On the same date of his arrest, his sworn statementxxxvi[5] was taken and which he subscribed and sworn to before Oriental Mindoro Chief Assistant Provincial Prosecutor Nicolas B. Senoren. The evidence of the prosecution shows that on February 15, 1993 at around 5:00 oclock in the afternoon the appellant, Rodolfo Montemayor alias Dolfo, and a certain Bokno invited Emil Berganio, a barrio mate in Barangay Antonino, Victoria, Oriental Mindoro, to join them to go out of town in search for employment. Emil went with Dolfo and Bokno upon learning that they were supposed to leave early on the following morning after they shall have allegedly collected a debt, to be used for their fare to

Batangas, from a certain person in Barangay Bagong Silang, Victoria, Oriental Mindoro.xxxvi[6] While walking alongside the NIA irrigation canal, the trio met Boknos b rother, Ruel Quibido, and his wife at a waiting shed. The group then boarded a passenger jeepney that took them to the neighboring Barangay Macatoc. From Barangay Macatoc, they proceeded on foot to the nearby Barangay Bagong Silang.xxxvi[7] As planned earlier, Ruel, Bokno and Dolfo entered a two (2) storey house in Barangay Bagong Silang, Victoria, Oriental Mindoro at around 9:00 oclock in the evening. Emil remained outside the house presumably as look out, while Ruels wife was left outside the fence. From a distance of about three (3) arms length, Emil saw Ruel through the light emanating from a gas lamp inside the house, demanded money from an old man, whose name Emil later learned as Sofio Verguela, while Dolfo was pointing his airgun at him. When the old man replied that he had no money, Ruel hit him on the head with the shotgun which he earlier carried inside a sack, and then Bokno stabbed him. After the old man fell on the floor, Ruel took his wallet, while the others took his radio, before they hurriedly left for Poblacion, Victoria, Oriental Mindoro.xxxvi[8] After a few hours, the group rode the bus at the public market in Victoria, Oriental Mindoro en route to Calapan City. Upon reaching Calapan City, they dropped by the house of Ruel Quibidos mother for a few minutes before they boarded the boat at the pier bound for Batangas. They stayed in the house of Ruel Quibidos parents -in-law in Nasugbu, Batangas for more than one (1) month. Subsequently, they moved to Metro Manila in the house of Ruel Quibidos uncle in Quezon City where they stayed for more than two (2) months after which Emil decided to return home in Victoria, Oriental Mindoro ahead of his companions.xxxvi[9] Emil disclosed to the police his knowledge involving the killing of Sofio Verguela when he was arrested on November 11, 1994, upon the advice of his father, after he was assured by the police of immunity from the instant criminal case.xxxvi[10] Dr. Ruben A. Quimosing, M.D., Municipal Health Officer of Victoria, oriental, Mindoro during the time material to the instant case, conducted the post mortem examination on the body of the victim, Sofio Verguela. The autopsy report dated February 16, 1993 and signed by Dr. Ruben A. Quimosing shows the following findings: Skull, open Brain tissue, avulsed, with laceration Cause of death: Severe brain injury due to skull fracture.xxxvi[11] Dr. Quimosing testified in court that the single blow sustained by the victim on the frontal left portion of his head which fractured the skull caused severe brain injury that inevitably resulted to his instantaneous death. The blow may have been inflicted with

the use of any hard object while the victim and the assailant were facing each other.xxxvi[12] The defense denied any liability for the crime of robbery with homicide. Apellant Rodolfo Montemayor testified that on February 15, 1993 and during the period prior thereto, he shared a house with his brother, Randy Montemayor, in Barangay Loyal, Victoria, Oriental Mondoro which is about twenty (20) kilometers of mountainous terrain from Barangay Bagong Silang of the same town. From Barangay Loyal, one had to pass by the town proper in order to reach, in two (2) hours, Barangay Bagong Silang with the use of a motor vehicle. If a person were to travel on foot, the distance between the two (2) barangays can be covered in about five (5) hours.xxxvi[13] On February 15, 1993, at around 9:00 o'clock in the evening, Rodolfo played "dama" in the house of his neighbor, Benjamin Grimaldo. He went home to sleep only after 10:00 o'clock in the evening.xxxvi[14] The appellant denied using the alias name "Dolfo".xxxvi[15] He likewise denied that he knew Willie Quibido, Jr. and Ruel Quibido on February 15, 1993. Rodolfo heard of their names through their sister, Rowena Quibido, whom he met in Minas, Victoria, Oriental Mindoro only on May 4, 1993, and who became his common-law wife on May 31, 1993.xxxvi[16] On August 26, 1994, at 9:00 o'clock in the morning, Rowena and Rodolfo visited the house of the former's parents in Danggari, Victoria, Oriental Mindoro. Willie Quibido, Sr. and his wife, Rosita, including their sons, Jojo and Ruel Quibido, were present on the said occasion. At around 9:00 o'clock in the evening, a police team headed by a certain Magnayon raided the house of Willie Quibido, Sr. The police failed to arrest Willie Quibido, Sr. and his sons, Jojo and Ruel, for the reason that they had left earlier toward the forest at around 8:00 o'clock in the evening. Rodolfo and Rosita denied to the police having any knowledge on the whereabouts of Willie Quibido, Sr. and his sons,xxxvi[17] namely, accused Willie Quibido, Jr. and Ruel Quibido. After the police had departed, appellant Rodolfo Montemayor and Rowena took Rosita to a relative in Poblacion, Victoria, Oriental Mindoro inasmuch as she needed to take medicine. On August 27, 1994, the three (3) proceeded to Barangay Loyal, Victoria, Oriental Mindoro. However, a person carrying a letter arrived and invited them to the police detachment for investigation. Upon arrival at the police detachment in Malayas, Victoria, Oriental Mindoro, the appellant was asked by Magnayon, who earlier headed the team that raided the house of Willie Quibido, where they could possibly find Willie Quibido and his sons Jojo and Ruel. When he answered in the negative, Magnayon warned that he (appellant) may be implicated in the crime.xxxvi[18] On August 28, 1994, at around 3:00 o'clock in the afternoon, a certain Diego and Emil Berganio arrived at the Malayas police detachment. Magnayon introduced the appellant,, as the "son-in-law of Willie Quibido, Sr. and brother-in-law of Ruel Quibido",

before Diego and Emil had a conversation with Magnayon inside the latter's office.xxxvi[19] Thereafter, the appellant was brought to the PNP headquarters in Calapan City, Oriental Mindoro. Incidentally, after learning from a neighbor on February 16, 1993 of the death of Sofio Verguela, defense witness Pedrito B. de Lara went to see Sonny de Ocampo, who is the late Verguela's son-in-law, to inform him of what he saw on the evening of February 15, 1993 when the victim was purportedly killed. Pedrito related to Sonny that he met Willie Quibido, Jr. and Ruel Quibido together with two (2) other persons on February 15, 1993 at around 9:00 o'clock in the evening along the road in Barangay Bagong Silang, Victoria, Oriental Mindoro which was about fifty (50) meters away from the house of his father-in-law. He was on his way home after watching television in the house of his uncle while Willie Quibido, Jr., Ruel Quibido together with two (2) other persons were heading towards the opposite direction. He inquired where they were going (Saan ang lakad n'yo?) but nobody answered from the group inasmuch as they were walking hurriedly. Pedrito did not know the two (2) other companions of Willie Quibido, Jr. and Ruel Quibido although he saw their faces when he focussed his flashlight on them. He declared on the witness stand that appellant Rodolfo Montemayor was not one of the companions of the Quibido brothers.xxxvi[20] In addition, Pedrito recalled that four (4) days prior to the killing of Sofio Verguela, Willie Quibido, Jr. invited him to join in robbing the store of a certain Angeles Vergara whose house was located directly across the house of the victim in Barangay Bagong Silang. Pedrito refused. He did not report the incident to the police authorities however, for the reason that he did not wish to offend Willie Quibido, Jr. who was a childhood friend.xxxvi[21] After analyzing the evidence, the trial court found as follows: It is clear from the testimony of prosecution witness Emil Berganio that he was certain that said accused Rodolfo Montemayor alias "Dolfo" poked an airgun at the victim, while accused Ruel Quibido demanded money, and when the victim replied to have no money, Ruel Quibido hit the victim with a shotgun while accused only named "Bokno" stabbed him. In the face of the foregoing clear and positive identification of accused Rodolfo Montemayor, alias "Dolfo" as one of those who robbed and killed Sofio Verguela, his defense of alibi clearly appears nothing but a mere concoction - a fabrication designed to exculpate him of the crime charged. It is also striking to note that the defense did not even present in Court Benjamin Grimaldo to corroborate the testimonies given by accused Rodolfo Montermayor that the latter was playing "dama" with the former when the incident happened. This cast a grave doubt as to the veracity and truthfulness of the testimonies given by accused Rodolfo Montemayor.

xxx the Court is more inclined to believe the testimonies given by prosecution witness Emil Berganio, whose veracity can hardly be assailed and had narrated in detail the facts of hove the crime was committed. Said witness was able to clearly identify the accused Ruel Quibido, Willie Quibido (Jr.) and Rodolfo Montemayor alias "Dolfo" as the perpetrators of the crime charged. From the clear evidence presented by the prosecution, accused Ruel Quibido did not put up a defense; instead, he opted to escape from detention. His escape even during the pendency of the case, is therefore a clear indication of his guilt, Hence, it ruled thus: ACCORDINGLY, finding herein accused RUEL QUIBIDO and RODOLFO MONTEMAYOR alias "Dolfo" guilty beyond reasonable doubt of the complex crime of "Robbery with Homicide" punishable under Article 294(1) of the Revised Penal Code, and there being no mitigating nor aggravating circumstance present in this case, said accused are hereby sentenced to suffer the penalty of "RECLUSION PERPETUA" with all the accessory penalties provided by law, and to indemnify the heirs of the victim Sofio Verguela the amount of Fifty Thousand Pesos (P50,000.00) as moral and exemplary damages and to pay the costs. Appellant Rodolfo Montemayor interposed the following assignment of errors: I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE DESPITE INSUFFICIENCY OF EVIDENCE. II THE COURT A QUO GRAVELY ERRED GIVING FULL WEIGHT AND CREDENCE TO THE INCREDIBLE TESTIMONY OF EMIL BERGANIO AND IN NOT APPRECIATING THE DEFENSE INTERPOSED BY THE ACCUSED APPELLANT. The trial court accorded full faith and credence to the testimony of the lone prosecution witness, Emil Berganio. On the other hand, appellant Rodolfo Montemayor contends in his appeal 1) that the execution of Emil Berganio's sworn statement after his arrest on November 11, 1994 cast serious doubt on his credibility; 2) that the physical evidence on record contradicts the testimony of Emil Berganio on material points; 3) that Berganio's testimony is highly incredible inasmuch as it contradicts human experience; and 4) that defense witness Pedrito de Lara categorically stated that the appellant was not one of the two companions of Willie Quibido, Jr. and Ruel Quibido in the evening of February 15, 1993.xxxvi[22] Consequently, the fate of the instant appeal rests on the determination of the credibility of prosecution witness Emil Berganio.

It is a well-settled rule that testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must foremost be credible in itself.xxxvi[23] The test to determine the value or credibility of testimony of a witness is whether or not such is in conformity with common knowledge and consistent with the experience of mankind.xxxvi[24] Prosecution witness Emil Berganio confessed that he was in the company of herein appellant Rodolfo Montemayor alias Dolfo, Willie Quibido, Jr. and Ruel Quibido when they robbed and killed Sofio Verguela inside his house. in Bagong Silang, Victoria, Oriental Mindoro in the evening of February 15, 1993. However, the fact that he may have been a co-conspirator in the commission of the offense is not in itself sufficient to dilute the credibility of, much less a ground to disregard altogether, his testimony. The general rule is that the testimony of a co-conspirator is not sufficient for conviction unless supported by other evidence. The reason is that it comes from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is likely to put the blame as far as possible on others rather than himself.xxxvi[25] By way of exception, the testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a straightforward manner, and is full of details which by their nature could not have been the result of deliberate afterthought.xxxvi[26] Admittedly, Emil Berganio agreed to testify for the prosecution upon advice of his father after having been assured of immunity from the instant criminal complaint by the prosecution. True to his undertaking, Emil narrated during the trial in a candid and straightforward manner, a detailed account of the facts and circumstances before, during and after the commission of the crime, subject of the instant criminal case. In the course of his testimony, Emil clearly and positively identified in court the accused Ruel Quibido and herein appellant, Rodolfo Montemayor, as among the persons who robbed and killed Sofio Verguela.xxxvi[27] He was consistent in his testimony and did not waver even during the extensive and rigorous cross-examination of the defense counsel, thus giving the Court a clear impression that he was sincere and credible. The trial court correctly rejected the defense of alibi of the appellant for the reason that he was positively identified by prosecution eyewitness Emil Berganio who does not appear to have any motive against him to fabricate evidence.xxxvi[28] Also, the distance of the alleged whereabouts of the appellant in relation to the scene of the crime does not preclude any doubt on the physical impossibility of his presence at the locus criminis or its immediate vicinity at the time of its commission.xxxvi[29] Hence, it has been established beyond reasonable doubt by the evidence on record that herein appellant Rodolfo Montemayor and his co-accused, Ruel Quibido and a certain Bokno, together with prosecution witness Emil Berganio went to Barangay Bagong

Silang, Victoria, Oriental Mindoro in the late afternoon of February 15, 1993. Upon arrival thereat at 9:00 o'clock in the evening, Rodolfo, Ruel and Bokno entered the house of Sofio Verguela as earlier planned. Emil remained outside the house presumably to act as a look out. Ruel demanded money from Sofio while Rodolfo was pointing his airgun at him. Subsequently, Ruel hit Sofio's head with a shotgun when the latter who was an old man refused, stating that he had no money. They then divested Sofio of his wallet and radio before heading for the Victoria Public Market in Victoria, Oriental Mindoro en route to Calapan City. The group stayed for more than one (1) month in Nasugbu, Batangas before moving to Quezon City, Metro Manila. After more than two (2) months, Emil returned to Victoria, Oriental Mindoro where he was arrested by the police on November 11, 1994. Appellant Rodolfo Mantemayor contends that Emil Berganio could not have possibly witnessed the killing on February 15, 1993 of Sofio Verguela, whose lifeless body was found by the police Inside his room on the following day, inasmuch as according to Berganio, he remained outside the house. Appellant also contends that contrary to the testimony of Berganio to the effect that Bokno stabbed Sofio Verguela, the autopsy report dated February 16, 1993, did not reflect a finding of any stab wound on the body of the said victim. The above contentions of appellant are inadequate to overturn the established fact that Emil Berganio was in the company of the appellant and his co-accused in Barangay Bagong Silang, Victoria, Oriental Mindoro in the evening of February 15, 1993 when they robbed and killed Sofio Verguela inside his house. While Emil remained outside the house presumably to serve as a look out, his relative position was merely three (3) arms length away from the scene of the crime. Considering the proximity of his location and the illumination emanating from a gas lamp inside the house, it was not impossible for him to see the crime that was then unfolding. Likewise, the apparent discrepancy between the testimony of Emil Berganio that Bokno stabbed Sofio and the negative findings on the matter in the autopsy report is not sufficient to erode the credibility of his said testimony. Such misappreciation of Bokno's individual participation in the crime becomes immaterial in view of the fact that the prosecution witness has shown clearly and convincingly during the trial that he was aware of the violence that was being perpetrated by the appellant and his co-accused against Sofio Verguela in furtherance of their evil conspiracy. Emil testified in court that prior to the commission of the crime, Rodolfo and Ruel were respectively armed with an airgun and a shotgun. Rodolfo and his co-accused even discussed their planxxxvi[30] before entering the house of Sofio Verguela against the latter's will in Barangay Bagong Silang, Victoria, Oriental Mindoro. The appellant also contends that it was unlikely for Emil Berganio to have joined the appellant and Bokno, whom he admitted were not close acquaintances, after being invited to join them to go out of town allegedly to search for employment. This contention is bereft of merit for the reason that Bokno is a barrio matexxxvi[31] of Emil

in Barangay Antonino, Victoria, Oriental Mindoro; and that he personally knew Bokno's brother, Ruel Quibido, who is also one of the accused in the case at bench. That Emil erroneously referred to Ruel Quibido's wife as Rowena, when the said name allegedly refers to Quibido's sister, who is the appellant's common-law-wife, is quite a minor detail that has no adverse bearing on his credibility.xxxvi[32] Lastly, the testimony of defense witness Pedrito de Lara that herein appellant was not one of the two (2) companions of Willie Quibido, Jr. and Ruel Quibido appears doubtful or unreliable in view of the fact that it was dark when he met them by chance in the evening of February 15, 1995. According to him, he was able to focus his flashlight at them for about sixty (60) seconds only inasmuch as they were in a hurry and avoided any conversation with him. In fact, he only recognized Willie Quibido, Jr. and Ruel Quibidoxxxvi[33] whom he already knew from childhood. In view of the foregoing, the guilt of the appellant for the crime of robbery with homicide was established beyond reasonable doubt. Article 294 (1) of the Revised Penal Code provides: ART. 294. Any person guilty of robbery with the use of violence against or any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. Notably, the aggravating circumstances of treachery, nocturnity and dwelling attended the commission of the robbery and the killing of Sofio Verguela on the occasion thereof. Still, the proper imposable penalty is reclusion perpetua considering that at the time of the commission of the crime on February 15, 1993, the imposition of the death penalty was legally proscribed. WHEREFORE, the appealed Decision of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40, is AFFIRMED. The appellant, Rodolfo Montemayor, is hereby sentenced to suffer the penalty of reclusion perpetua and to pay to the heirs of the victim Soflo Verguela, the amount of P50,000.00 by way of civil indemnity ex delicto in addition to the amount of P50,000.00 as exemplary damages and to restore to the said heirs the stolen items belonging to the victim. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

EN BANC [G.R. No. 130590. October 18, 2000] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RANILLO PONCE HERMOSO alias ALLAN, accused-appellant. DECISION
Per Curiam:

For review is the decisionxxxvi[1] of the Regional Trial Court, Branch 19, Pagadian City, finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death with all the accessory penalties prescribed by law and to indemnify the heirs of the victim, Glery P. Geoca, in the amount of P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency. The amended informationxxxvi[2] against accused-appellant alleged That on June 2, 1996 at about 9:30 oclock in the evening at Barangay Little Baguio, Municipality of Imelda, Province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Glery Geoca, a minor, seven (7) years of age, against the latters will and on said occasion and by reason of the rape, the said Glery Geoca died as a result of personal violence inflicted upon her by the accused. Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. On September 11, 1996, accused-appellant, assisted by counsel, was arraigned during which the information was read to him in the Cebuano dialect which he confirmed to have understood. He then entered a plea of not guilty. He was informed by the trial court of the names of the five prosecution witnesses and their respective addresses. Then the case was tried. The prosecution presented six witnesses, namely, Josephine Gonzales, Naciansino Hermoso, Sonny Boy Altamera, Joveniano Pansacala, Ireneo Geoca, father of the victim, and Dr. Atilano A. Ocampos, Chief of Hospital I of the Alicia District Hospital in Alicia, Zamboanga del Sur. The prosecution also offered the following object and documentary evidence, to wit: the wallet (Exh. A) of accused-appellant containing his personal identification, such as Social Security System I.D. Card No. 0462677-7 (Exh. B), a photocopy of his SSS personal record (Exh. D), and

his Community Tax Certificate No. 18046043 (Exh. E); five sweepstakes tickets bearing No. 236458 with April 21, 1996 as draw date (Exh. C); a picture of Miss Limpac (Exh. F), niece of Naciansino Hermoso, with a dedication at the back of the picture reading Love, take care, good health, good luck, God Bless You; a small picture (Exh. G); another picture (Exh. H); a picture of accused-appellants younger sister (Exh. I) a picture of his younger brother named Benjie (Exh. J); a group picture (Exh. K); and two coins (Exh. L) - a P1.00 coin and a P0.10 coin; the birth certificate of the victim Glery P. Geoca (Exh. M, with sub-markings) showing her date of birth as September 12, 1988; and a Certification issued by Dr. Atilano A. Ocampos (Exh. N and its sub-markings) on the postmortem examination conducted on the victim. The prosecution evidence shows the following: At about 6:00 p.m. of June 2, 1996, Ireneo Geoca, father of the victim Glery P. Geoca, became worried as his daughter had not come home from the Little Baguio Elementary School in Imelda, Zamboanga del Sur where she was in Grade II. Ireneo Geoca sent his other daughter Girlie Geoca to look for the victim. When the victim failed to be home at 7:00 p.m., Ireneo Geoca sought the help of the barangay officials and his neighbors.xxxvi[3] In response, Barangay Captain Sonny Boy Altamera organized a search team composed of barangay tanods and other civilians. On their way to look for Glery, Altamera and his party met Josephine Gonzales who told them that she saw the victim in the company of accused-appellant at about 5:30 p.m. of that day as they passed by her house. The two were walking toward the house of one Helen Dabasol, according to the witness. Altamera was likewise informed by Lilia Bartido, who owned a nearby store, that she saw accused-appellant handing some candies to the victim at about 6:00 p.m. of that day.xxxvi[4] Altamera and his party, therefore, proceeded to the house of accused-appellant where he met Federico Hermoso, father of the accused-appellant. Altamera informed the elder Hermoso that Glery was missing and that she was last seen with his son. Altamera was allowed inside the house but he did not find accused-appellant. He later found accused-appellant under a tree, about 10 meters away from the house. Accused-appellant denied knowledge of the whereabouts of the missing girl. At about 9:30 a.m., with the consent of his family, accused-appellant was taken by Altamera to his house. Accused-appellant was accompanied by Federico Hermoso, Ernesto Pardillo, Jave Tamac, and some neighbors.xxxvi[5] At about 12:30 a.m. of June 3, 1996, Naciansino Hermoso and his group went to the house of Altamera bringing with them a mans wallet, which Naciansino said he found on a grassy area in Barangay Little Baguio. The wallet contained, among other things, accused-appellants SSS identification card, a photocopy of his SSS personal record, his Community Tax Certificate No. 18046043, five sweepstakes tickets, pictures of accused-appellants younger brother and sister, and two coins.xxxvi[6] Naciansino turned over the wallet and its contents to Barangay Captain Altamera. Upon seeing his wallet, accused-appellant admitted raping and killing Glery P. Geoca and pointed out the place where the body of the victim could be found, which is about 200 meters away from where the wallet was discovered. A team led by Joveniano Pansacala found the body of the victim at about 1:00 a.m. of that day. The body showed signs that Glery had been subjected to violence and raped.

Accused-appellant was thereafter turned over to the police. In the meantime, upon instructions of the mayor, the body of the victim was examined.xxxvi[7] Per her Certificate of Death,xxxvi[8] the cause of Glery P. Geocas death was cardio-respiratory failure, the antecedent cause was rape and the underlying cause was asphyxia by strangulation. Dr. Atilano A. Ocampos, who conducted an autopsy on the body on June 3, 1996, found the following: = Multiple punctuate hematoma temporal right, abrasions inner canthi, bilateral; hematoma 8 inches in length, 1 inch in width, semi-circular, temporo-frontal area, face left, extending to the zygomztic area; multiple abrasions of buccal mucosa upper and lower lips = Multiple abrasions 1x1 in diameter, average, neck = Circular hematoma 2x3 in diameter, bilateral, mammary glands = Massive hematoma 3x3 in diameter, circular, lateral arm left; linear abrasions multiple, forearm right = Abrasion 1 centimeter diameter 5th finger, left, dorsum = Multiple abrasion lateral and medial aspect upper extending right = Hematoma massive vulva and mons pubis = Hematoma moderate 2 in number anterior thigh, right = Hematoma 1x 1 in diameter middle anterior shin, left = Linear abrasion 1 inch postero-lateral, level of the 10th posterior rib = Linear abrasion 6 inches in length running oblique lumbo-sacral area, posterior =Massive hematoma 4 inches in diameter level of the 10th thoracic vertebrae =Hematoma labia minora right upper quadrant = Laceration, entroitus, ruptured hymen = Hematoma cervix left, laceration vaginal canal rightxxxvi[9] Dr. Ocampos testified that the body was in a state of rigor mortis when he examined it. The victim sustained contusions and multiple hematoma and was thereafter choked to death. He opined that the hymenal laceration could have been caused by pressure or trauma such as sexual intercourse.xxxvi[10]

After the prosecution had offered its testimonial and documentary evidence, accused-appellant filed a demurrer to which the prosecution filed a reply. On January 9, 1997, the trial court denied accused-appellants demurrer to evidence for lack of merit. On March 17, 1997, the defense manifested in open court that accused-appellant was changing his plea from not guilty to guilty. Defense counsel Atty. Pablito Pielago, Jr. informed the trial court that he had prepared for trial but accused-appellant insisted on changing his plea even after being told of the consequences of pleading guilty to the charge, including the probability that he would be sentenced to death should he be found guilty. Accordingly, the trial court issued an order on the same day stating: When the above-entitled case was called for continuation of trial for the purpose of presenting evidence of accused Ranillo Ponce Hermoso alias Allan, Prosecutor Edilberto Absin appeared for the state in collaboration with private prosecutor Atty. Marcial Empleo, while Atty. Pablito Pielago, Jr., appeared as counsel de oficio for the accused. In open court, Atty. Pablito Pielago, Jr., Manifested that the accused has intimated to him on his desire to change his plea of Not Guilty to one of GUILTY. When asked by the Court whether he has explained to the accused of the seriousness of the crime he is charged, Atty. Pablito Pielago, Jr., confirmed to the Court that he has explained in detail to the accused on the seriousness of the charge he is facing, but he still insisted on his desire to admit his guilt. In fact, according to Atty. Pielago, he went to the extent of telling the accused that it is possible that the Court may render the penalty of death, but accused insisted on his desire to change his plea of Not Guilty to one of Guilty. With such manifestation of Atty. Pielago, the Court called on the accused and asked him through the interpreter in Cebuano dialect, which he confirmed to have known and understood, on his desire to change his plea of Not Guilty to one of Guilty, and in open court, in the presence of his counsel, the public prosecutor and the private prosecutor, accused voluntarily admitted his guilt of the charge filed against him in this case. WHEREFORE, with such desire of the accused to change his plea from Not Guilty to one of Guilty, let him be arraigned anew. SO ORDERED.xxxvi[11] The defense then informed the court that it was not presenting any evidence, for which reason the case was considered submitted for decision. On June 10, 1997, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court hereby finds accused RANILO PONCE HERMOSO alias Allan guilty beyond reasonable doubt of the crime of RAPE WITH HOMICIDE, and sentences him to the ultimate penalty of DEATH, with all the accessory penalties prescribed by law, and orders him to pay the heirs of Glery Geoca the sum of P500,000.00 as actual damages, P750,000.00 as moral damages and P500,000.00 as exemplary damages without subsidiary imprisonment in case of insolvency.

No pronouncement as to costs. SO ORDERED.xxxvi[12] Pursuant to Rule 122, section 10 of the Rules on Criminal Procedure, the case was elevated to this Court for automatic review in view of the imposition of the death penalty on accusedappellant. Accused-appellant maintains that, based on the evidence of the prosecution, his guilt has not been shown beyond reasonable doubt. Reiterating the grounds for his demurrer to the evidence, he contends that while Josephine Gonzales said she saw the victim and accused-appellant and other children pass by her house as they went towards the house of her neighbor Helen Rabasol, there was no testimony showing that he was the perpetrator of the crime. Accused-appellant also denies the testimony of Naciansino Hermoso who claimed to have found the wallet belonging to accused-appellant while looking for Glery P. Geoca. Accused-appellant avers that the wallet does not constitute direct evidence to link him to the crime. Naciansino Hermoso and accusedappellants father are brothers. Accused-appellant claims that Naciansino had a grudge against accused-appellants father because the latter had been occupying and cultivating the agricultural land of their parents to the exclusion of Naciansino. Accused-appellant alleges that Naciansino sought revenge towards accused-appellants father by testifying against accused-appellant. Accused-appellant alleges that the testimonies of Joveniano Pansacala, Dr. Atilano A. Ocampos, and Ireneo Geoca are hearsay evidence and do not prove his guilt. He argues that his confession is inadmissible in evidence because it was given without counsel while he was under custodial investigation by Barangay Captain Sonny Boy Altamera. These contentions are without merit. To be sure, a perusal of the records show that the trial court accepted accused-appellants plea of guilty to a capital offense without making a searching inquiry to determine whether he understood the consequences of his plea. This is contrary to Rule 116, section 3 of the Rules on Criminal Procedure which makes it the duty of the court, when an accused pleads guilty to a capital offense, to undertake the following: (1) conduct a searching inquiry into the voluntariness of the plea and the accuseds comprehension of the consequences thereof; (2) require the prosecution to prove the guilt of the accused and the precise degree of his culpability; and (3) ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires.xxxvi[13] To constitute a searching inquiry, the questioning must focus on (1) the voluntariness of the plea, and (2) whether the accused understood fully the consequences of his plea.xxxvi[14] The judge must be convinced that in pleading guilty, the accused is truly guilty by requiring the accused to narrate the events leading to the crime, making him re-enact it, or asking him to supply missing details. In the present case, the records show that the trial court did not observe these safeguards to ensure that the plea of guilty is not improvidently made. There was no affidavit presented nor statement made in court to show why accused-appellant changed his plea from Not guilty to guilty. The records merely contain an order, dated March 17, 1997,xxxvi[15] allowing accused-

appellant to be arraigned anew, the Certificate of Arraignment, dated March 17, 1997,xxxvi[16] and the order, likewise dated March 17, 1997, making accused-appellants plea of guilt of record. This last order states: Accused Ranillo Ponce Hermoso alias Allan having manifested in court duly assisted by his counsel to change his plea of Not Guilty to one of Guilty, the Court arraigned him anew by reading the Information in Cebuano dialect, and in open court, duly assisted by Atty. Pablito Pielago, Jr., his counsel de oficio, accused entered the plea of Guilty, changing in effect his original plea of Not Guilty. WHEREFORE, in view of the foregoing, and the Court having been satisfied on the voluntariness of the change of plea of Guilty from one of Not Guilty by accused Ranillo Ponce Hermoso, consider the above-entitled case as deemed submitted for decision. SO ORDERED.xxxvi[17] In the case of People vs. Nadera,xxxvi[18] we explained the importance of the trial court conducting a searching inquiry, thus: The warnings given by the trial court in this case fall short of the requirement that it must make a searching inquiry to determine whether accused-appellant understood fully the import of his guilty plea. As has been said, a mere warning that the accused faces the supreme penalty of death is insufficient. (People v. Estomaca, 326 Phil. 429 (1996)). For more often than not, an accused pleads guilty upon bad advice or because he hopes for a lenient treatment or a lighter penalty. The trial judge must erase such mistaken impressions. (People v. Bello, G.R. Nos. 130411-14, October 13, 1999) He must be completely convinced that the guilty plea made by the accused was not made under duress or promise of reward. The judge must ask the accused the manner the latter was arrested or detained, and whether he was assisted by counsel during the custodial and preliminary investigations. In addition, the defense counsel should also be asked whether he conferred with the accused and completely explained to him the meaning and the consequences of a plea of guilt. Furthermore, since the age, educational attainment and socio-economic status of the accused may reveal insights for a proper verdict in the case, the trial court must ask questions concerning them. (People v. Estomaca, supra) In this case, absent any showing that these questions were put to accused-appellant, a searching inquiry cannot be said to have been undertaken by the trial court. However, although accused-appellants plea of guilty was improvidently made, there is no need to remand the case to the lower court for the reception of evidence in view of the fact that there exists other evidence on which accused-appellants conviction may be based. Independently of his plea, there is sufficient evidence showing that accused-appellant indeed committed the crime with which is charged. First. In the absence of eyewitnesses to the crime, a case of rape with homicide poses difficulty of proving by direct evidence the culpability of the accused because the victim can no longer testify. In such a case, the evidence necessarily must be circumstantial.xxxvi[19] Under Rule 133,

section 4 of the Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt.xxxvi[20] As has been said, facts and circumstances consistent with guilt and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.xxxvi[21] In this case, there is circumstantial evidence pointing to accused-appellant as the author of the crime of rape with homicide, to wit: 1. Accused-appellant was seen with the victim Glery P. Geoca by Josephine Gonzales and Lilia Bartido between 5:30 to 6:00 p.m. of June 2, 1996; 2. A wallet belonging to accused-appellant and containing the latters identification cards and other personal effects was found near the scene of the crime; 3. The body of the victim was found at about 1:00 a.m. of June 3, 1996 at the exact location pointed by accused-appellant; 4. The grass in the place where the accused-appellants wallet was found had been trampled upon as if there was a fight of pigs (maora ug gibugno-an ug baboy), suggesting that a struggle took place between the accused-appellant and the victim, as a result of which accused-appellant dropped his wallet; 5. The postmortem examination conducted by Dr. Atilano A. Ocampos at 6:30 p.m. of June 3, 1996 showed hematoma and abrasions on different parts of the victims body indicating that she had been strangled and lacerations on her hymen indicating that she had been sexually abused. Second. Accused-appellant confessed to Barangay Captain Sonny Boy Altamera that he had raped and killed the victim. Accused-appellant contends, however, that his confession before Barangay Captain Altamera is inadmissible. Article III, section 12 of the Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. The question in this case is whether the confession given to the barangay captain was made while accused-appellant was under custodial interrogation. It will be recalled that accused-appellant had been pointed to by Josephine Gonzales and Lilia Bartido as the person Glery P. Geoca was with shortly before the latter disappeared. Accordingly, the barangay captain and his men looked for him in his house and, when they did not find him there, they continued their search until they found him under a tree. When they finally found him, they interrogated him in his house and, failing to get anything from him, took him to the barangay captains house where they continued questioning him. There, Naciansino produced a mans wallet containing the personal effects of accused-appellant. At that point, accused-appellant broke down and confessed to the crime. The investigation had thus ceased to be a general exploratory investigation of an unsolved crime. It had begun to focus on the guilt of accused-appellant so much so that he was no longer allowed to leave. This case therefore comes within the purview of Article III, section 12, paragraph (1). It is distinguishable from cases in which we found the confession to have been given under circumstances not constituting custodial interrogation. In People vs. Andan,xxxvi[22] the confession of the accused which he gave to the municipal mayor was held to be admissible in evidence because it was shown that the mayor was a confidant of the accused and he did not act as a law enforcement officer when he heard the confession of the accused. We held that constitutional procedures on custodial investigation do not apply to a spontaneous statement not elicited through questioning by the authorities but given in an ordinary manner whereby the accused orally admit having committed the crime. In another case, People vs. Marra,xxxvi[23] the accused, a security guard of the Lindas IhawIhaw restaurant, was charged with murder. A policeman, who received a report of a shooting incident, proceeded to the scene of the crime together with three other officers. They found the accused in a restaurant. When they asked whether he was the security guard of the restaurant, he answered in the affirmative. After answering several questions, he told the policemen that he was the security guard pointed to by a witness; that his tour of duty was from 7:00 p.m. of the preceding day to 6:00 a.m. of the following day; that he was on duty at around 2:30 a.m. of March 7, 1992 when the victim was shot; and that the firearm issued to him was in his house. Upon the request of the policemen to see the firearm, he took them to his house and showed them a .38 caliber revolver which he took from inside an aparador. The revolver had five bullets and one spent shell. The policemen smelled gunpowder from the barrel of the gun. They asked accused when he last fired the gun but the latter denied he ever did so. Then a police investigator asked him point-blank why he shot the victim. At first the accused denied the accusation, but when told that someone saw him shoot the victim, he admitted having done so although he claimed he had acted in self-defense. In that case, we ruled that the confession made by the accused was admissible because the inquiry had not yet reached a stage wherein the police considered the accused as a particular

suspect. The police were just looking into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guards uniform. The case at bar is a far cry from these cases. As accused-appellants confession was made without the assistance of counsel, we hold that it is inadmissible in evidence under Article III, section 12, paragraphs (1) and (3) of the Constitution. However, it appears that the defense failed to object, as required by Rule 132, section 36, immediately when Altamera was presented as a witness for the prosecution or when specific questions concerning the confession were asked. Having failed to do so, accused-appellant is deemed to have waived his right to object to the inadmissibility of Altameras testimony. It is noteworthy that accused-appellants confession is corroborated by the corpus delicti. He in fact was even the one who informed the search team of the exact location where the body of the victim could be found. It is not necessary that an eyewitness should testify on having seen the accused committing the crime or seeing him under circumstances indicating that he committed the crime in order to hold the accused liable under his own confession.xxxvi[24] Third. Nor was it shown that the prosecution witnesses, particularly Barangay Captain Altamera and his men, had any ill motive to testify falsely against accused-appellant. In fact, the father of accused-appellant was the kumpadre of Altamera.xxxvi[25] Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.xxxvi[26] The trial judges evaluation of the testimony of witnesses is generally accorded not only the highest degree of respect but also finality, unless some circumstances of weight and substance, which could change the result of the case, have been ignored or misunderstood. As the trial judge had the opportunity to observe the witness on the stand, he was in a vantage position to assess his demeanor and determine whether or not he was telling the truth.xxxvi[27] Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides that, when by reason or on the occasion of the rape of a woman under 12 years of age, a homicide is committed, the penalty shall be death. Being a single indivisible penalty an the only penalty prescribed by law for the crime of rape with homicide, the Court is constrained to apply the same regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime in accordance with Article 63 of the Revised Penal Code. Four (4) Members of the Court, although maintaining their adherence to the separate opinions in People vs. Echegarayxxxvi[28] that R.A. No. 7659, insofar as it prescribed the penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. With respect to the civil liability of accused-appellant, the trial court awarded the heirs of the victim P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency.

These awards are excessive. In accordance with our current rulings,xxxvi[29] the indemnity for the death of the victim Glery P. Geoca should be P100,000.00. On the other hand, the award of P750,000.00 as moral damages must be reduced to P50,000.00, also in line with recent cases.xxxvi[30] Moral damages are awarded to the heirs of the victim in a criminal proceeding by reason of the death of the victim as a consequence of the rape without the need for pleading or proving the basis thereof. The purpose of the award is not to enrich the heirs of the victim but to compensate them for the injuries to their feelings. Finally, the award of P500,000.00 for exemplary damages must be disallowed, there being no aggravating circumstances which attended the commission of the crime.xxxvi[31] WHEREFORE, the decision of the Regional Trial Court, Branch 19, Pagadian City finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the MODIFICATION that accused-appellant is ordered to indemnify the heirs of the victim Glery P. Geoca in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. In accordance with Section 25 of R.A. No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

FIRST DIVISION
[G.R. No. 124391. July 5, 2000]

PEOPLE of the PHILIPPINES, plaintiff-appellee, vs. ELMER YPARRAGUIRE y SEPE, accused-appellant. DECISION
YNARES-SANTIAGO, J.: After his indictmentxxxvi[1] and trial, accused-appellant appeals from his conviction for the crime of rape of a mental retardate. xxxvi[2]Pursuant to Republic Act No. 8353, the AntiRape Law of 1997, rape is a crime against person which may be prosecuted de oficio.

However, considering that the alleged rape was committed in 1994, which was prior to the effectivity of R.A. 8353, we apply the old law and treat rape as a private crime. The facts as narrated by the trial court are: "On March 24, 1994, at about 11:00 oclock in the evening, while complainant Charmelita D. Ruina, an invalid and mentally retarded, was on her bed at the store of her mother at the Public Market at Carrascal, Surigao del Sur, where she and her mother lived, accused Elmer Yparraguirre alias "Lalo" entered her room, the door of which was not locked because her mother went to the store of her elder sister. Upon getting inside, he undressed himself and approached the Complainant who was apparently awake. He caressed her and sucked her breasts. She shouted for help but nobody came to rescue her, perhaps because it was late already in the evening and her voice was not loud enough to be heard at the distance as, in fact, it could be heard at only about three to five meters away x x x. Accused told her to keep quiet and when she put up some limpy resistance, he boxed her. He then removed her panty went on top of her and inserted his manhood into her most private part. She felt pain. After raping her, he left her room. Soon her mother, Sanselas Leongas Ruina, arrived. She reported to her the incident. The following morning, accused went back to the store and apologized for what he did and promised not to do it again. But his plea would not mollify Sanselas. She took the complainant to the Madrid (Surigao del Sur) District Hospital for physical examination. Dr. Carlo P. Altrecha recorded the following findings in the Medical Certificate that he issued on March 26, 1994: POLIO MYELITIS-MENTALLY RETARDED PPE: n ABRASION, AT THE LEVEL OF THE MID-CLAVICULAR AREA, BOTH, LEFT AND RIGHT. n CONTUSION, BOTH BREAST, LEFT AND RIGHT. n CONTUSION, AT THE LEVEL OF THE 8TH THORACIC RIB, ME-AXILLARY LINE, RIGHT. GENITALIA: n LABIA MAJORA: NO CONGESTION, NO HEMATOMA. n LABIA MINORA: CONGESTED, SLIGHT SWOLLEN. n VAGINAL ORIPICE: CONGESTED, SLIGHT SWOLLEN HYMEN NOT INTACT. n VAGINAL SMEAR FOR THE PRESENCE OF SPERMATOZOA: NO SPERMATOZOA SEEN."xxxvi[3]

Appellant did not testify in court but instead relied on the lone testimony of his father, who alleged that the complaint for rape was filed as a result of a "misunderstanding" between appellant and the mother of the victim. In this appeal, the basic issue raised by appellant is that the trial court never acquired jurisdiction over the case because the complaint was signed and filed by the chief of police and not by the complainant. Appellants contention has no merit. Section 5, Rule 110 of the Rules on Criminal Procedure provides in part: "The offense of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. In case the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses, independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to the parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the immediately preceding paragraph." Pursuant to the afore-quoted provision, the offended party can initiate a prosecution for rape even if she is a minor, unless she is incompetent or incapable of doing so upon grounds other than her minority. Although the victim in this case is no longer a minor, it is undisputed that she is a mental retardate and suffering from physical deformity. No woman would come out in the open, inform the authorities of the injustice done to her, make a statement of what had happened unless her purpose is to redress the wrong done against her honor. Once the violation of the law becomes known through a direct original participation initiated by the victim, the requirements of Article 344 of the Revised Penal Code (RPC), to the effect that the offense of rape "shall not be prosecuted except upon a complaint filed by the offended party or her parents," are satisfied. Said provision is not determinative of the jurisdiction of courts over the private offenses because the same is governed by the Judiciary law, not the Revised Penal Code which deals with the definition of felonies and their punishment. Stated differently, the complaint required in Article 344 is but a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. Such condition was imposed out of consideration for the offended woman and her family who might prefer to

suffer the outrage in silence rather than go through with the scandal of a public trial.xxxvi[4] The complaint simply starts the prosecutory proceeding but does not confer jurisdiction on the court to try the casexxxvi[5] because the overriding consideration in determining whether the condition precedent in Article 344 has been complied with is the intent of the aggrieved party to seek judicial redress for the affront committed.xxxvi[6] Article 344 was not enacted for the specific purpose of benefitting the accused. When it is said that the requirement in Article 344 (that there should be a complaint of the offended party or her relatives) is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction in the court to try the case. The courts jurisdiction is vested in it by the Judiciary Law.xxxvi[7] Going now to the merits of the case, the gravamen of the crime of rape is the sexual congress of a woman by force and without consent.xxxvi[8] These elements have been proven beyond reasonable doubt to concur in this case. The evidence shows that appellant boxed the victim in the neck and slapped her on the face while she was alone and lying in bed on that fateful night. When she shouted for help, appellant told her to keep quiet. Appellant then began sucking her breasts and her vagina. Then he removed her panty and forcibly had sexual intercourse with the mentally retarded victim causing pain in her private part. Her testimony in the oral deposition confirms the statements she made in the vernacular in her affidavit earlier executed. Thus, P Unsa may imong guibuhat paghikita nimo niadtong tawo nga miduol kanimo. T Misinggit ako. P Unsay guibuhat niadtong tawo sa imong pagsinggit? T Iyang guitampa ang akong baba, dayon mipatong siya kanako. P Unsay sunod nga guibuhat niadtong tawo sa dihang mipatong na siya kanimo? T Iyang guidun-an ang akong tiyan, apan kay mikisikisi man ako iyang guisumbag ang akong kilid dayon guihubo ang akong baro ug guisunod usab dayon ang akong pante. P Unsay sunod nga guibuhat niadtong tawo kanimo sa tapos niya paghubo sa imong baro ug imong pante? T Iya akong gui-iyot senyor.

P Unsay imong guibuhat sa dihang guiiyot sa tawo? T Misinggit ako senyor apan guipagngan ang akong baba busa mikisikisi ako apan guisumbag na usab ug maoy nakapalipong kanako .xxxvi[9] (Italics supplied). The victims narrations are corroborated by the medical findings of the physician who examined her and found that her labia minora was "congested, slight swollen", and her hymen no longer intact. She also suffered abrasions and contusions on both breasts and near her right armpit, which may have been caused by the blows. In rape, it is not essential that the force employed in accomplishing the crime be so great or of such character or could not be resisted.xxxvi[10] Force in rape is relative, depending on the age, size and strength of the parties. In the same manner, intimidation must be viewed in the light of the victims perception and judgment at the time of the commission of the crime and not by any hard and fast rule.xxxvi[11] The victim was a mental retardate and suffering from physical disability when appellant employed force by boxing and slapping her. And when she shouted for help he intimidated her to keep her quiet. The fact that the victim did not offer a tenacious resistance is immaterial considering her physical nature she is an invalid and unable to rise from the bed unassisted. Physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapists advances because of fear for her life and personal safety.xxxvi[12] Although the victim shouted for help, her voice could be heard only as far as three to five meters away.xxxvi[13] This negates the contention of the father of appellant that the rape could not have been committed because the locus criminis of the crime was only about fifteen meters away from the passengers terminal where there were people passing. In any case, it has been consistently ruled that rape can be committed even in places where people congregate, in parks along the roadsides, in a house where there are other occupants,xxxvi[14] in the same room where other members of the family are sleeping,xxxvi[15] and even in places which to many would appear unlikely and high risk venues for its commission.xxxvi[16] For rape to be committed, it is not necessary for the place to be ideal, or the weather to be fine for rapists bear no respect for locale and time when they carry out their evil deed.xxxvi[17] On the alleged misunderstanding that appellant had with the victims mother which allegedly prompted the mother to file the rape case against him, suffice it to say that no mother would expose her own daughter to embarrassment and humiliation as well as to the trouble, inconvenience, ridicule and scandal concomitant with a public trial if such was not the truth and had not her intention been to bring the culprit to the folds of justice. No mother, virtuous or not, will voluntarily and without compelling reasons put her own daughter to shame and humiliationxxxvi[18] if she were not motivated by an honest desire to have her daughters transgressor punished accordingly. xxxvi[19] Besides, it is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrassment.xxxvi[20]

In an apparent attempt to free himself from liability, appellant on the very same night after the assault, asked forgiveness from the victims mother and promised that the same will never be repeated. Yet, no mother can just let pass an indignity committed against one of her own blood. It is easy to forgive, but justice for her would be no less than punishment. Moreover, a plea for forgiveness may be considered analogous to an attempt to compromise, which offer of compromise by the appellant may be received in evidence as an implied admission of guilt pursuant to Section 27, Rule 130 of the Rules on Evidence.xxxvi[21] With respect to the monetary awards, the P50,000.00 "damages" granted by the trial court should be properly denominated as moral damages, which is allowed even if there was no proof during the trial as basis therefor.xxxvi[22] The mental and physical suffering of the victims injury is inherently concomitant with and necessarily resulting from the odious crime which per se warrants the award of moral damages.xxxvi[23] In addition thereto, the complainant is also entitled to a civil indemnity of P50,000.00xxxvi[24] which is outrightly awarded to rape victims being in the category of actual or compensatory damagesxxxvi[25] and because the rape herein is not effectively qualified by any circumstance under which the death penalty is authorized by present amended law.xxxvi[26] WHEREFORE, the decision of the trial court finding accused-appellant guilty beyond reasonable doubt of the crime of Rape is AFFIRMED. Further, appellant is ORDERED TO PAY the complainant fifty thousand pesos (P50,000.00) as civil indemnity in ADDITION to the fifty thousand pesos (P50,000.00) moral damages. SO ORDERED Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

THIRD DIVISION

[G.R. No. 133001. December 14, 2000]

PEOPLE OF THE PHILIPINES, plaintiff-appellee, vs. EMERSON TAN y BEYAOU (Boy Tan), ANTONIO BUCE y MARQUEZ and RUBEN BURGOS y CRUZ, accusedappellants. DECISION MELO, J.:

In almost every case involving a buy-bust operation, the accused puts up the defense of frame-up. Since the frame-up theory, like alibi, is easily concocted, the Court usually views such a claim with disfavor. In this particular case, however, accused-appellants avowals as to their innocence ring true. Before us for review is the decision dated February 10, 1998, of the Regional Trial Court of the Third Judicial Region (Branch 12, Malolos, Bulacan), penned by Judge Crisanto Concepcion, finding accused-appellants Emerson Tan, Antonio Buce, and Ruben Burgos guilty of violating Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. The dispositive portion of said decision provided: WHEREFORE, finding each of herein three (3) accused guilty as charged in the information beyond reasonable doubt as principal, there being no aggravating or mitigating circumstance found attending the commission of the offense so charged, each is hereby sentenced to suffer the penalty of reclusion perpetua and a fine of P500,000.00 as so provided in Republic Act No. 7659, Sec. 14 thereof, amending section 15, Article III of Republic Act No. 6425, as amended, and to pay the costs of the proceedings. In the service of their sentence, each accused, being a detention prisoner, shall be credited with the full time during which he has undergone preventive imprisonment, pursuant to Art. 29 of the Revised Penal Code. The subject methamphetamine Hydrochloride, otherwise known as shabu, marked in evidence as Exhibit J-5, is hereby ordered confiscated and forfeited in favor of the Government to be turned over to the Dangerous Drugs Board immediately for destruction without delay, after photographic pictures thereof are taken and attached to the record of this case. SO ORDERED. (Rollo, p. 39). The Information filed against accused-appellants on July 4, 1997 charged: That on or about the 28th day of April, 1997 in Meycauayan, Bulacan and within the jurisdiction of this Honorable Court, the above-named accused, confederating and mutually helping one another, did then and there willfully, unlawfully and knowingly sell and deliver approximately 886.9 grams of methamphetamine hydrochloride, otherwise known as shabu to an agent of the National Bureau of Investigation who posed as a poseur-buyer, in violation of the above-cited law. Contrary to law. (Rollo, p. 5.)

Upon their arraignment on July 29, 1997, the three pleaded Not Guilty to the charge. Trial thereafter ensued, with the prosecution presenting as witnesses Intelligence Agent Martin Soriano, Special Investigator Pio Palencia, and Forensic Chemist Maryann Aranas. Their version as to the events that transpired is as follows: NBI Intelligence Agent Martin Soriano testified that at about 4 P.M. of April 27, 1997, he met with Alice del Rosario, an informant of his, in Project 6, Quezon City. The latter apprised him of the drug trafficking activities of a certain Boy Tan in Bulacan. Immediately after receiving this information, Soriano, together with Special Investigator Pio Palencia and Intelligence Agent Allan Santiago, planned a buy-bust operation. They told del Rosario to get in touch with the aforesaid Boy Tan for a possible drug deal. Del Rosario told them that she had to speak to another person, an informant of hers, to do so. That same day, del Rosario was able to arrange a meeting with her informant, to be held at 11 P.M. of that day at the San Francisco Steak House in West Avenue, Quezon City. At 11 P.M., Soriano and del Rosario went to said restaurant where they met the latters informant. NBI agents Palencia and Santiago stayed outside in a car parked opposite the restaurant. Soriano haggled with del Rosarios informant until they agreed that the former would purchase a kilo of shabu from Boy Tan for P600,000.00. Soriano already had with him in a knapsack P600,000, of which two P500 bills had been dusted with flourescent powder. Between 1 and 1:30 A.M. of April 28, 1997, del Rosarios informant told them that he had talked to his boss, Boy Tan, on his cellular phone and that he had already arranged for the delivery of one kilo of shabu. Soriano, del Rosario, and del Rosarios informant then went out of San Francisco Steak House, boarded the latters car, and drove to Meycauayan, Bulacan. They arrived at No. 58, Jupiter Street, Sto. Nio, Meycauayan at around 2:10 or 2:15 A.M. All this time, the vehicle was being tailed by Palencia and Santiago. Soriano, del Rosario, and del Rosarios informant went inside the house to wait for Boy Tan to deliver the shabu. Palencia and Santiago, on the other hand, parked on Neptune, a street perpendicular to Jupiter. At around 3:45 to 4 A.M., three persons arrived, one on board a Nissan taxi; the other two, in a private car. The three entered the house were they were introduced to Soriano as Boy, Antonio, and Ruben. Boy asked Soriano if he had the money. Soriano answered, Yes, it is here in the knapsack, unzipping the knapsack and showing the latter the money. Soriano then asked for the shabu. Boy gave him a gift-wrapped box. Soriano opened the box and found a plastic bag containing crystalline substance. After checking that it was, indeed, shabu, Soriano gave the money to Boy, who, together with Antonio, and Ruben started counting the same. When they had gotten halfway, Soriano pressed his radio transceiver, which he had concealed under his clothing, to alert Palencia and Santiago that the transaction had been consummated. He then pulled out

his gun, introduced himself as an NBI agent and placed the three under arrest. Palencia and Santiago, upon their arrival, handcuffed the three suspects. After securing the shabu and the money in a plastic bag, Soriano, Palencia, and Santiago brought the three prisoners to the National Bureau of Investigation. The three were identified at the NBI as accused-appellants Emerson Tan, Antonio Buce, and Ruben Burgos. At around 7 P.M. of April 28, 1997, Forensic Chemist Maryann Aranas tested accusedappellants for flourescent powder. All three tested positive, specks being found on the dorsal and palmar sides of their hands, as well as on all their fingers. The crystalline substance delivered by accused-appellants to Soriano, weighing 886.9 grams, was also found to be shabu by Forensic Chemist Aranas. On the other hand, the defense claimed that what actually transpired is as follows: Accused-appellant Antonio Buce testified that on the evening of April 26, 1997, he was about to turn in his taxi when he chanced upon Roy Espinosa, a long-time friend, near Sampo Restaurant in West Avenue. The latter invited him to eat at said restaurant, which Buce accepted. After eating, Espinosa invited Buce to go with him to Project 4. Agreeing, Buce called up Ronaldo Manalo, the operator of the taxi, and asked permission to return the taxi at 12 midnight rather than the usual 10 P.M. However, when Buce and Espinosa arrived at Project 4, they were accosted by several armed men and brought to a safehouse in Project 6. The armed men mauled Buce, stopping only when Buce told them that he was a mere taxi driver. Thereafter, Buce was blindfolded and led to a room. He met accused-appellants Tan and Burgos, whom he had not seen before, in the afternoon of the next day when the two were brought to the safehouse. Accused-appellant Burgos, on the other, testified that he was a kristo, a bet-taker at cockfights, as well as a horserace aficionado. He was acquainted with accusedappellant Tan because the latter was also into cockfighting. He met Roy Espinosa, his kumpadre for the past ten years, on April 20, 1997 at the San Lazaro Hippodrome. Espinosa mentioned during this meeting that he was selling his owner-type jeep for P70,000.00. On April 23, 1997, Burgos met Tan at the San Juan Coliseum. He mentioned to Tan that he had a friend who was selling an owner-type jeep. Tan said that he was interested in buying the jeep so that he would have a vehicle to use when he went to cockfights, as his car usually got scratched when he used the same to go to cockfights. Burgos said that the jeep could be inspected at Espinosas house at 58 Jupiter Street, Sto. Nio, Meycauayan, Bulacan. They agreed to go to Meycauayan on April 27, 1997 to inspect the jeep. On April 27, 1997, however, Burgos went ahead to Espinosas residence in Meycauayan since he had to collect a racing debt of Espinosa while Tan still had a business meeting that morning. Burgos arrived at 58 Jupiter Street at around 11 A.M.

When he entered the house, he saw Espinosa handcuffed in a corner. Then several armed men who introduced themselves as NBI agents handcuffed and frisked him. They questioned him about shabu. Burgos noticed three boxes, one gift-wrapped, lying on a billiard table. Accused-appellant Tan, on the other hand, testified that he rented a Toyota Corolla on April 26, 1997 for use in going to Bulacan. He also obtained the services of Hernando Reyes, a neighbor, to drive him there. At noon of April 27, 1997, he also fetched Melanie Martin at the latters residence in Malabon so that the latter could serve as a guide, it being the first time for accused-appellant Tan to go to Meycauayan, Bulacan. Tan, Martin, and Reyes arrived at 58 Jupiter Street, Sto. Nio, Meycauayan, Bulacan at around 2:30 oclock in the afternoon. When Tan, Martin, and Reyes entered the house, they were apprehended by several armed men who claimed to be NBI agents. One of the armed men, later identified as Soriano, showed a plastic bag containing white powder to Tan and asked him if he was engaged in drug trafficking, which the latter answered in the negative. After about thirty minutes, Tan, Burgos, Espinosa, and Martin were blindfolded, brought out of the house and taken to the NBI safehouse in Project 6. It was there that they met Antonio Buce. Soriano told accused-appellants that they can obtain their freedom for P400,000.00, advising Tan to call up his relatives to raise the money. Jose Orillaza, a businessman, testified that his friend Emerson Tan called him up at around 5 oclock in the afternoon of April 27, 1997 to borrow P400,000.00. He was unable to give the amount to Tan because it was a Sunday and all banks were closed. Later that afternoon Melanie Martin was allowed to go home. She was brought to SM City North Edsa. Upon being freed, Melanie went home to Malabon, arriving there at around 8 P.M. She narrated the incident to her father. Worried, Melanies father called up his brother-in-law, Arnel Prades, and requested the latter to accompany them in reporting the matter to the authorities. Melanie also called up Emily Tan, the sister of accused-appellant Emerson Tan, and Jose Orillaza to tell them about Emerson Tans apprehension. Melanie Martin, along with her father and Arnel Prades, met Emily Tan and Jose Orillaza in Greenhills at around 10 oclock in the evening of April 27, 1997. Concluding that Tan had been kidnapped, the group proceeded to Camp Crame to report the incident. Since the officer-in-charge was not around, they reported the incident to the DILG-PARAC office in Quezon City. Meanwhile, accused-appellant Tan was unable to produce the P400,000.00 demanded by Soriano, hence it was decided that accused-appellants be brought to the National Bureau of Investigation in Taft, Manila. At around 1 oclock in the afternoon of April 28, 1997, the three were blindfolded and brought out of the safehouse in Project 6. On the way to the NBI, accused-appellants claimed that something was smeared on their hands. Their blindfolds were removed as they were passing Welcome Rotonda.

Accused-appellants arrived at the NBI at around 3 or 4 oclock in the afternoon, where they were booked and their hands tested for flourescent powder. As earlier intimated, accused-appellants were found guilty by the trial court. Undaunted, accused-appellants now appeal to this Court, claiming that the trial court grievously erred in refusing to consider substantive evidence showing their innocence of the crime charged. Accused-appellants claims have merit. It may be noted that the testimony given by the witnesses for the prosecution and that of the defense are diametrically opposed to each other. In resolving such conflict, dealing as it does with the credibility of witnesses, the usual rule is for this Court to respect the findings of the trial court considering that it was in a better position to decide the question, having heard the witnesses themselves and having observed their deportment and manner of testifying during the trial (People vs. Aquino, 284 SCRA 369 [1998]). Nonetheless, the factual findings of the trial court may be reversed if by the evidence on record or lack of it, it appears that the trial court erred (People vs. Lagao, 286 SCRA 610 [1998]). This is such a case, the prosecution evidence lacking sufficient foundation to prove accused-appellants guilt beyond reasonable doubt. The elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor (People vs. Zheng Bai Hui, G.R. No. 127580, August 22, 2000). To prove these elements, Intelligence Agent Soriano testified that he was apprised by his informant, Alice del Rosario, about the drug trafficking activities of a certain Boy Tan. To get in touch with Boy Tan, Alice del Rosario had to contact an informant of hers. It was this informant who haggled with Soriano as to the quantity and the value of the shabu to be purchased. Likewise, it was this informant who arranged for the delivery of the shabu and who brought Soriano to Meycauayan. Yet, the NBI agents only arrested accused-appellants, not Alice del Rosarios informant. It must be noted that Sorianos informant was Alice del Rosario, not the person they met in San Francisco Steak House. If we are to accept the veracity of Sorianos version of events, del Rosarios informant was acting as an agent of Boy Tan in selling shabu and would, therefore, be equally guilty of selling shabu as accused-appellants. Yet he was not arrested by Soriano. While he entered No. 58 Jupiter Street with Soriano and Alice del Rosario to await Boy Tan, there is nothing on the record to indicate that he escaped therefrom when Soriano announced the arrest. The only plausible reason that explains his non-arrest would be if he was also an informant of Soriano. But if he was an informant of Soriano, then there would have been no need for him to meet with Soriano and haggle with the latter. In other words, if he was an informant of Soriano, a simple phone call to Boy Tan that

he had a prospective buyer would have sufficed and the group could have just as easily proceeded to Meycauayan, Bulacan to arrest the latter upon his delivery of the shabu. There would have been no need to stage an elaborate charade as meeting at San Francisco Steak House and haggling with Soriano over the price. Likewise, the prosecution failed to produce evidence that the two P500 bills were dusted with flourescent powder prior to the buy-bust operation. Soriano, in his crossexamination disclosed that there had to be a written request addressed to the Forensic Chemist Division in order to have money dusted for buy-bust operations. No such request was presented in court. Moreover, upon examination under ultraviolet light, the two bills used in the April 28, 1997 alleged buy-bust operation had the date March 5, 1997 written on them in flourescent powder. NBI Agent Llander Sinagub testified that he brought the two P500 bills in question to the Forensic Chemist Division for dusting on March 5, 1997, or 54 days before the alleged buy-bust operation. In fact, when crossexamined as to when the money was dusted, Soriano could not recall when the P500 bills where dusted with flourescent powder. It was also disclosed that the marked money had already been used 2 or 3 times before the April 28, 1997 buy-bust operation but no effort had been done to redust the money after they had been used. Soriano testified thus: Q: These P500 bills presented to you earlier, you claimed that you used them 2 or 3 times other than in this case. Did you exert any effort to redust this money with flourescent powder after they had been used on three separate cases? A: No, sir. (tsn, October 7, 1997, p. 31.) Moreover, when accused-appellants hands were examined by Forensic Chemist Aranas for flourescent powder, their fingers, palms and even the back of their hands tested positive for flourescent powder. Firstly, one does not use the back of ones hands when counting money. Secondly, 54 days had elapsed from the time the bills had been dusted to the time of the buy-bust operation. It confounds this Court as to how flourescent powder could have copiously attached to accused-appellants hands despite such an interval of time and the fact that said bills had been used in two or three previous operations without redusting. As to the shabu allegedly delivered by Tan, this was marked by Soriano MCS -04-2797 after he had arrested accused-appellants. It may be noted that the delivery of the shabu allegedly occurred in the early morning of April 28, 1997. It is, thus, surprising, to say the least, that Soriano marked the bag of shabu with his initials and the date April 27, 1997, when the delivery of the shabu and the arrest was made on April 28, 1997. All these material inconsistencies, however, pale in the light of the most damning evidence against accused-appellants culpability. According to the prosecution,

accused-appellants Tan, Buce and Burgos delivered almost a kilo of shabu to poseurbuyer Soriano in the early hours of April 28, 1997. Yet, according to the police blotter of the PARAC DILG, at 11:00 P.M. of April 27, 1997, a certain Melanie Martin reported that accused-appellant Tan had been apprehended by an unknown police unit at around 2 oclock in the afternoon of April 27, 1997. The PARAC DILG police blotter reads as follows: April 27, 1997 11:00 P.M. APPEARANCE OF REPORTEE (Re: Alleged Drug Operation) On the above date and time Melanie Martin y Oniol, 16, single, native of Manila and a resident of Phase 2, Blk. I, Lot 34 Area 3, Pampano St., Dagat-Dagatan, Malabon, M.M., together with her father, Leonardo Martin and one PO3 Arnel Prades, Jr., Sta. 7, WPD, in connection with the above alleged Drug Operation wherein said reportee and her boyfriend, one Emerson Tan y Beyaoyu, 47, M, businessman, native of Manila and a resident of 17 Gen. Guttierez St., Little Baguio, San Juan, M.M., were alleged apprehended by Drug operatives from unknown unit at Meycauayan, Bulacan. Based on the narration of reportee they were brought at a certain place blindfolded, presumably its an office and alleged subject operative unit were digging about drug operation. The reportee was freed or allowed to go home while a man who was handcuffed and her boyfriend was left at the said office wherein reportee stated there was a one kilo of shabu and the name of one MARTIN C. SORIANO. More or less 10:00 P.M. last night her boyfriend called up and told her that he needs P400,000.00 pesos for what reason and the place where the money should be brought was not mentioned by her boyfriend. Incident occurred 2:00 P.M., 27 April 1997, from the residence of reportee they directly drived to Meycauayan, Bulacan wherein her boyfriend were obviously awaited and was apprehended. Until this writing, 2:40 A.M., 28 April 1997, the whereabout or location of her boyfriend is unknown. Reportee was advised to keep in touch with this office for any development of the case. For further investigation and follow-up. (Original Records, p. 21-23.) The defense presented PNP Police Officer Eduardo Quiman who testified that he was the police officer on duty at the PARAC DILG in the evening of April 27, 1997. Quiman confirmed that he was the one who had written the above-cited entry in the PARAC DILG blotter and that it was Martin who reported the same to him at 11 P.M. of April 27, 1997. Quimans testimony stands unrebutted by the prosecution. Melanie Martin also

testified that she was with Emerson Tan when the latter was arrested by Soriano and his group in the afternoon of April 27, 1997. The above blotter entry belies Sorianos claim that Tan was arrested in the early hours of April 28, 1997 since Melanie Martins report to the DILG of accused -appellant Tans arrest precedes by five hours the time of Tans arrest, as claimed by the NBI agents. As adverted to at the very beginning hereof, the claim of frame-up is a common and standard line of defense which is invariably viewed by this Court with disfavor, it being capable of easy concoction and difficult to prove. Clear and convincing evidence is required to prove the defense of frame-up because in the absence of proof of any intent on the part of the police authorities to falsely impute such a serious crime against accused-appellants, the presumption of regularity in the performance of official duty, as well as the principle that findings of the trial court on the credibility of witnesses are entitled to great respect, must prevail over the claims of accused-appellants that they have been framed-up. However, given the evidence adduced by accused-appellants, this Court holds that accused-appellants have clearly and convincingly overcome the presumption that agents Soriano and Palencia performed their duties in a regular and proper manner. In fact, it seems that Soriano and Palencia are hiding behind the mantle of regularity of official functions in pursuit of their own dubious ends. Besides, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. In People v. Gireng (241 SCRA 11 [1995]), this Court stated that by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses (People vs. Pagaura, 267 SCRA 17 [1997]). Needless to state, the lower court should have exercised the utmost diligence and prudence in deliberating upon accused-appellants guilt. It should have given more serious consideration to the pros and cons of the evidence offered by both the defense and the State and many loose ends should have been settled by the trial court in determining the merits of the present case (People vs. Sevilla, G.R. No. 124027, September 5, 2000). Lastly, it is hornbook doctrine that if 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 (People vs. Ferras, 289 SCRA 94 [1998]).

In sum, given the evidence and the attendant circumstances, we entertain grave doubts as to the culpability of accused-appellants and our minds cannot rest easy upon the certainty of their guilt. IN VIEW THEREOF, the appealed decision is hereby SET ASIDE and accusedappellants Emerson Tan, Antonio Buce, and Ruben Burgos are hereby ACQUITTED on grounds of reasonable doubt. Their release from detention is hereby ordered forthwith, unless they are detained for some other lawful cause. SO ORDERED. Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

THIRD DIVISION

[G.R. No. 138046. December 8, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. RAFAEL D. TORRES, JR., appellant. DECISION PANGANIBAN, J.: Due process demands that the procedure for the identification of criminal suspects be free from impermissible suggestion. In the present case, appellant failed to show that there was such an irregularity.
The Case

Rafael D. Torres Jr. appeals the February 22, 1999 Decisionxxxvi[1] of the Regional Trial Court of Quezon City (Branch 104), finding him guilty of murder and sentencing him to reclusion perpetua. In an Informationxxxvi[2] dated January 2, 1989, Assistant City Prosecutor Virgilio M. Gilera charged appellant with murder allegedly committed as follows: That on or about the 16th day of December, 1987, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously, attack, assault and employ personal violence upon the person of LUISITO ANGELES Y LOPEZ, by then and there shooting him with a revolver of unknown caliber on the different parts of his body thereby inflicting upon said Luisito Angeles y Lopez mortal wounds which were the direct and immediate cause of his untimely death, to the

damage and prejudice of the heirs in such amount as may be awarded under the provisions of the Civil Code. When arraigned on January 22, 1996,xxxvi[3] appellant, assisted by Atty. Teodoro M. Jumamil, pleaded not guilty.xxxvi[4] After trial in due course, the court a quo rendered its assailed Decision, the dispositive portion of which reads as follows: WHEREFORE, the Court hereby renders judgment finding the accused, RAFAEL D. TORRES, Jr., guilty beyond reasonable doubt of the crime of MURDER defined and penalized in Article 248 of the Revised Penal Code, for the killing of Luisito Angeles on December 16, 1987 with the attendant circumstances of treachery and evident premeditation, and imposing on him the penalty reclusion perpetua, as well as ordering him to pay the heirs of Luisito Angeles the following: P50,000.00 as indemnity for death, P95,000.00 as actual damages, P150,000.00 by way of lost earnings and P20,000.00 as moral damages.xxxvi[5] In view of the penalty involved, the appeal was filed directly with this Court.xxxvi[6]
The Facts Version of the Prosecution

In its Brief,xxxvi[7] the Office of the Solicitor General presents the prosecutions version of the facts as follows: At 5:30 AM of December 16, 1987, prosecution witness Lincoln Leyretana was on his way to work on board a passenger jeepney along Dapdap St. corner Aurora Boulevard, Quezon City (p. 4-5, TSN, July 8, 1996). Aside from prosecution witness Lincoln Leyretana, there were thirteen other passengers on board the passenger jeepney (Ibid). Suddenly, Luisito Angeles, a passenger of the Jeepney, was shot twice at close r ange by the person seat[ed] next to the prosecution witness Lincoln Leyretana (ibid). Thereafter, the assailant alighted from the passenger jeepney and shot again the victim twice (p. 7, ibid). Prosecution witness Lincoln Leyretana saw the assailant board another passenger jeepney [in front] of the Aurora Market, Quezon City (p. 8, ibid). Meanwhile, prosecution witness Lincoln Leyretana, together with several other male passengers and the driver, brought Luisito Angeles to the nearest hospital where Luisito Angeles was pronounced dead on arrival (ibid). From the hospital, prosecution witness Lincoln Leyretana and several other passengers of the jeepney proceeded to the police station where they gave their sworn statements to the police (ibid). The investigation of the shooting incident was handled by SPO3 Juan Dacillo. On February 6, 1988, prosecution witness Lincoln Leyretana accompanied the group of SPO3 Juan Dacillo to Marikina City where appellant was allegedly seen by another prosecution witness, Carmelita Mendoza (ibid). He saw

appellant riding a passenger bus and pinpointed him to the police authorities (ibid). The police officers followed the passenger bus and boarded the same. They apprehended appellant who introduced himself as a police officer. [O]n the afternoon of February 8, 19[8]8, appellant escaped. On January 5, 1989, an Information charging appellant [with] murder was filed. On December 13, 1995, appellant was arrested in Nueva Ecija.
Version of the Defense

In his Brief,xxxvi[8] appellant interposes denial and alibi and relates his version of the facts in this wise: Appellant categorically and emphatically denied the charge and invoked the defense of alibi, claiming that he was at his place of work in Pasig on the date and time of the incident complained of, x x x work attendance [on which] was confirmed by the defense witness, SPO1 Arsenio Eugenio, and that he [did] not know the person of Luisito Angeles. Appellant likewise proved that Luis Angeles (father of the deceased) and Carmelita Angeles Mendoza (aunt of the deceased) were once in the place of appellants friend, Priscilla De Guzman; that when appellant pacified them while they were arguing about their business, Luis Angeles got mad at him, telling him not to intervene; that at the police station on 6 February 1998, appellant heard Mr. Leyretana saying to SPO3 Dacillo malayo naman sa hitsura doon sa sketch but the latter replied, ituro mo na lang; that appellant left the police station after being pinpointed by Mr. Leyretana because nobody minded him; that appellant was arrested on his birthday, 13 December 1995, at Nueva Ecija; and that when the appellant was in jail, a man took pictures of him many times while Mr. Leyretana and Carmelita Mendoza visited him.
Trial Courts Ruling

Rejecting appellants defense, the trial court gave full faith and credence to the testimony of the lone eyewitness. It ruled thus: This Court finds no substantial imperfection in the testimony of Mr. Leyretana who saw the accused and observed the manner in which he killed the victim who was in a defenseless state on board a passenger jeepney, as well as in the testimony of Carmelita Mendoza whose account of the earlier circumstances involving the accused from 4:00 a.m. of December 16, 1987 until the victim went out of their house proves the act manifestly indicating the determination to make possible the succeeding incident witnessed by Mr. Leyretana. Accused interposes alibi as a defense which cannot prevail over his positive identification by an eyewitness, Lincoln Leyretana, who has no motive to falsely testify.

Moreover, it was not sufficiently established that it was physically impossible for accused to be in the scene of the crime at Aurora Boulevard, Quezon City, at 5:30 a.m., the time complained of. Then, too, it bears noting that while it was the direct testimony of the accused that he was at his place of work in Pasig on December 16, 1987, he also testified on cross examination that he reported for work on December 16, 1987 at 7:00 a.m. xxx xxx xxx Accused seeks to exculpate himself by saying that Police Officer Juan Dacillo prodded Lincoln Leyretana to point to him as the perpetrator of the crime even if his face was different from the cartographic sketch. Accused testified thus: Q What happened when Mr. Leyretana arrived at the Quezon City Police Station?

A I heard what Mr. Leyretana was saying Malayo naman sa hitsura doon sa sketch and Dacillo told him Ituro mo na lang. Q A Did Leyretana comply? Yes, sir. (TSN, Rafael Torres, May 25, 1998, p. 18)

No motive was shown by accused why Police Officer Juan Dacillo would prod Mr. Leyretana to point to him as the culprit. Moreover, Mr. Leyretana rebutted the testimony of the accused, as follows: Q Mr. witness, accused Rafael Torres testified last May 25, 1998 particularly on page 26 denying the accusation against him, meaning that he was not present when the incident occurred. What can you say to this? A Q That is not true, sir. What is the truth, Mr. witness?

A The truth, sir, is that I saw him in the place of the incident [and] that he was the one who shot the victim, sir. Q And he also testified last May 25, 1998 on page 18, he stated that when you arrived at the Quezon City Police Station, you uttered the following word, which I quote: Malayo naman sa hitsura doon sa sketch. What can you say to this? A This is not also true. (TSN, Lincoln Leyretana, September 8, 1998, pp. 3 -4)

Prior to the identification of the accused at the police line up, Mr. Leyretana pointed to the accused as the person who shot the victim while boarding the jeep on February 6,

1998. Police Officer Juan Dacillo then followed the jeep which accused had boarded. However accused, sensing that he was being followed, transferred to a passenger bus where he was apprehended by the group of Police officer Juan Dacillo. It is not unnatural for an eyewitness of a heinous crime to strive to see the face of the culprit and to observe the manner in which the crime was committed, and thereafter to cooperate with the police authorities for the sole purpose of bringing the culprit to justice.xxxvi[9]
Assignment of Errors

Appellant submits that the trial court erred in the following ways: I The trial court gravely erred: a.) b.) c.) d.) In convicting the appellant despite lack of positive identification; In failing to give credence to appellants defense of alibi; In convicting the appellant despite lack of proof beyond reasonable court; In not acquitting the appellant; and

Assuming arguendo that the killing of the victim may be validly imputed [to] the appellant, the trial court gravely erred: a.) In appreciating the qualifying aggravating circumstances of treachery and evident premeditation; b.) and c.) In awarding the amount of P150,000.00 for actual damages despite lack of proof, In imposing the penalty of reclusion perpetua.xxxvi[10]

In the main, the Court will determine the sufficiency of the prosecution evidence regarding the identification of the author of the crime.
The Courts Ruling

The appeal is not meritorious.

Main Issue Identification of the Culprit

Appellant asserts that the prosecutions lone eyewitness made not only a hazy identification of the suspect but also a highly contradictory testimony.xxxvi[11] The former firmly assails the highly suggestive identification procedure during which the latter pinpointed him to the police.
Identification Made During the Incident

Generally, the Supreme Court accords great respect to the factual conclusions of trial courts, because they had the opportunity to observe the witnesses demeanor.xxxvi[12] However, the rule does not apply here because one judge heard the testimony of the eyewitness and anotherxxxvi[13] penned the assailed Decision.xxxvi[14] Hence, the Court scrutinized the testimonies of the witnesses, but found no reason to reverse or modify the trial courts factual findings. The evidence on record shows that Lincoln Leyretana, the lone prosecution eyewitness, was able to identify appellant because the former had seen the latter during the incident. Leyretana testified in this wise:xxxvi[15] Q Will you kindly tell the Court, Mr. Witness, what was that unusual incident that happened? A I witnessed a gunshooting, sir.

Q Will you kindly tell the Court, Mr. Witness, what was that shooting incident which you witnessed? A I boarded a passenger jeep and I was sitting two (2) seats away from the back of the driver. I noticed the uneasiness of the person beside me and that time I was also uneasy because I was wearing a fatigue also. Q What was that shooting incident which you have just stated before this Court?

A When we came out [of] a street near St. Joseph church, there was a man who alighted from the jeep. Then passing at the back of the jeep, this man suddenly pulled his gun and shot a certain man who [was] the victim in this case. Q How many shots did you hear when this man who was seated beside you shot at the victim by the name of Luisito Angeles? A Q Before he was able to alight, he was able to sh[o]ot the victim two (2) times, sir. Were there other shots that were made after than shooting incident?

A After the first two (2) shots, I thought the suspect [would] run, but instead he again went around the jeep and looked around and when he was immediately [in front of] the victim, he again [shot] him twice. Even before the shooting, Leyretana had already noticed appellant seated next to him, acting uneasily. A few minutes later, while alighting from the vehicle, appellant shot the victim. Once outside, the former turned around and shot the latter two more times. At that moment, appellant was directly facing not only the victim inside the jeepney, but also the other passengers. Hence, although there was commotion at the time, appellants image was etched in the memory of the eyewitness. Appellants contention that it was still dark at the time is not convincing. It was established that there was sufficient illumination coming from a light inside the jeepney.xxxvi[16] Just as unacceptable is the challenge to the reliability of the identification made by Leyretana, whose description of the court interpreter would allegedly fit a lot of other individuals. We need only to stress that the eyewitness, even under grueling cross-examination, did not waver in asserting that appellant was the culprit. Furthermore, we reject the argument that there was serious doubt on the testimony of Leyretana because he had not immediately volunteered information to the police. xxxvi[17] Witnesses are commonly reluctant to involve themselves in criminal actions, and the Court has held that this reluctance is insufficient to affect their credibility. xxxvi[18] Appellant also cited other inconsistencies in the testimony of Leyretana. These, however, pertained to minor and insignificant details, which did not materially affect the substance of his testimony that he had seen appellant shoot the victim.
Suggestive Identification Procedure

Due process demands that the procedure for the identification of criminal suspects be free from impermissible suggestion.xxxvi[19] Indeed, the corruption of out-of-court identification contaminates the integrity of in-court identification during the trial.xxxvi[20] Appellant contends that there was suggested identification, because at the precinct where [Leyretanas] statement was taken, he was told by Pfc. Dacillo that the suspect was already apprehended and that he [would] be asked to identify him.xxxvi[21] Appellant implicitly argues that Leyretana would not have pinpointed the former, had the latter not been told that the suspect had already been apprehended. Appellants argument is not supported by the records. True, policemen fetched Leyretana from his house, so that he could confirm the identity of the culprit. However, we find nothing in the acts of the law enforcers that would constitute any impermissible suggestion. They did not coach or suggest to Leyretana to point to appellant. The witness did so on his own. In fact, the policemen took him to a busy intersection where he pointed to appellant, who was about to board a bus. Indeed, appellant was not

presented alone to Leyretana. This was clear from the latters testimony, which we quote:xxxvi[22] A I was brought to Marikina and when they reached a place where the suspect was supposed to hang around, I pointed to him even without alighting from the jeep and so he was pursued by the policemen and apprehended inside the bus. ATTY. JUMAMIL: Q A Q A Q A So, you were inside a jeep when you pointed to the suspect, is that correct? It was a private vehicle, sir. Whose car was it, if you know? If I am not mistaken, it belongs to the lawyer. You were told, were you told by Pfc. Dacillo that that is the suspect, is that him? No, sir.

Q You were told, were you told by the lawyer of the victims family that that is the suspect, is that him? A No, sir. (Italics supplied.)

Leyretanas account was corroborated by Pfc. Juan A. Dacillo, who testified thus:xxxvi[23] Q Will you please tell the Court the circumstances as to how this identification made by the witness Lincoln Leyretana [of] the accused happened? A We went there early in the morning between 5:30 or 6:00 a.m. We positioned ourselves in a far distance near that corner where passengers usually board a passing jeepney or a passing bus. The witness is with us in the car waiting for the suspect or the male person that may take a ride on that corner. The event happened so fast that Sir, sir, yong sumasakay, yon yon. x x x. (sic) Q Who made such pronouncements (referring to the quoted statement, earlier quoted statement)? A Leyretana, Your Honor.

Leyretana repeated his earlier assertions after the policemen included appellant in a lineup. Clearly, there was no impermissible suggestion from the law enforcers.

Significantly, it was not shown that there was any undue motive on the part of the police officers to incriminate appellant, who was also a policeman. Absent such showing, they are presumed to have performed their duties regularly.xxxvi[24] The present case should be distinguished from Natividad v. Court of Appeals,xxxvi[25] in which the witnesses were fetched by police officers and brought to the place where the accused was apprehended. The Court narrated the factual antecedents as follows: The record shows that on January 25, 1972, three police officers fetched Primavera, Galvadores and Soliman in a jeep and they proceeded to the office of the Allied Brokerage Corporation. Primavera, et al. and a police officer stayed behind in the jeep and the two police officers looked for Natividad inside the Allied Brokerage Corporation office in order to invite him for interrogation at the MMP Headquarters. Outside said office, one of the police officers threatened Natividad, for he desisted from joining them while Primavera, et al. watched from inside the jeep. Thereafter, they all proceeded together to the MMP Headquarters where the police officers directed Natividad to join a line-up of ten (10) men. Then, the police officers called the two women (Primavera and Galvadores) and the man (Soliman) and asked them to make the identification. It can thus be readily seen that at the premises of the Allied Brokerage Corporation office, the police officers literally paraded Natividad before Primavera et al. whom they purposely fetched from the Manila Christian Guesthome to see Natividad. (Emphasis supplied) In Natividad, there was impermissible suggestion because the policemen let the witness know from the start who their suspect was. In the present case, while the police already had a suspect, they did not reveal his identity to Leyretana. In fact, it was the witness himself who pointed out the culprit to them.
Right to Counsel During Police Lineup

Appellant also argues that the identification made by Leyretana during the police lineup was inadmissible, because the former was not assisted by counsel at the time.xxxvi[26] The argument contradicts settled jurisprudence. The Court has held that the assistance of counsel is not essential during a police lineup. Thus, the Court ruled in People v. Pavillare:xxxvi[27] x x x. The stage of an investigation wherein a person is asked to stand in a police lineup has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an in-court identification.
Appellants Flight

Further militating against the cause of appellant was his flight. The records show that he escaped from the police station after his arrest. He explained that [w]hen nobody minded me, I already left the place.xxxvi[28] At the time, he already knew that he would be charged. Instead of defending his innocence, he escaped from the law, even if it meant being AWOL from his post as a policeman. Clearly, his flight evinced his guilt.
Collateral Issues Appellants Alibi

Appellant insists that he was in his office in Pasig City when the crime was committed. This argument scarcely deserves consideration. The well-settled rule is that alibi is a weak defense, which cannot prevail over the positive identification of the accused by a credible witness,xxxvi[29] as in this case.
Treachery and Evident Premeditation

We agree with the trial court that the killing was qualified by treachery. This qualifying circumstance is appreciated when the attack was executed in such a manner as to ensure the offenders safety from any defense or retaliatory act of the offended party.xxxvi[30] In the present case, appellant shot the unsuspecting victim point-blank inside the jeepney. Not content, once outside, the former shot the latter two more times. We disagree with the ruling, however, that evident premeditation was present. The prosecution failed to establish the following elements of this aggravating circumstance: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused clung to that determination, and (c) a lapse of time between the determination and the execution sufficient to allow the accused to reflect upon the consequences of the act.xxxvi[31] That appellant had been seen near the victims house a few minutes before the shooting did not by itself establish evident premeditation.
Proper Penalty And Civil Liabilities

Be that as it may, the trial court correctly sentenced appellant to reclusion perpetua. When the crime was committed in 1987, the penalty for murder was reclusion temporal, in its maximum term, to death. There being no aggravating or mitigating circumstance, the penalty should be imposed in its medium term, which is reclusion perpetua.xxxvi[32] The trial court correctly awarded the amount of P50,000 as indemnity ex delicto. Pursuant to current jurisprudence,xxxvi[33] this is awarded without need of proof other than the commission of the crime. We also sustain the awards of P95,500 as actual damages and P20,000 as moral damages, for these were supported by evidence.

We disagree, however, with the award of P150,000 for loss of earning capacity. The amount of indemnity for such loss is based on the income at the time of death and the probable life expectancy of the victim. It should also be stressed that this indemnity refers to the victims total earnings minus the necessary living expenses. In computing this award, the Court has used the following formula: 2/3 x (80 - age of the victim at the time of death) x (reasonable portion of the annual net income which would have been received as support by the heirs) xxxvi[34] In the present case, it was shown that the victim, a mechanical engineer, was 35 years old and earning P20,000 a month (or an annual income of P240,000) when he was killed. Under the circumstances, we believe that the amount of necessary living expenses should be fixed at P10,000 a month. Applying the above formula, the indemnity in the present case should be computed as follows: = 2/3 x (80 35) x (P240,000 P120,000) = 2/3 x 45 x P120,000 = P3,600,000. WHEREFORE, the appeal is hereby DENIED and the assailed Decision AFFIRMED, with the sole modification that the heirs of the victim are awarded P3,600,000 as indemnity for the lost earnings of the deceased, in addition to the other amounts awarded by the trial court. Costs against appellant. SO ORDERED. Melo, (Chairman), Vitug, and Gonzaga-Reyes, JJ., concur.

SECOND DIVISION

[G.R. No. 127495. December 22, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLITO BORAS Y DOE, accused-appellant. DECISION

BUENA, J.: For allegedly raping a six year-old girl, Nolito Boras was convicted of statutory rape by the Regional Trial Court of Libmanan, Camarines Sur and was sentenced to suffer the penalty of reclusion perpetua, and to pay P50,000.00 as civil indemnity. Hence, this appeal questioning his conviction. On December 13, 1991, while Melanie Medallas parents were sleeping in their house at Barangay Bahay, Libmanan, Camarines Sur, she remained downstairs playing alone. At around 9 oclock in the morning of that day, Nolito Boras, herein accused-appellant, went to her and invited her to go with him. Since she is familiar with the accusedappellant as neighbor, she was cajoled to go with him. When they arrived at a guava tree near the coconut plantation, which is about 15 meters from her house, accusedappellant told her magkitoanxxxvi[1] which means we will have sex. Obeying the instruction of accused-appellant, she removed her panty. Thereafter, she was placed on top and in-between accused-appellants legsxxxvi[2] who then inserted his penis into her vagina. While accused-appellant was satisfying his salacious desire, Cirilo Guirela, the victims uncle arrived. When she saw her uncle Cirilo, she ran away. Thereafter, Cirilo told Jesus Amenia, brother-in-law of accused-appellant, that the latter raped his niece. Jesus Amenia got angry with the accused-appellant then proceeded home with the latter. On December 14, 1991, Cirilo reported the matter to the Barangay Captainxxxvi[3] and was advised to report the incident to the police authority of Libmanan, Camarines Sur.xxxvi[4] The police advised the examination of the victim at the Libmanan District Hospital. On December 15, 1991, Dr. Cynthia S. Algery of Libmanan District Hospital examined the six-year-old victim. The examination revealed hymenal laceration at 3 oclock caused by any organ which is inserted into the vagina, like a penis, and hypremia of the introitus (redness found at the entrance of the vagina).xxxvi[5] While being examined, the doctor asked the victim what happened and the victim described the person who raped her.xxxvi[6] On February 12, 1992, an information for the crime of rape was filed against Nolito Boras y Doe allegingThat on or about the 13th day of December 1991, at about 9:00 oclock in the morning, at Brgy. Bahay, Municipality of Libmanan, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, with violence and force, intimidation and with grave abuse of confidence, did then and there willfully, unlawfully and feloniously have carnal knowledge with Melanie Medalla, a six (6) years old (sic), against her will and the offended party suffered damages.

ACTS CONTRARY TO LAW.xxxvi[7] Upon arraignment on May 18, 1992, the accused, assisted by counsel, pleaded not guilty. At the trial, on December 22, 1992, counsel for the accusedappellant manifested in court that he noticed something strange with the accused-appellant and asked that the latter be examined by a psychiatrist to determine his mental fitness. The trial court advised the counsel to file a formal motion for the examination of the accused. Thereafter trial ensued. On June 16, 1993, the defense presented accused-appellant. When asked about his personal circumstances, he answered that his name is Diosdado Macapagal;xxxvi[8] that he does not know the name of his father and his mother; that he does not know whether he has a brother and sister; that he does not know Tinagis Penal Farm where he is presently confined; that he does not know how he was able to come to court and who escorted him. On such note, the trial court issued an Order setting forth the foregoing declarations, with further pronouncement that accused-appellant in all appearances seems to be normal but is feigning insanity. Thus, the Provincial Warden of Tinagis Penal Farm was directed to bring accused-appellant to Don Susano Rodriguez Mental Hospital at Cadlan, Pili, Camarines Sur for necessary physical and mental examination and observation in order to determine whether he is insane or not, and whether he has the necessary faculties to undergo trial. The Chief of Susano Rodriguez Mental Hospital was directed to admit and conduct the necessary examination and submit a written report to the trial court on the mental condition of the accused within 15 days after the last examination/treatment. Pending the submission of the report, the hearing was suspended. After the issuance of the aforementioned Order, accused-appellant rendered two songs, one after another, after the trial court requested him.xxxvi[9] On May 2, 1995, the Bicol Regional Hospital - Department of Psychiatry submitted its report on the mental status of Nolito Boras remarking that accused-appellant was coherent and relevant and that he was free of psychotic signs and symptoms. The remarks further stated that accused-appellant knows the case filed against him and that his anxiety or apprehension was due to fears of being incarcerated in jail.xxxvi[10] After trial, judgment was rendered convicting accused-appellant, thus WHEREFORE, premises considered, the court finds and so holds that the accused Nolito Boras is found guilty of the offense of statutory rape of Melanie Medalla, a six (6) year old girl at the time of the rape and, therefore, sentences him to suffer the penalty of reclusion perpetua and is ordered to pay Melanie Medalla the amount of P50,000.00 for indemnity. No pronouncement as to cost. SO ORDERED.xxxvi[11]

Accused-appellant now appeals questioning his conviction for rape, assigning as error the admission of Exhibit B, which is a photocopy of the certificate of livebirth of the victim. Initially, to avoid criminal liability, accused-appellant feigned insanity. To bolster such imagined dementia, accused-appellant offered his fathers testimony declaring that accused-appellant was afflicted with a mental defect since childhood. As observed by the trial court, accused-appellant is normal. In this regard, the trial courts observation of the demeanor and deportment of witnesses, as a rule, will not be interfered with, considering that the behavior, gesture, inflection of voice and manner of responding to questions propounded to witnesses are best available to the trial court. It is not appropriate to calibrate anew such observations on the basis alone of the cold transcript of stenographic notes unless such findings are clearly shown to be arbitrary. In fact, the trial court was not remiss in its duty in determining the mental capacity of accusedappellant when it ordered accused-appellants confinement in a hospital for medical and psychiatric evaluation which examination revealed that accused-appellant is sane and coherent. The foregoing steps clearly demonstrate that the judge had sufficiently and effectively satisfied the two components of insanity test that will effectively guarantee accused-appellants right to a fair trial, which are: (1) whether the defendant is sufficiently coherent to provide counsel with information necessary or relevant to constructing a defense and (2) whether he is able to comprehend the significance of the trial and his relation to it.xxxvi[12] Accused-appellant was convicted under Article 335 of the Revised Penal Codexxxvi[13]which provides that rape is committed by having carnal knowledge of a woman under twelve years of age, thusArticle 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. x x x x x x x x x In statutory rape, there are two elements that must be established prior to conviction of this crime, namely: (1) that the accused had carnal knowledge of a woman and (2) that the woman is below twelve years of age.xxxvi[14] As to the first element, accused-appellant denied having sexual contact with the victim and challenges the latters credibility. After a thorough review of the records of this case, we find the victims testimony credible. From the victims narration, it was clear

that there was sexual intercourse. The victim even demonstrated in court how she was raped by the accused-appellant in squatting position by holding her hips.xxxvi[15] She narrated that she felt pain and when she was crying, accused-appellant stopped thrusting his organ. She declared that she was not able to shout because during the sexual contact, accused-appellant was covering her mouth.xxxvi[16] Her credible testimony alone suffices to establish accused-appellants guilt.xxxvi[17] In rape, mere touching by the males organ, or instrument of sex, of the labia of the pudendum of the females private part is sufficient to consummate rape.xxxvi[18] But when the victim is below 12 years old, sexual contact of the males sex organ with the womans private part consummates rape and it is not required to prove force, intimidation, or consent.xxxvi[19] The victims declarations were corroborated by the testimony of her uncle who witnessed the bestial act. Such testimonies were further supported by the medical findings of Dr. Algery who examined the victim two days after the incident. The medical report shows that there was penetration by the male organ into her genitalia. The victim even testified to other occasions of rape committed against her by accusedappellant prior to December 13, 1991.xxxvi[20] However, accused-appellant cannot be convicted for the alleged rapes committed other than the one charged in the information. A rule to the contrary will violate accused-appellants constitutional rights to be informed of the nature and cause of the accusation against him.xxxvi[21] Such other alleged rapes committed which are not alleged in the information may be taken only as proof of specific intent or knowledge, plan, system or scheme.xxxvi[22] Anent the second element as to the age of the victim when the crime was committed, accused-appellant questions the admission of the photocopy of the birth certificate of the child invoking Section 3, Rule 130. Accused-appellant argues that the failure of the prosecution to prove the circumstances that will warrant the admission in evidence of the said photocopy, renders the same inadmissible and he cannot be convicted of statutory rape since the age of the victim was not proven with reasonable certainty. It is clear from the records that complainant Melanie Medalla was born on October 23, 1985.xxxvi[23] Besides, under Section 36, Rule 132 of the Rules of Court, objection to evidence offered orally must be made immediately after the offer is made. In the case at bar, the photocopy of the birth certificate was formally offered in evidence and marked as Exhibit B. It was offered to prove (a) the fact of birth of the victim, and (b) the fact that the victim was below twelve years old when she was ravished on December 13, 1991. The defense objected to the purpose for which Exhibit B was being offered,xxxvi[24] but did not object to the presentation of the photocopied birth certificate which is merely treated as a secondary evidence. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became a primary evidence,xxxvi[25] and the same is deemed admitted and the other party is bound thereby. Even so, if the evidence objected to was not received, it would not have varied the conclusion arrived at by the court as to the correct age of the victim considering that the victim and her mother testified as to her age.xxxvi[26] The testimony of the mother as to the age of her child is admissible in evidence for who else would be in the best position to know when she delivered the child. Besides, the court could very

well assess whether or not the victim is below twelve years old by simply looking at her physique and built. It must be stressed that in dealing with rape cases of children, especially those below twelve years of age, due care must be observed by the trial court in handling the victim. In fact, more often than not, the grueling experience in the trial court in the course of direct and cross-examination is more traumatic than the fact of rape itself. On such occasions, mishandling of victims lead to psychological imbalances which, if not properly treated by medical experts will lead to an abnormal behavioral response against the idea of sex itself and disturbed interaction with the opposite sex or of the same sex. The frightful experience of rape committed to children who are bereft of mundane wilesxxxvi[27] necessitates the highest degree of tact, patience and diplomacy. No woman, especially a child of tender years would exactly remember step-by-step the sexual intercourse in the hands of the maniacal beast. It is enough that the child was able to explain in her own way that there was sexual intercourse. By subjecting her into explaining whether she was forced or intimidated is excessive. For proof of force and intimidation is unnecessary in statutory rape. Considering that there is a medical report substantiating the allegations made by the victim, the manner of examination of the victim must be tempered. Especially in this case, since the child is only six years old who remains uncorrupted. In rape, mere touching of males organ to the pudendum of females organ is enough to consummate the crime. Whether the organ was fully erect or not, to a child of six years of age, slight penetration consummates rape. Thus, asking questions likeQ: Did you have any opportunity at that time when you were raped to hold the penis of Nolito Boras? A: No, Sir. Q: At the time, when you were raped by Nolito Boras, was his penis hard or soft? A: Hard, sirxxxvi[28] and Q: Did you see your Uncle Cerilo Guirela after the accused Nolito Boras stop pushing and pulling his penis to your vagina or while he was still in the process of pushing and pulling his penis to your vagina? A: Nolito Boras was not yet finished pushing and pulling his penis to my vagina. xxxvi[29] are unnecessary, uncalled for and excessive queries. Imputation of rape against a neighbor cannot be concocted with ease for malicious reasons by parents of a six-yearold child because it would cause more harm than good. Aside from the traumatic experience of rape, the victims story of defloration must withstand not only the

examination in court but also the medical examination of the victims private parts by a licensed physician. Lastly, at the time of the commission of rape on December 13, 1991, the victim was only six (6) years old. Statutory rape committed in 1991 is punishable by reclusion perpetua. The present law provides that when the crime of rape is committed against a child below seven (7) years of age, death penalty shall be imposed. Considering that the retroactive applicationxxxvi[30]of the law will be unfavorable to accused-appellant, the latter is fortunate enough to be meted only the penalty of reclusion perpetua. Had it been committed after the enactment of the new law, this Court will not hesitate to impose the penalty of death. The award of P50,000.00 representing civil indemnity is proper. In addition thereto, accused-appellant shall pay P50,000.00xxxvi[31] representing moral damages without necessity of proof other than the fact of rape plus P20,000.00 as exemplary damages. Exemplary damages may be awarded if the crime was committed with one or more aggravating circumstances. In this case, abuse of confidence should be appreciated as an aggravating circumstance. The victim trusted accused-appellant in going with him upon the latters invitation on account of her familiarity with him as their neighbor. WHEREFORE, the trial courts judgment convicting accused-appellant of statutory rape is hereby AFFIRMED subject to the MODIFICATION that accused-appellant is ordered to pay P50,000.00 as moral damages and P20,000.00 as exemplary damages IN ADDITION to the P50,000.00 civil indemnity awarded by the trial court. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.

EN BANC

[G.R. No. 135405. November 29, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JHONNETTEL MAYORGA y LUMAGUE alias Puroy, accused-appellant. DECISION BELLOSILLO, J.:

Ravishers of the young, chaste and uninitiated are an ignominious breed of evil men. They are filthier than the slime where they belong, so that even their banishment to Hades for all eternity would be too low a price to pay for the innocent young lives they ruin and destroy. The case at bar, involving a sexual assault upon a child of tender years who had been orphaned by her mother and forsaken by her father, apostrophizes the havoc these despicable and evil beasts can forge. The version of the prosecution,xxxvi[1] as sustained by the trial court, is that at about five o'clock in the afternoon of 24 June 1995, in Barangay Zone I, Sitio Paraiso, Pinamalayan, Oriental Mindoro, five-year old Leney Linayao was playing by the seashore. Suddenly, she was approached by the accused Jhonnettel Mayorga y Lumague alias Puroy who asked her to buy for him a bottle of gin commonly known as "bagets." He then brought the child to a marshy area ("lalao") nearby where he boxed her on the face and chest and wrung her neck until she fainted. By the time Leney recovered consciousness, Puroy had already raped her and then disappeared. Leney, bleeding and muddied, stood up and walked away to the direction of Matuod-tuod where her family lived. On her way home she met Macaria M. Gonzales who immediately brought her to a certain Kapitan Lunario.xxxvi[2] Lunario, in turn, asked Richard Magboo, Nicodenes Magboo and Raquel Laogo to take the child to the barangay hall where she narrated her experience to the barangay tanods gathered in the hall. The tanods brought Leney to the clinic of Dr. Roberto Ngo who examined and attended to her. At about this time, Leneys grandmother, Alfonsa Magculang, together with some men started looking for her. While searching they met Puroy's cousin, Edwin Lumague, who told them that Leney was raped by Puroy and was "dead" when abandoned. According to Edwin, while he was preparing to join the search, Puroy dissuaded him from going and confided to him that "iyong bata si Leney ay napagtripan niya at nilitik niya."xxxvi[3] With Edwin leading the way, they immediately repaired to where Leney was supposedly taken by Puroy. But she was not there. The search party proceeded to the military detachment to report the matter. There they were told by Richard Magboo that Leney had been taken by the barangay tanods to Dr. Ngos clinic. Alfonsa rushed to Dr. Ngos clinic and found Leney lying prostrate with her vagina and anus bleeding. Dr. Ngo advised her to take the child to the provincial hospital for further examination. Finally, at around eight o'clock in the evening, Puroy was picked up by the police and brought to the PC barracks by the barangay tanods who heard Edwins account. Afterwards, Puroy was transferred to the police station.xxxvi[4] On 27 June 1995 Dr. Cristina Gonzales physically examined Leney at the provincial hospital. Dr. Gonzales found that Leney sustained "hematoma, right eye; contusion hematoma, right temporal area; multiple abrasions: right shoulder, left anterior chest,

left thigh and leg, upper back. External genitalia: complete hymenal lacerations at 3, 5, 7 & 10 o'clock positions with erythematous borders, with a 1 cm. perineal laceration with purulent discharge. Internal examination: vagina admits 1 finger with ease. Laboratory examination: cervico-vaginal smear for the presence of spermatozoa revealed NEGATIVE result."xxxvi[5] Jhonnettel Mayorga alias Puroy was accordingly charged with statutory rape of a child five (5) years of age. At the trial, the prosecution presented Alfonsa Magculang, Dr. Cristina Gonzales, Leney and Renato Gamilla, one of the barangay tanods who brought Leney to Dr. Ngos clinic. After the prosecution had rested, Puroy with leave of court filed a demurrer to evidence,xxxvi[6] which was denied by the trial court. Thereafter, the defense presented the accused as its lone witness who claimed that the imputation against him was a lie. He claimed that at the time of the supposed rape he was "patay lasing." He narrated that at about three o clock in the afternoon of the day in question he was with Manuel Erebe and Rico Erebe at the seashore drinking gin in celebration of the feastday of Saint John the Baptist. After consuming a few bottles of gin he blacked out. When he awoke at seven oclock in the evening, he found that he was alone and so he decided to go home. He was met by Edwin who told him that policemen were looking for him and that he was a suspect in the rape of Leney, his neighbor. But he denied these accusations and went home to sleep. After an hour, he was awakened by the police, arrested and brought to the PC barracks.xxxvi[7] The trial court did not sustain Puroy's defense of alibi. Edwins testimony was also not given credence on the ground that it was hearsay and was violative of the constitutional rights of the accused. Solely on account of Leneys testimony, the court a quo found the accused guilty beyond reasonable doubt as principal in the crime of RAPE as defined and penalized under Art. 335 of the Revised Penal Code, as amended by RA 7659, and sentenced him to suffer the supreme penalty of DEATH plus the accessory penalties provided by law, and to indemnify the victim Leney Linayao the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs.xxxvi[8] Forthwith, the case was elevated to this Court for automatic review. In his brief, accused concedes that his defense of alibi is inherently weak. Nonetheless, he faults the trial court for convicting him despite the failure of the prosecution to establish his guilt beyond reasonable doubt. He elaborates that, first, Leneys testimony should not be given credence since she had been coached by her grandmother; and second, Edwins testimony was given under compulsion of threat and does not deserve credit. On the claim that Leney was a "tutored witness," accused capitalizes on certain portions of the victims testimony regarding the circumstances surrounding the rape -

Q: You will agree with me that your Lola told you that when asked how you were raped, your Lola told you to make the sign which you have just demonstrated a while ago? A: Yes, sir. Q: Your Lola also told you to say before this Honorable Court that Puroy inserted his penis on your vagina? A: Yes, sir. Q: So it was your Lola who informed you to testify in the manner you did? A: Yes, sir. Q: So, it is now true, that all you have testified before this Court were taught to you by your Lola? A: Yes, sir. Q: You could not be mistaken about that and you will not change your answer in any other circumstances? A: Yes, sir.xxxvi[9] Accused further asserts that he was being falsely charged by his cousin Edwin because the latter was threatened by the complainant that he would be implicated in the rape charge unless he testified against the accused. This appeal primarily hinges on the issue of credibility of witnesses. We have held that except for compelling reasons, we cannot disturb the manner the trial courts have calibrated the credence of witnesses because of their direct opportunity to observe the witnesses on the stand and detect if they were telling the truth.xxxvi[10] As trial courts, they can best appreciate the verbal and non-verbal communication made by witnesses which cannot, with precise accuracy, be placed on the records. The argument that Leney has lost her credibility since she admitted that she had been coached by her grandmother has no merit. The victim, an innocent and guileless fiveyear old when the crime was committed against her, cannot be expected to recall every single detail and aspect of the brutal experience that she went through in the hands of the accused. Besides, at the time of her testimony she had stopped schooling and did not have the gift of articulation. It is but fair that she be guided through by her grandmother in recounting her harrowing experience which happened two (2) years before she testified.

In a similar case, we held, "assuming that she was indeed tutored on what to say on the witness stand, it is worthy to note that when she testified, she was alone; hence, any traces of inconsistency would have easily been detected. More importantly, the complainant took the witness stand x x x to narrate her harrowing experience, and in all of those instances, she underwent intensive cross-examination from the defense but her testimony never wavered nor faltered."xxxvi[11] We realize how extremely painful it was for Leney to reveal that she had been raped. Her attempt to demonstrate before the court the accused's success in having carnal knowledge of her spoke of her utter innocence and naivet. Her painful criesxxxvi[12] were eloquent testimonies of an anguish too grievous for a young girl to bear. Indeed, it is simply hard to conceive that a girl of her character would be able to weave such a sordid tale. At this juncture, we take exception to the pronouncement made by the court below that "the testimony of Edwin Lumague that accused Jhonnettel Mayorga conveyed to him that 'May napagtripan akong bata. (Nalitik daw po niya ang bata)' could not be given credence and therefore inadmissible, both as violative of the constitutional rights of the accused and as hearsay evidence."xxxvi[13] The lower court's ruling that the admission of the declaration of the accused would constitute a violation of his constitutional right is misplaced. His declaration was not made under custodial investigation; hence, it does not come within the gamut of Sec. 12, Art. III, of the 1987 Constitution.xxxvi[14] Nor is there merit to the courts finding that Edwins testimony was hearsay. This is a misinterpretation of the hearsay rule. It must be pointed out that the statement to him of the accused constitutes an extrajudicial admission.xxxvi[15] This admission can be received against the accused since it is not within the purview of the hearsay rule. Wigmore explains that the hearsay rule is intended to give the parties a right to object to the introduction of a statement not made under oath and not subject to crossexamination. Its purpose is to afford a party the privilege, if he desires it, of requiring the declarant to be sworn and subjected to questions. Wigmore then adds that where the evidence offered are his statements, the purpose does not apply, and so the hearsay rule does not likewise apply, as "he does not need to cross-examine himself."xxxvi[16] In the face of Edwin's testimony that the accused had made the admission, it becomes imperative for the latter to disprove it. His explanation that Edwin was coerced to testify against him is at best a futile attempt to prop a tottering defense. The allegation can be no better than pure speculation as nothing was offered to support it. On the other hand, it is indeed incredible that Edwin could be frightened by the threat of a five-year old child.

The defense of alibi set up by the accused is equally untenable. The rule is that the defense of alibi when not supported by clear and convincing evidence deserves no weight in law as it can be easily fabricated or contrived. It cannot be given evidentiary value than the affirmative testimony of credible witnesses who harbor no ill motives against the accused, for as between a categorical testimony on one hand, and a bare denial on the other, the former is generally held to prevail.xxxvi[17] All told, the guilt of the accused for the rape of Leney Linayao has been conclusively established. But, the penalty of death was erroneously imposed. Under Art. 335 of the Revised Penal Code, as amended by RA 7659, death shall be imposed "when the victim is . . . a child below seven (7) years old." In the instant case, the Information charging the accused with rape alleged the circumstance that the victim, Leney Linayao, was five (5) years of age. However, it is significant to note that the prosecution failed to present her birth certificate. Although the victims age was not contested by the defense, proof of age is critical considering that the victims age at the time of the rape was just two (2) years less than seven (7) years. Given the similarities in physical features and attributes between a five-year old child and a seven-year old, an independent proof of age is necessary to convince this Court that the victim was indeed below seven (7) years of age when she was raped, in order to justify the imposition of the death penalty. The evidence on record shows that other than the testimonies of the victim and her grandmother, no independent proof was presented to show that Leney was below seven (7) years of age when raped. As such, the lower court should have imposed the penalty of reclusion perpetua and not death. Further, inasmuch as the rape was not qualified by any of the circumstances under which the death penalty should be imposed, the civil indemnity to be awarded to complaining witness Leney Linayao should remain at P50,000.00. However, considering the trauma she suffered, we deem it proper to award her moral damages of P50,000.00 although no proof of such entitlement was presented, which is not necessary after all. In one casexxxvi[18] this Court held Under the Civil Code, every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same (Art. 20) and (a)ny person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damages (Art. 21). x x x x Courts have hitherto awarded moral damages in rape cases only when it has been proven during the trial that the victim or his heirs suffered physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. These are sacramental words and phrases which courts routinely look for in awarding moral damages. If none of these is alleged and proven, moral damages would normally be withheld. One look at the records of a rape case would, however, readily reveal that these factors are evident in each tearful narration of a victims harrowing tale. Never mind if the exact words do not appear therein. The fact remains that any victim of rape, regardless of

age, status, social or professional position, religious orientation, or sexual preference, would suffer physical pain, emotional outrage, mental anxiety and fright. Her feelings, not to speak of her reputation, would definitely be permanently scarred x x x x Although, admittedly, the picayune damages awarded in these instances could not even allay the true misery of a rape victim, the knowledge that the man responsible for it would have to literally pay for his misdeed, on top of having to spend time in prison, could assuage somewhat the pain inflicted. April Dino was mercilessly plucked from childhood and rudely thrust into a world that, like her, has lost its innocence. She will no longer be thrilled by the ancient rituals of courtship, marriage and procreation. It is very probable that she will be unable to sustain lasting and meaningful relationships with the opposite sex x x x x In time, her physical wounds will heal but the scars left by the accused-appellant on her pubescent mind and heart will forever throb and hurt. For his transgressions, he must be made to pay. WHEREFORE, the assailed Decision of the trial court finding accused JHONNETTEL MAYORGA Y LUMAGUE guilty of rape is AFFIRMED with the modification that the penalty of death is reduced to reclusion perpetua. In addition to the civil indemnity of P50,000.00, accused is further ordered to pay complaining witness Leney Linayao P50,000.00 for moral damages, plus the costs. SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 108854 June 14, 1994 MA. PAZ FERNANDEZ KROHN, petitioner, vs. COURT OF APPEALS and EDGAR KROHN, JR., respondents.

Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner. Oscar F. Martinez for private respondent.

BELLOSILLO, J.: A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report. The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged communication between physician and patient, seeks to enjoin her husband from disclosing the contents of the report. After failing to convince the trial court and the appellate court, she is now before us on a petition for review on certiorari. On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de Paul Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings notwithstanding, the relationship between the couple developed into a stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease the marital strain. The effort however proved futile. In 1973, they finally separated in fact. In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978, presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at the time of the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and pronounced "Final and Definite." 2 Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership. On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4 At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of the Confidential Psychiatric Evaluation Report. This was objected to on the

ground that it violated the rule on privileged communication between physician and patient. Subsequently, Ma. Paz filed a Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that would thwart the physicianpatient privileged communication rule," 5 and thereafter submitted a Statement for the Record asserting among others that "there is no factual or legal basis whatsoever for petitioner (Edgar) to claim 'psychological incapacity' to annul their marriage, such ground being completely false, fabricated and merely an afterthought." 6 Before leaving for Spain where she has since resided after their separation, Ma. Paz also authorized and instructed her counsel to oppose the suit and pursue her counterclaim even during her absence. On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz' Statement for the Record. 8 On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation Report in evidence and ruling that
. . . the Court resolves to overrule the objection and to sustain the Opposition to the respondent's Motion; first, because the very issue in this case is whether or not the respondent had been suffering from psychological incapacity; and secondly, when the said psychiatric report was referred to in the complaint, the respondent did not object thereto on the ground of the supposed privileged communication between patient and physician. What was raised by the respondent was that the said psychiatric report was irrelevant. So, the Court feels that in the interest of justice and for the purpose of determining whether the respondent as alleged in the petition was suffering from psychological incapacity, the said psychiatric report is very material and may be testified to by petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to dispute the said report or to cross-examination first the petitioner and later the 9 psychiatrist who prepared the same if the latter will be presented.

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4, 1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off the record. A subsequent motion for reconsideration filed by her counsel was likewise denied. Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5 February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the instant petition for review. Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric report and prays for the admission of her Statement for the Record to form part of the records of the case. She argues that since Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on matters which he may have acquired in attending to a patient in a professional capacity, "WITH MORE REASON should be third person (like respondent-husband in

this particular instance) be PROHIBITED from testifying on privileged matters between a physician and patient or from submitting any medical report, findings or evaluation prepared by a physician which the latter has acquired as a result of his confidential and privileged relation with a patient." 12 She says that the reason behind the prohibition is
. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and 13 efficaciously to treat his patient.

She further argues that to allow her husband to testify on the contents of the psychiatric evaluation report "will set a very bad and dangerous precedent because it abets circumvention of the rule's intent in preserving the sanctity, security and confidence to the relation of physician and his patient." 14 Her thesis is that what cannot be done directly should not be allowed to be done indirectly. Petitioner submits that her Statement for the Record simply reiterates under oath what she asserted in her Answer, which she failed to verify as she had already left for Spain when her Answer was filed. She maintains that her "Statement for the Record is a plain and simple pleading and is not as it has never been intended to take the place of her testimony;" 15 hence, there is no factual and legal basis whatsoever to expunge it from the records. Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not applicable to the case at bar where the person sought to be barred from testifying on the privileged communication is the husband and not the physician of the petitioner." 16 In fact, according to him, the Rules sanction his testimony considering that a husband may testify against his wife in a civil case filed by one against the other. Besides, private respondent submits that privileged communication may be waived by the person entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the use of the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum Matrimoniale which took it into account among others in deciding the case and declaring their marriage null and void. Private respondent further argues that petitioner also gave her implied consent when she failed to specifically object to the admissibility of the report in her Answer where she merely described the evaluation report as "either unfounded or irrelevant." At any rate, failure to interpose a timely objection at the earliest opportunity to the evidence presented on privileged matters may be construed as an implied waiver. With regard to the Statement for the Record filed by petitioner, private respondent posits that this in reality is an amendment of her Answer and thus should comply with pertinent provisions of the Rules of Court, hence, its exclusion from the records for failure to comply with the Rules is proper.

The treatise presented by petitioner on the privileged nature of the communication between physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making communications between physician and patient privileged are intended to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms and condition. 17 Consequently, this prevents the physician from making public information that will result in humiliation, embarrassment, or disgrace to the patient. 18 For, the patient should rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. 19 The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of information communicated in the context of the physician-patient relationship fall within the constitutionally protected zone of privacy, 20 including a patient's interest in keeping his mental health records confidential. 21 Thus, it has been observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist. Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient. In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and, consequently, the evidence offered may be admitted. The other issue raised by petitioner is too trivial to merit the full attention of this Court. The allegations contained in the Statement for the Records are but refutations of private respondent's declarations which may be denied or disproved during the trial.

The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed and private respondent herein, as petitioner before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial judge and the parties' respective counsel to act with deliberate speed in resolving the main action, and avoid any and all stratagems that may further delay this case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial and include in their appeals depthless issues, there will be no end to litigations, and the docket of appellate courts will forever be clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing lower court rulings and raise only legitimate issues so as not to retard the resolution of cases. Indeed, there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who after coming out from a storm still have the right to a renewed blissful life either alone or in the company of each other. 23 WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED. SO ORDERED. Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

# Footnotes
1 Annex "C," Comment, Rollo, p. 128. 2 Annex "D," Comment, Rollo, p. 129. 3 Regional Trial Court of Makati, Br. 144, Judge Candido P. Villanueva, presiding. 4 Answer in Civil Case No. 90-2906, p. 3, par. 7, Rollo, p. 63. 5 Manifestation, Annex "F," Rollo, pp. 74-78. 6 Statement for the Record (Respondent's Confirmation and Verification of her Answer with Special and Affirmative Defenses and Compulsory Counterclaim), p. 2, Annex "G," Rollo, p. 80. 7 Annex "H," Rollo, pp. 83-85. 8 Annex "I," Rollo, p. 86. 9 Order of the trial court issued 4 June 1991; Rollo, p. 91.

10 Decision penned by Associate Justice Salome A. Montoya and concurred in by Associate Justices Vicente V. Mendoza, Chairman, and Quirino D. Abad Santos, Special Third Division. 11 Sec. 24. Disqualification by reason of privileged communication . The following persons cannot testify as to matters learned in confidence in the following cases: . . . (c) A surgeon authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient. 12 Memorandum of Petitioner, p. 7, Rollo, p. 189. 13 Citing Will of Bruendi, 102 Wis. 47, 78 N.W. 169. 14 Memorandum of Petitioner, p. 15, Rollo, p. 197. 15 Id., p. 29, Id., p. 211. 16 Memorandum of Private Respondent, p. 6, Rollo, p. 172. 17 81 Am. Jur. 2d 392, citing Massachusetts Mut. Life Ins. Co. v. Brei (CA2 NY) 311 F2d 463, 6 FR Serv 2d 5, 100 ALR2d 634; Binder v. Superior Court (5th Dist) 196 Cal App 3d 893, 242 Cal Rptr 231; and many others. 18 Id., citing Post v. State (Alaska) 850 P2d 304; Binder v. Superior Court (5th Dist), see Note 17; Steinberg v. New York Life Ins. Co., 263 45, 188 NE 152, 90 ALR 642; and many others. 19 Id., citing Binder v. Superior Court (5th Dist), see Note 18. 20 81 Am Jur 2d 393, citing Falcon v. Alaska Public Offices Com. (Alaska) 570 P2d 469. 21 81 Am Jur 2d 394, citing Mavroudis v. Superior Court of San Mateo Country (1st Dist) 102 Cal App 3d 594, 162 Cal Rptr 724. 22 G.R. No. 91114, 25 September 1992, 214 SCRA 273. 23 Salita v. Judge Magtolis, G.R. No. 106429, 16 May 1994.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION

March 17, 1925 G.R. No. L-22948 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FAUSTO V. CARLOS, defendant-appellant. M.H. de Joya, Jose Padilla, Vicente Sotto and Monico Mercado for appellant. Attorney-General Villa-Real and City Fiscal Guevara for appellee. Ostrand, J.: This is an appeal from a decision of the Court of First Instance of the City of Manila finding the defendant Fausto V. Carlos guilty of the crime of murder and sentencing him to suffer life imprisonment, with the accessory penalties prescribed by law and with the costs. It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityar, on March 3, 1924, in Mary Chiles Hospital, performed a surgical operation upon the defendants wife for appendicitis and certain other ailments. She remained in the hospital until the 18th of the same month, but after her release therefrom she was required to go several times to the clinic of Doctor Sityar at No. 40 Escolta, for the purpose of dressing the wounds caused by the operation. On these occasions she was accompanied by her husband, the defendant. The defendant states that on one of the visits, that of March 20, 1924, Doctor Sityar sent him out on an errand to buy some medicine, and that while defendant was absent on this errand Doctor Sityar outraged the wife. The defendant further states that his wife informed him of the outrage shortly after leaving the clinic. Notwithstanding this it nevertheless appears that he again went there on March 28th to consult the deceased about some lung trouble from which he, the defendant, was suffering.. He was given some medical treatment and appears to have made at least one more visit to the clinic without revealing any special resentment. On May 12, 1924, the defendant, suffering from some stomach trouble, entered the Philippine General Hospital where he remained until May 18, 1924, and where he was under the care of two other physicians. While in the hospital her received a letter (Exhibit 5) from Doctor Sityar asking the immediate settlement of the account for the professional services rendered his wife. Shortly after his release from the hospital the defendant sought an interview with Doctor Sityar and went to the latters office several times without finding him in. On one of these occasions he was asked by an employee of the office, the nurse Cabaera, if he had come to settle his account, to which the defendant answered that he did not believe he owed the doctor anything. In the afternoon of May 26th the defendant again went to the office of the deceased and found him there alone. According to the evidence of the prosecution, the defendant then, without any preliminary quarrel between the two, attacked the deceased with a fan-knife and stabbed him twice. The deceased made an effort to escape but the defendant pursued him and overtaking him in the hall outside the office, inflicted another wound upon him and as a consequence if the three

wounds he died within a few minutes. The defendants made his escape but surrendered himself to the Constabulary at Malolos, Bulacan, in the evening of the following day. The defendant admits that he killed the deceased but maintains that he did so in self-defense. He explains that he went to Doctor Sityars office to protest against the amount of the fee charged by the doctor and, in any event, to ask for an extension of the time of payment; that during the conversation upon that subject the deceased insulted him by telling him that inasmuch as he could not pay the amount demanded he could send his wife to the office as she was the one treated, and that she could then talk the matter over with the decease; that this statement was made in such an insolent and contemptuous manner that the defendant became greatly incensed and remembering the outrage committed upon his wife, he assumed a threatening attitude and challenged the deceased to go downstairs with him and there settle the matter; that the deceased thereupon took a pocket-knife from the center drawer of his desk and attacked the defendant, endeavoring to force him out of the office; that the defendant, making use of his knowledge of fencing, succeeded in taking the knife away from the deceased and blinded by fury stabbed him first in the right side of the breast and then in the epigastric region, and fearing that the deceased might secure some other weapon or receive assistance from the people in the adjoining room, he again stabbed him, this time in the back. The defendants testimony as to the struggle described is in conflict with the evidence presented by the prosecution. But assuming that it is true, it is very evident that it fails to establish a case of self-defense and that, in reality, the only question here to be determined is whether the defendant is guilty of murder or of simple homicide. The court below found that the crime was committed with premeditation and therefore constituted murder. This finding can only be sustained by taking into consideration Exhibit L, a letter written to the defendant by his wife and siezed by the police in searching his effects on the day of his arrest. It is dated May 25, 1924, two days before the commission of the crime and shows that the writer feared that the defendant contemplated resorting to physical violence in dealing with the deceased. Counsel for the defendant argues vigorously that the letter was a privileged communication and therefore not admissible in evidence. The numerical weight of authority is, however, to the effect that where a privileged communication from one spouse to another comes into the hands of a third party, whether legally or not, without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the communication, if otherwise competent, becomes admissible. (28 R.C.L., 530 and authorities there cited.) Such is the view of the majority of this court. Professor Wigmore states the rule as follows: For documents of communication coming into the possession of a third person, a distinction should obtain, analogous to that already indicated for a clients communications (ante, par. 2325, 2326); i. e., if they were obtained from the addressee by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nullified for written

communications); but if they were obtained surreptitiously or otherwise without the addressees consent, the privilege should cease. (5 Wigmore on Evidence, 2nd ed., par. 2339.) The letter in question was obtained through a search for which no warrant appears to have been issued and counsel for the defendant cites the causes of Boyd and Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber Co. and Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that documents obtained by illegal searches of the defendants effects are not admissible in evidence in a criminal case. In discussing this point we can do not better than to quote Professor Wigmore: The foregoing doctrine (i. e., that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence) was never doubted until the appearance of the ill-starred majority opinion of Boyd vs. United States, in 1885, which has exercised unhealthy influence upon subsequent judicial opinion in many States. xxxxxxxxx The progress of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case remained unquestioned in its own Court for twenty years; meantime receiving frequent disfavor in the State Courts (ante, par. 2183). (b) Then in Adams vs. New York, in 1904, it was virtually repudiated in the Federal Supreme Court, and the orthodox precedents recorded in the State courts (ante, par. 2183) were expressly approved. (c) Next, after another twenty years, in 1914 moved this time, not by erroneous history, but by misplaced sentimentality the Federal Supreme Court, in Weeks vs. United States, reverted to the original doctrine of the Boyd Case, but with a condition, viz., that the illegality of the search and seizure should first have been directly litigated and established by a motion, made before trial, for the return of the things seized; so that, after such a motion, and then only, the illegality would be noticed in the main trial and the evidence thus obtained would be excluded. (4 Wigmore on Evidence, 2nd ed., par. 2184.) In the Silverthorne Lumber Co. case the United States Supreme Court adhered to its decision in the Weeks Case. The doctrine laid down in these cases has been followed by some of the State courts but has been severely criticized and does not appear to have been generally accepted. But assuming, without deciding, that it prevails in this jurisdiction it is, nevertheless, under the decisions in the Weeks and Silverthorne cases, inapplicable to the present case. Here the illegality of the search and seizure was not directly litigated and established by a motion, made before trial, for the return of the things seized. The letter Exhibit L must, however, be excluded for reasons not discussed in the briefs. The letter was written by the wife of the defendant and if she had testified at the trial the letter might have been admissible to impeach her testimony, but she was not put on the witness-stand and the letter was therefore not offered for that purpose. If the defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it might also have been admissible, but such is not the case here; the fact that he had the letter in his possession is no indication of acquiescence or assent on his part. The letter is therefore nothing but pure hearsay

and its admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with the witnesses for the prosecution and have the opportunity to crossexamine them. In this respect there can be no difference between an ordinary communication and one originally privileged. The question is radically different from that of the admissibility of testimony of a third party as to a conversation between a husband and wife overheard by the witness. Testimony of that character is admissible on the ground that it relates to a conversation in which both spouses took part and on the further ground that where the defendant has the opportunity to answer a statement made to him by his spouse and fails to do so, his silence implies assent. That cannot apply where the statement is contained in an unanswered letter. The Attorney-General in support of the contrary view quotes Wigmore, as follows: . . . Express communication is always a proper mode of evidencing knowledge or belief. Communication to a husband or wife is always receivable to show probable knowledge by the other (except where they are living apart or are not in good terms), because, while it is not certain that the one will tell the other, and while the probability is less upon some subjects than upon others, still there is always some probability, which is all that can be fairly asked for admissibility. (1 Wigmore, id., par. 261.) This may possibly be good law, though Wigmore cites no authority in support of his assertion, but as far as we can see it has little or nothing to do with the present case. As we have already intimated, if Exhibit L is excluded, there is in our opinion not sufficient evidence in the record to show that the crime was premeditated. The prosecution maintains that the crime was committed with alevosia. This contention is based principally on the fact that one of the wounds received by the deceased showed a downward direction indicating that the deceased was sitting down when the wound was inflicted. We do not think this fact is sufficient proof. The direction of the wound would depend largely upon the manner in which the knife was held. For the reasons stated we find the defendant guilty of simple homicide, without aggravating or extenuating circumstances. The sentence appealed from is therefore modified by reducing the penalty to fourteen years, eight months and one day of reclusion temporal, with the corresponding accessory penalties and with the costs against the appellant. So ordered. Johnson, Malcolm, Johns, and Romualdez, JJ., concur. Separate Opinions VILLAMOR, J., dissenting:

His Honor, the judge who tried this case, inserts in his decision the testimony of the witness Lucio Javillonar as follows: The witness, Lucio Javillonar, testified that he went to the office of the deceased some minutes before six oclock in that evening in order to take him, as had previously been agreed upon between them, so that they might retire together to Pasig, Rizal, where they resided then; that having noticed that the deceased was busy in his office, talking with a man about accounts, instead of entering, he stayed at the waiting room, walking from one end to another, while waiting for that man to go out; that in view of the pitch of the voice in which the conversation was held between the deceased and his visitor, and what he had heard, though little as it was, of said conversation, he believes that there was not, nor could there have been, any change of hard words, dispute or discussion of any kind; that shortly thereafter, he saw the screen of the door of the deceaseds office suddenly open, and the deceased rush out stained with blood, and followed closely by the accused who then brandished a steel arm in the right hand; that upon seeing the deceased and overtaking him, leaning upon one of the screens of the door of a tailor shop a few feet from his office, slightly inclined to the right, with the arms lowered and about to fall to the floor, the accused stabbed him on the right side of the chest, thereby inflicting a wound on the right nipple; and that then the accused descended the staircase to escape away, at the same time that the deceased was falling to the ground and was being taken by him with the assistance of other persons from said place to a lancape (a sofa) where he died a few minutes later, unable to say a word. In deciding the question as to whether the act committed is murder, with the qualifying circumstance of treachery, as claimed by the Attorney-General, the trial judge says that the principal ground of the prosecution for holding that the commission of the crime was attended by the qualifying circumstance of treachery is a mere inference from the testimony of Lucio Javillonar, and that the nature of the wounds found on the epigastric region of the deceased and his back do not mean anything, because they could have been inflicted while the deceased was standing, seated or inclined. A careful consideration of the testimony of Lucio Javillonar, as set out in the judgment appealed from, will show that, according to said eyewitness, the deceased was with his arms lowered and about to fall to the floor when the accused stabbed him on the right side of the chest with the weapon he was carrying, thereby inflicting a wound on the right nipple, and that, according to the doctor who examined the wounds, anyone of them could have caused the death of the deceased. These being the facts proven, I am of opinion that application must be made here of the doctrine laid down by this court in the case of United States vs. Baluyot (40 Phil., 385), wherein it was held that Even though a deadly attack may be begun under conditions not exhibiting the feature of alevosia, yet if the assault is continued and the crime consummated with alevosia, such circumstance may be taken into consideration as a qualifying factor in the offense of murder. I admit that none of the witnesses who testified in this case has seen the beginning of the aggression; but it positively appears from the testimony of the said witness Lucio Javillonar that, notwithstanding that the deceased was already wounded and about to fall to the floor, he struck him with another mortal blow with the weapon he was carrying, which shows that the accused consummated the crime with treachery.

For the foregoing, I am of opinion that the judgment appealed from must be affirmed, considering the act committed as murder, with the qualifying circumstance of treachery, and in this sense I dissent from the majority opinion.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 100910 July 25, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LORETO SALANGGA and LAURETO LOPEZ, accused. LORETO SALANGGA, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellants.

REGALADO, J.: Accused-appellant Loreto Salangga, alias "Dodong," and Laureto Lopez, alias "Retoy," were haled to court as conspirators in the rape and killing of a fifteen-year old barrio lass named Imelda Talaboc, allegedly committed in Magsaysay, Davao del Norte on or about July 18, 1987. 1 Assisted by counsel de oficio, both accused pleaded not guilty during their arraignment. After trial, judgment was rendered by said trial court on February 21, 1991 finding appellant Salangga guilty of attempted rape with homicide, imposing upon him the penalty of reclusion perpetua but with full credit for his preventive imprisonment, and ordering him to pay P30,000.00 as indemnity to the heirs of the victim. Accused Laureto Lopez was acquitted for failure of the prosecution to prove his guilty beyond reasonable doubt. 2 It appears that in the late afternoon of July 18, 1987, in Sitio Ogsing, Barangay Tacul, Magsaysay, Davao del Sur, Imelda Talaboc was sent by her mother to fetch water from

the spring, or "bugac," the only source of water in the vicinity. Imelda left with two onegallon containers. At around 5:30 to 6:30 of the same afternoon, when the dusk of twilight was enveloping the area, one Ricky Monterde, a friend and brother in faith of the Talaboc family, who resided only two hundred meters away from the latter's residence, likewise went to fetch water. On his way, he saw appellant Salangga walking about three meters ahead of Imelda. He noticed that appellant kept glancing back towards Imelda who was carrying water containers. Trailing the girl was accused Lopez who was walking behind her at a distance of about twenty fathoms. 3 On the same occasion, Lenie Alingay, a twelve-year old elementary student residing at Sitio Ogsing, was on her way home from her grandfather's house. She recounted that she met Imelda at the downhill crossing leading towards the barrio. Lenie explained that she was about four meters away from Imelda, while the latter was following appellant and walking about two meters behind him. As Imelda came abreast with Lenie, the former asked the latter if she was going to school on Monday. Then, as Lenie proceeded on her way home, she saw that Lopez who was sitting on a rice paddy suddenly stood up and followed Imelda. At about the same time, Lenie also saw Ricky Monterde fetching water from the spring. When Bernardo Talaboc, father of Imelda, came home from work, he was informed by his wife that Imelda, whom she sent to the "bugac" earlier, was missing. Talaboc set out to look for Imelda. On his way to the spring, he came upon two water containers left standing at a spot about four hundred meters away from their house. 4 His search for Imelda led Talaboc to the house of Ricky who told him that he had earlier seen Imelda on her way home with appellant walking ahead of her. Ricky then accompanied Talaboc and his son to the house of the barangay captain, Severino Laput, to whom they reported Imelda's disappearance. Thereafter, together with the members of his household and some neighbors, they continued looking for Imelda. At around 8:00 o'clock that same night, they found the corpse of Imelda lying in the bushes about twenty meters away from where the water containers were earlier found. Imelda was found with her clothes on but her panty was missing. Her face was disfigured by physical blows, she had been stabbed by a knife, and her eyes were gouged out. The searching party brought home the body of the victim. Talaboc went to see Lenie Alingay and her family to inquire whether they witnessed any unusual happening that fatal afternoon, since the "bugac" is only about twenty meters away from their house. Lenie told him about her brief encounter with Imelda, as earlier narrated. Appellant and Lopez were arrested that same night at around 8:00 o'clock, after the corpse of Imelda had been found, upon the orders of Barangay Captain Laput based on

the information given by Ricky and Lenie implicating the two of them. They both became the main suspects responsible for the grievous fate of Imelda, as they were the persons last seen with her before the tragedy. The soldiers of the 46th Infantry Brigade of the Philippine Army took them into custody. At the army detachment, said suspects were bodily searched. According to the prosecution, the soldiers recovered from appellant a piece of lady's underwear, later identified by Talaboc to be that of his daughter, Imelda. Afterwards, both suspects were ordered to undress. The prosecution claims that appellant's body bore what looked like bite marks and scratches, but none was found on the body of Lopez. The following morning, the suspects were brought to the office of Station Commander Manuel Macabutas in the municipal hall where both were investigated by P/Sgt. Mario Gataber of the Magsaysay Police Station. Appellant scrawled his quivery signature on an unsworn statement, 5 handwritten by some other person, wherein he admitted the crime charged, except that he was not able to consummate his bestial desire because Imelda fought very hard against him. 6 The defense had a different version to tell. It was claimed that on July 18, 1987, at about 9:00 P.M. while appellant was repairing a wall in his kitchen, some members of the 46th Infantry Brigade and Lopez came to his house. He was informed that Barangay Captain Laput was requesting for their presence at his house. Both accused complied with the request and went to the residence of Laput. The latter asked them if they were responsible for the death of Imelda and they vehemently denied any participation in the crime. The accused were then brought to the 46th Infantry Brigade Headquarters where they were allegedly subjected to severe physical beatings by the soldiers. Unable to bear the maltreatment any further, they were compelled to admit the earlier accusations against them. The next day, a strong and painful kick in the stomach was inflicted on appellant by one of his custodians for refusing to carry a lady's underwear and a pair of blue slippers in his pocket, which items were later identified by Talaboc as belonging to his daughter. Consequently, he carried the same with him when they were brought to the Magsaysay Municipal Hall where they were investigated by Sgt. Gataber. Afterwards, appellant was asked to sign a document, explained to him as having something to do with his food, to which importing the unlettered appellant acceded. Unfortunately, the document turned out to be his supposed statement admitting his guilt for attempting to rape Imelda and subsequently killing her. 7 Appellant Loreto Salangga has now come before us, through counsel de oficio, contending that the trial court erred in convicting him of the crime charged on the basis of insufficient circumstantial evidence.

Section 5, Rule 113 of the Rules of Court provides that a peace officer or a private person may, without a warrant, arrest a person when (a) in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) an offense has in fact just been committed and he has personal knowledge of the facts indicating that the person to be arrested has committed it; and (c) the person to be arrested is a prisoner who has escaped. In cases falling under paragraphs (a) and (b) thereof, the person to be arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Section 7, Rule 112. From these provisions, it is not hard to conclude that appellant was arrested in violation of his fundamental right against unjustified warrantless arrest. On the night he was arrested, he was in his house peacefully attending to some domestic chores therein. It cannot be suggested that he was in any way committing a crime or attempting to commit one. Also, the soldiers had no personal knowledge of the crime he was being charged with, nor was he a fugitive from the law. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law. 8 Bernardo Talaboc testified that both accused were frisked and asked to undress before him, some soldiers of the 46th Infantry Brigade, and Barangay Captain Laput inside the Army detachment. If he is to be believed, that body search incredibly yielded a lady's panty from the pocket of appellant and which underwear he identified as that of his daughter. It would surely have been the height of stupidity for appellant to be keeping on his person an incriminating piece of evidence which common sense dictates should have been destroyed or disposed of. For that matter, according to Barangay Captain Laput before whom appellant was brought shortly after his apprehension and who was also present therein, nothing was taken from said appellant. 9 In any event, the underwear allegedly taken from the accused is inadmissible in evidence, being a so-called "fruit of a poisonous tree." Likewise, there is definitely an improbability in the claim of Talaboc that he was able to recognize the underwear of his daughter. It is an a typical and abnormal situation under Filipino customs for a father to be familiar with the underwear of his daughter. This is highly improbable, and it is plain common sense that improbabilities must be carefully scrutinized and not readily accepted. Again, during the initial investigation of Barangay Captain Laput on July 23, 1987 before Sgt. Gataber, nothing was ever mentioned regarding the supposed scratches and bite marks allegedly found on the chest of appellant. The truth is that these matters were mentioned in the trial court only after about two and a half years from the arrest of

appellant. It is indeed strange that such vital evidence conspicuously found on the body of appellant, if true, could be omitted in the sworn statement of Laput 10 which was taken four days after the alleged discovery. He and the investigator could not have been unaware that the supposed scratches and bite marks were obviously relevant in this kind of crime, more particularly to prove the reported struggle of the victim against her unknown killer. The aforesaid testimony of Laput thus suffers from serious flaws attendant to its taking which accordingly taint its credibility. The long delay in his disclosure bolsters the suspicion that such testimony is biased, if not fabricated. Laput's claim that he revealed the aforesaid facts to Sgt. Gataber 11 is belief by his own sworn statement. It is true, and we was have so held, that sworn statements executed before police officers are usually incomplete and contain data which are inconsistent with the facts narrated by the witnesses to said officers. For this reason, courts have generally brushed aside, as inconsequential, contradictions in the sworn statement of a witness and his testimony as long as these dwell only on minor and reconcilable matters. 12 However, the aforesaid allegations on the supposed scratches and bite marks on the body of appellant can by no means be considered as minor or trivial matters. The prosecution, in fact, relies heavily thereon to support its theory of the case. Since every circumstance must be taken into consideration in passing upon the guilt or innocence of the accused, it becomes crucial for his eventual acquittal when such discrepancies touch on substantial and irreconcilable facts, as when the omission in the sworn statement concerns an important detail which the affiant would not have failed to mention, and which omission could accordingly affect his credibility. 13 We are not persuaded by the theory that the accused waived their right against the said unreasonable search and seizure, simply because they did not object thereto. To constitute waiver, it must appear, firstly, that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. 14 Courts understandably indulge every reasonable presumption against waiver of fundamental safeguards and do not deduce acquiescence in the loss of elementary rights. 15 Coming now to Sgt. Gataber's testimony, we find that the same seriously undermines the case for the People. On the witness stand, he recited the rights of an accused but apparently none of these were granted to or applied in his investigation of appellant. This is partly explained by the fact that he had a wrong, if not a weird, perception or understanding regarding a "person under custodial interrogation," his duty to apprise such person of his rights, and the right of that person to counsel, as demonstrated below.
Q How would you say that a person is under custodial interrogation? A When the accused is assisted by a counsel of his own choice.

xxx xxx xxx Q In other words, if the accused is not assisted by counsel in the investigation he is not under custodial interrogation, is that what you mean? A Yes. Q In other words, (in) this particular case, you considered this investigation on accused Salangga as not under custodial interrogation because he was not assisted by counsel? A Yes, because that is not the proper custodial interrogation. Q In other words, on that day that you conducted the investigation, you did not apprise him of his rights to have counsel? A I apprised him but there was no available lawyer in our place but I considered his statement is true. Q Will you please go over this statement if you can find a portion wherein you apprised the declarant of his right to counsel? A I did not apprise because of some circumstantial facts. Q What are these circumstantial facts A I did not bother to write the rights of the accused. Q Did you not find it important . . . because this case it quite serious? A I made that question and interrogation in my office but I was doubtful whether that would be acceptable in Court because that question and answer was not subscribed and sworn to before the municipal judge. xxx xxx xxx Q In other words, you did not tell him that the government can provide him counsel if he cannot afford one? A Yes. Q You did not tell him that? A I told him that if you cannot afford to have a counsel, the government will give you one. Q Did you place that in your question and interview? A No.

Q Why did you not place that in your question and interview? A Because my question and interview which I made before him is not acceptable. xxx xxx xxx Q Because you thought that Salangga was under custodial interrogation of the Police Station of Magsaysay at the time . . . why did you not require him to have counsel of his own choice as you have attended a lot of seminars? A That is the reason why because there is no available lawyer in our place. Q And you are aware about Atty. Mat(i)as Acquiatan? A Yes, but sometimes he is out of Magsaysay. Q And despite that fact, you did not find ways and means to contact the CLAO or Atty. Acquiatan in order to assist Salangga in the interview? A There were several lawyers which I approached to assist the suspect but they refused and at that time I also approached Atty. Acquiatan and he advised me to see the lawyer of CLAO. Q But in this particular case, you never tr(ied) to approach Atty. Acquiatan to assist accused Salangga? A No. Q Neither did you approach the lawyer of CLAO in that particular interview? A No."
16

It is consequently evident that since appellant was not assisted by any counsel during his custodial investigation, his supposed incriminatory statement is inadmissible and cannot be considered in the adjudication of this case. Oddly enough, even Sgt. Gataber was skeptical as to the validity of the statement he took from appellant. 17 The rule, of course, is that no in-custody investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed by the court upon petition either of the detainee himself or by someone in his behalf. 18 While the right to counsel may be waived, such waiver must be effected voluntarily, knowingly and intelligently. Further, waiver must be with the assistance of counsel. 19 The absence of counsel at that stage makes the statement, in contemplation of law, involuntary, even if it was otherwise voluntary in a non-technical sense.

With the Court now unanimously upholding the exclusionary rule in toto, the constitutional mandate is given full force and effect. This constitutional edict has been proved by historical experience to be the practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive part of the military and police officers to disregard such basic rights. This is of special public importance and serves as a shield in the remote provinces and rural areas to the people who have no access to courts for prompt and immediate relief from violations of their rights. 20 Section 5 of Rule 133 provides that when no direct evidence is available, circumstantial evidence will suffice when the following requirements are present: (a) there are more than one circumstance, (b) the facts from which the inferences are derived are proven, and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Furthermore, before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the author of the crime. 21 A meticulous and closer inquiry into the records reveals that there is really but one sole circumstance upon which the court relied in its decision, that is, that Imelda was seen trailing behind appellant by a few meters on the path towards her house. The prosecution presented two witnesses on this very same fact but the testimony thereon of two witnesses cannot convert one circumstance into two. All other "circumstances" under the prosecution's theory, such as the underwear allegedly found in appellant's pocket, the supposed scratches and bite marks on his body, and his dubious confession to Sgt. Gataber are all products of an illegal process, aside from their questionable veracity. Assuming arguendo that appellant was seen walking in front of Imelda about two hours before the discovery of the death of the latter, such fact could not lead a prudent man to conclude that appellant was the one responsible for the misfortune that befell the victim. Also, Sgt. Gataber believed that Lenie Alingay and Ricky Monterde could shed light on the case and so he claimed to have taken their statements, but, surprisingly, no sworn statements were executed by them. Later, he retracted what he said, announcing instead that he actually referred the taking of the statements to Sgt. Saraum, but he could not remember if the statements, if thereafter taken, were attached to the records.
22

We reject the People's hypothesis on the alleged "confession" of appellant to a certain Pastor Juan Tapic. The records reveal that there was a statement of appellant merely saying that he and Lopez were suspects in the rape and death of Imelda but never did he say that they were the ones responsible for such crime. Also, if the prosecution really believed that the appellant truly admitted to Pastor Tapic his participation in the crime, it is puzzling that said pastor was not called by the prosecution to take the witness stand. A party's failure to produce evidence, which if favorable would naturally have been produced, is open to the inference that the facts were unfavorable to his case. 23 Verily,

that failure to present Pastor Tapic can only mean that the prosecution itself doubted what appellant precisely meant when he said that there are two of them, that is, himself and Lopez. We also note that while the prosecution presented a medical certificate 24 to prove the alleged rape, it failed to present the physician to affirm it. In the absence of the doctor's testimony, the contents thereof are hearsay. 25 At any rate, even if the physician had been presented there was in fact no need for him to make that affirmation since the conviction of appellant is based merely on his supposed inculpatory statement which has no probative value for having been taken in violation of explicit constitutional mandates and proscriptions. Well-entrenched is the rule that the findings of facts of trial courts carry great weight for these courts enjoy the advantage of having observed the demeanor of the witnesses on the witness stand and, therefore, can discern if these witnesses are telling the truth or not. However, likewise well-settled are the exceptions thereto, which are when (1) the conclusion is a finding based entirely on speculations, (2) the inference made is manifestly mistaken, absurd or impossible, (3) there is a grave abuse of discretion, and (4) the finding is based on a misapprehension of the facts. 26 The evidentiary bases for the conclusions of the lower court having been demonstrated to be either incompetent in law or incredible in fact, the exceptive circumstances have to be given full sway. The prosecution's evidence regrettably leaves much to be desired, unfortunately as a consequence of faulty investigative work in the first place. This Court must, however, be guided by a rule of long standing and consistency that if the inculpatory facts and circumstances are capable of one 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. 27 In our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. This determinant, with the constitutional presumption of innocence which can be overthrown only by the strength of the prosecution's own evidence proving guilt beyond reasonable doubt, irresistibly dictate an exoneration in this case. It is indeed a bitter truth for the victim's family to face, that human justice seems to have failed then due to the foregoing confluent factors. We deeply commiserate with them and sincerely hope that, somehow and in God's own time, divine retribution shall be visited upon the evil author of this human tragedy. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Loreto Salangga is hereby ACQUITTED and ordered to be immediately released unless there are other grounds for his continued detention, with costs de oficio. SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

#Footnotes

1 Criminal Case No. XXI-92 (88) Regional Trial Court, Branch 21, Bansalan, Davao del Sur; Original Record, 1; Judge Rodolfo A. Escovilla, presiding. 2 Rollo, 58-59. 3 TSN, June 1, 1990, 4-5; March 21, 1990, 5-8, 11, 38-39. 4 TSN, April 25, 1990, 4-12; June 1, 1990, 4-5. 5 Exhibit A. 6 TSN, June 1, 1990, 6-8, 11-18, 29-30; January 9, 1990, 10-11, 16-17; April 27, 1990, 34. 7 TSN, November 9, 1990, 21-22, 24-27, 35, 37-40. 8 People vs. Burgos, etc., et al., G.R. No. 92739, August 2, 1991, 200 SCRA 67. 9 TSN, January 9, 1990, 16. 10 Original Record, 12. 11 TSN, January 9, 1990, 25-26. 12 People vs. Ponferada, et al., G.R. No. 101004, March 17, 1993, 220 SCRA 46. 13 People vs. Hadji Basser Maongco, et al., G.R. Nos. 108963-65, March 1, 1994. 14 Passion Vda. de Gracia vs. Locsin, etc., et al., 65 Phil. 689 (1938). 15 Johnson vs. Zerbst, 304 U.S. 458 (1938). 16 TSN, April 27, 1990, 12-14. 17 TSN, January 9, 1990, 20-21; April 27, 1990, 13, 22; November 9, 1990, 50. 18 People vs. Vasquez, et al., G.R. No. 92658, April 30, 1991, 196 SCRA 564. 19 Sec. 12(1), Art. III, Constitution. 20 Nolasco, et al., vs. Pao, etc., et al., G.R. No. 69803, January 30, 1987, 147 SCRA 509.

21 People vs. Ganohon, G.R. Nos. 74670-74, April 30, 1991, 196 SCRA 431; People vs. Manliquez, et al., G.R. No. 91745, March 4, 1992, 206 SCRA 812. 22 TSN, April 25, 1990, 17-19. 23 Tulod, etc. vs. First City Line Transportation Company, G.R. No. 92710, February 27, 1991, 194 SCRA 583. 24 Exhibit I, List of Exhibits, 1. 25 People vs. Marcedonio, et al., G.R. Nos. 78551-52, December 21, 1990, 192 SCRA 579. 26 People vs. Yutuc, G.R. No. 82590, July 26, 1990, 188 SCRA 1. 27 People vs. Pacana, 47 Phil. 48 (1924); People vs. Parayno, et al., L-24804, July 5, 1968, 24 SCRA 3; People vs. Taruc, G.R. No. 74655, January 20, 1988, 157 SCRA 178; People vs. Yabut, G.R. No. 82263, June 26, 1992, 210 SCRA 394.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 103737 December 15, 1994 NORA S. EUGENIO and ALFREDO Y. EUGENIO, petitioners, vs. HON. COURT OF APPEALS and PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES, INC., respondents. Public Attorney's Office for petitioners. Romualdo M. Jubay for private respondent.

REGALADO, J.: Private respondent Pepsi-Cola Bottling Company of the Philippines, Inc. is engaged in the business of manufacturing, making bottling and selling soft drinks and beverages to the general public. Petitioner Nora S. Eugenio was a dealer of the soft drink products of private respondent corporation. Although she had only one store located at 27 Diamond

Street, Emerald Village, Marikina, Metro Manila, Eugenio had a regular charge account in both the Quezon City plant (under the name "Abigail Minimart" *) as well as in the Muntinlupa plant (under the name "Nora Store") of respondent corporation. Her husband and co-petitioner, Alfredo Y. Eugenio, used to be a route manager of private respondent in its Quezon City plant. On March 17, 1982, private respondent filed a complaint for a sum of money against petitioners Nora S. Eugenio and Alfredo Y. Eugenio, docketed as Civil Case No. Q34718 of the then Court of First Instance of Quezon City, Branch 9 (now Regional Trial Court, Quezon City, Branch 97). In its complaint, respondent corporation alleged that on several occasions in 1979 and 1980, petitioners purchased and received on credit various products from its Quezon City plant. As of December 31, 1980, petitioners allegedly had an outstanding balance of P20,437.40 therein. Likewise, on various occasions in 1980, petitioners also purchased and received on credit various products from respondent's Muntinlupa plant and, as of December 31, 1989, petitioners supposedly had an outstanding balance of P38,357.20 there. In addition, it was claimed that petitioners had an unpaid obligation for the loaned "empties" from the same plant in the amount of P35,856.40 as of July 11, 1980. Altogether, petitioners had an outstanding account of P94,651.00 which, so the complaint alleged, they failed to pay despite oral and written demands. 1 In their defense, petitioners presented four trade provisional receipts (TPRs) allegedly issued to and received by them from private respondent's Route Manager Jovencio Estrada of its Malate Warehouse (Division 57), showing payments in the total sum of P80,500.00 made by Abigail's Store. Petitioners contended that had the amounts in the TPRs been credited in their favor, they would not be indebted to Pepsi-Cola. The details of said receipts are as follows:
TPR No. Date of Issue Amount 500320 600 Fulls returned 5/6/80 P23,520.00 500326 600 Fulls returned 5/10/80 23,520.00 500344 600 Fulls returned 5/14/80 23,520.00 2 500346 Cash 5/15/80 10,000.00 Total P80,560.00

Further, petitioners maintain that the signature purporting to be that of petitioner Nora S. Eugenio in Sales Invoice No. 85366 dated May 15, 1980 in the amount of P5,631.00, 3 which was included in the computation of their alleged debt, is a falsification. In sum, petitioners argue that if the aforementioned amounts were credited in their favor, it would be respondent corporation which would be indebted to them in the sum of P3,546.02 representing overpayment. After trial on the merits, the court a quo rendered a decision on February 17, 1986, ordering petitioners, as defendants therein to jointly and severally pay private

respondent the amount of P74,849.00, plus 12% interest per annum until the principal amount shall have been fully paid, as well as P20,000.00 as attorney's fees. 4 On appeal in CA-G.R. CV No. 10623, the Court of Appeals declared said decision a nullity for failure to comply with the requirement in Section 14, Article VIII of the 1987 Constitution that decisions of courts should clearly and distinctly state the facts and the law on which they are based. The Court of Appeals accordingly remanded the records of the case to the trial court, directing it to render another decision in accordance with the requirements of the Constitution. 5 In compliance with the directive of the Court of Appeals, the lower court rendered a second decision on September 29, 1989. In this new decision, petitioners were this time ordered to pay, jointly and severally, the reduced amount of P64,188.60, plus legal interest of 6% per annum from the filing of the action until full payment of the amount adjudged. 6 On appeal therefrom, the Court of Appeals affirmed the judgment of the trial court in a decision promulgated on September 27, 1991. 7 A motion for the reconsideration of said judgment of respondent court was subsequently denied in a resolution dated January 23, 1992. 8 We agree with petitioners and respondent court that the crux of the dispute in the case at bar is whether or not the amounts in the aforementioned trade provisional receipts should be credited in favor of herein petitioner spouses. In a so-called encyclopedic sense, however, our course of action in this case and the denouement of the controversy therein takes into account the jurisprudential rule that in the present recourse we would normally have restricted ourselves to questions of law and eschewed questions of fact were it not for our perception that the lower courts manifestly overlooked certain relevant factual considerations resulting in a misapprehension thereof. Consequentially, that position shall necessarily affect our analysis of the rules on the burden of proof and the burden of evidence, and ultimately, whether the proponent of the corresponding claim has preponderated or rested on an equipoise or fallen short of preponderance. First, the backdrop. It appears that on August 1, 1981, private respondent through the head of its Legal Department, Atty. Antonio N. Rosario, sent an inter-office correspondence to petitioner Alfredo Eugenio inviting him for an interview/interrogation on August 3, 1981 regarding alleged "non-payment of debts to the company, inefficiency, and loss of trust and confidence." 9 The interview was reset to August 4, 1981 to enable said petitioner to bring along with him their union president, Luis Isip. On said date, a statement of overdue accounts were prepared showing that petitioners owed respondent corporation the following amounts:
Muntinlupa Plant Nora's Store 10 Trade Account P38,357.20 (as of 12/3/80) 11 Loaned Empties P35,856.40 (as of 7/11/81)

Quezon City Plant Abigail Minimart 12 Regular Account P20,437.40 (as of 1980) Total P94,651.00

A reconciliation of petitioners' account was then conducted. The liability of petitioners as to the loaned empties (Muntinlupa plant, Nora Store) was reduced to P21,686.00 after a reevaluation of the value of the loaned empties. 13 Likewise, the amount of P5,631.00 under Invoice No. 85366, which was a spurious document, was deducted from their liability in their trade account with the Muntinlupa plant. 14 Thereafter, Eugenio and Isip signed the reconciliation sheets reflecting these items:
Muntinlupa Plant Nora Store 15 Trade Account P32,726.20 16 Loaned Empties P21,686.00 Quezon City Plant Abigail Minimart 17 Trade Account P20,437.20 Total P74,849.40

After the meeting, private respondent alleged that petitioner Alfredo Y. Eugenio requested that he be allowed to retire and the existing accounts be deducted from his retirement pay, but that he later withdrew his retirement plan. Said petitioner disputed that allegation and, in fact, he subsequently filed a complaint for illegal dismissal. The finding of labor arbiter, later affirmed by the Supreme Court, showed that this petitioner was indeed illegally dismissed, and that he never filed an application for retirement. In fact, this Court made a finding that the retirement papers allegedly filed in the name of this petitioner were forged. 18 This makes two falsified documents to be foisted against petitioners. With their aforesaid accounts still unpaid, petitioner Alfredo Y. Eugenio submitted to Atty. Rosario the aforementioned four TPRs. Thereafter, Atty. Rosario ordered Daniel Azurin, assistant personnel manager, to conduct an investigation to verify this claim of petitioners. According to Azurin, during the investigation on December 4, 1981, Estrada allegedly denied that he issued and signed the aforesaid TPRs. 19 He also presented a supposed affidavit which Estrada allegedly executed during that investigation to affirm his verbal statements therein. Surprisingly, however, said supposed affidavit is inexplicably dated February 5, 1982. 20 At this point, it should be noted that Estrada never testified thereafter in court and what he is supposed to have done or said was merely related by Azurin. Now, on this point, respondent court disagreed with herein petitioners that the testimony on the alleged denial of Jovencio Estrada regarding his signatures on the disputed TPRs, as well as his affidavit dated February 5, 1982 21 wherein he affirmed his denial,

are hearsay evidence because Estrada was not presented as a witness to testify and be cross-examined thereon. Except for the terse statement of respondent court that since petitioner Alfredo Eugenio was supposedly present on December 4, 1981, "(t)he testimony of Jovencio Estrada at the aforementioned investigation categorically denying that he issued and signed the disputed TPRs is, therefore, not hearsay," 22 there was no further explanation on this unusual doctrinal departure. The rule is clear and explicit. Under the hearsay evidence rule, a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in the Rules. 23 In the present case, Estrada failed to appear as a witness at the trial. It was only Azurin who testified that during the investigation he conducted, Estrada supposedly denied having signed the TPRs. It is elementary that under the measure on hearsay evidence, Azurin's testimony cannot constitute legal proof as to the truth of Estrada's denial. For that matter, it is not admissible in evidence, petitioners' counsel having seasonably objected at the trial to such testimony of Azurin as hearsay. And, even if not objected to and thereby admissible, such hearsay evidence has no probative value whatsoever. 24 It is true that the testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. 25 Private respondent cannot, however, seek sanctuary in this exception to the hearsay evidence rule. Firstly, the supposed investigation conducted by Azurin was neither a judicial trial nor an administrative hearing under statutory regulations and safeguards. It was merely an inter-office interview conducted by a personnel officer through an ad hoc arrangement. Secondly, a perusal of the alleged stenographic notes, assuming arguendo that these notes are admissible in evidence, would show that the "investigation" was more of a free-flowing question and answer type of discussion wherein Estrada was asked some questions, after which Eugenio was likewise asked other questions. Indeed, there was no opportunity for Eugenio to object, much less to cross-examine Estrada. Even in a formal prior trial itself, if the opportunity for cross-examination did not exist therein or if the accused was not afforded opportunity to fully cross-examine the witness when the testimony was offered, evidence relating to the testimony given therein is thereafter inadmissible in another proceeding, absent any conduct on the part of the accused amounting to a waiver of his right to cross-examine.
26

Thirdly, the stenographer was not even presented to authenticate the stenographic notes submitted to the trial court. A copy of the stenographic report of the entire testimony at the former trial must be supported by the oath of the stenographer that it is a correct transcript of his notes of the testimony of the witness as a sine qua non for its competency and admissibility in evidence. 27 The supposed stenographic notes on which respondent corporation relies is unauthenticated and necessarily inadmissible for the purpose intended.

Lastly, although herein private respondent insinuated that Estrada was not presented as a witness because he had disappeared, no evidence whatsoever was offered to show or even intimate that this was due to any machination or instigation of petitioners. There is no showing that his absence was procured, or that he was eloigned, through acts imputable to petitioners. In the case at bar, except for the self-serving statement that Estrada had disappeared, no plausible explanation was given by respondent corporation. Estrada was an employee of private respondent, hence it can be assumed that it could easily trace or ascertain his whereabouts. It had the resources to do so, in contradistinction to petitioners who even had to seek the help of the Public Attorney's Office to defend them here. Private respondent could not have been unaware of the importance of Estrada's testimony and the consequent legal necessity for presenting him in the trial court, through coercive process if necessary. Obviously, neither is the affidavit of Estrada admissible; it is likewise barred as evidence by the hearsay evidence rule. 28 This is aside from the fact that, by their nature, affidavits are generally not prepared by the affiants themselves but by another who uses his own language in writing the affiant's statements, which may thus be either omitted or misunderstood by the one writing them. 29 The dubiety of that affidavit, as earlier explained, is further underscored by the fact that it was executed more than two months after the investigation, presumably for curative purposes as it were. Now, the authenticity of a handwriting may be proven, among other means, by its comparison made by the witness or the court with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. 30 The alleged affidavit of Estrada states". . . that the comparison that was made as to the authenticity of the signature appearing in the TPRs and that of my signature showed that there was an apparent dissimilarity between the two signatures, xerox copy of my 201 File is attached hereto as Annex 'F' of this affidavit. 31 However, a search of the Folder of Exhibits in this case does not reveal that private respondent ever submitted any document, not even the aforementioned 201 File, containing a specimen of the signature of Estrada which the Court can use as a basis for comparison. Neither was any document containing a specimen of Estrada's signature presented by private respondent in the formal offer of its exhibits. 32 Respondent court made the further observation that "Estrada was even asked by Atty. Azurin at said investigation to sign three times to provide specimens of his genuine signature." 33 There is, however, no showing that he did, but assuming that Estrada signed the stenographic notes, the Court would still be unable to make the necessary comparison because two signatures appear on the right margin of each and every page of the stenographic notes, without any indication whatsoever as to which of the signatures is Estrada's. The whole document was marked for identification but the signatures were not. In fact, although formally offered, it was merely introduced by the private respondent "in order to show that Jovencio Estrada had been investigated and categorically denied having collected from Abigail Minimart and denying having signed

the receipts claimed by Alfredo Eugenio to be his payment," 34 and not for the purpose of presenting any alleged signature of Estrada on the document as a basis for comparison. This is a situation that irresistibly arouses judicial curiosity, if not suspicion. Respondent corporation was fully aware that its case rested, as it were, on the issue of whether the TPRs were authentic and which issue, in turn, turned on the genuineness of Estrada's signatures thereon. Yet, aside from cursorily dismissing the non-presentation of Estrada in court by the glib assertion that he could not be found, and necessarily aware that his alleged denial of his signatures on said TPRs and his affidavit rendered the same vulnerable to the challenge that they are hearsay and inadmissible, respondent corporation did nothing more. In fact, Estrada's disappearance has not been explained up to the present. The next inquiry then would be as to what exactly is the nature of the TPRs insofar as they are used in the day-to-day business transactions of the company. These trade provisional receipts are bound and given in booklets to the company sales representatives, under proper acknowledgment by them and with a record of the distribution thereof. After every transaction, when a collection is made the customer is given by the sales representative a copy of the trade provisional receipt, that is, the triplicate copy or customer's copy, properly filled up to reflect the completed transaction. All unused TPRs, as well as the collections made, are turned over by the sales representative to the appropriate company officer. 35 According to respondent court, "the questioned TPR's are merely 'provisional' and were, as printed at the bottom of said receipts, to be officially confirmed by plaintiff within fifteen (15) days by delivering the original copy thereof stamped paid and signed by its cashier to the customer. . . . Defendants-appellants (herein petitioners) failed to present the original copies of the TPRs in question, showing that they were never confirmed by the plaintiff, nor did they demand from plaintiff the confirmed original copies thereof." 36 We do not agree with the strained implication intended to be adverse to petitioners. The TPRs presented in evidence by petitioners are disputably presumed as evidentiary of payments made on account of petitioners. There are presumptions juris tantum in law that private transactions have been fair and regular and that the ordinary course of business has been followed. 37 The role of presumptions in the law on evidence is to relieve the party enjoying the same of the evidential burden to prove the proposition that he contends for, and to shift the burden of evidence to the adverse party. Private respondent having failed to rebut the aforestated presumptions in favor of valid payment by petitioners, these would necessarily continue to stand in their favor in this case. Besides, even assuming arguendo that herein private respondent's cashier never received the amounts reflected in the TPRs, still private respondent failed to prove that Estrada, who is its duly authorized agent with respect to petitioners, did not receive those amounts from the latter. As correctly explained by petitioners, "in so far as the private respondent's customers are concerned, for as long as they pay their obligations

to the sales representative of the private respondent using the latter's official receipt, said payment extinguishes their obligations." 38 Otherwise, it would unreasonably cast the burden of supervision over its employees from respondent corporation to its customers. The substantive law is that payment shall be made to the person in whose favor the obligation has been constituted, or his successor-in-interest or any person authorized to receive it. 39 As far as third persons are concerned, an act is deemed to have been performed within the scope of the agent's authority, if such is within the terms of the power of attorney, as written, even if the agent has in fact exceeded the limits of his authority according to an understanding between the principal and his agent. 40 In fact, Atty. Rosario, private respondent's own witness, admitted that "it is the responsibility of the collector to turn over the collection." 41 Still pursuing its ruling in favor of respondent corporation, the Court of Appeals makes the following observation:
. . . Having allegedly returned 600 Fulls to the plaintiff's representative on May 6, 10, and 14, 1980, appellant-wife's Abigail Store must have received more than 1,800 cases of soft drinks from plaintiff before those dates. Yet the Statement of Overdue Account pertaining to Abigail Minimart (Exhs. "D", "D-1" to "D-3") which appellant-husband and his representative Luis Isip signed on August 3, 1981 does now show more than 1,800 cases of soft drinks were delivered to Abigail Minimart by plaintiff's Quezon City Plant (which 42 supposedly issued the disputed TPRs) in May, 1980 or the month before."

We regret the inaccuracy in said theory of respondent court which was impelled by its sole and limited reliance on a mere statement of overdue amounts. Unlike a statement of account which truly reflects the day-to-day movement of an account, a statement of an overdue amount is only a summary of the account, simply reflecting the balance due thereon. A statement of account, being more specific and detailed in nature, allows one to readily see and verify if indeed deliveries were made during a specific period of time, unlike a bare statement of overdue payments. Respondent court cannot make its aforequoted categorical deduction unless supporting documents accompanying the statement of overdue amounts were submitted to enable easy and accurate verification of the facts. A perusal of the statement of overdue accounts shows that, except for a reference number given for each entry, no further details were volunteered nor offered. It is entirely possible that the statement of overdue account merely reflects the outstanding debt of a particular client, and not the specific particulars, such as deliveries made, particularly since the entries therein were surprisingly entered irrespective of their chronological order. Obviously, therefore, one can not use the statement of overdue amounts as conclusive proof of deliveries done within a particular time frame. Except for its speculation that petitioner Alfredo Y. Eugenio could have had easy access to blank forms of the TPRs because he was a former route manager no evidence whatsoever was presented by private respondent in support of that theory. We are

accordingly intrigued by such an unkind assertion of respondent corporation since Azurin himself admitted that their accounting department could not even inform them regarding the persons to whom the TPRs were issued. 43 In addition, it is significant that respondent corporation did not take proper action if indeed some receipts were actually lost, such as the publication of the fact of loss of the receipts, with the corresponding investigation into the matter. We, therefore, reject as attenuated the comment of the trial court that the TPRs, which Eugenio submitted after the reconciliation meeting, "smacks too much of an afterthought." 44 The reconciliation meeting was held on August 4, 1981. Three months later, on November, 1981, petitioner Alfredo Y. Eugenio submitted the four TPRs. He explained, and this was not disputed, that at the time the reconciliation meeting was held, his daughter Nanette, who was helping his wife manage the store, had eloped and she had possession of the TPRs. 45 It was only in November, 1981 when petitioners were able to talk to Nanette that they were able to find and retrieve said TPRs. He added that during the reconciliation meeting, Atty. Rosario assured him that any receipt he may submit later will be credited in his favor, hence he signed the reconciliation documents. Accordingly, when he presented the TPRs to private respondent, Atty. Rosario directed Mr. Azurin to verify the TPRs. Thus, the amount stated in the reconciliation sheet was not final, as it was still subject to such receipts as may thereafter be presented by petitioners. On the other hand, petitioners claimed that the signature of petitioner Nora S. Eugenio in Sales Invoice No. 85366, in the amount of P5,631.00 is spurious and should accordingly be deducted from the disputed amount of P74,849.40. A scrutiny of the reconciliation sheet shows that said amount had already been deducted upon the instruction of one Mr. Coloma, Plant Controller of Pepsi-Cola , Muntinlupa Plant. 46 That amount is not disputed by respondent corporation and should no longer be deducted from the total liability of petitioner in the sum of P74,849.40. Since petitioners had made a payment of P80,560.00, there was consequently an overpayment of P5,710.60. All told, we are constrained to hold that respondent corporation has dismally failed to comply with the pertinent rules for the admission of the evidence by which it sought to prove its contentions. Furthermore, there are questions left unanswered and begging for cogent explanations why said respondent did not or could not comply with the evidentiary rules. Its default inevitably depletes the weight of its evidence which cannot just be taken in vacuo, with the result that for lack of the requisite quantum of evidence, it has not discharged the burden of preponderant proof necessary to prevail in this case. WHEREFORE, the judgment of respondent Court of Appeals in C.A. G.R. CV No. 26901, affirming that of the trial court in Civil Case No. Q-34718, is ANNULLED and SET ASIDE. Private respondent Pepsi-Cola Bottling Company of the Philippines, Inc. is hereby ORDERED to pay petitioners Nora and Alfredo Eugenio the amount of P5,710.60 representing overpayment made to the former.

SO ORDERED. Narvasa, C.J. and Puno, J., concur. Mendoza, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26193 January 27, 1981 PEOPLE OF THE PHILIPPINES, plaintiff, vs. RODULFO SABIO, alias "PAPU", defendant.

MELENCIO-HERRERA, J: Automatic review of the death penalty imposed upon the accused Rodulfo Sabio alias "Papu", by the Court of First Instance of Cebu, Branch II, in Criminal Case No. V-10804 for Robbery with Homicide. On October 5, 1965, at about 5:00 o'clock in the morning, in Barrio Looc, Argao, Cebu, Catalino Espina, 80-years old, single, owner of a small sari-sari store located in his house was found on the second floor of his dwelling wounded on the forehead, from which injury he died three days later. Prosecution witness JESUSA BIRONDO a fish vendor, testified that at about 5:00 o'clock in the morning of October 5, 1965, as she was preparing to go to the seashore, she heard a shout for help coming from the house of her neighbor, Catalino Espina, which was located just across the street from her house. She recognized the voice as Catalino's. When she looked out of the window she saw the accused Rodulfo Sabio, who is nicknamed "Papu", coming out of the door of the store at the victim's house. The accused was wearing a black shirt with sleeves up to the elbow and dark trousers. She had known the accused since his birth because his house is located at the seashore in Barrio Looc, just about 40 meters from her own house, and she is familiar with his appearance because she used to see him everyday passing by her house or at the seashore. Jesusa felt scared so she retreated from the window. Then she shouted for help. Shortly thereafter, she saw from her window that many persons, about 50 to 100

neighbors, went to Catalino's house. The following day after the incident, or on October 6, 1965, Jesusa told Police Sergeant Jesus Alberca about what she heard and saw. She executed a sworn statement on the same date. 1 CAMILO SEMILLA, a 27-year-old fisherman and grand- nephew of the victim, who had lived with the latter since childhood, left Catalino's house at past 4:00 o'clock in the early morning of October 5, 1965 to go fishing. At the seashore, he waited for somebody to help him drag his boat to the sea from the elevated support on which it was hoisted. The first person he saw was the accused, Rodulfo Sabio, who came running past him about 6 meters away, towards his (Sabio's) house. The accused was wearing a black T-shirt with sleeves reaching beyond the elbow and long "maong" pants. Witness Camilo demonstrated that the accused had his two hands tucked inside his shirt in front of the stomach while running. Minutes later, a certain Enok Calledo arrived and told Camilo to go home because his granduncle "Noy Ino" had cried for help. When Camilo reached home, he saw "Ino" (the victim) lying wounded upstairs. He was moaning and was able to speak only when bis head was raised. When Camilo called the victim's name, the latter responded and told Camilo to fetch a policeman. Calo noticed that the merchandise in the store were in disarray and the tin can called "barrio, which he knew had contained the cash sales for Sunday and Monday of about P8.00 because they counted the money the previous night, was lying empty on the floor. When police officers Paulino Fuentes and Pedro Burgos arrived, Patrolman Fuentes asked "Manoy Ino" questions which, together with the answers, he wrote on a page torn from a calendar hanging somewhere in the room. 2 Patrolman Fuentes then instructed Camilo to take the victim to the town dispensary at Argao, Cebu, where he was treated. But because the victim's condition was considered serious he was immediately transferred to the Southern Islands Hospital where he died three days later. 3 PAULINO FUENTES, a policeman assigned at the municipal building of Argao, Cebu, received a report at about 5:30 o'clock in the morning of October 5, 1965, that Ino Espina was hacked in barrio Looc He and another policeman, Pedro Burgos, proceeded to the victim's house where he saw the latter lying on the floor, wounded and bleeding on the forehead. Patrolman Fuentes asked the victim who had hacked him and the latter answered that it was "Papu" Sabio, son of Menes According to said Patrolman, the person referred to was the accused, who, as well as his parents, have been known to the witness for the past three years. Patrolman Fuentes asked the victim why "Papu" hacked him and the latter answered that "Papu" had demanded money from him. Patrolman Fuentes also asked the victim how much money he had lost but the latter was not able to answer that question. Sensing that the wound was serious since it was bleeding profusely Patrolman Fuentes decided to take down the statement of the victim. He detached a leaf from a calendar and wrote down on it the questions he propounded as well as the answers of the victim. He then had it thumbmarked by the victim with the latter's own blood as no ink was available. Present at the time were Pedro Burgos, another police officer, and Camilo Semilla, the grandnephew. Patrolman Fuentes himself and Pedro Burgos signed as witnesses.

Reproduced hereunder in full is the said statement:

Antemortem P Kinsa may ngalan nimo. T Catalino Espina P Taga diin man ikao. T Taga Looc, Argao, Cebu P Kinsa may nag tikbas kanimo kon nagtulis kanimo T Si Rudolfo (Pafo) Sabyo nga anak ni Menez nga taga Looc. P Kon ikao mamatay kinsa may responsabli sa imong kamatayan. T Si Pafo Sabyo ro gayod ang responsabli sa akong kamatayon P Imo ba kining permahan o tamlaan sa imong todlo? T Oo

Catalin o Espina (Thumb marked ) Wit: 1. (Sgd.) Paulino Fuentes 2. (Sgd.) Pedro Burgos
The English translation reads: Q What is your name? A Catalino Espina Q From where are you? A From Look, Argao, Cebu. Q Who slashed you and robbed you? A Rodulfo Sabio (Papu) the son of Menez from Look Q If you will die, who is responsible for your death?
4

A Only Papu Sabio is responsible for my death. Q Are you going to sign this or affix your fingerprint? A Yes.

Brownis h fingerpr int mark and across it is written the word CATALI NO ESPIN A. Wit: 1. (Sgd.) Paulino Fuentes 2. (Sgd.) Pedro Burgos
5

Thereafter, Patrolman Fuentes advised Camilo Semilla to bring the victim to the hospital. Patrolman Fuentes observed that the things of 6 Catalino and the store items like canned sardines were all in disarray while the tin can ("barro") was already opened. On October 5, 1965, DR. MELITA REMOTIGUE ANO resident physician at the Southern Islands Hospital, Surgery Department, found that the victim had suffered "compound fracture on the skull, bilateral at the front parietal area" with "laceration and cerebral contusion." From the nature of the injuries, she opined that the same could have been inflicted by a sharp instrument or by a bolo, and although the laceration was 7 not too deep as to cause instaneous death, the injury was fatal because it had injured the brain. The prosecution also offered in evidence and as part of the cross-examination of the accused a letter dated February 17, 1966 of the Cebu 8 Provincial Warden, showing that the accused had been previously convicted by final judgment and had served sentence for two previous crimes of Theft committed in the years 1963 and 1964. Testifying in his defense the accused RODULFO SABIO, 18 years old, a fisherman, claimed that in the evening of October 4, 1965, he was at home listening to the radio till past 9:00 o'clock after which he went to sleep until about 6:00 o'clock in the morning of the next day, October 5, 1965, when he was awakened by his younger brother who said that certain policemen were looking for him. The policemen took him to the municipal building and incarcerated him without asking any question. He was released the next day, October 6, but was arrested again on November 24, 1965 at P. del Rosario Street in Cebu City. The accused admitted that he knew witness, Camilo Semilla, because they were neighbors he denied that Camilo had seen him running by the seashore at about 5:00 o'clock in the morning of October 5, 1965 because at that time he was still asleep at home. The accused also admitted knowing witness, Jesusa Birondo but alleged that she could not have seen him coming out of the door of the house of Ino Espina at about 5:00 o'clock in the morning of October 5, 1965 because at that 9 time he was still asleep at home. Defense witness JACINTO MENDEZ corroborated the accused defense of alibi by testifying that in the evening of October 4, 1965, he slept in the house of Hermogenes Sabio, father of the accused, because he and Hermogenes had planned to go fishing the following morning. In the house he saw the accused and the other children of Hermogenes. When he woke up at 5:00 o'clock in the morning of the following day,

October 5, he saw that the accused and the other children were all in the house. He repaired the nets after waking up, then went out to sea 10 with Hermogenes at about 7:00 o'clock and came back at past 8:00 in the morning. In a Decision dated April 29, 1966, the trial Court found the accused guilty of the crime of Robbery with Homicide attend by the aggravating circumstances of disregard of respect due to the victim, an octogenarian and recidivism, without any mitigating circumstance, and sentenced him to death; to indemnify the heirs of the deceased in the amount of P6,000.00; and to pay the costs. The trial Court, however, recommended that in view of the youthful age of the accused, the death penalty be commuted to life imprisonment. In this appeal, the defense has made the following:

Assignment of Errors I. The lower Court erred in concluding that the felony of Robbery with Homicide, instead of only Homicide, had been established by the evidence; II. The lower Court erred in admitting Exhibit "A" of the prosecution as an Antemortem declaration of the victim; III. The lower Court erred in giving credence to the testimony of Jesusa BIRONDO witness for the prosecution; IV. The lower Court erred in finding that the defendant- appellant was the perpetrator of 11 the crime.
1. We find merit in the contention that only the crime of Homicide had been committed. The evidence indicative of robbery consisted merely of the testimony of witness Camilo Semilla who declared as follows: Q. How far was Rodulfo Sabio when he passed by you running that moment? A. About six meters from me. Q. Did you notice while he passed by you running, if he was holding anything? A. Yes, he had his hands inside his shirt. xxx xxx xxx Q. What did you notice inside the house upon your arrival from the seashore? A. I saw that the ("barro") was already empty, lying on the ground, and the merchandise items were in disorder. Q. Do you know what things were placed in that thing or tin can which you call barro A. It contained the cash sales. Q. That "barro" which you mentioned, where was it before you left the house to go to the shore that dawn? A. Beside the bed of lno Q. You said that tin can or 'barro' where the cash sales were kept was beside the bed, do you know more or less the amount placed therein? A. About P8.00.

Q. How do you know that tin can had P8.00 inside? A. Because the previous night we counted the money. Q. The P8.00 was the sales for how many days? A. That was the sales for Sunday and Monday. and that of Patrolman Fuentes, to wit: Q. When you were inside the house of Catalino Espina, what else did you find in the course of your investigation? A. I saw that the things of Catalino Espina and the stands where the items for sale were displayed were all in disarray. xxx xxx xxx Q. What other conversation did you have with Catalino Espina after that first question? A. I asked him why Papu hacked him, and the victim answered that Papu demanded money from him. Q. Could we say that the answer of the deceased Catalino Espina was outright after the question? A. Yes, sir. Q. Even with the second question, is that correct? A. Yes, sir. Q. Will you please let us know the third question? A. I asked him how much money he lost, and he was not able to answer that question. Q. Do you know why he did not answer that question? A. I think he did not answer that because when he was hacked he had not yet given money to Papu. xxx xxx xxx Q. You stated in the direct examination that the things in the house of the deceased Catalino Espina were in disarray, is that correct A. Yes, sir. Q. Will you please state before the Honorable Court the things that were disarrayed when you went up the house of the deceased? A. The canned sardines were disarrayed, others had dropped to the ground; the barro was 13 already opened, and other things in the store were in topsy-turvy state. Plainly, the evidence supportive of the charge of robbery is at best circumstantial and does not establish beyond reasonable doubt that the accused had carried away personal- ty belonging to the offended party. There was no eyewitness to the alleged robbery, nor was any part of the alleged missing object recovered. The consummation of the robbery cannot be inferred nor presumed from the circumstance that the accused was seen running "with his hands inside his shirt", or that the "barrio", alleged to have contained cash amounting to about P8.00,
12

was seen on the floor, open and empty, or that the things and merchandise inside the house were in disarray People vs. Labita et al., [99 Phil. 1068, unreported case]). A conviction for Robbery with Homicide requires that the robbery itself be proven as conclusively as any other essential element of a crime (People vs. Pacala, 58 SCRA 370 [1974]), it not being enough to infer said robbery from mere suspicion and presumption (U.S. vs. Alasaas 40 Phil. 878, 881).

Where there was no eyewitness to the alleged robbery, and the evidence merely shows that after the killing some of the things inside the house where the killing took place, were missing, it cannot be presumed that the accused killers committed robbery. It is necessary to prove intent to rob. This necessarily includes evidence to the effect that the accused carried away the effects or personalty of the offend- ed party. In the absence of evidence that the accused carried away the missing objects, they cannot be convicted of 14 robbery. (Emphasis supplied)
Nor can the dying declaration of the victim which, in part, reads: Q. Who slashed you and robbed you? A. Rodulfo Sabio (Papu) the son of Menez from Lo-ok. be admitted to establish the fact of robbery. The admission of dying declarations has always been strictly limited to criminal prosecutions for 15 16 homicide or murder as evidence of the cause and surrounding circumstances of death. 2. Next, the defense questions the admissibility of Exhibit "A" of the prosecution as an antemortem statement arguing that there is no evidence showing that when the declaration was uttered the declarant was under a consciousness of an impending death; that, in fact, the victim had hopes of recovery or his first word to Camilo Semilla was for the latter to fetch the police. Defense counsel argues further that there are doubts as to when said Exhibit "A" was thumb-marked because, although it was already in existence in the morning of October 5, 1965, as alleged by Patrolman Fuentes, the accused was never confronted with the document when he was taken in to custody by the police for the first time from the morning of October 5 to October 6, 1965, thereby implying that the document did not yet exist at that time. The arguments advanced are unavailing. The seriousness of the injury on the victim's forehead which had affected the brain and was profusely bleeding; the victim's inability to speak until his head was raised; the spontaneous answer of the victim that "only Papu Sabio is responsible for my death"; and his subsequent demise from the direct effects of the wound on his forehead, strengthen the conclusion that the victim must have known that his end was inevitable. That death did not ensue till three days after the declaration was made will not alter its probative force since it is not indispensable that a declarant expires immediately thereafter. It is the belief in impending death and not the 17 rapid succession of death, in point of fact, that renders the dying declaration admissible. Further, the fact that the victim told his grandnephew Camilo Semilla to fetch the police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes the realization that he had so little time to disclose his assailant to the authorities. The mere failure of the police to confront the accused cused with the antemortem declaration the first time the latter was arrested and incarcerated from October 5 to October 6, 1965, neither militates against the fact of its execution considering that it was evidence that the police was under no compulsion to disclose. 3. The credibility of witness Jesusa Birondo is also assail ed by the defense alleging firstly, that it is unbelievable that she could have really Identified the accused as the person who came out of the victim's house considering that the distance from her window to that house was 17 meters, and at 5:00 a.m. on October 5, 1965, it was still dark and raining secondly, there is a glaring divergence between her testimony at the trial and her statement at the preliminary investigation, which statement was suppressed and not made known to the trial Court; thirdly, said witness was uncertain as to when she actually brought to the attention of the authorities the matter of her having seen the accused; and finally, the defense asks if it were true that the accused had been Identified by said witness to the Chief of Police even before the accused was taken into custody, why was not the accused confronted with such fact? For one who has known the accused since the latter's infancy and who is very familiar with the accused's appearance because she sees him almost everyday passing by her house or at the seashore where the accused has his house, it is not incredible that Jesusa Birondo recognized the accused, at side view, even, at a distance of 17 meters (which was the trial Court's estimate of the distance between Catalino Espina's house and that of Jesusa Birondo as described by the accused) at 5:00 o'clock in the morning and even if it were raining. Besides, Jesusa's description of the clothes that the accused was wearing was corroborated by Camilo Semilla, who also saw the accused that same morning. The alleged divergence between Jesusa's statement at the preliminary investigation and her testimony at the trial neither merits 18 serious consideration since an affidavit, "being taken ex parte is almost always incomplete and often inaccurate." Besides, the discrepancies pointed out by the defense, to wit: whether or not Jesusa saw what the accused did after leaving the house of the victim and whether or not she went down from her house after the incident, refer to minor details or collateral matters which do not destroy the effectiveness of her testimony. Further, the, discrepancy as to the exact date when the witness actually disclosed to the authorities her having seen the accused on the morning of the incident, is also a minor detail which does not detract from the reliability of her Identification of the accused. Moreover, the defense has not shown any ulterior motive on the part of witness Jesusa Birondo that would make her implicate and testify falsely against the accused, who was a neighbor and an acquaintance. 4. In the fourth and last assignment of error, the defense decries the speed with which the trial Court decided the case, alleging that the Decision was prepared and signed on April 29, 1966, or one day after the close of trial on April 28, 1966, and was read to the accused on

April 30, 1966, without benefit of a transcript of stenographic notes nor memoranda of the parties, so that the trial Court could not have seriously considered the merits of the case or must have prejudged it even before the trial ended. That contention is belied, however, by the detailed findings of facts in the Decision of the trial Court duly supported by the transcript of stenographic notes now on record. Finally, the defense contends that the guilt of the accused has not been established beyond reasonable doubt. The alibi put up by the accused, however, crumbles under the positive Identification by witnesses Jesusa Birondo and Camilo Semilla and the dying declaration of the victim, aside from the fact that because of the proximity of the house of the accused to that of the victim, it was not impossible for the accused to have been at the scene of the crime. In summation the accused is guilty only of Homicide, attended by the aggravating circumstances of disregard of respect due the offended party on account of his age, and dwelling Recidivism is not to be considered because of our finding that the crime of Robbery has not been conclusively established. The penalty imposable for the crime of Homicide, attended by aggravating with no mitigating circumstances, is reclusion temporal in its 19 maximum period or seventeen (17) years, four (4) months and one (1) day to twenty (20) years. WHEREFORE, we find the accused, Rodulfo Sabio alias "Papu", guilty of the crime of Homicide and hereby sentence him to an indeterminate penalty of twelve (12) years of prision mayor as minimum, to twenty (20) years of reclusion temporal as maximum; to indemnify the heirs of the deceased, Catalino Espina in the amount of P12,000.00; and to pay the costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion Jr., Fernandez, Guerrero and De Castro, JJ., concur. Barredo, * J., took no part.

Separate Opinions

ABAD SANTOS, J., dissenting: I dissent in respect of the finding that no robbery was committed by Rodulfo Sabio for the following reasons: 1. The tin can or "barro" which contained some P8.00 the night before the incident, was found empty and lying on the ground of the house where the deceased had his store. It could only have been Sabio who took the money for it was he who entered the store and hacked Catalino Espina who died as a result thereof. 2. True, Catalino Espina could not state how much money was lost. But from inability to state the amount lost, it does not follow that nothing was lost. The two the loss and the amount of the loss are two entirely different concepts. 3. Naturally, Catalino could not state how much money was lost because he was hacked severely on the forehead before the money was taken by Sabio. A man mortally wounded who did not hand over any money to his assailant should not be expected to answer an inconsequential question as to the amount of his loss. A man in his situation would be thinking not how much he had lost but of his impending death. 4. There would be no motive for the killing of there was no robbery and robbery cannot be discounted after Sabio had entered the store and attacked its owner. Considering, however, the fact that, Rodulfo Sabio has been in detention since 1965 and the recommendation of the trial judge that the death penalty imposed on him be commuted to life imprisonment on account of his youth, my vote as to the appropriate penalty is reclusion perpetua. Aquino, J., concur.

Separate Opinions

ABAD SANTOS, J., dissenting: I dissent in respect of the finding that no robbery was committed by Rodulfo Sabio for the following reasons: 1. The tin can or "barro" which contained some P8.00 the night before the incident, was found empty and lying on the ground of the house where the deceased had his store. It could only have been Sabio who took the money for it was he who entered the store and hacked Catalino Espina who died as a result thereof. 2. True, Catalino Espina could not state how much money was lost. But from inability to state the amount lost, it does not follow that nothing was lost. The two the loss and the amount of the loss are two entirely different concepts. 3. Naturally, Catalino could not state how much money was lost because he was hacked severely on the forehead before the money was taken by Sabio. A man mortally wounded who did not hand over any money to his assailant should not be expected to answer an inconsequential question as to the amount of his loss. A man in his situation would be thinking not how much he had lost but of his impending death. 4. There would be no motive for the killing of there was no robbery and robbery cannot be discounted after Sabio had entered the store and attacked its owner. Considering, however, the fact that, Rodulfo Sabio has been in detention since 1965 and the recommendation of the trial judge that the death penalty imposed on him be commuted to life imprisonment on account of his youth, my vote as to the appropriate penalty is reclusion perpetua. Aquino, J., concur.

FIRST DIVISION [G.R. No. 152044. July 3, 2003] DOMINGO LAGROSA and OSIAS BAGUIN, petitioners, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents. DECISION YNARES-SANTIAGO, J.: This is a petition for review of the decision of the Court of Appeals in CA-G.R. No. 67308,xxxvi[1] which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners Application for Probation, and its Order denying petitioners Motion for Reconsideration.xxxvi[2] The undisputed facts are as follows. On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2, rendered a decision in Criminal Case No. 8243,xxxvi[3] finding petitioners Domingo Lagrosa and Osias Baguin guilty of violation of Section 68 of P.D. 705, as amended (The Revised Forestry Code), for having in their possession forest products without the requisite permits. The trial court sentenced them to suffer the indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. Petitioners Motion for Reconsideration of the decisionxxxvi[4] was denied by the trial court on November 21, 1996.xxxvi[5]

Petitioners appealed their conviction to the Court of Appeals, where it was docketed as CA-G.R. CR No. 20632.xxxvi[6] On March 14, 2000, the appellate court affirmed the conviction of the petitioners, with the modification as to the penalty imposed, which was reduced to an indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to one (1) year, eight (8) months and twenty one (21) days of prision correccional, as maximum.xxxvi[7] The decision became final and executory on April 12, 2000. On August 29, 2001, petitioners filed an Application for Probation with the trial court,xxxvi[8] which, as mentioned at the outset, was denied. Petitioners motion for reconsideration was likewise denied by the trial court. Hence, petitioners filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 67308.xxxvi[9] On January 11, 2002, the Court of Appeals rendered the assailed decision affirming the questioned resolutions of the trial court. Hence this petition, raising the following arguments: 1) That Section 4 of Presidential Decree No. 968, as amended by PD No. 1990, is very absurd and illogical considering that petitioners were not given the opportunity to apply for probation when they were convicted by the Regional Trial Court of Bohol, Branch 2, because the penalty imposed by said court is more than six (6) years and therefore non-probationable. That the first opportunity for herein petitioners to apply for probation was when the Court of Appeals modified the sentence imposed by the Regional Trial Court of Bohol, Branch 2, from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, to six (6) months and one (1) day to one (1) year, eight (8) months and twenty one (21) days as maximum which is clearly probationable. 2) That the ruling of this Honorable Supreme Court in the case of Pablo Francisco versus Court of Appeals, et al., G.R. No. 108747, is not applicable to the instant case because in the said Francisco case the accused therein can apply for probation because the penalty imposed by the lower court was already probationable but the accused instead appealed the decision but in the case of herein petitioners they cannot apply for probation when they were convicted because the penalty imposed by the lower court was more than six (6) years and therefore non-probationable. 3) That the decision of the Court of Appeals herein sought to be reviewed is clearly contrary to the purpose of the Probation Law.xxxvi[10] The law that is at the heart of this controversy is Presidential Decree No. 968, also known as the Probation Law, as amended by P.D. 1990, the pertinent provision of which reads: SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best;

Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. (underscoring ours) Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a maximum term of imprisonment of more than six years are disqualified from seeking probation. It should be noted that before P.D. 968 was amended by P.D. 1990, the accused was allowed to apply for probation even after he had already filed an appeal, as long as he had not yet begun to serve his sentence.xxxvi[11] Petitioners contend that they should be allowed to apply for probation even if they had already appealed the decision of the trial court. They argue that their case should be considered an exception to the general rule which excludes an accused who has appealed his conviction from the benefits of probation. In the case at bar, the trial court sentenced petitioners to a maximum term of eight years, which was beyond the coverage of the Probation Law. They only became eligible for probation after the Court of Appeals modified the judgment of the trial court and reduced the maximum term of the penalty imposed on them to one year, eight months and twenty-one days.xxxvi[12] They submit that the ruling in the case of Francisco v. CAxxxvi[13] is not applicable because in that case, the accused appealed their conviction notwithstanding the fact that the maximum term of the prison sentence imposed on them by the trial court was less than six years.xxxvi[14] In its Comment, the Office of the Solicitor General reiterates the express provision of P.D. 968 prohibiting the grant of probation to those who have appealed their convictions.xxxvi[15] It argues that, even if the petitioners have appealed for the purpose of reducing an incorrect penalty, this fact does not serve to remove them from the prohibition in Section 4 of P.D. 968 for the law makes no such distinction.xxxvi[16] There is no question that petitioners appealed from the decision of the trial court. This fact alone merits the denial of petitioners Application for Probation. Having appealed from the judgment of the trial court and having applied for probation only after the Court of Appeals had affirmed their conviction, petitioners were clearly precluded from the benefits of probation.xxxvi[17] However, petitioners now ask us not to apply the letter of the law, claiming that their situation should be considered an exception to the rule. Their petition is without merit. Petitioners repeatedly assert that their application for probation was made at the first opportunity, undoubtedly invoking the fourth whereas clause of P.D. 1990, which reads:

WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated; x x x. To bolster this assertion, petitioners claim that what prompted them to appeal the decision of the trial court was the erroneous penalty imposed by the trial court.xxxvi[18] Petitioners are not being very candid. In their appellants brief filed in CA-G.R. CR No. 20632, they raised the following assignment of errors: I THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED GUILTY OF THE OFFENSE CHARGED BECAUSE THE EVIDENCE AGAINST THEM LACKS MORAL CERTAINTY. II. IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN IMPOSING THE PROPER PENALTY AS PROVIDED BY LAW. The fact that petitioners put the merits of their conviction in issue on appeal belies their claim that their appeal was prompted by what was admittedly an incorrect penalty. Certainly, the protestations of petitioners connote a profession of guiltlessness, if not complete innocence, and do not simply assail the propriety of the penalties imposed. For sure, petitioners never manifested that they were appealing only for the purpose of correcting a wrong penalty to reduce it to within probationable range. Hence, upon interposing an appeal, more so after asserting their innocence therein, petitioners should be precluded from seeking probation. By perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of availing of the Probation Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused who, although already eligible, does not at once apply for probation, but did so only after failing in his appeal.xxxvi[19] Although it has been suggested that an appeal should not bar the accused from applying for probation if the appeal is solely to reduce the penalty to within the probationable limit may be equitable,xxxvi[20] we are not yet prepared to accept this proposition, specially given the factual circumstances of this case. Had the petitioners appeal from the decision of the trial court raised the impropriety of the penalty imposed upon them as the sole issue, perhaps this Court would have been more sympathetic to their plight. Unfortunately, their misrepresentation has led to their own undoing. WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated January 11, 2002 in CA-G.R. No. 67308, which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners Application for

Probation, and its Order denying petitioners Motion for Reconsideration, is AFFIRMED. Costs against the petitioners. SO ORDERED. Davide, Jr., C.J., (Chairman), Carpio, and Azcuna, JJ., concur. Vitug, J., I reiterate my separate (dissenting) opinion in Francisco vs. CA (243 SCRA 384, 399).

EN BANC [G.R. No. 152154. July 15, 2003] REPUBLIC OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN (SPECIAL FIRST DIVISION), FERDINAND E. MARCOS (REPRESENTED BY HIS ESTATE/HEIRS: IMELDA R. MARCOS, MARIA IMELDA [IMEE] MARCOS-MANOTOC, FERDINAND R. MARCOS, JR. AND IRENE MARCOS-ARANETA) AND IMELDA ROMUALDEZ MARCOS, respondents. DECISION CORONA, J.: This is a petition for certiorari under Rule 65 of the Rules of Court seeking to (1) set aside the Resolution dated January 31, 2002 issued by the Special First Division of the Sandiganbayan in Civil Case No. 0141 entitled Republic of the Philippines vs. Ferdinand E. Marcos, et. al., and (2) reinstate its earlier decision dated September 19, 2000 which forfeited in favor of petitioner Republic of the Philippines (Republic) the amount held in escrow in the Philippine National Bank (PNB) in the aggregate amount of US$658,175,373.60 as of January 31, 2002. BACKGROUND OF THE CASE On December 17, 1991, petitioner Republic, through the Presidential Commission on Good Government (PCGG), represented by the Office of the Solicitor General (OSG), filed a petition for forfeiture before the Sandiganbayan, docketed as Civil Case No. 0141 entitled Republic of the Philippines vs. Ferdinand E. Marcos, represented by his Estate/Heirs and Imelda R. Marcos, pursuant to RA 1379xxxvi[1] in relation to Executive Order Nos. 1,xxxvi[2] 2,xxxvi[3] 14xxxvi[4] and 14A.xxxvi[5] In said case, petitioner sought the declaration of the aggregate amount of US$356 million (now estimated to be more than US$658 million inclusive of interest) deposited in escrow in the PNB,

as ill-gotten wealth. The funds were previously held by the following five account groups, using various foreign foundations in certain Swiss banks: (1) (2) (3) (4) (5) Azio-Verso-Vibur Foundation accounts; Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina Foundation accounts; Trinidad-Rayby-Palmy Foundation accounts; Rosalys-Aguamina Foundation accounts and Maler Foundation accounts.

In addition, the petition sought the forfeiture of US$25 million and US$5 million in treasury notes which exceeded the Marcos couples salaries, other lawful income as well as income from legitimately acquired property. The treasury notes are frozen at the Central Bank of the Philippines, now Bangko Sentral ng Pilipinas, by virtue of the freeze order issued by the PCGG. On October 18, 1993, respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand R. Marcos, Jr. filed their answer. Before the case was set for pre-trial, a General Agreement and the Supplemental Agreementsxxxvi[6] dated December 28, 1993 were executed by the Marcos children and then PCGG Chairman Magtanggol Gunigundo for a global settlement of the assets of the Marcos family. Subsequently, respondent Marcos children filed a motion dated December 7, 1995 for the approval of said agreements and for the enforcement thereof. The General Agreement/Supplemental Agreements sought to identify, collate, cause the inventory of and distribute all assets presumed to be owned by the Marcos family under the conditions contained therein. The aforementioned General Agreement specified in one of its premises or whereas clauses the fact that petitioner obtained a judgment from the Swiss Federal Tribunal on December 21, 1990, that the Three Hundred Fifty-six Million U.S. dollars (US$356 million) belongs in principle to the Republic of the Philippines provided certain conditionalities are met x x x. The said decision of the Swiss Federal Supreme Court affirmed the decision of Zurich District Attorney Peter Consandey, granting petitioners request for legal assistance.xxxvi[7] Consandey declared the various deposits in the name of the enumerated foundations to be of illegal provenance and ordered that they be frozen to await the final verdict in favor of the parties entitled to restitution. Hearings were conducted by the Sandiganbayan on the motion to approve the General/Supplemental Agreements. Respondent Ferdinand, Jr. was presented as witness for the purpose of establishing the partial implementation of said agreements.

On October 18, 1996, petitioner filed a motion for summary judgment and/or judgment on the pleadings. Respondent Mrs. Marcos filed her opposition thereto which was later adopted by respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr. In its resolution dated November 20, 1997, the Sandiganbayan denied petitioners motion for summary judgment and/or judgment on the pleadings on the ground that the motion to approve the compromise agreement (took) precedence over the motion for summary judgment. Respondent Mrs. Marcos filed a manifestation on May 26, 1998 claiming she was not a party to the motion for approval of the Compromise Agreement and that she owned 90% of the funds with the remaining 10% belonging to the Marcos estate. Meanwhile, on August 10, 1995, petitioner filed with the District Attorney in Zurich, Switzerland, an additional request for the immediate transfer of the deposits to an escrow account in the PNB. The request was granted. On appeal by the Marcoses, the Swiss Federal Supreme Court, in a decision dated December 10, 1997, upheld the ruling of the District Attorney of Zurich granting the request for the transfer of the funds. In 1998, the funds were remitted to the Philippines in escrow. Subsequently, respondent Marcos children moved that the funds be placed in custodia legis because the deposit in escrow in the PNB was allegedly in danger of dissipation by petitioner. The Sandiganbayan, in its resolution dated September 8, 1998, granted the motion. After the pre-trial and the issuance of the pre-trial order and supplemental pre-trial order dated October 28, 1999 and January 21, 2000, respectively, the case was set for trial. After several resettings, petitioner, on March 10, 2000, filed another motion for summary judgment pertaining to the forfeiture of the US$356 million, based on the following grounds: I THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE OF THE FUNDS SUBJECT OF THE PETITION UNDER R.A. NO. 1379 ARE ADMITTED BY RESPONDENTS IN THEIR PLEADINGS AND OTHER SUBMISSIONS MADE IN THE COURSE OF THE PROCEEDING. II RESPONDENTS ADMISSION MADE DURING THE PRE-TRIAL THAT THEY DO NOT HAVE ANY INTEREST OR OWNERSHIP OVER THE FUNDS SUBJECT OF THE ACTION FOR FORFEITURE TENDERS NO GENUINE ISSUE OR CONTROVERSY AS TO ANY MATERIAL FACT IN THE PRESENT ACTION, THUS WARRANTING THE RENDITION OF SUMMARY JUDGMENT.xxxvi[8] Petitioner contended that, after the pre-trial conference, certain facts were established, warranting a summary judgment on the funds sought to be forfeited.

Respondent Mrs. Marcos filed her opposition to the petitioners motion for summary judgment, which opposition was later adopted by her co-respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr. On March 24, 2000, a hearing on the motion for summary judgment was conducted. In a decisionxxxvi[9] dated September 19, 2000, the Sandiganbayan granted petitioners motion for summary judgment: CONCLUSION There is no issue of fact which calls for the presentation of evidence. The Motion for Summary Judgment is hereby granted. The Swiss deposits which were transmitted to and now held in escrow at the PNB are deemed unlawfully acquired as ill-gotten wealth. DISPOSITION WHEREFORE, judgment is hereby rendered in favor of the Republic of the Philippines and against the respondents, declaring the Swiss deposits which were transferred to and now deposited in escrow at the Philippine National Bank in the total aggregate value equivalent to US$627,608,544.95 as of August 31, 2000 together with the increments thereof forfeited in favor of the State.xxxvi[10] Respondent Mrs. Marcos filed a motion for reconsideration dated September 26, 2000. Likewise, Mrs. Manotoc and Ferdinand, Jr. filed their own motion for reconsideration dated October 5, 2000. Mrs. Araneta filed a manifestation dated October 4, 2000 adopting the motion for reconsideration of Mrs. Marcos, Mrs. Manotoc and Ferdinand, Jr. Subsequently, petitioner filed its opposition thereto. In a resolutionxxxvi[11] dated January 31, 2002, the Sandiganbayan reversed its September 19, 2000 decision, thus denying petitioners motion for summary judgment: CONCLUSION In sum, the evidence offered for summary judgment of the case did not prove that the money in the Swiss Banks belonged to the Marcos spouses because no legal proof exists in the record as to the ownership by the Marcoses of the funds in escrow from the Swiss Banks. The basis for the forfeiture in favor of the government cannot be deemed to have been established and our judgment thereon, perforce, must also have been without basis.

WHEREFORE, the decision of this Court dated September 19, 2000 is reconsidered and set aside, and this case is now being set for further proceedings.xxxvi[12] Hence, the instant petition. In filing the same, petitioner argues that the Sandiganbayan, in reversing its September 19, 2000 decision, committed grave abuse of discretion amounting to lack or excess of jurisdiction considering that -I PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE WITH THE REQUISITES OF SECTIONS 2 AND 3 OF R.A. NO. 1379: A. PRIVATE RESPONDENTS CATEGORICALLY ADMITTED NOT ONLY THE PERSONAL CIRCUMSTANCES OF FERDINAND E. MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFICIALS BUT ALSO THE EXTENT OF THEIR SALARIES AS SUCH PUBLIC OFFICIALS, WHO UNDER THE CONSTITUTION, WERE PROHIBITED FROM ENGAGING IN THE MANAGEMENT OF FOUNDATIONS. PRIVATE RESPONDENTS ALSO ADMITTED THE EXISTENCE OF THE SWISS DEPOSITS AND THEIR OWNERSHIP THEREOF: 1. 2. ADMISSIONS IN PRIVATE RESPONDENTS ANSWER; ADMISSION IN THE GENERAL / SUPPLEMENTAL AGREEMENTS THEY SIGNED AND SOUGHT TO IMPLEMENT; ADMISSION IN A MANIFESTATION OF PRIVATE RESPONDENT IMELDA R. MARCOS AND IN THE MOTION TO PLACE THE RES IN CUSTODIA LEGIS; AND ADMISSION IN THE UNDERTAKING TO PAY THE HUMAN RIGHTS VICTIMS.

B.

3.

4.

C.

PETITIONER HAS PROVED THE EXTENT OF THE LEGITIMATE INCOME OF FERDINAND E. MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFICIALS. PETITIONER HAS ESTABLISHED A PRIMA FACIE PRESUMPTION OF UNLAWFULLY ACQUIRED WEALTH.

D.

II SUMMARY JUDGMENT IS PROPER SINCE PRIVATE RESPONDENTS HAVE NOT RAISED ANY GENUINE ISSUE OF FACT CONSIDERING THAT:

A.

PRIVATE RESPONDENTS DEFENSE THAT SWISS DEPOSITS WERE LAWFULLY ACQUIRED DOES NOT ONLY FAIL TO TENDER AN ISSUE BUT IS CLEARLY A SHAM; AND

B. IN SUBSEQUENTLY DISCLAIMING OWNERSHIP OF THE SWISS DEPOSITS, PRIVATE RESPONDENTS ABANDONED THEIR SHAM DEFENSE OF LEGITIMATE ACQUISITION, AND THIS FURTHER JUSTIFIED THE RENDITION OF A SUMMARY JUDGMENT. III THE FOREIGN FOUNDATIONS NEED NOT BE IMPLEADED. IV THE HONORABLE PRESIDING JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN REVERSING HIMSELF ON THE GROUND THAT ORIGINAL COPIES OF THE AUTHENTICATED SWISS DECISIONS AND THEIR AUTHENTICATED TRANSLATIONS HAVE NOT BEEN SUBMITTED TO THE COURT, WHEN EARLIER THE SANDIGANBAYAN HAS QUOTED EXTENSIVELY A PORTION OF THE TRANSLATION OF ONE OF THESE SWISS DECISIONS IN HIS PONENCIA DATED JULY 29, 1999 WHEN IT DENIED THE MOTION TO RELEASE ONE HUNDRED FIFTY MILLION US DOLLARS ($150,000,000.00) TO THE HUMAN RIGHTS VICTIMS. V PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED THEIR OBJECTION TO THE AUTHENTICITY OF THE SWISS FEDERAL SUPREME COURT DECISIONS.xxxvi[13] Petitioner, in the main, asserts that nowhere in the respondents motions for reconsideration and supplemental motion for reconsideration were the authenticity, accuracy and admissibility of the Swiss decisions ever challenged. Otherwise stated, it was incorrect for the Sandiganbayan to use the issue of lack of authenticated translations of the decisions of the Swiss Federal Supreme Court as the basis for reversing itself because respondents themselves never raised this issue in their motions for reconsideration and supplemental motion for reconsideration. Furthermore, this particular issue relating to the translation of the Swiss court decisions could not be resurrected anymore because said decisions had been previously utilized by the Sandiganbayan itself in resolving a decisive issue before it. Petitioner faults the Sandiganbayan for questioning the non-production of the authenticated translations of the Swiss Federal Supreme Court decisions as this was a marginal and technical matter that did not diminish by any measure the conclusiveness and strength of what had been proven and admitted before the Sandiganbayan, that is, that the funds deposited by the Marcoses constituted ill-gotten wealth and thus belonged to the Filipino people.

In compliance with the order of this Court, Mrs. Marcos filed her comment to the petition on May 22, 2002. After several motions for extension which were all granted, the comment of Mrs. Manotoc and Ferdinand, Jr. and the separate comment of Mrs. Araneta were filed on May 27, 2002. Mrs. Marcos asserts that the petition should be denied on the following grounds: A. PETITIONER HAS A PLAIN, SPEEDY, AND ADEQUATE REMEDY AT THE SANDIGANBAYAN. B. THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN SETTING THE CASE FOR FURTHER PROCEEDINGS.xxxvi[14] Mrs. Marcos contends that petitioner has a plain, speedy and adequate remedy in the ordinary course of law in view of the resolution of the Sandiganbayan dated January 31, 2000 directing petitioner to submit the authenticated translations of the Swiss decisions. Instead of availing of said remedy, petitioner now elevates the matter to this Court. According to Mrs. Marcos, a petition for certiorari which does not comply with the requirements of the rules may be dismissed. Since petitioner has a plain, speedy and adequate remedy, that is, to proceed to trial and submit authenticated translations of the Swiss decisions, its petition before this Court must be dismissed. Corollarily, the Sandiganbayans ruling to set the case for further proceedings cannot and should not be considered a capricious and whimsical exercise of judgment. Likewise, Mrs. Manotoc and Ferdinand, Jr., in their comment, prayed for the dismissal of the petition on the grounds that: (A) BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY JUDGMENT ON 10 MARCH 2000, IT WAS ALREADY BARRED FROM DOING SO. (1) The Motion for Summary Judgment was based on private respondents Answer and other documents that had long been in the records of the case. Thus, by the time the Motion was filed on 10 March 2000, estoppel by laches had already set in against petitioner. By its positive acts and express admissions prior to filing the Motion for Summary Judgment on 10 March 1990, petitioner had legally bound itself to go to trial on the basis of existing issues. Thus, it clearly waived whatever right it had to move for summary judgment.

(2)

(B) EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY BARRED FROM FILING THE MOTION FOR SUMMARY JUDGMENT, THE SANDIGANBAYAN IS CORRECT IN RULING THAT PETITIONER HAS NOT YET ESTABLISHED A PRIMA FACIE CASE FOR THE FORFEITURE OF THE SWISS FUNDS. (1) Republic Act No. 1379, the applicable law, is a penal statute. As such, its provisions, particularly the essential elements stated in section 3 thereof, are mandatory in nature. These should be strictly construed against petitioner and liberally in favor of private respondents. Petitioner has failed to establish the third and fourth essential elements in Section 3 of R.A. 1379 with respect to the identification, ownership, and approximate amount of the property which the Marcos couple allegedly acquired during their incumbency. (a) Petitioner has failed to prove that the Marcos couple acquired or own the Swiss funds. Even assuming, for the sake of argument, that the fact of acquisition has been proven, petitioner has categorically admitted that it has no evidence showing how much of the Swiss funds was acquired during the incumbency of the Marcos couple from 31 December 1965 to 25 February 1986.

(2)

(b)

(3)

In contravention of the essential element stated in Section 3 (e) of R.A. 1379, petitioner has failed to establish the other proper earnings and income from legitimately acquired property of the Marcos couple over and above their government salaries. Since petitioner failed to prove the three essential elements provided in paragraphs (c)xxxvi[15] (d),xxxvi[16] and (e)xxxvi[17] of Section 3, R.A. 1379, the inescapable conclusion is that the prima facie presumption of unlawful acquisition of the Swiss funds has not yet attached. There can, therefore, be no premature forfeiture of the funds.

(4)

(C) IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING CERTAIN STATEMENTS MADE BY PRIVATE RESPONDENTS OUT OF CONTEXT THAT PETITIONER WAS ABLE TO TREAT THESE AS JUDICIAL ADMISSIONS SUFFICIENT TO ESTABLISH A PRIMA FACIE AND THEREAFTER A CONCLUSIVE CASE TO JUSTIFY THE FORFEITURE OF THE SWISS FUNDS.

(1)

Under Section 27, Rule 130 of the Rules of Court, the General and Supplemental Agreements, as well as the other written and testimonial statements submitted in relation thereto, are expressly barred from being admissible in evidence against private respondents. Had petitioner bothered to weigh the alleged admissions together with the other statements on record, there would be a demonstrable showing that no such judicial admissions were made by private respondents.

(2)

(D) SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE ESSENTIAL ELEMENTS TO ESTABLISH A PRIMA FACIE CASE FOR FORFEITURE, AND PRIVATE RESPONDENTS HAVE NOT MADE ANY JUDICIAL ADMISSION THAT WOULD HAVE FREED IT FROM ITS BURDEN OF PROOF, THE SANDIGANBAYAN DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION FOR SUMMARY JUDGMENT. CERTIORARI, THEREFORE, DOES NOT LIE, ESPECIALLY AS THIS COURT IS NOT A TRIER OF FACTS.xxxvi[18] For her part, Mrs. Araneta, in her comment to the petition, claims that obviously petitioner is unable to comply with a very plain requirement of respondent Sandiganbayan. The instant petition is allegedly an attempt to elevate to this Court matters, issues and incidents which should be properly threshed out at the Sandiganbayan. To respondent Mrs. Araneta, all other matters, save that pertaining to the authentication of the translated Swiss Court decisions, are irrelevant and impertinent as far as this Court is concerned. Respondent Mrs. Araneta manifests that she is as eager as respondent Sandiganbayan or any interested person to have the Swiss Court decisions officially translated in our known language. She says the authenticated official English version of the Swiss Court decisions should be presented. This should stop all speculations on what indeed is contained therein. Thus, respondent Mrs. Araneta prays that the petition be denied for lack of merit and for raising matters which, in elaborated fashion, are impertinent and improper before this Court. PROPRIETY OF PETITIONERS ACTION FOR CERTIORARI But before this Court discusses the more relevant issues, the question regarding the propriety of petitioner Republic's action for certiorari under Rule 65xxxvi[19] of the 1997 Rules of Civil Procedure assailing the Sandiganbayan Resolution dated January 21, 2002 should be threshed out. At the outset, we would like to stress that we are treating this case as an exception to the general rule governing petitions for certiorari. Normally, decisions of the Sandiganbayan are brought before this Court under Rule 45, not Rule 65.xxxvi[20] But where the case is undeniably ingrained with immense public interest, public policy and deep historical repercussions, certiorari is allowed notwithstanding the existence and availability of the remedy of appeal. xxxvi[21]

One of the foremost concerns of the Aquino Government in February 1986 was the recovery of the unexplained or ill-gotten wealth reputedly amassed by former President and Mrs. Ferdinand E. Marcos, their relatives, friends and business associates. Thus, the very first Executive Order (EO) issued by then President Corazon Aquino upon her assumption to office after the ouster of the Marcoses was EO No. 1, issued on February 28, 1986. It created the Presidential Commission on Good Government (PCGG) and charged it with the task of assisting the President in the "recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship." The urgency of this undertaking was tersely described by this Court in Republic vs. Lobregatxxxvi[22]: surely x x x an enterprise "of great pith and moment"; it was attended by "great expectations"; it was initiated not only out of considerations of simple justice but also out of sheer necessity - the national coffers were empty, or nearly so. In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set aside technicalities and formalities that merely serve to delay or impede judicious resolution. This Court prefers to have such cases resolved on the merits at the Sandiganbayan. But substantial justice to the Filipino people and to all parties concerned, not mere legalisms or perfection of form, should now be relentlessly and firmly pursued. Almost two decades have passed since the government initiated its search for and reversion of such ill-gotten wealth. The definitive resolution of such cases on the merits is thus long overdue. If there is proof of illegal acquisition, accumulation, misappropriation, fraud or illicit conduct, let it be brought out now. Let the ownership of these funds and other assets be finally determined and resolved with dispatch, free from all the delaying technicalities and annoying procedural sidetracks.xxxvi[23] We thus take cognizance of this case and settle with finality all the issues therein. ISSUES BEFORE THIS COURT The crucial issues which this Court must resolve are: (1) whether or not respondents raised any genuine issue of fact which would either justify or negate summary judgment; and (2) whether or not petitioner Republic was able to prove its case for forfeiture in accordance with Sections 2 and 3 of RA 1379. (1) THE PROPRIETY OF SUMMARY JUDGMENT We hold that respondent Marcoses failed to raise any genuine issue of fact in their pleadings. Thus, on motion of petitioner Republic, summary judgment should take place as a matter of right.

In the early case of Auman vs. Estenzoxxxvi[24], summary judgment was described as a judgment which a court may render before trial but after both parties have pleaded. It is ordered by the court upon application by one party, supported by affidavits, depositions or other documents, with notice upon the adverse party who may in turn file an opposition supported also by affidavits, depositions or other documents. This is after the court summarily hears both parties with their respective proofs and finds that there is no genuine issue between them. Summary judgment is sanctioned in this jurisdiction by Section 1, Rule 35 of the 1997 Rules of Civil Procedure: SECTION 1. Summary judgment for claimant.- A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof.xxxvi[25] Summary judgment is proper when there is clearly no genuine issue as to any material fact in the action.xxxvi[26] The theory of summary judgment is that, although an answer may on its face appear to tender issues requiring trial, if it is demonstrated by affidavits, depositions or admissions that those issues are not genuine but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for petitioner Republic. The Solicitor General made a very thorough presentation of its case for forfeiture: xxx 4. Respondent Ferdinand E. Marcos (now deceased and represented by his Estate/Heirs) was a public officer for several decades continuously and without interruption as Congressman, Senator, Senate President and President of the Republic of the Philippines from December 31, 1965 up to his ouster by direct action of the people of EDSA on February 22-25, 1986. 5. Respondent Imelda Romualdez Marcos (Imelda, for short) the former First Lady who ruled with FM during the 14-year martial law regime, occupied the position of Minister of Human Settlements from June 1976 up to the peaceful revolution in February 22-25, 1986. She likewise served once as a member of the Interim Batasang Pambansa during the early years of martial law from 1978 to 1984 and as Metro Manila Governor in concurrent capacity as Minister of Human Settlements. x x x xxx xxx xxx

11. At the outset, however, it must be pointed out that based on the Official Report of the Minister of Budget, the total salaries of former President Marcos as President form 1966 to 1976 was P60,000 a year and from 1977 to 1985, P100,000 a year; while that of the former First Lady, Imelda R. Marcos, as Minister of Human Settlements from June 1976 to February 22-25, 1986 was P75,000 a year xxx. ANALYSIS OF RESPONDENTS

LEGITIMATE INCOME xxx 12. Based on available documents, the ITRs of the Marcoses for the years 1965-1975 were filed under Tax Identification No. 1365-055-1. For the years 1976 until 1984, the returns were filed under Tax Identification No. M 6221-J 1117-A-9. 13. The data contained in the ITRs and Balance Sheet filed by the Marcoses are summarized and attached to the reports in the following schedules: Schedule A: Schedule of Income (Annex T hereof); Schedule B: Schedule of Income Tax Paid (Annex T-1 hereof); Schedule C: Schedule of Net Disposable Income (Annex T-2 hereof); Schedule D: Schedule of Networth Analysis (Annex T-3 hereof). 14. As summarized in Schedule A (Annex T hereof), the Marcoses reported P16,408,442.00 or US$2,414,484.91 in total income over a period of 20 years from 1965 to 1984. The sources of income are as follows: Official Salaries Legal Practice Farm Income Others Total P 2,627,581.00 11,109,836.00 149,700.00 2,521,325.00 P16,408,442.00 16.01% 67.71% .91% 15.37% 100.00%

15. FMs official salary pertains to his compensation as Senate President in 1965 in the amount of P15,935.00 and P1,420,000.00 as President of the Philippines during the period 1966 until 1984. On the other hand, Imelda reported salaries and allowances only for the years 1979 to 1984 in the amount of P1,191,646.00. The records indicate that the reported income came from her salary from the Ministry of Human Settlements and allowances from Food Terminal, Inc., National Home Mortgage Finance Corporation, National Food Authority Council, Light Rail Transit Authority and Home Development Mutual Fund.

16. Of the P11,109,836.00 in reported income from legal practice, the amount of P10,649,836.00 or 96% represents receivables from prior years during the period 1967 up to 1984. 17. In the guise of reporting income using the cash method under Section 38 of the National Internal Revenue Code, FM made it appear that he had an extremely profitable legal practice before he became a President (FM being barred by law from practicing his law profession during his entire presidency) and that, incredibly, he was still receiving payments almost 20 years after. The only problem is that in his Balance Sheet attached to his 1965 ITR immediately preceeding his ascendancy to the presidency he did not show any Receivables from client at all, much less the P10,65-M that he decided to later recognize as income. There are no documents showing any withholding tax certificates. Likewise, there is nothing on record that will show any known Marcos client as he has no known law office. As previously stated, his networth was a mere P120,000.00 in December, 1965. The joint income tax returns of FM and Imelda cannot, therefore, conceal the skeletons of their kleptocracy. 18. FM reported a total of P2,521,325.00 as Other Income for the years 1972 up to 1976 which he referred to in his return as Miscellaneous Items and Various Corporations. There is no indication of any payor of the dividends or earnings. 19. Spouses Ferdinand and Imelda did not declare any income from any deposits and placements which are subject to a 5% withholding tax. The Bureau of Internal Revenue attested that after a diligent search of pertinent records on file with the Records Division, they did not find any records involving the tax transactions of spouses Ferdinand and Imelda in Revenue Region No. 1, Baguio City, Revenue Region No.4A, Manila, Revenue Region No. 4B1, Quezon City and Revenue No. 8, Tacloban, Leyte. Likewise, the Office of the Revenue Collector of Batac. Further, BIR attested that no records were found on any filing of capital gains tax return involving spouses FM and Imelda covering the years 1960 to 1965. 20. In Schedule B, the taxable reported income over the twenty-year period was P14,463,595.00 which represents 88% of the gross income. The Marcoses paid income taxes totaling P8,233,296.00 or US$1,220,667.59. The business expenses in the amount of P861,748.00 represent expenses incurred for subscription, postage, stationeries and contributions while the other deductions in the amount of P567,097.00 represents interest charges, medicare fees, taxes and licenses. The total deductions in the amount of P1,994,845.00 represents 12% of the total gross income. 21. In Schedule C, the net cumulative disposable income amounts to P6,756,301.00 or US$980,709.77. This is the amount that represents that portion of the Marcoses income that is free for consumption, savings and investments. The amount is arrived at by adding back to the net income after tax the personal and additional exemptions for the years 1965-1984, as well as the tax-exempt salary of the President for the years 1966 until 1972. 22. Finally, the networth analysis in Schedule D, represents the total accumulated networth of spouses, Ferdinand and Imelda. Respondents Balance Sheet attached to their 1965 ITR,

covering the year immediately preceding their ascendancy to the presidency, indicates an ending networth of P120,000.00 which FM declared as Library and Miscellaneous assets. In computing for the networth, the income approach was utilized. Under this approach, the beginning capital is increased or decreased, as the case may be, depending upon the income earned or loss incurred. Computations establish the total networth of spouses Ferdinand and Imelda, for the years 1965 until 1984 in the total amount of US$957,487.75, assuming the income from legal practice is real and valid x x x. G. THE SECRET MARCOS DEPOSITS IN SWISS BANKS 23. The following presentation very clearly and overwhelmingly show in detail how both respondents clandestinely stashed away the countrys wealth to Switzerland and hid the same under layers upon layers of foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts or agents who formed those foundations or corporate entities, they opened and maintained numerous bank accounts. But due to the difficulty if not the impossibility of detecting and documenting all those secret accounts as well as the enormity of the deposits therein hidden, the following presentation is confined to five identified accounts groups, with balances amounting to about $356-M with a reservation for the filing of a supplemental or separate forfeiture complaint should the need arise. H. THE AZIO-VERSO-VIBUR FOUNDATION ACCOUNTS 24. On June 11, 1971, Ferdinand Marcos issued a written order to Dr. Theo Bertheau, legal counsel of Schweizeresche Kreditanstalt or SKA, also known as Swiss Credit Bank, for him to establish the AZIO Foundation. On the same date, Marcos executed a power of attorney in favor of Roberto S. Benedicto empowering him to transact business in behalf of the said foundation. Pursuant to the said Marcos mandate, AZIO Foundation was formed on June 21, 1971 in Vaduz. Walter Fessler and Ernst Scheller, also of SKA Legal Service, and Dr. Helmuth Merling from Schaan were designated as members of the Board of Trustees of the said foundation. Ferdinand Marcos was named first beneficiary and the Marcos Foundation, Inc. was second beneficiary. On November 12, 1971, FM again issued another written order naming Austrahil PTY Ltd. In Sydney, Australia, as the foundations first and sole beneficiary. This was recorded on December 14, 1971. 25. In an undated instrument, Marcos changed the first and sole beneficiary to CHARIS FOUNDATION. This change was recorded on December 4, 1972. 26. On August 29, 1978, the AZIO FOUNDATION was renamed to VERSO FOUNDATION. The Board of Trustees remained the same. On March 11, 1981, Marcos issued a written directive to liquidated VERSO FOUNDATION and to transfer all its assets to account of FIDES TRUST COMPANY at Bank Hofman in Zurich under the account Reference OSER. The Board of Trustees decided to dissolve the foundation on June 25, 1981.

27. In an apparent maneuver to bury further the secret deposits beneath the thick layers of corporate entities, FM effected the establishment of VIBUR FOUNDATION on May 13, 1981 in Vaduz. Atty. Ivo Beck and Limag Management, a wholly-owned subsidiary of Fides Trust, were designated as members of the Board of Trustees. The account was officially opened with SKA on September 10, 1981. The beneficial owner was not made known to the bank since Fides Trust Company acted as fiduciary. However, comparison of the listing of the securities in the safe deposit register of the VERSO FOUNDATION as of February 27, 1981 with that of VIBUR FOUNDATION as of December 31, 1981 readily reveals that exactly the same securities were listed. 28. Under the foregoing circumstances, it is certain that the VIBUR FOUNDATION is the beneficial successor of VERSO FOUNDATION. 29. On March 18, 1986, the Marcos-designated Board of Trustees decided to liquidate VIBUR FOUNDATION. A notice of such liquidation was sent to the Office of the Public Register on March 21, 1986. However, the bank accounts and respective balances of the said VIBUR FOUNDATION remained with SKA. Apparently, the liquidation was an attempt by the Marcoses to transfer the foundations funds to another account or bank but this was prevented by the timely freeze order issued by the Swiss authorities. One of the latest documents obtained by the PCGG from the Swiss authorities is a declaration signed by Dr. Ivo Beck (the trustee) stating that the beneficial owner of VIBUR FOUNDATION is Ferdinand E. Marcos. Another document signed by G. Raber of SKA shows that VIBUR FOUNDATION is owned by the Marcos Familie 30. As of December 31, 1989, the balance of the bank accounts of VIBUR FOUNDATION with SKA, Zurich, under the General Account No. 469857 totaled $3,597,544.00 I. XANDY-WINTROP: CHARIS-SCOLARIVALAMO-SPINUS-AVERTINA FOUNDATION ACCOUNTS 31. This is the most intricate and complicated account group. As the Flow Chart hereof shows, two (2) groups under the foundation organized by Marcos dummies/nominees for FMs benefit, eventually joined together and became one (1) account group under the AVERTINA FOUNDATION for the benefit of both FM and Imelda. This is the biggest group from where the $50-M investment fund of the Marcoses was drawn when they bought the Central Banks dollardenominated treasury notes with high-yielding interests. 32. On March 20, 1968, after his second year in the presidency, Marcos opened bank accounts with SKA using an alias or pseudonym WILLIAM SAUNDERS, apparently to hide his true identity. The next day, March 21, 1968, his First Lady, Mrs. Imelda Marcos also opened her own bank accounts with the same bank using an American-sounding alias, JANE RYAN. Found among the voluminous documents in Malacaang shortly after they fled to Hawaii in haste that fateful night of February 25, 1986, were accomplished forms for Declaration/Specimen Signatures submitted by the Marcos couple. Under the caption signature(s) Ferdinand and

Imelda signed their real names as well as their respective aliases underneath. These accounts were actively operated and maintained by the Marcoses for about two (2) years until their closure sometime in February, 1970 and the balances transferred to XANDY FOUNDATION. 33. The XANDY FOUNDATION was established on March 3, 1970 in Vaduz. C.W. Fessler, C. Souviron and E. Scheller were named as members of the Board of Trustees. 34. FM and Imelda issued the written mandate to establish the foundation to Markus Geel of SKA on March 3, 1970. In the handwritten Regulations signed by the Marcos couple as well as in the type-written Regulations signed by Markus Geel both dated February 13, 1970, the Marcos spouses were named the first beneficiaries, the surviving spouse as the second beneficiary and the Marcos children Imee, Ferdinand, Jr. (Bongbong) and Irene as equal third beneficiaries. 35. The XANDY FOUNDATION was renamed WINTROP FOUNDATION on August 29, 1978. The Board of Trustees remained the same at the outset. However, on March 27, 1980, Souviron was replaced by Dr. Peter Ritter. On March 10. 1981, Ferdinand and Imelda Marcos issued a written order to the Board of Wintrop to liquidate the foundation and transfer all its assets to Bank Hofmann in Zurich in favor of FIDES TRUST COMPANY. Later, WINTROP FOUNDATION was dissolved. 36. The AVERTINA FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and Limag Management, a wholly-owned subsidiary of FIDES TRUST CO., as members of the Board of Trustees. Two (2) account categories, namely: CAR and NES, were opened on September 10, 1981. The beneficial owner of AVERTINA was not made known to the bank since the FIDES TRUST CO. acted as fiduciary. However, the securities listed in the safe deposit register of WINTROP FOUNDATION Category R as of December 31, 1980 were the same as those listed in the register of AVERTINA FOUNDATION Category CAR as of December 31, 1981. Likewise, the securities listed in the safe deposit register of WINTROP FOUNDATION Category S as of December 31, 1980 were the same as those listed in the register of Avertina Category NES as of December 31, 1981.Under the circumstances, it is certain that the beneficial successor of WINTROP FOUNDATION is AVERTINA FOUNDATION. The balance of Category CAR as of December 31, 1989 amounted to US$231,366,894.00 while that of Category NES as of 12-31-83 was US$8,647,190.00. Latest documents received from Swiss authorities included a declaration signed by IVO Beck stating that the beneficial owners of AVERTINA FOUNDATION are FM and Imelda. Another document signed by G. Raber of SKA indicates that Avertina Foundation is owned by the Marcos Families. 37. The other groups of foundations that eventually joined AVERTINA were also established by FM through his dummies, which started with the CHARIS FOUNDATION. 38. The CHARIS FOUNDATION was established in VADUZ on December 27, 1971. Walter Fessler and Ernst Scheller of SKA and Dr. Peter Ritter were named as directors. Dr. Theo Bertheau, SKA legal counsel, acted as founding director in behalf of FM by virtue of the mandate and agreement dated November 12, 1971. FM himself was named the first beneficiary

and Xandy Foundation as second beneficiary in accordance with the handwritten instructions of FM on November 12, 1971 and the Regulations. FM gave a power of attorney to Roberto S. Benedicto on February 15, 1972 to act in his behalf with regard to Charis Foundation. 39. On December 13, 1974, Charis Foundation was renamed Scolari Foundation but the directors remained the same. On March 11, 1981 FM ordered in writing that the Valamo Foundation be liquidated and all its assets be transferred to Bank Hofmann, AG in favor of Fides Trust Company under the account Reference OMAL. The Board of Directors decided on the immediate dissolution of Valamo Foundation on June 25, 1981. 40 The SPINUS FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and Limag Management, a wholly-owned subsidiary of Fides Trust Co., as members of the Foundations Board of Directors. The account was officially opened with SKA on September 10, 1981. The beneficial owner of the foundation was not made known to the bank since Fides Trust Co. acted as fiduciary. However, the list of securities in the safe deposit register of Valamo Foundation as of December 31, 1980 are practically the same with those listed in the safe deposit register of Spinus Foundation as of December 31, 1981. Under the circumstances, it is certain that the Spinus Foundation is the beneficial successor of the Valamo Foundation. 41. On September 6, 1982, there was a written instruction from Spinus Foundation to SKA to close its Swiss Franc account and transfer the balance to Avertina Foundation. In July/August, 1982, several transfers from the foundations German marks and US dollar accounts were made to Avertina Category CAR totaling DM 29.5-M and $58-M, respectively. Moreover, a comparison of the list of securities of the Spinus Foundation as of February 3, 1982 with the safe deposit slips of the Avertina Foundation Category CAR as of August 19, 1982 shows that all the securities of Spinus were transferred to Avertina. J. TRINIDAD-RAYBY-PALMY FOUNDATION ACCOUNTS 42. The Trinidad Foundation was organized on August 26, 1970 in Vaduz with C.W. Fessler and E. Scheller of SKA and Dr. Otto Tondury as the foundations directors. Imelda issued a written mandate to establish the foundation to Markus Geel on August 26, 1970. The regulations as well as the agreement, both dated August 28, 1970 were likewise signed by Imelda. Imelda was named the first beneficiary and her children Imelda (Imee), Ferdinand, Jr. (Bongbong) and, Irene were named as equal second beneficiaries. 43. Rayby Foundation was established on June 22, 1973 in Vaduz with Fessler, Scheller and Ritter as members of the board of directors. Imelda issued a written mandate to Dr. Theo Bertheau to establish the foundation with a note that the foundations capitalization as well as the cost of establishing it be debited against the account of Trinidad Foundation. Imelda was named the first and only beneficiary of Rayby foundation. According to written information from SKA dated November 28, 1988, Imelda apparently had the intention in 1973 to transfer part of the assets of Trinidad Foundation to another foundation, thus the establishment of Rayby Foundation. However, transfer of assets never took place. On March 10, 1981, Imelda issued a

written order to transfer all the assets of Rayby Foundation to Trinidad Foundation and to subsequently liquidate Rayby. On the same date, she issued a written order to the board of Trinidad to dissolve the foundation and transfer all its assets to Bank Hofmann in favor of Fides Trust Co. Under the account Reference Dido, Rayby was dissolved on April 6, 1981 and Trinidad was liquidated on August 3, 1981. 44. The PALMY FOUNDATION was established on May 13, 1981 in Vaduz with Dr. Ivo Beck and Limag Management, a wholly-owned subsidiary of Fides Trust Co, as members of the Foundations Board of Directors. The account was officially opened with the SKA on September 10, 1981. The beneficial owner was not made known to the bank since Fides Trust Co. acted as fiduciary. However, when one compares the listing of securities in the safe deposit register of Trinidad Foundation as of December 31,1980 with that of the Palmy Foundation as of December 31, 1980, one can clearly see that practically the same securities were listed. Under the circumstances, it is certain that the Palmy Foundation is the beneficial successor of the Trinidad Foundation. 45. As of December 31, 1989, the ending balance of the bank accounts of Palmy Foundation under General Account No. 391528 is $17,214,432.00. 46. Latest documents received from Swiss Authorities included a declaration signed by Dr. Ivo Beck stating that the beneficial owner of Palmy Foundation is Imelda. Another document signed by Raber shows that the said Palmy Foundation is owned by Marcos Familie. K. ROSALYS-AGUAMINA FOUNDATION ACCOUNTS 47. Rosalys Foundation was established in 1971 with FM as the beneficiary. Its Articles of Incorporation was executed on September 24, 1971 and its By-Laws on October 3, 1971. This foundation maintained several accounts with Swiss Bank Corporation (SBC) under the general account 51960 where most of the bribe monies from Japanese suppliers were hidden. 48. On December 19, 1985, Rosalys Foundation was liquidated and all its assets were transferred to Aguamina Corporations (Panama) Account No. 53300 with SBC. The ownership by Aguamina Corporation of Account No. 53300 is evidenced by an opening account documents from the bank. J. Christinaz and R.L. Rossier, First Vice-President and Senior Vice President, respectively, of SBC, Geneva issued a declaration dated September 3, 1991 stating that the bylaws dated October 3, 1971 governing Rosalys Foundation was the same by-law applied to Aguamina Corporation Account No. 53300. They further confirmed that no change of beneficial owner was involved while transferring the assets of Rosalys to Aguamina. Hence, FM remains the beneficiary of Aguamina Corporation Account No. 53300. As of August 30, 1991, the ending balance of Account No. 53300 amounted to $80,566,483.00. L. MALER FOUNDATION ACCOUNTS

49. Maler was first created as an establishment. A statement of its rules and regulations was found among Malacaang documents. It stated, among others, that 50% of the Companys assets will be for sole and full right disposal of FM and Imelda during their lifetime, which the remaining 50% will be divided in equal parts among their children. Another Malacaang document dated October 19,1968 and signed by Ferdinand and Imelda pertains to the appointment of Dr. Andre Barbey and Jean Louis Sunier as attorneys of the company and as administrator and manager of all assets held by the company. The Marcos couple, also mentioned in the said document that they bought the Maler Establishment from SBC, Geneva. On the same date, FM and Imelda issued a letter addressed to Maler Establishment, stating that all instructions to be transmitted with regard to Maler will be signed with the word JOHN LEWIS. This word will have the same value as the couples own personal signature. The letter was signed by FM and Imelda in their signatures and as John Lewis. 50. Maler Establishment opened and maintained bank accounts with SBC, Geneva. The opening bank documents were signed by Dr. Barbey and Mr. Sunnier as authorized signatories. 51. On November 17, 1981, it became necessary to transform Maler Establishment into a foundation. Likewise, the attorneys were changed to Michael Amaudruz, et. al. However, administration of the assets was left to SBC. The articles of incorporation of Maler Foundation registered on November 17, 1981 appear to be the same articles applied to Maler Establishment. On February 28, 1984, Maler Foundation cancelled the power of attorney for the management of its assets in favor of SBC and transferred such power to Sustrust Investment Co., S.A. 52. As of June 6, 1991, the ending balance of Maler Foundations Account Nos. 254,508 BT and 98,929 NY amount SF 9,083,567 and SG 16,195,258, respectively, for a total of SF 25,278,825.00. GM only until December 31, 1980. This account was opened by Maler when it was still an establishment which was subsequently transformed into a foundation. 53. All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred Fifty Six Million Dollars ($356,000,000.00) as shown by Annex R-5 hereto attached as integral part hereof. xxx x x x.xxxvi[27]

Respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand Marcos, Jr., in their answer, stated the following: xxx 4. xxx xxx

Respondents ADMIT paragraphs 3 and 4 of the Petition.

5. Respondents specifically deny paragraph 5 of the Petition in so far as it states that summons and other court processes may be served on Respondent Imelda R. Marcos at the stated address the truth of the matter being that Respondent Imelda R. Marcos may be served with

summons and other processes at No. 10-B Bel Air Condominium 5022 P. Burgos Street, Makati, Metro Manila, and ADMIT the rest. xxx xxx xxx

10. Respondents ADMIT paragraph 11 of the Petition. 11. Respondents specifically DENY paragraph 12 of the Petition for lack of knowledge sufficient to form a belief as to the truth of the allegation since Respondents were not privy to the transactions and that they cannot remember exactly the truth as to the matters alleged. 12. Respondents specifically DENY paragraph 13 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs and Balance Sheet. 13. Respondents specifically DENY paragraph 14 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 14. Respondents specifically DENY paragraph 15 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 15. Respondents specifically DENY paragraph 16 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 16. Respondents specifically DENY paragraph 17 of the Petition insofar as it attributes willful duplicity on the part of the late President Marcos, for being false, the same being pure conclusions based on pure assumption and not allegations of fact; and specifically DENY the rest for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs or the attachments thereto. 17. Respondents specifically DENY paragraph 18 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 18. Respondents specifically DENY paragraph 19 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs and that they are not privy to the activities of the BIR.

19. Respondents specifically DENY paragraph 20 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 20. Respondents specifically DENY paragraph 21 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 21. Respondents specifically DENY paragraph 22 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs. 22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely stashed the countrys wealth in Switzerland and hid the same under layers and layers of foundation and corporate entities for being false, the truth being that Respondents aforesaid properties were lawfully acquired. 23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents were not privy to the transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired. 24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36,37, 38, 39, 40, and 41 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respondents are not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired. 25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and 46, of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respondents were not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired. 26. Respondents specifically DENY paragraphs 49, 50, 51 and 52, of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respondents were not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired.

Upon careful perusal of the foregoing, the Court finds that respondent Mrs. Marcos and the Marcos children indubitably failed to tender genuine issues in their answer to the petition for forfeiture. A genuine issue is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is fictitious and contrived, set up in bad faith or patently lacking in substance so as not to constitute a genuine issue for trial. Respondents defenses of lack of knowledge for lack of privity or (inability to) recall because it happened a long time ago or, on the part of Mrs. Marcos, that the funds were lawfully acquired are fully insufficient to tender genuine issues. Respondent Marcoses defenses were a sham and evidently calibrated to compound and confuse the issues. The following pleadings filed by respondent Marcoses are replete with indications of a spurious defense: (a) (b) Respondents' Answer dated October 18, 1993; Pre-trial Brief dated October 4, 1999 of Mrs. Marcos, Supplemental Pre-trial Brief dated October 19, 1999 of Ferdinand, Jr. and Mrs. Imee Marcos-Manotoc adopting the pre-trial brief of Mrs. Marcos, and Manifestation dated October 19, 1999 of Irene Marcos-Araneta adopting the pre-trial briefs of her co- respondents; Opposition to Motion for Summary Judgment dated March 21, 2000, filed by Mrs. Marcos which the other respondents (Marcos children) adopted; Demurrer to Evidence dated May 2, 2000 filed by Mrs. Marcos and adopted by the Marcos children; Motion for Reconsideration dated September 26, 2000 filed by Mrs. Marcos; Motion for Reconsideration dated October 5, 2000 jointly filed by Mrs. Manotoc and Ferdinand, Jr., and Supplemental Motion for Reconsideration dated October 9, 2000 likewise jointly filed by Mrs. Manotoc and Ferdinand, Jr.; Memorandum dated December 12, 2000 of Mrs. Marcos and Memorandum dated December 17, 2000 of the Marcos children; Manifestation dated May 26, 1998; and General/Supplemental Agreement dated December 23, 1993.

(c)

(d)

(e)

(f)

(g) (h)

An examination of the foregoing pleadings is in order.

Respondents Answer dated October 18, 1993.

In their answer, respondents failed to specifically deny each and every allegation contained in the petition for forfeiture in the manner required by the rules. All they gave were stock answers like they have no sufficient knowledge or they could not recall because it happened a long time

ago, and, as to Mrs. Marcos, the funds were lawfully acquired, without stating the basis of such assertions. Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides: A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial.xxxvi[28] The purpose of requiring respondents to make a specific denial is to make them disclose facts which will disprove the allegations of petitioner at the trial, together with the matters they rely upon in support of such denial. Our jurisdiction adheres to this rule to avoid and prevent unnecessary expenses and waste of time by compelling both parties to lay their cards on the table, thus reducing the controversy to its true terms. As explained in Alonso vs. Villamor,xxxvi[29] A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is rather a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapiers thrust. On the part of Mrs. Marcos, she claimed that the funds were lawfully acquired. However, she failed to particularly state the ultimate facts surrounding the lawful manner or mode of acquisition of the subject funds. Simply put, she merely stated in her answer with the other respondents that the funds were lawfully acquired without detailing how exactly these funds were supposedly acquired legally by them. Even in this case before us, her assertion that the funds were lawfully acquired remains bare and unaccompanied by any factual support which can prove, by the presentation of evidence at a hearing, that indeed the funds were acquired legitimately by the Marcos family. Respondents denials in their answer at the Sandiganbayan were based on their alleged lack of knowledge or information sufficient to form a belief as to the truth of the allegations of the petition. It is true that one of the modes of specific denial under the rules is a denial through a statement that the defendant is without knowledge or information sufficient to form a belief as to the truth of the material averment in the complaint. The question, however, is whether the kind of denial in respondents answer qualifies as the specific denial called for by the rules. We do not think so. In Morales vs. Court of Appeals,xxxvi[30] this Court ruled that if an allegation directly and specifically charges a party with having done, performed or committed a particular act which the latter did not in fact do, perform or commit, a categorical and express denial must be made.

Here, despite the serious and specific allegations against them, the Marcoses responded by simply saying that they had no knowledge or information sufficient to form a belief as to the truth of such allegations. Such a general, self-serving claim of ignorance of the facts alleged in the petition for forfeiture was insufficient to raise an issue. Respondent Marcoses should have positively stated how it was that they were supposedly ignorant of the facts alleged. xxxvi[31] To elucidate, the allegation of petitioner Republic in paragraph 23 of the petition for forfeiture stated: 23. The following presentation very clearly and overwhelmingly show in detail how both respondents clandestinely stashed away the countrys wealth to Switzerland and hid the same under layers upon layers of foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts or agents who formed those foundations or corporate entities, they opened and maintained numerous bank accounts. But due to the difficulty if not the impossibility of detecting and documenting all those secret accounts as well as the enormity of the deposits therein hidden, the following presentation is confined to five identified accounts groups, with balances amounting to about $356-M with a reservation for the filing of a supplemental or separate forfeiture complaint should the need arise.xxxvi[32] Respondents lame denial of the aforesaid allegation was: 22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely stashed the countrys wealth in Switzerland and hid the same under layers and layers of foundations and corporate entities for being false, the truth being that Respondents aforesaid properties were lawfully acquired.xxxvi[33] Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at.xxxvi[34] Stated otherwise, a negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances alone are denied while the fact itself is admitted.xxxvi[35] In the instant case, the material allegations in paragraph 23 of the said petition were not specifically denied by respondents in paragraph 22 of their answer. The denial contained in paragraph 22 of the answer was focused on the averment in paragraph 23 of the petition for forfeiture that Respondents clandestinely stashed the countrys wealth in Switzerland and hid the same under layers and layers of foundations and corporate entities. Paragraph 22 of the respondents answer was thus a denial pregnant with admissions of the following substantial facts: (1) the Swiss bank deposits existed and

(2)

that the estimated sum thereof was US$356 million as of December, 1990.

Therefore, the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the sum of about US$356 million, not having been specifically denied by respondents in their answer, were deemed admitted by them pursuant to Section 11, Rule 8 of the 1997 Revised Rules on Civil Procedure: Material averment in the complaint, xxx shall be deemed admitted when not specifically denied. xxx.xxxvi[36] By the same token, the following unsupported denials of respondents in their answer were pregnant with admissions of the substantial facts alleged in the Republics petition for forfeiture: 23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since respondents were not privy to the transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that, as to respondent Imelda R. Marcos, she specifically remembers that the funds involved were lawfully acquired. 24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since respondents were not privy to the transactions and as to such transactions they were privy to, they cannot remember with exactitude the same having occurred a long time ago, except as to respondent Imelda R. Marcos, she specifically remembers that the funds involved were lawfully acquired. 25. Respondents specifically DENY paragraphs 42, 43, 45, and 46 of the petition for lack of knowledge or information sufficient to from a belief as to the truth of the allegations since respondents were not privy to the transactions and as to such transaction they were privy to, they cannot remember with exactitude, the same having occurred a long time ago, except that as to respondent Imelda R. Marcos, she specifically remembers that the funds involved were lawfully acquired. 26. Respondents specifically DENY paragraphs 49, 50, 51 and 52 of the petition for lack of knowledge and information sufficient to form a belief as to the truth of the allegations since respondents were not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to respondent Imelda R. Marcos, she specifically remembers that the funds involved were lawfully acquired. The matters referred to in paragraphs 23 to 26 of the respondents answer pertained to the creation of five groups of accounts as well as their respective ending balances and attached documents alleged in paragraphs 24 to 52 of the Republics petition for forfeiture. Respondent Imelda R. Marcos never specifically denied the existence of the Swiss funds. Her claim that the funds involved were lawfully acquired was an acknowledgment on her part of the existence of

said deposits. This only reinforced her earlier admission of the allegation in paragraph 23 of the petition for forfeiture regarding the existence of the US$356 million Swiss bank deposits. The allegations in paragraphs 47xxxvi[37] and 48xxxvi[38] of the petition for forfeiture referring to the creation and amount of the deposits of the Rosalys-Aguamina Foundation as well as the averment in paragraph 52-axxxvi[39] of the said petition with respect to the sum of the Swiss bank deposits estimated to be US$356 million were again not specifically denied by respondents in their answer. The respondents did not at all respond to the issues raised in these paragraphs and the existence, nature and amount of the Swiss funds were therefore deemed admitted by them. As held in Galofa vs. Nee Bon Sing,xxxvi[40] if a defendants denial is a negative pregnant, it is equivalent to an admission. Moreover, respondents denial of the allegations in the petition for forfeiture for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since respondents were not privy to the transactions was just a pretense. Mrs. Marcos privity to the transactions was in fact evident from her signatures on some of the vital documentsxxxvi[41] attached to the petition for forfeiture which Mrs. Marcos failed to specifically deny as required by the rules.xxxvi[42] It is worthy to note that the pertinent documents attached to the petition for forfeiture were even signed personally by respondent Mrs. Marcos and her late husband, Ferdinand E. Marcos, indicating that said documents were within their knowledge. As correctly pointed out by Sandiganbayan Justice Francisco Villaruz, Jr. in his dissenting opinion: The pattern of: 1) creating foundations, 2) use of pseudonyms and dummies, 3) approving regulations of the Foundations for the distribution of capital and income of the Foundations to the First and Second beneficiary (who are no other than FM and his family), 4) opening of bank accounts for the Foundations, 5) changing the names of the Foundations, 6) transferring funds and assets of the Foundations to other Foundations or Fides Trust, 7) liquidation of the Foundations as substantiated by the Annexes U to U-168, Petition [for forfeiture] strongly indicate that FM and/or Imelda were the real owners of the assets deposited in the Swiss banks, using the Foundations as dummies.xxxvi[43] How could respondents therefore claim lack of sufficient knowledge or information regarding the existence of the Swiss bank deposits and the creation of five groups of accounts when Mrs. Marcos and her late husband personally masterminded and participated in the formation and control of said foundations? This is a fact respondent Marcoses were never able to explain. Not only that. Respondents' answer also technically admitted the genuineness and due execution of the Income Tax Returns (ITRs) and the balance sheets of the late Ferdinand E. Marcos and Imelda R. Marcos attached to the petition for forfeiture, as well as the veracity of the contents thereof. The answer again premised its denials of said ITRs and balance sheets on the ground of lack of knowledge or information sufficient to form a belief as to the truth of the contents thereof.

Petitioner correctly points out that respondents' denial was not really grounded on lack of knowledge or information sufficient to form a belief but was based on lack of recollection. By reviewing their own records, respondent Marcoses could have easily determined the genuineness and due execution of the ITRs and the balance sheets. They also had the means and opportunity of verifying the same from the records of the BIR and the Office of the President. They did not. When matters regarding which respondents claim to have no knowledge or information sufficient to form a belief are plainly and necessarily within their knowledge, their alleged ignorance or lack of information will not be considered a specific denial.xxxvi[44] An unexplained denial of information within the control of the pleader, or is readily accessible to him, is evasive and is insufficient to constitute an effective denial.xxxvi[45] The form of denial adopted by respondents must be availed of with sincerity and in good faith, and certainly not for the purpose of confusing the adverse party as to what allegations of the petition are really being challenged; nor should it be made for the purpose of delay.xxxvi[46] In the instant case, the Marcoses did not only present unsubstantiated assertions but in truth attempted to mislead and deceive this Court by presenting an obviously contrived defense. Simply put, a profession of ignorance about a fact which is patently and necessarily within the pleaders knowledge or means of knowing is as ineffective as no denial at all.xxxvi[47] Respondents ineffective denial thus failed to properly tender an issue and the averments contained in the petition for forfeiture were deemed judicially admitted by them. As held in J.P. Juan & Sons, Inc. vs. Lianga Industries, Inc.: Its specific denial of the material allegation of the petition without setting forth the substance of the matters relied upon to support its general denial, when such matters were plainly within its knowledge and it could not logically pretend ignorance as to the same, therefore, failed to properly tender on issue.xxxvi[48] Thus, the general denial of the Marcos children of the allegations in the petition for forfeiture for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since they were not privy to the transactions cannot rightfully be accepted as a defense because they are the legal heirs and successors-in-interest of Ferdinand E. Marcos and are therefore bound by the acts of their father vis-a-vis the Swiss funds. PRE-TRIAL BRIEF DATED OCTOBER 18, 1993 The pre-trial brief of Mrs. Marcos was adopted by the three Marcos children. In said brief, Mrs. Marcos stressed that the funds involved were lawfully acquired. But, as in their answer, they failed to state and substantiate how these funds were acquired lawfully. They failed to present and attach even a single document that would show and prove the truth of their allegations. Section 6, Rule 18 of the 1997 Rules of Civil Procedure provides:

The parties shall file with the court and serve on the adverse party, x x x their respective pre-trial briefs which shall contain, among others: xxx (d) the documents or exhibits to be presented, stating the purpose thereof; xxx (f) the number and names of the witnesses, and the substance of their respective testimonies.xxxvi[49] It is unquestionably within the courts power to require the parties to submit their pre-trial briefs and to state the number of witnesses intended to be called to the stand, and a brief summary of the evidence each of them is expected to give as well as to disclose the number of documents to be submitted with a description of the nature of each. The tenor and character of the testimony of the witnesses and of the documents to be deduced at the trial thus made known, in addition to the particular issues of fact and law, it becomes apparent if genuine issues are being put forward necessitating the holding of a trial. Likewise, the parties are obliged not only to make a formal identification and specification of the issues and their proofs, and to put these matters in writing and submit them to the court within the specified period for the prompt disposition of the action.xxxvi[50] The pre-trial brief of Mrs. Marcos, as subsequently adopted by respondent Marcos children, merely stated: xxx WITNESSES 4.1 Respondent Imelda will present herself as a witness and reserves the right to present additional witnesses as may be necessary in the course of the trial. xxx DOCUMENTARY EVIDENCE 5.1 Respondent Imelda reserves the right to present and introduce in evidence documents as may be necessary in the course of the trial. Mrs. Marcos did not enumerate and describe the documents constituting her evidence. Neither the names of witnesses nor the nature of their testimony was stated. What alone appeared certain was the testimony of Mrs. Marcos only who in fact had previously claimed ignorance and lack of knowledge. And even then, the substance of her testimony, as required by the rules, was not

made known either. Such cunning tactics of respondents are totally unacceptable to this Court. We hold that, since no genuine issue was raised, the case became ripe for summary judgment. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT DATED MARCH 21, 2000 The opposition filed by Mrs. Marcos to the motion for summary judgment dated March 21, 2000 of petitioner Republic was merely adopted by the Marcos children as their own opposition to the said motion. However, it was again not accompanied by affidavits, depositions or admissions as required by Section 3, Rule 35 of the 1997 Rules on Civil Procedure: x x x The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before hearing. After hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.xxxvi[51] The absence of opposing affidavits, depositions and admissions to contradict the sworn declarations in the Republics motion only demonstrated that the averments of such opposition were not genuine and therefore unworthy of belief. Demurrer to Evidence dated May 2, 2000;xxxvi[52] Motions for Reconsideration;xxxvi[53] and Memoranda of Mrs. Marcos and the Marcos childrenxxxvi[54] All these pleadings again contained no allegations of facts showing their lawful acquisition of the funds. Once more, respondents merely made general denials without alleging facts which would have been admissible in evidence at the hearing, thereby failing to raise genuine issues of fact. Mrs. Marcos insists in her memorandum dated October 21, 2002 that, during the pre-trial, her counsel stated that his client was just a beneficiary of the funds, contrary to petitioner Republics allegation that Mrs. Marcos disclaimed ownership of or interest in the funds. This is yet another indication that respondents presented a fictitious defense because, during the pre-trial, Mrs. Marcos and the Marcos children denied ownership of or interest in the Swiss funds: PJ Garchitorena: Make of record that as far as Imelda Marcos is concerned through the statement of Atty. Armando M. Marcelo that the US$360 million more or less subject matter of the instant lawsuit as allegedly obtained from the various Swiss Foundations do not belong to the estate of Marcos or to Imelda Marcos herself. Thats your statement of facts? Atty. MARCELO:

Yes, Your Honor. PJ Garchitorena: Thats it. Okay. Counsel for Manotoc and Manotoc, Jr. What is your point here? Does the estate of Marcos own anything of the $360 million subject of this case. Atty. TECSON: We joined the Manifestation of Counsel. PJ Garchitorena: You do not own anything? Atty. TECSON: Yes, Your Honor. PJ Garchitorena: Counsel for Irene Araneta? Atty. SISON: I join the position taken by my other compaeros here, Your Honor. xxx Atty. SISON: Irene Araneta as heir do (sic) not own any of the amount, Your Honor.xxxvi[55] We are convinced that the strategy of respondent Marcoses was to confuse petitioner Republic as to what facts they would prove or what issues they intended to pose for the court's resolution. There is no doubt in our mind that they were leading petitioner Republic, and now this Court, to perplexity, if not trying to drag this forfeiture case to eternity. Manifestation dated May 26, 1998 filed by MRS. Marcos; General/Supplemental Compromise Agreement dated December 28, 1993 These pleadings of respondent Marcoses presented nothing but feigned defenses. In their earlier pleadings, respondents alleged either that they had no knowledge of the existence of the Swiss

deposits or that they could no longer remember anything as it happened a long time ago. As to Mrs. Marcos, she remembered that it was lawfully acquired. In her Manifestation dated May 26, 1998, Mrs. Marcos stated that: COMES NOW undersigned counsel for respondent Imelda R. Marcos, and before this Honorable Court, most respectfully manifests: That respondent Imelda R, Marcos owns 90% of the subject matter of the above-entitled case, being the sole beneficiary of the dollar deposits in the name of the various foundations alleged in the case; That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late President Ferdinand E. Marcos. In the Compromise/Supplemental Agreements, respondent Marcoses sought to implement the agreed distribution of the Marcos assets, including the Swiss deposits. This was, to us, an unequivocal admission of ownership by the Marcoses of the said deposits. But, as already pointed out, during the pre-trial conference, respondent Marcoses denied knowledge as well as ownership of the Swiss funds. Anyway we look at it, respondent Marcoses have put forth no real defense. The facts pleaded by respondents, while ostensibly raising important questions or issues of fact, in reality comprised mere verbiage that was evidently wanting in substance and constituted no genuine issues for trial. We therefore rule that, under the circumstances, summary judgment is proper. In fact, it is the law itself which determines when summary judgment is called for. Under the rules, summary judgment is appropriate when there are no genuine issues of fact requiring the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issue, if the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the rules must ensue as a matter of law.xxxvi[56] In sum, mere denials, if unaccompanied by any fact which will be admissible in evidence at a hearing, are not sufficient to raise genuine issues of fact and will not defeat a motion for summary judgment.xxxvi[57] A summary judgment is one granted upon motion of a party for an expeditious settlement of the case, it appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter of law. A motion for summary judgment is premised on the assumption that the issues presented need not be tried either because these are patently devoid of substance or that there is no genuine issue as to any pertinent fact. It is a method sanctioned by the Rules of Court for the prompt disposition of a civil action where there exists no serious controversy.xxxvi[58] Summary judgment is a procedural device for the prompt disposition of

actions in which the pleadings raise only a legal issue, not a genuine issue as to any material fact. The theory of summary judgment is that, although an answer may on its face appear to tender issues requiring trial, if it is established by affidavits, depositions or admissions that those issues are not genuine but fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for petitioner.xxxvi[59] In the various annexes to the petition for forfeiture, petitioner Republic attached sworn statements of witnesses who had personal knowledge of the Marcoses' participation in the illegal acquisition of funds deposited in the Swiss accounts under the names of five groups or foundations. These sworn statements substantiated the ill-gotten nature of the Swiss bank deposits. In their answer and other subsequent pleadings, however, the Marcoses merely made general denials of the allegations against them without stating facts admissible in evidence at the hearing, thereby failing to raise any genuine issues of fact. Under these circumstances, a trial would have served no purpose at all and would have been totally unnecessary, thus justifying a summary judgment on the petition for forfeiture. There were no opposing affidavits to contradict the sworn declarations of the witnesses of petitioner Republic, leading to the inescapable conclusion that the matters raised in the Marcoses answer were false. Time and again, this Court has encountered cases like this which are either only half-heartedly defended or, if the semblance of a defense is interposed at all, it is only to delay disposition and gain time. It is certainly not in the interest of justice to allow respondent Marcoses to avail of the appellate remedies accorded by the Rules of Court to litigants in good faith, to the prejudice of the Republic and ultimately of the Filipino people. From the beginning, a candid demonstration of respondents good faith should have been made to the court below. Without the deceptive reasoning and argumentation, this protracted litigation could have ended a long time ago. Since 1991, when the petition for forfeiture was first filed, up to the present, all respondents have offered are foxy responses like lack of sufficient knowledge or lack of privity or they cannot recall because it happened a long time ago or, as to Mrs. Marcos, the funds were lawfully acquired. But, whenever it suits them, they also claim ownership of 90% of the funds and allege that only 10% belongs to the Marcos estate. It has been an incredible charade from beginning to end. In the hope of convincing this Court to rule otherwise, respondents Maria Imelda MarcosManotoc and Ferdinand R. Marcos Jr. contend that "by its positive acts and express admissions prior to filing the motion for summary judgment on March 10, 2000, petitioner Republic had bound itself to go to trial on the basis of existing issues. Thus, it had legally waived whatever right it had to move for summary judgment."xxxvi[60] We do not think so. The alleged positive acts and express admissions of the petitioner did not preclude it from filing a motion for summary judgment. Rule 35 of the 1997 Rules of Civil Procedure provides:

Rule 35 Summary Judgment Section 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. (Emphasis ours)xxxvi[61] Under the rule, the plaintiff can move for summary judgment at any time after the pleading in answer thereto (i.e., in answer to the claim, counterclaim or cross-claim) has been served." No fixed reglementary period is provided by the Rules. How else does one construe the phrase "any time after the answer has been served? This issue is actually one of first impression. No local jurisprudence or authoritative work has touched upon this matter. This being so, an examination of foreign laws and jurisprudence, particularly those of the United States where many of our laws and rules were copied, is in order. Rule 56 of the Federal Rules of Civil Procedure provides that a party seeking to recover upon a claim, counterclaim or cross-claim may move for summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, and that a party against whom a claim, counterclaim or cross-claim is asserted may move for summary judgment at any time. However, some rules, particularly Rule 113 of the Rules of Civil Practice of New York, specifically provide that a motion for summary judgment may not be made until issues have been joined, that is, only after an answer has been served.xxxvi[62] Under said rule, after issues have been joined, the motion for summary judgment may be made at any stage of the litigation.xxxvi[63] No fixed prescriptive period is provided. Like Rule 113 of the Rules of Civil Practice of New York, our rules also provide that a motion for summary judgment may not be made until issues have been joined, meaning, the plaintiff has to wait for the answer before he can move for summary judgment.xxxvi[64] And like the New York rules, ours do not provide for a fixed reglementary period within which to move for summary judgment. This being so, the New York Supreme Court's interpretation of Rule 113 of the Rules of Civil Practice can be applied by analogy to the interpretation of Section 1, Rule 35, of our 1997 Rules of Civil Procedure.

Under the New York rule, after the issues have been joined, the motion for summary judgment may be made at any stage of the litigation. And what exactly does the phrase "at any stage of the litigation" mean? In Ecker vs. Muzysh,xxxvi[65] the New York Supreme Court ruled: "PER CURIAM. Plaintiff introduced her evidence and the defendants rested on the case made by the plaintiff. The case was submitted. Owing to the serious illness of the trial justice, a decision was not rendered within sixty days after the final adjournment of the term at which the case was tried. With the approval of the trial justice, the plaintiff moved for a new trial under Section 442 of the Civil Practice Act. The plaintiff also moved for summary judgment under Rule 113 of the Rules of Civil Practice. The motion was opposed mainly on the ground that, by proceeding to trial, the plaintiff had waived her right to summary judgment and that the answer and the opposing affidavits raised triable issues. The amount due and unpaid under the contract is not in dispute. The Special Term granted both motions and the defendants have appealed. The Special Term properly held that the answer and the opposing affidavits raised no triable issue. Rule 113 of the Rules of Civil Practice and the Civil Practice Act prescribe no limitation as to the time when a motion for summary judgment must be made. The object of Rule 113 is to empower the court to summarily determine whether or not a bona fide issue exists between the parties, and there is no limitation on the power of the court to make such a determination at any stage of the litigation." (emphasis ours) On the basis of the aforequoted disquisition, "any stage of the litigation" means that "even if the plaintiff has proceeded to trial, this does not preclude him from thereafter moving for summary judgment."xxxvi[66] In the case at bar, petitioner moved for summary judgment after pre-trial and before its scheduled date for presentation of evidence. Respondent Marcoses argue that, by agreeing to proceed to trial during the pre-trial conference, petitioner "waived" its right to summary judgment. This argument must fail in the light of the New York Supreme Court ruling which we apply by analogy to this case. In Ecker,xxxvi[67] the defendant opposed the motion for summary judgment on a ground similar to that raised by the Marcoses, that is, "that plaintiff had waived her right to summary judgment" by her act of proceeding to trial. If, as correctly ruled by the New York court, plaintiff was allowed to move for summary judgment even after trial and submission of the case for resolution, more so should we permit it in the present case where petitioner moved for summary judgment before trial. Therefore, the phrase "anytime after the pleading in answer thereto has been served" in Section 1, Rule 35 of our Rules of Civil Procedure means "at any stage of the litigation." Whenever it becomes evident at any stage of the litigation that no triable issue exists, or that the defenses raised by the defendant(s) are sham or frivolous, plaintiff may move for summary judgment. A contrary interpretation would go against the very objective of the Rule on Summary Judgment

which is to "weed out sham claims or defenses thereby avoiding the expense and loss of time involved in a trial."xxxvi[68] In cases with political undertones like the one at bar, adverse parties will often do almost anything to delay the proceedings in the hope that a future administration sympathetic to them might be able to influence the outcome of the case in their favor. This is rank injustice we cannot tolerate. The law looks with disfavor on long, protracted and expensive litigation and encourages the speedy and prompt disposition of cases. That is why the law and the rules provide for a number of devices to ensure the speedy disposition of cases. Summary judgment is one of them. Faithful therefore to the spirit of the law on summary judgment which seeks to avoid unnecessary expense and loss of time in a trial, we hereby rule that petitioner Republic could validly move for summary judgment any time after the respondents answer was filed or, for that matter, at any subsequent stage of the litigation. The fact that petitioner agreed to proceed to trial did not in any way prevent it from moving for summary judgment, as indeed no genuine issue of fact was ever validly raised by respondent Marcoses. This interpretation conforms with the guiding principle enshrined in Section 6, Rule 1 of the 1997 Rules of Civil Procedure that the "[r]ules should be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding."xxxvi[69] Respondents further allege that the motion for summary judgment was based on respondents' answer and other documents that had long been in the records of the case. Thus, by the time the motion was filed on March 10, 2000, estoppel by laches had already set in against petitioner. We disagree. Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, warranting a presumption that the person has abandoned his right or declined to assert it.xxxvi[70] In effect, therefore, the principle of laches is one of estoppel because "it prevents people who have slept on their rights from prejudicing the rights of third parties who have placed reliance on the inaction of the original parties and their successors-in-interest".xxxvi[71] A careful examination of the records, however, reveals that petitioner was in fact never remiss in pursuing its case against respondent Marcoses through every remedy available to it, including the motion for summary judgment. Petitioner Republic initially filed its motion for summary judgment on October 18, 1996. The motion was denied because of the pending compromise agreement between the Marcoses and petitioner. But during the pre-trial conference, the Marcoses denied ownership of the Swiss funds, prompting petitioner to file another motion for summary judgment now under consideration by this Court. It was the subsequent events that transpired after the answer was filed, therefore, which prevented petitioner from filing the questioned motion. It was definitely

not because of neglect or inaction that petitioner filed the (second) motion for summary judgment years after respondents' answer to the petition for forfeiture. In invoking the doctrine of estoppel by laches, respondents must show not only unjustified inaction but also that some unfair injury to them might result unless the action is barred.xxxvi[72] This, respondents failed to bear out. In fact, during the pre-trial conference, the Marcoses disclaimed ownership of the Swiss deposits. Not being the owners, as they claimed, respondents did not have any vested right or interest which could be adversely affected by petitioner's alleged inaction. But even assuming for the sake of argument that laches had already set in, the doctrine of estoppel or laches does not apply when the government sues as a sovereign or asserts governmental rights.xxxvi[73] Nor can estoppel validate an act that contravenes law or public policy.xxxvi[74] As a final point, it must be emphasized that laches is not a mere question of time but is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted.xxxvi[75] Equity demands that petitioner Republic should not be barred from pursuing the people's case against the Marcoses. (2) The Propriety of Forfeiture The matter of summary judgment having been thus settled, the issue of whether or not petitioner Republic was able to prove its case for forfeiture in accordance with the requisites of Sections 2 and 3 of RA 1379 now takes center stage. The law raises the prima facie presumption that a property is unlawfully acquired, hence subject to forfeiture, if its amount or value is manifestly disproportionate to the official salary and other lawful income of the public officer who owns it. Hence, Sections 2 and 6 of RA 1379xxxvi[76] provide: xxx xxx

Section 2. Filing of petition. Whenever any public officer or employee has acquired during his incumbency an amount or property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. xxx xxx

Sec. 6. Judgment If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property in question, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become the property of the State. Provided, That no judgment shall be rendered within six

months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both. From the above-quoted provisions of the law, the following facts must be established in order that forfeiture or seizure of the Swiss deposits may be effected: (1) ownership by the public officer of money or property acquired during his incumbency, whether it be in his name or otherwise, and the extent to which the amount of that money or property exceeds, i. e., is grossly disproportionate to, the legitimate income of the public officer.

(2)

That spouses Ferdinand and Imelda Marcos were public officials during the time material to the instant case was never in dispute. Paragraph 4 of respondent Marcoses' answer categorically admitted the allegations in paragraph 4 of the petition for forfeiture as to the personal circumstances of Ferdinand E. Marcos as a public official who served without interruption as Congressman, Senator, Senate President and President of the Republic of the Philippines from December 1, 1965 to February 25, 1986.xxxvi[77] Likewise, respondents admitted in their answer the contents of paragraph 5 of the petition as to the personal circumstances of Imelda R. Marcos who once served as a member of the Interim Batasang Pambansa from 1978 to 1984 and as Metro Manila Governor, concurrently Minister of Human Settlements, from June 1976 to February 1986.xxxvi[78] Respondent Mrs. Marcos also admitted in paragraph 10 of her answer the allegations of paragraph 11 of the petition for forfeiture which referred to the accumulated salaries of respondents Ferdinand E. Marcos and Imelda R. Marcos.xxxvi[79] The combined accumulated salaries of the Marcos couple were reflected in the Certification dated May 27, 1986 issued by then Minister of Budget and Management Alberto Romulo.xxxvi[80] The Certification showed that, from 1966 to 1985, Ferdinand E. Marcos and Imelda R. Marcos had accumulated salaries in the amount of P1,570,000 and P718,750, respectively, or a total of P2,288,750: Ferdinand E. Marcos, as President 1966-1976 at P60,000/year P660,000

1977-1984 at P100,000/year 800,000 1985 at P110,000/year 110,000 P1,570,00 Imelda R. Marcos, as Minister June 1976-1985 at P75,000/year P718,000

In addition to their accumulated salaries from 1966 to 1985 are the Marcos couples combined salaries from January to February 1986 in the amount of P30,833.33. Hence, their total accumulated salaries amounted to P2,319,583.33. Converted to U.S. dollars on the basis of the corresponding peso-dollar exchange rates prevailing during the applicable period when said salaries were received, the total amount had an equivalent value of $304,372.43. The dollar equivalent was arrived at by using the official annual rates of exchange of the Philippine peso and the US dollar from 1965 to 1985 as well as the official monthly rates of exchange in January and February 1986 issued by the Center for Statistical Information of the Bangko Sentral ng Pilipinas. Prescinding from the aforesaid admissions, Section 4, Rule 129 of the Rules of Court provides that: Section 4. Judicial admissions An admission, verbal or written, made by a party in the course of the proceedings in the same case does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.xxxvi[81] It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties; (b) in the course of the trial either by verbal or written manifestations or stipulations; or (c) in other stages of judicial proceedings, as in the pre-trial of the case.xxxvi[82] Thus, facts pleaded in the petition and answer, as in the case at bar, are deemed admissions of petitioner and respondents, respectively, who are not permitted to contradict them or subsequently take a position contrary to or inconsistent with such admissions.xxxvi[83] The sum of $304,372.43 should be held as the only known lawful income of respondents since they did not file any Statement of Assets and Liabilities (SAL), as required by law, from which their net worth could be determined. Besides, under the 1935 Constitution, Ferdinand E. Marcos as President could not receive any other emolument from the Government or any of its subdivisions and instrumentalities.xxxvi[84] Likewise, under the 1973 Constitution, Ferdinand E. Marcos as President could not receive during his tenure any other emolument from the Government or any other source.xxxvi[85] In fact, his management of businesses, like the administration of foundations to accumulate funds, was expressly prohibited under the 1973 Constitution: Article VII, Sec. 4(2) The President and the Vice-President shall not, during their tenure, hold any other office except when otherwise provided in this Constitution, nor may they practice any profession, participate directly or indirectly in the management of any business, or be financially interested directly or indirectly in any contract with, or in any franchise or special privilege granted by the Government or any other subdivision, agency, or instrumentality thereof, including any government owned or controlled corporation. Article VII, Sec. 11 No Member of the National Assembly shall appear as counsel before any court inferior to a court with appellate jurisdiction, x x x. Neither shall he, directly or indirectly,

be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof including any government owned or controlled corporation during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit. Article IX, Sec. 7 The Prime Minister and Members of the Cabinet shall be subject to the provision of Section 11, Article VIII hereof and may not appear as counsel before any court or administrative body, or manage any business, or practice any profession, and shall also be subject to such other disqualification as may be provided by law. Their only known lawful income of $304,372.43 can therefore legally and fairly serve as basis for determining the existence of a prima facie case of forfeiture of the Swiss funds. Respondents argue that petitioner was not able to establish a prima facie case for the forfeiture of the Swiss funds since it failed to prove the essential elements under Section 3, paragraphs (c), (d) and (e) of RA 1379. As the Act is a penal statute, its provisions are mandatory and should thus be construed strictly against the petitioner and liberally in favor of respondent Marcoses. We hold that it was not for petitioner to establish the Marcoses other lawful income or income from legitimately acquired property for the presumption to apply because, as between petitioner and respondents, the latter were in a better position to know if there were such other sources of lawful income. And if indeed there was such other lawful income, respondents should have specifically stated the same in their answer. Insofar as petitioner Republic was concerned, it was enough to specify the known lawful income of respondents. Section 9 of the PCGG Rules and Regulations provides that, in determining prima facie evidence of ill-gotten wealth, the value of the accumulated assets, properties and other material possessions of those covered by Executive Order Nos. 1 and 2 must be out of proportion to the known lawful income of such persons. The respondent Marcos couple did not file any Statement of Assets and Liabilities (SAL) from which their net worth could be determined. Their failure to file their SAL was in itself a violation of law and to allow them to successfully assail the Republic for not presenting their SAL would reward them for their violation of the law. Further, contrary to the claim of respondents, the admissions made by them in their various pleadings and documents were valid. It is of record that respondents judicially admitted that the money deposited with the Swiss banks belonged to them. We agree with petitioner that respondent Marcoses made judicial admissions of their ownership of the subject Swiss bank deposits in their answer, the General/Supplemental Agreements, Mrs. Marcos' Manifestation and Constancia dated May 5, 1999, and the Undertaking dated February 10, 1999. We take note of the fact that the Associate Justices of the Sandiganbayan were unanimous in holding that respondents had made judicial admissions of their ownership of the Swiss funds.

In their answer, aside from admitting the existence of the subject funds, respondents likewise admitted ownership thereof. Paragraph 22 of respondents' answer stated: 22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents clandestinely stashed the country's wealth in Switzerland and hid the same under layers and layers of foundations and corporate entities for being false, the truth being that respondents' aforesaid properties were lawfully acquired. (emphasis supplied) By qualifying their acquisition of the Swiss bank deposits as lawful, respondents unwittingly admitted their ownership thereof. Respondent Mrs. Marcos also admitted ownership of the Swiss bank deposits by failing to deny under oath the genuineness and due execution of certain actionable documents bearing her signature attached to the petition. As discussed earlier, Section 11, Rule 8xxxvi[86] of the 1997 Rules of Civil Procedure provides that material averments in the complaint shall be deemed admitted when not specifically denied. The Generalxxxvi[87] and Supplementalxxxvi[88] Agreements executed by petitioner and respondents on December 28, 1993 further bolstered the claim of petitioner Republic that its case for forfeiture was proven in accordance with the requisites of Sections 2 and 3 of RA 1379. The whereas clause in the General Agreement declared that: WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal on December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of conviction against the PRIVATE PARTY. While the Supplemental Agreement warranted, inter alia, that: In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits. The stipulations set forth in the General and Supplemental Agreements undeniably indicated the manifest intent of respondents to enter into a compromise with petitioner. Corollarily, respondents willingness to agree to an amicable settlement with the Republic only affirmed their ownership of the Swiss deposits for the simple reason that no person would acquiesce to any concession over such huge dollar deposits if he did not in fact own them. Respondents make much capital of the pronouncement by this Court that the General and Supplemental Agreements were null and void.xxxvi[89] They insist that nothing in those agreements could thus be admitted in evidence against them because they stood on the same ground as an accepted offer which, under Section 27, Rule 130xxxvi[90] of the 1997 Rules of Civil Procedure, provides that in civil cases, an offer of compromise is not an admission of any liability and is not admissible in evidence against the offeror.

We find no merit in this contention. The declaration of nullity of said agreements was premised on the following constitutional and statutory infirmities: (1) the grant of criminal immunity to the Marcos heirs was against the law; (2) the PCGGs commitment to exempt from all forms of taxes the properties to be retained by the Marcos heirs was against the Constitution; and (3) the governments undertaking to cause the dismissal of all cases filed against the Marcoses pending before the Sandiganbayan and other courts encroached on the powers of the judiciary. The reasons relied upon by the Court never in the least bit even touched on the veracity and truthfulness of respondents admission with respect to their ownership of the Swiss funds. Besides, having made certain admissions in those agreements, respondents cannot now deny that they voluntarily admitted owning the subject Swiss funds, notwithstanding the fact that the agreements themselves were later declared null and void. The following observation of Sandiganbayan Justice Catalino Castaeda, Jr. in the decision dated September 19, 2000 could not have been better said: x x x The declaration of nullity of the two agreements rendered the same without legal effects but it did not detract from the admissions of the respondents contained therein. Otherwise stated, the admissions made in said agreements, as quoted above, remain binding on the respondents.xxxvi[91] A written statement is nonetheless competent as an admission even if it is contained in a document which is not itself effective for the purpose for which it is made, either by reason of illegality, or incompetency of a party thereto, or by reason of not being signed, executed or delivered. Accordingly, contracts have been held as competent evidence of admissions, although they may be unenforceable.xxxvi[92] The testimony of respondent Ferdinand Marcos, Jr. during the hearing on the motion for the approval of the Compromise Agreement on April 29, 1998 also lent credence to the allegations of petitioner Republic that respondents admitted ownership of the Swiss bank accounts. We quote the salient portions of Ferdinand Jr.s formal declarations in open court: ATTY. FERNANDO: Mr. Marcos, did you ever have any meetings with PCGG Chairman Magtanggol C. Gunigundo? F. MARCOS, JR.: Yes. I have had very many meetings in fact with Chairman. ATTY. FERNANDO: Would you recall when the first meeting occurred? PJ GARCHITORENA:

In connection with what? ATTY. FERNANDO: In connection with the ongoing talks to compromise the various cases initiated by PCGG against your family? F. MARCOS, JR.: The nature of our meetings was solely concerned with negotiations towards achieving some kind of agreement between the Philippine government and the Marcos family. The discussions that led up to the compromise agreement were initiated by our then counsel Atty. Simeon Mesina x x x.xxxvi[93] xxx ATTY. FERNANDO: What was your reaction when Atty. Mesina informed you of this possibility? F. MARCOS, JR.: My reaction to all of these approaches is that I am always open, we are always open, we are very much always in search of resolution to the problem of the family and any approach that has been made us, we have entertained. And so my reaction was the same as what I have always why not? Maybe this is the one that will finally put an end to this problem.xxxvi[94] xxx ATTY. FERNANDO: Basically, what were the true amounts of the assets in the bank? PJ GARCHITORENA: So, we are talking about liquid assets here? Just Cash? F. MARCOS, JR.: Well, basically, any assets. Anything that was under the Marcos name in any of the banks in Switzerland which may necessarily be not cash.xxxvi[95] xxx PJ GARCHITORENA: xxx xxx xxx xxx xxx xxx

x x x What did you do in other words, after being apprised of this contract in connection herewith? F. MARCOS, JR.: I assumed that we are beginning to implement the agreement because this was forwarded through the Philippine government lawyers through our lawyers and then, subsequently, to me. I was a little surprised because we hadnt really discussed the details of the transfer of the funds, what the bank accounts, what the mechanism would be. But nevertheless, I was happy to see that as far as the PCGG is concerned, that the agreement was perfected and that we were beginning to implement it and that was a source of satisfaction to me because I thought that finally it will be the end.xxxvi[96] Ferdinand Jr.'s pronouncements, taken in context and in their entirety, were a confirmation of respondents recognition of their ownership of the Swiss bank deposits. Admissions of a party in his testimony are receivable against him. If a party, as a witness, deliberately concedes a fact, such concession has the force of a judicial admission.xxxvi[97] It is apparent from Ferdinand Jr.s testimony that the Marcos family agreed to negotiate with the Philippine government in the hope of finally putting an end to the problems besetting the Marcos family regarding the Swiss accounts. This was doubtlessly an acknowledgment of ownership on their part. The rule is that the testimony on the witness stand partakes of the nature of a formal judicial admission when a party testifies clearly and unequivocally to a fact which is peculiarly within his own knowledge.xxxvi[98] In her Manifestationxxxvi[99] dated May 26, 1998, respondent Imelda Marcos furthermore revealed the following: That respondent Imelda R. Marcos owns 90% of the subject matter of the above-entitled case, being the sole beneficiary of the dollar deposits in the name of the various foundations alleged in the case; That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late President Ferdinand E. Marcos; xxx xxx xxx

Respondents ownership of the Swiss bank accounts as borne out by Mrs. Marcos' manifestation is as bright as sunlight. And her claim that she is merely a beneficiary of the Swiss deposits is belied by her own signatures on the appended copies of the documents substantiating her ownership of the funds in the name of the foundations. As already mentioned, she failed to specifically deny under oath the authenticity of such documents, especially those involving William Saunders and Jane Ryan which actually referred to Ferdinand Marcos and Imelda Marcos, respectively. That failure of Imelda Marcos to specifically deny the existence, much less the genuineness and due execution, of the instruments bearing her signature, was tantamount

to a judicial admission of the genuineness and due execution of said instruments, in accordance with Section 8, Rule 8xxxvi[100] of the 1997 Rules of Civil Procedure. Likewise, in her Constanciaxxxvi[101] dated May 6, 1999, Imelda Marcos prayed for the approval of the Compromise Agreement and the subsequent release and transfer of the $150 million to the rightful owner. She further made the following manifestations: xxx xxx xxx

2. The Republics cause of action over the full amount is its forfeiture in favor of the government if found to be ill-gotten. On the other hand, the Marcoses defend that it is a legitimate asset. Therefore, both parties have an inchoate right of ownership over the account. If it turns out that the account is of lawful origin, the Republic may yield to the Marcoses. Conversely, the Marcoses must yield to the Republic. (underscoring supplied) xxx xxx xxx

3. Consistent with the foregoing, and the Marcoses having committed themselves to helping the less fortunate, in the interest of peace, reconciliation and unity, defendant MADAM IMELDA ROMUALDEZ MARCOS, in firm abidance thereby, hereby affirms her agreement with the Republic for the release and transfer of the US Dollar 150 million for proper disposition, without prejudice to the final outcome of the litigation respecting the ownership of the remainder. Again, the above statements were indicative of Imeldas admission of the Marcoses ownership of the Swiss deposits as in fact the Marcoses defend that it (Swiss deposits) is a legitimate (Marcos) asset. On the other hand, respondents Maria Imelda Marcos-Manotoc, Ferdinand Marcos, Jr. and Maria Irene Marcos-Araneta filed a motionxxxvi[102] on May 4, 1998 asking the Sandiganbayan to place the res (Swiss deposits) in custodia legis: 7. Indeed, the prevailing situation is fraught with danger! Unless the aforesaid Swiss deposits are placed in custodia legis or within the Courts protective mantle, its dissipation or misappropriation by the petitioner looms as a distinct possibility. Such display of deep, personal interest can only come from someone who believes that he has a marked and intimate right over the considerable dollar deposits. Truly, by filing said motion, the Marcos children revealed their ownership of the said deposits. Lastly, the Undertakingxxxvi[103] entered into by the PCGG, the PNB and the Marcos foundations on February 10, 1999, confirmed the Marcoses ownership of the Swiss bank deposits. The subject Undertaking brought to light their readiness to pay the human rights victims out of the funds held in escrow in the PNB. It stated:

WHEREAS, the Republic of the Philippines sympathizes with the plight of the human rights victims-plaintiffs in the aforementioned litigation through the Second Party, desires to assist in the satisfaction of the judgment awards of said human rights victims-plaintiffs, by releasing, assigning and or waiving US$150 million of the funds held in escrow under the Escrow Agreements dated August 14, 1995, although the Republic is not obligated to do so under final judgments of the Swiss courts dated December 10 and 19, 1997, and January 8, 1998; WHEREAS, the Third Party is likewise willing to release, assign and/or waive all its rights and interests over said US$150 million to the aforementioned human rights victims-plaintiffs. All told, the foregoing disquisition negates the claim of respondents that petitioner failed to prove that they acquired or own the Swiss funds and that it was only by arbitrarily isolating and taking certain statements made by private respondents out of context that petitioner was able to treat these as judicial admissions. The Court is fully aware of the relevance, materiality and implications of every pleading and document submitted in this case. This Court carefully scrutinized the proofs presented by the parties. We analyzed, assessed and weighed them to ascertain if each piece of evidence rightfully qualified as an admission. Owing to the farreaching historical and political implications of this case, we considered and examined, individually and totally, the evidence of the parties, even if it might have bordered on factual adjudication which, by authority of the rules and jurisprudence, is not usually done by this Court. There is no doubt in our mind that respondent Marcoses admitted ownership of the Swiss bank deposits. We have always adhered to the familiar doctrine that an admission made in the pleadings cannot be controverted by the party making such admission and becomes conclusive on him, and that all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether an objection is interposed by the adverse party or not.xxxvi[104] This doctrine is embodied in Section 4, Rule 129 of the Rules of Court: SEC. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.xxxvi[105] In the absence of a compelling reason to the contrary, respondents judicial admission of ownership of the Swiss deposits is definitely binding on them. The individual and separate admissions of each respondent bind all of them pursuant to Sections 29 and 31, Rule 130 of the Rules of Court: SEC. 29. Admission by co-partner or agent. The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.xxxvi[106]

SEC. 31. Admission by privies. Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former.xxxvi[107] The declarations of a person are admissible against a party whenever a privity of estate exists between the declarant and the party, the term privity of estate generally denoting a succession in rights.xxxvi[108] Consequently, an admission of one in privity with a party to the record is competent.xxxvi[109] Without doubt, privity exists among the respondents in this case. And where several co-parties to the record are jointly interested in the subject matter of the controversy, the admission of one is competent against all.xxxvi[110] Respondents insist that the Sandiganbayan is correct in ruling that petitioner Republic has failed to establish a prima facie case for the forfeiture of the Swiss deposits. We disagree. The sudden turn-around of the Sandiganbayan was really strange, to say the least, as its findings and conclusions were not borne out by the voluminous records of this case. Section 2 of RA 1379 explicitly states that whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. x x x The elements which must concur for this prima facie presumption to apply are: (1) (2) the offender is a public officer or employee; he must have acquired a considerable amount of money or property during his incumbency; and said amount is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property.

(3)

It is undisputed that spouses Ferdinand and Imelda Marcos were former public officers. Hence, the first element is clearly extant. The second element deals with the amount of money or property acquired by the public officer during his incumbency. The Marcos couple indubitably acquired and owned properties during their term of office. In fact, the five groups of Swiss accounts were admittedly owned by them. There is proof of the existence and ownership of these assets and properties and it suffices to comply with the second element. The third requirement is met if it can be shown that such assets, money or property is manifestly out of proportion to the public officers salary and his other lawful income. It is the proof of this

third element that is crucial in determining whether a prima facie presumption has been established in this case. Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses during their incumbency but also evidence that they had huge deposits beyond such lawful income in Swiss banks under the names of five different foundations. We believe petitioner was able to establish the prima facie presumption that the assets and properties acquired by the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials. Otherwise stated, petitioner presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356 million representing the balance of the Swiss accounts of the five foundations, an amount way, way beyond their aggregate legitimate income of only US$304,372.43 during their incumbency as government officials. Considering, therefore, that the total amount of the Swiss deposits was considerably out of proportion to the known lawful income of the Marcoses, the presumption that said dollar deposits were unlawfully acquired was duly established. It was sufficient for the petition for forfeiture to state the approximate amount of money and property acquired by the respondents, and their total government salaries. Section 9 of the PCGG Rules and Regulations states: Prima Facie Evidence. Any accumulation of assets, properties, and other material possessions of those persons covered by Executive Orders No. 1 and No. 2, whose value is out of proportion to their known lawful income is prima facie deemed ill-gotten wealth. Indeed, the burden of proof was on the respondents to dispute this presumption and show by clear and convincing evidence that the Swiss deposits were lawfully acquired and that they had other legitimate sources of income. A presumption is prima facie proof of the fact presumed and, unless the fact thus prima facie established by legal presumption is disproved, it must stand as proved.xxxvi[111] Respondent Mrs. Marcos argues that the foreign foundations should have been impleaded as they were indispensable parties without whom no complete determination of the issues could be made. She asserts that the failure of petitioner Republic to implead the foundations rendered the judgment void as the joinder of indispensable parties was a sine qua non exercise of judicial power. Furthermore, the non-inclusion of the foreign foundations violated the conditions prescribed by the Swiss government regarding the deposit of the funds in escrow, deprived them of their day in court and denied them their rights under the Swiss constitution and international law.xxxvi[112] The Court finds that petitioner Republic did not err in not impleading the foreign foundations. Section 7, Rule 3 of the 1997 Rules of Civil Procedure,xxxvi[113] taken from Rule 19b of the American Federal Rules of Civil Procedure, provides for the compulsory joinder of indispensable parties. Generally, an indispensable party must be impleaded for the complete determination of the suit. However, failure to join an indispensable party does not divest the court of jurisdiction since the rule regarding indispensable parties is founded on equitable considerations and is not jurisdictional. Thus, the court is not divested of its power to render a

decision even in the absence of indispensable parties, though such judgment is not binding on the non-joined party.xxxvi[114] An indispensable partyxxxvi[115] has been defined as one: [who] must have a direct interest in the litigation; and if this interest is such that it cannot be separated from that of the parties to the suit, if the court cannot render justice between the parties in his absence, if the decree will have an injurious effect upon his interest, or if the final determination of the controversy in his absence will be inconsistent with equity and good conscience. There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? and (2) can the case be decided on its merits without prejudicing the rights of the other party? xxxvi[116] There is, however, no fixed formula for determining who is an indispensable party; this can only be determined in the context and by the facts of the particular suit or litigation. In the present case, there was an admission by respondent Imelda Marcos in her May 26, 1998 Manifestation before the Sandiganbayan that she was the sole beneficiary of 90% of the subject matter in controversy with the remaining 10% belonging to the estate of Ferdinand Marcos.xxxvi[117] Viewed against this admission, the foreign foundations were not indispensable parties. Their non-participation in the proceedings did not prevent the court from deciding the case on its merits and according full relief to petitioner Republic. The judgment ordering the return of the $356 million was neither inimical to the foundations interests nor inconsistent with equity and good conscience. The admission of respondent Imelda Marcos only confirmed what was already generally known: that the foundations were established precisely to hide the money stolen by the Marcos spouses from petitioner Republic. It negated whatever illusion there was, if any, that the foreign foundations owned even a nominal part of the assets in question. The rulings of the Swiss court that the foundations, as formal owners, must be given an opportunity to participate in the proceedings hinged on the assumption that they owned a nominal share of the assets.xxxvi[118] But this was already refuted by no less than Mrs. Marcos herself. Thus, she cannot now argue that the ruling of the Sandiganbayan violated the conditions set by the Swiss court. The directive given by the Swiss court for the foundations to participate in the proceedings was for the purpose of protecting whatever nominal interest they might have had in the assets as formal owners. But inasmuch as their ownership was subsequently repudiated by Imelda Marcos, they could no longer be considered as indispensable parties and their participation in the proceedings became unnecessary. In Republic vs. Sandiganbayan,xxxvi[119] this Court ruled that impleading the firms which are the res of the action was unnecessary: And as to corporations organized with ill-gotten wealth, but are not themselves guilty of misappropriation, fraud or other illicit conduct in other words, the companies themselves are not the object or thing involved in the action, the res thereof there is no need to implead them

either. Indeed, their impleading is not proper on the strength alone of their having been formed with ill-gotten funds, absent any other particular wrongdoing on their part Such showing of having been formed with, or having received ill-gotten funds, however strong or convincing, does not, without more, warrant identifying the corporations in question with the person who formed or made use of them to give the color or appearance of lawful, innocent acquisition to illegally amassed wealth at the least, not so as place on the Government the onus of impleading the former with the latter in actions to recover such wealth. Distinguished in terms of juridical personality and legal culpability from their erring members or stockholders, said corporations are not themselves guilty of the sins of the latter, of the embezzlement, asportation, etc., that gave rise to the Governments cause of action for recovery; their creation or organization was merely the result of their members (or stockholders) manipulations and maneuvers to conceal the illegal origins of the assets or monies invested therein. In this light, they are simply the res in the actions for the recovery of illegally acquired wealth, and there is, in principle, no cause of action against them and no ground to implead them as defendants in said actions. Just like the corporations in the aforementioned case, the foreign foundations here were set up to conceal the illegally acquired funds of the Marcos spouses. Thus, they were simply the res in the action for recovery of ill-gotten wealth and did not have to be impleaded for lack of cause of action or ground to implead them. Assuming arguendo, however, that the foundations were indispensable parties, the failure of petitioner to implead them was a curable error, as held in the previously cited case of Republic vs. Sandiganbayan:xxxvi[120] Even in those cases where it might reasonably be argued that the failure of the Government to implead the sequestered corporations as defendants is indeed a procedural abberation, as where said firms were allegedly used, and actively cooperated with the defendants, as instruments or conduits for conversion of public funds and property or illicit or fraudulent obtention of favored government contracts, etc., slight reflection would nevertheless lead to the conclusion that the defect is not fatal, but one correctible under applicable adjective rules e.g., Section 10, Rule 5 of the Rules of Court [specifying the remedy of amendment during trial to authorize or to conform to the evidence]; Section 1, Rule 20 [governing amendments before trial], in relation to the rule respecting omission of so-called necessary or indispensable parties, set out in Section 11, Rule 3 of the Rules of Court. It is relevant in this context to advert to the old familiar doctrines that the omission to implead such parties is a mere technical defect which can be cured at any stage of the proceedings even after judgment; and that, particularly in the case of indispensable parties, since their presence and participation is essential to the very life of the action, for without them no judgment may be rendered, amendments of the complaint in order to implead them should be freely allowed, even on appeal, in fact even after rendition of judgment by this Court, where it appears that the complaint otherwise indicates their identity and character as such indispensable parties.xxxvi[121]

Although there are decided cases wherein the non-joinder of indispensable parties in fact led to the dismissal of the suit or the annulment of judgment, such cases do not jibe with the matter at hand. The better view is that non-joinder is not a ground to dismiss the suit or annul the judgment. The rule on joinder of indispensable parties is founded on equity. And the spirit of the law is reflected in Section 11, Rule 3xxxvi[122] of the 1997 Rules of Civil Procedure. It prohibits the dismissal of a suit on the ground of non-joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the proceedings, through motion or on order of the court on its own initiative.xxxvi[123] Likewise, jurisprudence on the Federal Rules of Procedure, from which our Section 7, Rule 3xxxvi[124] on indispensable parties was copied, allows the joinder of indispensable parties even after judgment has been entered if such is needed to afford the moving party full relief.xxxvi[125] Mere delay in filing the joinder motion does not necessarily result in the waiver of the right as long as the delay is excusable.xxxvi[126] Thus, respondent Mrs. Marcos cannot correctly argue that the judgment rendered by the Sandiganbayan was void due to the non-joinder of the foreign foundations. The court had jurisdiction to render judgment which, even in the absence of indispensable parties, was binding on all the parties before it though not on the absent party.xxxvi[127] If she really felt that she could not be granted full relief due to the absence of the foreign foundations, she should have moved for their inclusion, which was allowable at any stage of the proceedings. She never did. Instead she assailed the judgment rendered. In the face of undeniable circumstances and the avalanche of documentary evidence against them, respondent Marcoses failed to justify the lawful nature of their acquisition of the said assets. Hence, the Swiss deposits should be considered ill-gotten wealth and forfeited in favor of the State in accordance with Section 6 of RA 1379: SEC. 6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State x x x. THE FAILURE TO PRESENT AUTHENTICATED TRANSLATIONS OF THE SWISS DECISIONS Finally, petitioner Republic contends that the Honorable Sandiganbayan Presiding Justice Francis Garchitorena committed grave abuse of discretion in reversing himself on the ground that the original copies of the authenticated Swiss decisions and their authenticated translations were not submitted to the court a quo. Earlier PJ Garchitorena had quoted extensively from the unofficial translation of one of these Swiss decisions in his ponencia dated July 29, 1999 when he denied the motion to release US$150 Million to the human rights victims. While we are in reality perplexed by such an incomprehensible change of heart, there might nevertheless not be any real need to belabor the issue. The presentation of the authenticated translations of the original copies of the Swiss decision was not de rigueur for the public respondent to make findings of fact and reach its conclusions. In short, the Sandiganbayans

decision was not dependent on the determination of the Swiss courts. For that matter, neither is this Courts. The release of the Swiss funds held in escrow in the PNB is dependent solely on the decision of this jurisdiction that said funds belong to the petitioner Republic. What is important is our own assessment of the sufficiency of the evidence to rule in favor of either petitioner Republic or respondent Marcoses. In this instance, despite the absence of the authenticated translations of the Swiss decisions, the evidence on hand tilts convincingly in favor of petitioner Republic. WHEREFORE, the petition is hereby GRANTED. The assailed Resolution of the Sandiganbayan dated January 31, 2002 is SET ASIDE. The Swiss deposits which were transferred to and are now deposited in escrow at the Philippine National Bank in the estimated aggregate amount of US$658,175,373.60 as of January 31, 2002, plus interest, are hereby forfeited in favor of petitioner Republic of the Philippines. SO ORDERED. Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Puno, and Vitug, JJ., in the result Quisumbing, Sandoval-Gutierrez, J., on official leave. Carpio, J., no part.

FIRST DIVISION [G.R. No. 149808. November 27, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. BENJAMIN LOPEZ, appellant. DECISION YNARES-SANTIAGO, J.: Appellant Benjamin Lopez was charged before the Regional Trial Court of Panabo, Davao, Branch 34, in Criminal Case No. 97-196 with the crime of rape in an Informationxxxvi[1] which reads:

That on or about August 16, 1997, in the municipality of Carmen, Province of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with long firearm and batangas knife, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of Louvella Gillen y Manulat, a 15 year old girl, against her will. CONTRARY TO LAW. On arraignment, appellant pleaded not guilty. Trial on the merits ensued. The prosecution presented as witnesses Louvella Gillen, Jonathan Gaita and Dr. Eleanor Salva while the defense presented Guillermo Garbino, Crestito Ellar, Rolando Deocampo, Bonifacio Geraldo and the accused himself. The facts: On August 16, 1997 at 11:00 p.m., complainant Louvella Gillen, Rene Sarita, Jonathan Gaita and a certain Tata were walking towards San Francisco, Panabo, Davao after attending a barrio fiesta. They stopped to take a short rest at Mabuhay National High School. Suddenly, a tall, medium-built and barefoot man appeared from nowhere carrying a long firearm. He was sporting a moustache and was wearing a black t-shirt and short pants with a jacket tied around his waist. The man, who turned out to be appellant, pointed the gun at them and told Louvellas companions to leave. He threatened to shoot them if they will not heed his instructions, so Rene, Jonathan and Tata were constrained to flee for safety and leave behind Louvella with the intruder. Appellant pointed the gun at Louvellas back and forced her to walk towards Puyad Farms, a banana plantation nearby. Louvella begged appellant to let her go but to no avail. Upon reaching the banana plantation, appellant forced Louvella to undress. She tried to fight back, but appellant pressed a knife at her back. He then forcibly removed Louvellas undergarments, fondled her breasts, kissed her neck, and succeeded in having sexual intercourse with her. On August 18, 1997, Louvella went to Dr. Eleanor Salva to undergo a gynecological examination. Dr. Salva found that Louvella suffered recent abrasions on the right upper portion and lower portion of her labia majora, about two to three days old. She concluded that Louvella was indeed a victim of rape. That same day, Louvella executed an Affidavit-Complaintxxxvi[2] at the Carmen Police Station against appellant for rape. Appellant denied the charge against him. He averred that from 7:00 p.m. to midnight of August 16, 1997, he was in the vicinity of the basketball court where an amateur singing contest was being held. After midnight, he went home together with Guillermo Garbino and Leonardo

Corcuera. On their way home, they met Louvella who informed them that she was raped near the school by a man who was wearing short pants and mask. According to appellant, he even gave Louvella a glass of water and also requested a passerby to accompany her to Dalisay Village where she lives. Cristito Ellar, whose house was about ten meters away from the place where the singing contest was held, testified that on August 16, 1997 from around 10:30 p.m. to 12:30 a.m., appellant was near the vicinity of the basketball court and that he never saw him leave. He admitted, however, that there is a banana plantation nearby which can be reached in five minutes from the basketball court. Another defense witness, Rolando Deocampo, testified that on the night of the incident, he saw appellant at the multi-purpose hall discharging his duties as a Civilian Volunteer Organization member. He left the multi-purpose hall at around 12:30 a.m. and, while on his way home, he met Louvella who was visibly distraught. He asked her what the matter was but the latter ignored him and proceeded towards the multi-purpose hall. Guillermo Garbino also testified that on the night of the incident he saw appellant near the vicinity of the multi-purpose hall and he even asked him to get rattan chairs from the house of ex-barangay captain Leonardo Corcuera. After the amateur singing contest, he went home with other persons, including appellant. On their way home, they met Louvella, who told them that she was raped by someone she could not identify because he was wearing a black bonnet. Bonifacio Geraldo testified that he was the one who took down Louvellas statement in the blotter wherein she stated that she failed to identify the person who raped her because he was wearing a bonnet and that it was nighttime. On June 6, 2001, the trial court rendered a decision,xxxvi[3] the dispositive portion of which reads: WHEREFORE, the Court finds Benjamin Lopez with having raped Louvella Gillen and sentences him to suffer the penalty of reclusion perpetua, to pay Louvella Gillen indemnity ex delicto of P50,000.00 and moral damages of P50,000.00 and to suffer accessories provided by law. SO ORDERED. Hence, this appeal, raising the following assignment of errors: 1. The lower court erred in holding that the victim Louvella Gillen positively and repeatedly identified Benjamin Lopez as her rapist; and 2. The lower court erred in holding that the presumption of innocence in favor of the accused has been overcome.

More specifically, appellant cites the inconsistency between Louvellas claim that she could identify her rapist through his physical appearance, moustache and voice, and her admission that she only learned for the first time the name of Benjamin Lopez after the incident and she never spoke to him before. We are not convinced. We simply cannot discount the possibility that Louvella could recognize appellant by his voice considering that appellant and Louvellas mother worked in the same banana plantation. At one time or another, Louvella must have heard appellant speak and therefore recognized his voice. Besides, the most natural reaction of victims of violence is to strive to see the appearance of the perpetrator of the crime and observe the manner in which the crime is being committed.xxxvi[4] A person may be identified not only by his face or voice but also by his physique.xxxvi[5] Louvellas failure to initially identify her rapist by name is not fatal considering that she subsequently and satisfactorily established his identity by means of his physique and voice. In any case, the issue of whether appellant was identified as the perpetrator of the crime is a question of credibility. It is well-entrenched in this jurisdiction that factual findings of the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would have affected the result of the case. Having seen and heard the witnesses themselves and observed their behavior and manner of testifying, the trial judge was in a better position to determine their credibility.xxxvi[6] By way of defense, appellant could only interpose alibi. The twin requirements for the defense of alibi to be plausible are: first, they must prove that they were nowhere in the vicinity of the crime at the time of its commission; they must prove that they were somewhere else instead; second, they must prove that it was highly impossible for them to be present at the crime scene at the time of its occurrence.xxxvi[7] Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water.xxxvi[8] At the time of the commission of the crime, it is undisputed that appellant was only one hundred to two hundred meters away from the crime scene. He thus failed to prove the physical impossibility of his being present at the place where the crime was committed. Appellants alibi therefore deserves no consideration at all. Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, which was the law in effect at the time of the commission of the crime, provided: When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force and intimidation; xxx xxx xxx

The crime of rape shall be punished by reclusion perpetua. The trial court correctly imposed the penalty of reclusion perpetua on appellant. It likewise properly awarded the amount of P50,000.00 as civil indemnity which is mandatory upon a finding of rapexxxvi[9] as well as the award of P50,000.00 as moral damages which needs no proof since it is presumed that the rape victim suffered moral injuries.xxxvi[10] WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Panabo City, Branch 34, in Criminal Case No. 97-196, finding appellant Benjamin Lopez 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, is AFFIRMED in toto. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, Carpio and Azcuna, JJ., concur.

SECOND DIVISION [G.R. No. 150382. October 2, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. EDDIE BASITE, appellant. DECISION BELLOSILLO, J.: EDDIE BASITE was convicted by the trial court of simple rape, sentenced to reclusion perpetua and ordered to pay complaining witness P50,000.00 as civil indemnity and P50,000.00 as moral damages.xxxvi[1] He now appeals his conviction. Sonia Pa-ay, a polio victim, was at the time of the rape nineteen (19) years old and a student of midwifery at the Cordillera College, Buyagan, La Trinidad, Benguet. On 1 September 1996 at around 10:30 in the morning, Sonia was in Natuel, Buguias, Benguet, on her way to her parents home in Tinoc, Ifugao, to get her allowance. As she was walking, she met Eddie Basite who was headed towards the opposite direction. They passed by each other. A

few seconds later, Sonia heard footsteps behind her. When she looked back she saw Eddie Basite following her. He reached her, held her by both hands and told her to go down with him. Sonia resisted. But the accused Eddie Basite pulled out a knife from his waistband, thrust it at her neck and threatened to stab her if she continued to resist. He ordered her to lie down on the ground and out of fear she obeyed. The accused undressed himself and forcibly removed Sonias pants and underwear. He placed himself on top of her, inserted his penis into her vagina and made a push and pull movement. Sonia felt pain in her vagina. She resisted but the accused threatened to stab her. When he was through with the sexual assault, he warned her not to relate the incident to anyone or else he would stab her. Sonia pleaded with the accused to allow her to go home. Upon seeing that the accused had laid down his knife beside her head while he was putting on his clothes, Sonia grabbed the knife and stabbed him on the left shoulder. Wounded, the accused ran away. Sonia tried to put on her clothes, but losing her balance she rolled down the cliff and lost consciousness. When she recovered, she felt pain all over her body and could not find her bearings in her weakened state. She fell asleep and woke up at around midnight. She made her way up the mountain by the light of the moon. She reached the place where she was raped and rested for a while until she decided to continue on her way to her parents house in Tinoc, Ifugao. Along the way she passed by a house where she was offered camote to eat. While she was eating some soldiers arrived and offered to accompany her home. On their way they met four (4) men, one of whom turned out to be a brother of the accused who identified Eddie Basite as the person described by Sonia. He proposed that they go to the place where the rape allegedly took place. When they reached the crime scene Sonia found her bag and retrieved it. The brother asked Sonia to go with him to Abatan to see Eddie and talk to him and their relatives but she refused. Sonia proceeded instead to Monsoyohoy to wait for her uncle Nazario Habungan who, she learned earlier, was going home and would pass by Monsoyohoy. As she was walking towards Monsoyohoy she met her uncle Nazario and other relatives on the way and she narrated her ordeal to them. Together with some companions they proceeded to the Abatan Police Station to report the incident and to file a complaint. As they were passing through Bot-oan on their way to Abatan they saw Eddie alighting from a yellow Ford Fiera. He appeared to have injured his right hand. Nazario approached the accused and held him by the shoulder and told him to go with them to Abatan. Eddie pushed Nazarios arm and ran away. Nazario and his companions gave chase and caught up with the accused.xxxvi[2] Gilbert Sacla, testifying for the prosecution, said that he saw Nazario and his companions run after the accused. Since he was then the Barangay Captain of Bot-oan, Gilbert called a stop to the commotion. He learned that Eddie was being accused of having molested Sonia. Gilbert brought Eddie to the police station. The accused went with him willingly.xxxvi[3] At the police station, Sonia was advised to undergo medical examination. She went to the Abatan Emergency Hospital for the physical examination, and to the Lutheran Hospital for the laboratory tests. She was issued a medical certificate. The following day, 3 September 1996,

Sonia filed her Sworn Statementxxxvi[4] and a criminal complaintxxxvi[5] was formally lodged with the Fiscals Office against Eddie Basite. On 2 October 1996 an Information for Rape was filed against the accusedxxxvi[6] who pleaded not guilty when arraigned. A Motion for Bail was filed but it was denied.xxxvi[7] The prosecution presented Dr. Relante Raper of the Abatan Emergency Hospital who testified on the medical findings he made upon examination of Sonia Pa-ay. When Sonia presented herself for examination, Dr. Raper observed that her clothes were muddy. He found mud on her right breast and on her pubic hair. There were multiple healing scratches and contusions on her arms, legs and inner thighs which could have been caused by the application of an external force or the impact of a fall. Internal examination revealed that there were no lacerations, scratches or bleeding on the perineal area and her hymen was intact. The vagina admitted one (1) finger with difficulty. A whitish mucoid discharge found over the labia minora was sent to the Lutheran Hospital for microscopy.xxxvi[8] Examination of the discharge yielded negative for sperm.xxxvi[9] Dr. Raper clarified that it was possible, even for a married woman, to have an intact hymen since there are some hymen that are very elastic.xxxvi[10] The accused denied having raped Sonia. To support his defense, the accused presented two (2) witnesses, Lidot Lacbao and Dr. Ronald Bandonill. Lidot Lacbao recalled that in the early morning of 2 September 1996 he received complainant Sonia Pa-ay in his home and offered her camote to eat. The girl was limping. She had scratches on her arms and legs and her clothes were muddy. The girl told him that she had slept in the forest and that she met a man who accosted her but that she stabbed him. Lidot asked her if she had been raped. She replied that she had not been raped since she stabbed the man and if she did not, he would have done something to her.xxxvi[11] The accused presented Dr. Ronald Bandonill of the NBI-CAR, Baguio City, as an expert witness to dispute the findings of prosecution witness Dr. Relante Raper. Based on Dr. Rapers findings that there was no bleeding or scratches inside the genitalia and that the injuries were only outside the genital area and on the upper and lower extremities of Sonia, Dr. Bandonill opined that there was no insertion into the vagina and there was no physical contact or sexual intercourse.xxxvi[12] Otherwise, the genital area would have shown signs of trauma such as inflammation, redness, swelling and even bleeding if the hymen was the type that was easily lacerated. Dr. Bandonill added that the Medico-Legal Certificate issued by Dr. Raper was incomplete and incomprehensive and not compatible with standard Medico-Legal Reports of the NBI in rape cases.xxxvi[13] The trial court agreed with Dr. Bandonill that the Medico-Legal Certificate issued by Dr. Raper was insufficient to conclude that sexual intercourse actually took place, since it failed to indicate whether the labia and vagina of private complainant were thoroughly examined to determine sexual contact.xxxvi[14] However, it still found the accused guilty beyond reasonable doubt of the crime charged based on Sonias spontaneous, forthright and positive testimony identifying the accused as the person who raped her.

Accused-appellant assails the decision of the trial court. He argues that the trial court already entertained reasonable doubt as to his guilt when it ruled that the Medico-Legal Certificate issued by Dr. Raper was incomprehensive and inconclusive as to the occurrence of sexual contact between him and complainant. Accused-appellant reasons that the court a quo should have taken this point in his favor and acquitted him. Furthermore, the credibility of private complainant is suspect as her testimony is inconsistent with the testimonies of the other witnesses, particularly Lidot Lacbao and Dr. Raper. Sonias testimony, if related to the testimonies of these two witnesses, would supposedly establish the untrustworthiness of her version of the events. Sonia allegedly confessed to Lidot Lacbao that she had not been raped by accused-appellant, and that she had stabbed her assailant before he could do anything wrong to her. Sonias declarations that she felt pain and blood in her vagina are belied by the medical finding that her hymen is intact. Dr. Raper also found that there were multiple healed scratches and contusions on her arms and legs which may have been caused by her fall, but it is doubtful that these wounds would have been healed the very next day when she was examined by the doctor. The trial court allegedly erred in not taking these testimonies into consideration and relying solely on the declarations of Sonia, and in disregarding Dr. Bandonills expert testimony, especially in view of its ruling that the Medico-Legal Certificate was inadequate to prove the alleged sexual intercourse. The accused fails to persuade us. In rape offenses, the lone testimony of the complainant, if credible, straightforward, convincing and otherwise consistent with human nature and the ordinary course of things, may stand to convict the accused.xxxvi[15] The credibility of the complainants testimony is of utmost significance. In this case the trial court gave credence and full probative weight to the testimony of Sonia Pa-ay. We have consistently held that this Court will not disturb the findings of the trial court as to the credibility of witnesses. The trial court can best evaluate the credibility of witnesses and their testimonies because of its opportunity to observe the witnesses and their demeanor, conduct and attitude especially under cross-examination. Its assessment is respected unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case.xxxvi[16] There is nothing on record that would impel us to deviate from the findings and conclusion of the trial court. Sonia Pa-ay testified in a categorical, straightforward and consistent manner. As observed by the trial court, she tearfully narrated the details of the sexual abuse she suffered at the hands of accused-appellant and the circumstances leading and subsequent thereto.xxxvi[17] She unwaveringly and positively identified Eddie Basite as her defiler without any purpose other than to seek justice for the crime committed against her.xxxvi[18] Accused-appellant failed to impute any motive against complainant that would tarnish her credibility at the witness stand. Accused-appellant harps on the fact that the trial court discounted the Medico-Legal Certificate issued by Dr. Raper. This allegedly shows reasonable doubt as to the fact of sexual intercourse between accused-appellant and private complainant. On this matter, jurisprudence holds that

even without a medical examination, the accused may still be convicted of rape as long as the testimony of the complainant meets the test of credibility and resolutely points to the accused as the author of the crime. A medical certificate is not indispensable to prove rape.xxxvi[19] The defense further avers that Sonias testimony of rape is inconsistent with the findings of Dr. Raper that there were no lacerations in her vagina and that her hymen was intact. But the absence of fresh lacerations in the vagina does not prove that private complainant was not sexually abused. For rape to be consummated, rupture of the hymen is not necessary, nor is it essential that the vagina sustains a laceration. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction.xxxvi[20] In this case, Sonia categorically testified that accusedappellant inserted his penis into her vagina and she felt pain when he did so.xxxvi[21] Sonias testimony is also alleged to be inconsistent with Lidot Lacbaos statement that she denied having been abused by the man who accosted her. If we look at the records however, Lidot Lacbaos statement would be inconsistent with the attitude of disclosure that Sonia so far had with the other people she met after the rape incident. Sonia related what had happened to her, i.e., she had been raped by accused, to the soldiers who came to the house and who offered to accompany her home to report the incident to the barangay, and to the four (4) men she and the soldiers met while on their way.xxxvi[22] One of the four (4) men was accuseds brother, who himself identified the accused and offered to bring Sonia to his relatives to talk things over.xxxvi[23] She later met her uncle and told him she had been raped.xxxvi[24] Lidot Lacbaos testimony becomes doubtful when viewed against the whole of complainants behavior after the rape and her testimony during trial. As to the opinions of defense expert witness Dr. Bandonill, it is important to note that the testimony of expert witnesses must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it.xxxvi[25] It has been said of expert testimonies Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.xxxvi[26]

Dr. Bandonills expertise in the medical examination of rape victims was displayed in court. He clearly explained the external and internal changes that happen to a womans body after consensual intercourse and rape, and what findings may be had in the examination of a rape victim. Dr. Bandonills opinion on the rape case is based on the findings made b y Dr. Raper in his Medico-Legal Certificate. He did not personally examine private complainant. Based on the Medico-Legal Certificate alone, Dr. Bandonill surmised that there was no sexual contact between accused-appellant and complainant. He was however also of the view that the physical examination and Medico-Legal Certificate of Sonia Pa-ay were incomplete and not comprehensive as compared to the required Medical Report of the NBI.xxxvi[27] As the trial court found, the Certificate failed to indicate whether the labia and vagina of the private complainant were thoroughly examined to determine if sexual contact took place.xxxvi[28] That the trial court considered Dr. Bandonills expert testimony to rule on the sufficiency of the Medico-Legal Certificate issued by Dr. Raper does not mean that the court a quo doubted accused-appellants guilt. The trial court merely used Dr. Bandonills testimony to determine for itself if that Medico-Legal Certificate would satisfactorily show the results of a complete and thorough physical examination of Sonia Pa-ay, consistent with the physical examinations being conducted by the NBI and Dr. Bandonill. Accused-appellant finally contends that the trial court should have considered the mitigating circumstance of voluntary surrender in his favor. He explains that he voluntarily surrendered to then Barangay Captain Gilbert Sacla, and willingly went with him and complainants relatives to the police station in Abatan. We are not persuaded. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. If none of these two (2) reasons impelled the accused to surrender, because his surrender was obviously motivated more by an intention to insure his safety, his arrest being inevitable, the surrender is not spontaneous.xxxvi[29] The conduct of accused-appellant after the commission of the offense, of running away after having been stabbed by private complainant and of fleeing from complainants relatives when they tried to bring him to the authorities, do not show voluntary surrender as contemplated under the law. It appears that accused-appellant willingly went to the police authorities with Gilbert Sacla only to escape the wrath of private complainants relatives who were pursuing him and who appeared to be thirsting for his blood. In the instant case, the guilt of accused-appellant Eddie Basite has been proved beyond reasonable doubt. Paragraph 1 of Art. 335 of The Revised Penal Code punishes with reclusion perpetua an accused who has carnal knowledge of a woman with the use of force or intimidation. The use of a deadly weapon, which would otherwise have qualified the crime, is not alleged in the Information, hence even if proved, may not be appreciated against accused-appellant.

WHEREFORE, the assailed Decision of the court a quo finding accused-appellant EDDIE BASITE guilty of simple rape and sentencing him to reclusion perpetua and to pay complaining witness Sonia Pa-ay the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages is AFFIRMED. Costs against accused-appellant. SO ORDERED. Quisumbing, Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

THIRD DIVISION [G.R. No. 128882. October 2, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL AYUDA, appellant. DECISION SANDOVAL-GUTIERREZ, J.: Appeal from the Decision dated August 5, 1996 of the Regional Trial Court, Branch 7, Bayugan, Agusan del Sur, in Criminal Case No. 634 convicting Joel Ayuda of rape and sentencing him to reclusion perpetua. The Information charges Joel Ayuda as follows: That on or about the 4th day of May, 1993 at about 2:00 oclock early dawn, more or less in the premises and vicinity particularly at Barangay Maygatasan, Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with 3516 caliber pointed at the face of the victim, and by force, threats and intimidation with lewd design, did then and there willfully, unlawfully and feloniously succeed in having sexual intercourse with one GLORIPINxxxvi[1] SENO, a woman nineteen (19) years of age, of good reputation, against her will and consent, to the damage and prejudice of the said victim consisting of moral, actual and compensatory damages. CONTRARY TO LAW, Article 335 of the Revised Penal Code. Upon arraignment, appellant Joel Ayuda, assisted by counsel, pleaded not guilty to the crime charged. The evidence for the prosecution shows that in the evening of May 3, 1993, private complainant Gloriphine Seno, a 19-year old lass, attended a benefit dance held at the drier of Lorenzo

Campilan situated at Purok 1, Maygatasan, Agusan del Sur. At around 2:00 oclock in the early dawn, Gloriphine and her sister, Jocelyn Seno, while on their way home, met appellant Joel Ayuda. At that instance, Jocelyn walked ahead, accompanied by Clodualdo Joy Estores, while Gloriphine and appellant were left behind. Then appellant ordered Gloriphine to stop at a waiting shed. There he pointed his 3516 caliber revolver at her right cheek and dragged her to a grassy spot about 30 to 40 meters away. Appellant commanded her to undress and lie down, as he removed his pants and placed himself on top of her. He inserted his penis inside her vagina, making a push and pull movement. She felt pain. She could not shout because he continually poked his gun at her. Afterwards, he threatened to kill her, her parents and relatives should she reveal the incident to anyone. But on her way home, she met Clodualdo and revealed to him her excruciating experience. They later parted ways when they met her mother, sister and cousin. Upon reaching their house, Gloriphine immediately threw away at the trash bin her blood-stained sanitary napkin. Later that same day (May 4, 1993), she reported the incident to the Bayugan Police Station. After the investigation, she executed an affidavit dated May 5, 1993. Gloriphine was examined by Dr. Romeo Cedeo at the Bayugan Community Hospital, Bayugan, Agusan del Sur. He issued a medical certificate dated May 4, 1993 stating that the victim sustained linear skin abrasion on her right forearm, slight swelling of her vulva, lacerated wound about 1 cm. on her right labia minora, and hymenal laceration and bruising.xxxvi[2] Appellant vehemently denied the rape charge, contending that Gloriphine has been his sweetheart since 1988 or 1989, and that what transpired between them that early dawn of May 4, 1993 was a sexual tryst. On August 5, 1996, the trial court rendered a Decision, the dispositive portion of which reads: WHEREFORE, viewed from the above perceptions, this Court finds accused Joel Ayuda guilty beyond reasonable doubt of the crime of Rape pursuant to Article 335 of the Revised Penal Code. He is accordingly sentenced: 1) 2) 3) to a penalty of Reclusion Perpetua; to indemnify Gloriphine Seno the amount of P30,000.00; and to pay the costs.

SO ORDERED. Appellant, in his brief, submits the following assignments of error: I. II. THE LOWER COURT ERRED IN FINDING THAT RAPE WAS COMMITTED. THE LOWER COURT ERRED IN FINDING THE TESTIMONY OF GLORIPHINE SENO TO BE FORTHRIGHT, POSITIVE AND

EMPHATICALLY UNSULLIED BY INCONSISTENCIES, CONTRADICTIONS OR MENDACITIES. III. THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF GLORIPHINE THAT SHE WAS THREATENED WITH A GUN BY ACCUSED AND THEN RAPED. IV. THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED DUE TO REASONABLE DOUBT. The basic issue for our resolution is whether the prosecution has established appellants guilt beyond reasonable doubt. The law applicable to the case at bar is Article 335 of the Revised Penal Code which provides: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. 2. By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. x x x. (Underscoring ours) The elements of rape under the above provision are: (1) the offender had carnal knowledge of the victim; and (2) such act was accomplished through the use of force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under 12 years of age. An extract from Gloriphines testimony, quoted hereunder, indubitably shows that appellant had carnal knowledge of her through force and intimidation, thus: xxx PROSECUTOR PAG-ONG ON DIRECT EXAMINATION: xxx

Q On May 4, 1993, at about 2:00 oclock in the early dawn, can you still remember where were you? A Q A Q A Q A Q A I was going home with my younger sister, sir. Who is that younger sister of yours? Jonelyn Seno, sir. Where did you come from by the way at that time? From the dancing hall, sir. You mean you attended the benefit dance on May 3, 1993? Yes, sir. Up to the early dawn of May 4, 1993? We were already going home in the early dawn, sir. xxx Q While you were on your way home from the dancing hall together with your younger sister, what happened if there was any? A I was accompanied by Joel Ayuda, sir. xxx Q A Q A x x x. Are you referring to Joel Ayuda, the accused in this case? Yes, sir. If Joel Ayuda is in the courtroom now, will you kindly point at him? That person, sir.

(Witness pointing to a man wearing violet T-shirt who answered the name of Joel Ayuda when he was asked as to what is his name [sic]) Q A sir. When the accused approached and accompanied you, where did you go? He told me to stop at the waiting shed and at the waiting shed he pointed to me his gun,

Q A

At what portion of your body was the gun pointed? Here, sir, at my right cheek. xxx

Q A

Now, after accused Joel Ayuda pointed his gun to you, what happened next? He dragged me to the grassy place, sir. xxx

Q A Q A

What happened when you were brought to the grassy place? He told me to undress, sir. Who removed your dress. He, sir. xxx

Q A Q A Q A Q A Q A

What was your dress during that time? Polo, sir. Were you wearing trousers? A polo and a trouser, sir. Which was removed by the accused, your polo or your trouser? He first removed my trouser, sir. After he removed your trouser, what did the accused do to you? He removed my panty, sir. What happened to your panty which was removed by the accused Joel Ayuda? It was torn, sir.

Q There are two panties here that were attached to the records of the case. Will you please explain to this Honorable Court why there are two panties?

xxx A Because my menstruation just ended, sir. xxx Q After your long pants and two panties were removed by the accused Joel Ayuda, what did he do to you? A Q He made me lie down and placed himself on top of me, sir. Before he placed himself on top of you, what did the accused Joel Ayuda do to his pants? xxx A He removed his pants. xxx Q A While he was on top of you, what was he doing? He made a push and pull movement, sir. xxx Q A Q Aside from the push and pull movement that he made, what did he do to you? He pointed his gun to me, sir. Aside from that, what did the accused Joel Ayuda do with his penis? xxx COURT: The best way to be done here is to let the witness explain the meaning of sakyodsakyod. Q A What do you mean by the sakyod-sakyod, Miss Seno? Iya kong gikayat.

ATTY. GOC-ONG:

May I request, Your Honor, that all the answers of the witness which are in the Visayan dialect be interpreted. COURT: She was asked by the Court the meaning of sakyod-sakyod and she said he placed his penis inside her vagina. That is the explanation there. xxx PROSECUTOR PAG-ONG: Q After the accused Joel Ayuda inserted his penis to your vagina, what did he do next? xxx A Q A Q A Q A Q A Q A The gun was pointed to me, sir. How long did the sexual intercourse committed by the accused take? Only a few minutes, sir. Could it be five (5) minutes? Maybe, sir. What did you feel when the accused inserted his penis to your vagina? Painful, sir. When the accused inserted his penis to your vagina, what did you do? I cried, sir. Why did you cry? Because I was abused, sir.

Q While the accused Joel Ayuda was on top of you performing the sexual intercourse, where was his firearm? A He held the gun with his left hand and used it as support (gitukod).

COURT:

Q A

What did he do with his gun? He pointed it to my face, your Honor. xxx

After accused Joel Ayuda raped you, what happened next? xxx

A He threatened me not to tell the incident to anybody and if I will do so he will kill me including my parents and relatives. x x xxxxvi[3] The trial court found Gloriphines testimony credible since it was forthright, positive and emphatically unsullied by inconsistencies; and that being credible, her testimony is sufficient to sustain a conviction. It is doctrinally settled that the factual findings of the trial court, especially on the credibility of the rape victim, are accorded great weight and respect and will not be disturbed on appeal. This is so because the trial court has the advantage of observing the victim through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a discovered lie, the tremulous mutter of a reluctant answer, the forthright tone of a ready reply, the furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, or the carriage and mien. This rule, however, admits of exceptions, as where there exists a fact or circumstance of weight and influence that has been ignored or misconstrued by the court, or where the trial court has acted arbitrarily in its appreciation of the facts. We do not find any of these exceptions in the case at bar.xxxvi[4] In his brief, appellant desperately attempts to discredit Gloriphine credibility by pointing flaws in her testimony. According to him, she could not categorically determine where he pointed his gun whether it was to her neck or face. She contradicted herself by admitting later that she did not inform the doctor she was raped by appellant. She could not also remember whether she wore her yellow panty first or the orange one (which had traces of a mans semen). And she could not intelligently explain why she threw away her blood-stained sanitary napkin. An impeccable recollection cannot reasonably be expected from the victim of a horrendous crime, such that minor contradictions in her testimony are perceived to enhance, rather than detract from, her credibility.xxxvi[5] Thus, inconsistencies and discrepancies which refer to minor matters are irrelevant to the elements of the crime and cannot be considered as grounds for acquittal.xxxvi[6] A close scrutiny of the transcripts of the proceedings shows that the supposed flaws or inconsistencies bear on relatively minor points and, even taken as a whole, they fail to debunk

the gravamen of the accusation that appellant had carnal knowledge of the complainant through force or intimidation. Neither are we persuaded by appellants claim that he and Gloriphine are sweethearts and that what transpired between them that early dawn of May 4, 1993 was a consensual sex. He presented witnesses who declared that they saw Gloriphine sitting on his lap on May 4, 1993; and that in another occasion, they saw him coming out of her house at 12:00 oclock midnight. We are not convinced. A sweetheart defense, to be credible, should be substantiated by some documentary or other evidence of the relationship like mementos, love letters, notes, pictures and the like.xxxvi[7] Here, no such evidence was ever presented by appellant. Assuming that appellant and Gloriphine are sweethearts, it does not mean that he could not rape her. Such a relationship is not a guaranty that he will not assault and tarnish that which she holds so dearly and trample upon her honor and dignity. Indeed, a sweetheart can be forced to engage in sexual intercourse against her will.xxxvi[8] Considering that appellant committed the crime with the use of a firearm, a deadly weapon, the penalty imposable upon him is reclusion perpetua to death, pursuant to Article 335 of the Revised Penal Code, quoted earlier. Corollarily, Article 63 of the same Code provides: Art. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. (Underscoring ours) In People vs. Alfredo Baroy,xxxvi[9] we held: Where no aggravating circumstance is alleged in the information and proven during the trial, the crime of rape through the use of a deadly weapon may be penalized only with reclusion perpetua, not death.

In the present case, there is neither aggravating nor mitigating circumstance that attended the commission of the crime. Thus, the trial court correctly imposed upon appellant the lesser penalty of reclusion perpetua. With respect to the civil liability of the appellant, we observe that the trial court awarded the victim only P30,000.00 as civil indemnity. The prevailing jurisprudence is that where, as here, the death penalty is not imposed, the victim should be entitled to P50,000.00 as indemnity ex delicto. Such award is mandatory upon the finding of the fact of rape.xxxvi[10] We likewise award the victim moral damages which, in line with current jurisprudence, is fixed at P50,000.00 without need of pleading or proof of basis thereof.xxxvi[11] This is so because the anguish and the pain she has to endure are evident. In our culture, which puts a premium on the virtue of purity or virginity, rape stigmatizes the victim more than the perpetrator.xxxvi[12] In addition, exemplary damages of P25,000.00 is awarded to her because the rape was committed with the use of a deadly weapon. In People vs. Sorongon,xxxvi[13] we held: Likewise, the award of exemplary damages is justified. The circumstance of use of a deadly weapon was duly alleged in the information and proven at the trial. In People vs. Edem (G.R. No. 130970, February 27, 2002), we awarded exemplary damages in the amount of P25,000.00 in a case of rape committed with the use of a deadly weapon. WHEREFORE, the appealed Decision dated August 5, 1996 of the Regional Trial Court, Branch 7, Bayugan, Agusan del Sur, in Criminal Case No. 634 is hereby AFFIRMED with MODIFICATION in the sense that appellant JOEL AYUDA is ordered to pay complainant Gloriphine Seno P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. SO ORDERED. Puno, (Chairman), Panganiban, and Carpio-Morales, JJ., concur. Corona, J., on leave.

SECOND DIVISION [G.R. No. 122765. October 13, 2003] THE PEOPLE OF THE PHILIPPINES, appellee, vs. EDGARDO VARGAS Y LUCERO, appellant.

DECISION CALLEJO, SR., J.: This is an appeal from the Decisionxxxvi[1] of the Regional Trial Court, Branch 38, Iloilo City, finding appellant Edgardo Vargas y Lucero guilty of murder, sentencing him to suffer the penalty of reclusion perpetua, and to pay the heirs of SPO1 Alfredo Dan Cocjin y Magnaye the sum of P22,785.00 as actual damages, and P50,000.00 as civil indemnity ex delicto, and the costs of the suit. Job Bieren, a laborer and a resident of Sto. Domingo, Barotac, Iloilo, had been dishonorably discharged from the Philippine Constabulary for being absent without going on official leave. At around 1:00 p.m. on January 4, 1992, he went to the basketball court located in the town plaza of Banate, Iloilo. He had earlier agreed to meet his friend Clark Batzar, for a game of basketball. Job waited for an hour or so, but Clark did not show up. Job decided to leave the place and proceeded to the house of Jose Vargas located at Zona Sur, Banate, Iloilo, to watch the daily double, an illegal local gambling game. He passed through the fence at the back door of the house, and arrived thereat at around 2:30 p.m.xxxvi[2] Among the people in the house were Edgardo Dodoy Vargas, who had been appointed as Commander of the Civilian Volunteers Organization by his cousin Mayor Jonathan Sanico, and SPO1 Alfredo Dan Cocjin, who had just been transferred from the Banate to the Barotac Viejo Police Station. Job gravitated to the balcony while waiting for the games to start. Suddenly, there was a commotion and pandemonium ensued. People fled from the house. Job saw Edgardoxxxvi[3] as the latter collared SPO1 Cocjin with his left arm and with his right hand pointed a pistol at the policemans right temple. Job was about five meters away. Edgardo dragged SPO1 Cocjin away from the house, through a narrow passageway leading to the national highway. Edgardo then shot SPO1 Cocjin in the head. Edgardo stepped away from the fallen victim, and fired another shot, hitting SPO1 Cocjin at the back. Warlito Buloy Bagcal, who was outside the fence asked Edgardo, Doy, nga-a gin tira mo gid si Dan? (Doy, why did you shoot Dan?).xxxvi[4] Edgardo saw Job, and the latter was petrified. Job hurriedly left the place, passing through the back way. Dr. Rustum Larawan, a resident of Barangay Poblacion, Banate, Iloilo, reported the shooting incident to the Banate Police Station. Police investigators arrived at the scene of the incident and conducted an on-the-spot investigation. SPO3 Dominador Badinas, Jr. made a sketch of the crime scene, showing the victim lying on the edge of the national highway, face up, about 93 feet away from the bamboo fence fronting the house of Jose Vargas. SPO3 Badinas, Jr. saw a trail of bloodstains, from the bamboo fence leading to the narrow passageway at the edge of the highway.xxxvi[5] Pictures of the crime scene were also taken.xxxvi[6] Despite proddings from the police investigators, no one came forward to give any details about the identity of the perpetrator or the circumstances surrounding the shooting. The shooting incident was thereafter entered in the police blotter.xxxvi[7] Municipal Health Officer Dr. Ricardo H. Jaboneta performed an autopsy of the cadaver and submitted a necropsy report of his findings, thus:

POSTMORTEM FINDINGS Pallor, integuments and nailbeds. Abrasion: (1) 1.5 x 1.0 cms., forearm, left side, posterior aspect, 2.0 cms. below elbow; (2) 0.6 x 0.7 cms. dorsum of right hand, over 2nd metacarpo-phalangeal joint. Contusion, 4.0 x 4.0 cms., arm, left side, lateral aspect, middle third, 12.5 cms. above left elbow. Wound, gunshot: (1) ENTRANCE, ovaloid, 0.7 x 0.5 cm., oriented upwards and backwards, edges, sutured, surrounded by abrasion collar, 0.5 cm. on its widest portion at infero-anterior border and powder burn with an area of 25.0 x 21.0 cms., temporal region, right side, 7.0 cms. from anterior midline, 155.0 cms. from right heel, directed from right to left, upwards and backwards, penetrating skull, causing punch-in fracture, right temporal bone with linear extension backwards to posterior portion of right temporal bone and lesser wing of vomer, upwards and backwards to left parietal bone via right parietal bone into cranial cavity, lacerating right temporal lobe, medulla, and left temporal of the brain causing punch-out fracture, left temporal bone with linear extension upwards to left parietal bone and finally make an EXIT, stellate in shape, 0.7 x 0.8 cm., temporal region, left side, 14.5 cms. from anterior midline, 156.0 cms. from left heel; (2) ENTRANCE, ovaloid, 0.5 x 0.6 cm., oriented upwards and medially, edges, sutured, inverted, back, left side, 7.0 cms. from posterior midline, 115.0 cms. from left heel, directed upwards medially forwards, penetrating abdominal wall, causing punch-in fracture, 6th rib, left side, along paravertebral line into abdominal cavity, penetrating left ileopsoas muscle at the level of 6th thorasic (sic) vertebra where a copper fragment lodged and recovered, penetrating thru and thru, abdominal aorta, mesentery, anterior edge of left lobe, liver into rectus abdominal muscle where a copper fragment lodged and recovered at left epigastric region. Subarachnoidal hemorrhage, massive, extensive. Hemothorax, left side, 1200 cc., clotted blood. Lungs, voluminous, congested, cripitous. Heart, covered with minimal amount of fatty tissues. Ventricular chambers, empty. Coronary arteries, patent. Other visceral organs, pale. Stomach, full, rice and beans, partly digested. CAUSE OF DEATH: Massive brain laceration secondary to gunshot wound on the head. R E MA R K S: Body, previously embalmed. Date report submitted: 10 January 1992.xxxvi[8] Job opted not to report the shooting incident to the police authorities or to the NBI because he did not want to be involved. Job also felt that Edgardo knew very influential people, including Mayor Sanico. However, in August of 1992, Job had a change of heart and decided to reveal what he knew about the shooting incident to the police authorities of Sta. Barbara, Iloilo.

On August 2, 1992, Job arrived at the Office of the Investigation Section of 324th PNP Mobile Field Force Company, District II, Brgy. San Sebastian, Sta. Barbara, Iloilo, and disclosed what he knew about the killing of SPO1 Cocjin on January 4, 1992.xxxvi[9] He gave a sworn statement to SPO3 Dwight Maluda, identifying Edgardo as the assailant. An Information for murder was filed against Edgardo, which reads: The Provincial Prosecutor of Iloilo, through the undersigned, accuses EDGARDO VARGAS Alias Dodoy of the crime of MURDER, committed as follows: That on or about January 4, 1992, in the Municipality of Banate, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and decided purpose to kill, armed with a short firearm, with treachery and without any justifiable cause or motive, did then and there willfully, unlawfully and feloniously assault, attack and shoot SPO1 DAN COCJIN with the weapon accused was then provided, hitting the victim on the head, which caused his instantaneous death. CONTRARY TO LAW.xxxvi[10] During the arraignment, Edgardo, assisted by counsel, pleaded not guilty to the charge. Edgardo denied the charge against him. He testified that he had been appointed by his cousin, then Municipal Mayor Jonathan Sanico as Chief of the Civilian Volunteers Organization, through an Office Order dated February 5, 1991.xxxvi[11] His duties as such included giving assistance in monitoring sea vessels plying within the municipalitys area of responsibility, and enforcing the law when necessary.xxxvi[12] The volunteers used a patrol boat in their sea patrols. The appellant averred that he and the victim were goods friends. They had drinking sessions,xxxvi[13] and even dined together during then Vice-Mayor Nemesio Babes birthday party held on December 29, 1989. In fact, they even had a picture taken together during the said occasion. On January 4, 1992, he was on duty patrolling as a civilian volunteer of the Department of Agricultures Bantay Dagat program. He was with three other companions: Jonas Vargas, Arnel Deduyo and Rico Deduyo. They patrolled the seas of Banate, about two kilometers from the shoreline.xxxvi[14] Their patrol duty lasted until about 5:00 p.m.xxxvi[15] Edgardo was unarmed at the time. Edgardo learned of the shooting incident at around 5:00 p.m. of January 4, 1992. He was so incensed at the brutal slaying of his friend, that he wanted to avenge the latters death. He immediately proceeded to find their team leader Ciriaco Botero, to request that a gun be issued to him, to enable him to hunt down whoever shot the victim. However, he failed to locate Ciriaco Botero.xxxvi[16] Edgardo further testified that Job only wanted to get back at him because he, as civilian volunteer of the Bantay Dagat, had caught Job while engaged in dynamite fishing near the

artificial reefs of Banate. They exchanged heated words. Edgardo lost control of himself and slapped Job when the latter called him bolay-og.xxxvi[17] However, Job did not retaliate. In November 1991, Edgardo again caught Job engaged in dynamite fishing. Edgardo berated Job, but did not file any charges against him. On May 1, 1992, Edgardo lost his job and left for Sapi-an, Capiz, leaving his family in Banate. When he learned in November 1992 that the RTC of Iloilo City issued a warrant for his arrest, he surrendered to the court and posted a bail bond for his provisional liberty. Jose Vargas testified that there was no daily double being held in his house on January 4, 1992. He was not related to Edgardo. He had not seen Job in his house when the shooting incident occurred.xxxvi[18] When he asked a person about the shooting, he was told that a car had just passed by. He saw Edgardo in the latters house at 5:00 p.m. that day. Policemen arrived to investigate the shooting incident, and when he was asked who shot the victim, he replied that he did not know. Moreover, Job was employed by Mayor Bacus, the official who took over for Mayor Sanico. Warlito Bagcal testified that on January 4, 1992, he was at Barangay dela Paz and arrived at the Poblacion of Banate, Iloilo at around 2:00 to 2:30 p.m. He heard an explosion.xxxvi[19] He learned from a tricycle driver that SPO1 Cocjin had been shot.xxxvi[20] He then started his motorcycle and proceeded to the place of the shooting, where he found SPO1 Cocjin lying prostrate on the ground. He saw Juan Vargas within the vicinity,xxxvi[21] but Job was nowhere near the place.xxxvi[22] On February 10, 1995, the trial court rendered judgment, finding the appellant guilty beyond reasonable doubt of the crime charged. The decretal portion of the decision reads: WHEREFORE, the accused, Edgardo Vargas y Lucero, whose true name he claims to be Edgar is hereby found guilty beyond reasonable doubt for the crime of Murder penalized under Article 248 of the Revised Penal Code and is hereby sentenced to suffer a penalty of Reclusion Perpetua and to pay the heirs of SPO1 Alfredo Dan Cocjin y Magnaye the sum of P22,785.00 as actual damages and P50,000.00 as civil indemnity arising from such death. The accused being out on bail, his property bail bond is hereby cancelled. He shall remain in detention and shall not be subject to any bail pending finality of herein judgment. Cost against the accused. SO ORDERED.xxxvi[23] The appellant now comes before this Court, ascribing to the court a quo the following errors:

I. THE HON. TRIAL COURT ERRED TO APPRECIATE THE TESTIMONY OF THE POLICE INVESTIGATOR AND BELIEVE THE TESTIMONY OF A PLANTED WITNESS OF THE PROSECUTION. II. THAT GRAVE MISAPPREHENSION OF FACTS WERE [sic] COMMITTED BY THE HON. TRIAL COURT WHEN THE CONVICTION OF THE ACCUSED WAS BASED ON CONJECTURES AND NOT BY THE PROOFS AS PROVEN. III. THAT CONSEQUENTLY, THE HON. TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED OF RECLUSION PERPETUA BECAUSE THE ALLEGED POSITIVE IDENTIFICATION BY THE SOLE PROSECUTION WITNESS DEMOLISHES THE DEFENSE OF ALIBI OF THE ACCUSED.xxxvi[24] The appellant argues that the trial court ignored the fact that when the police investigated the shooting incident, nobody came forward to identify him as the culprit. He asserts that the prosecutions eyewitness, Job Bieren, was a planted witness. Jobs testimony is too incredible to be believed because it took him all of seven months after the shooting incident to give his statement and to identify the appellant as the assailant. The appellant also argues that the prosecution failed to formally offer Jobs testimony in evidence; thus, the trial court likewise erred when the said testimony was considered and given credence and probative weight. The appellant insists that the trial court erred when it rejected his defense of alibi. The appeal is without merit. The appellants contention that the public prosecutor failed to offer Jobs testimony as mandated by Section 35, Rule 132 of the Revised Rules of Court is belied by the records. The rule adverted to reads: SEC. 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. . . . The party calling a witness must give a gist of the proposed testimony to enable the court and the adverse party to determine its relevancy to the issues at hand.xxxvi[25] The transcript of the stenographic notes taken when Job testified show that the public prosecutor indeed offered Jobs testimony, thus: Interpreter: Witness: Please state your name, age, civil status, residence and occupation. Job Bieren, thirty-four (34) years old, married, a laborer, resident of Sto. Domingo, Barotac Viejo, Iloilo.

Fiscal Cabalum: I would like to present the testimony of this witness being an eyewitness considering that he was an eyewitness to the killing of the victim SPO1

Alfredo Dan Cocjin by the accused sometime on January 4, 1992, at Brgy. Zona Sur, Banate, Iloilo.xxxvi[26] The appellant did not object to Jobs testimony when the public prosecutor offered it. Instead, the appellant cross-examined the witness The appellant did not protest when the prosecutor faultily offered its documentary and physical evidence and rested its case. The appellant even offered testimonial evidence to controvert Jobs testimony. It is now too late in the day for the appellant to assail, for the first time in this Court, the public prosecutors failure to offer the testimony of a witness before direct examination.xxxvi[27] Job cannot be blamed for leaving the situs criminis rather than helping out the victim. It bears stressing that the appellant was armed with a gun, while Job was not. Job feared for his life. Moreover, although Job knew the victim, they were not even friends. This Court has held that not every witness to a crime can be expected to act reasonably and conformably to the expectation of mankind. In some instances, witnesses to a crime do not give succor to the victim due to fear for their personal safety. Self-preservation is still recognized as the most fundamental human instinct.xxxvi[28] While it may be true that Job did not report the killing for some months, this does not necessarily affect his credibility. It is not unusual for a witness to show some reluctance about getting involved in a criminal case and such reticence of most people is of judicial notice.xxxvi[29] The length of delay is not as significant and pivotal as the reason of explanation of the delay, which must be sufficient and convincing.xxxvi[30] Job cannot be faulted for keeping silent and opting not to report to the police authorities the fact that he saw the appellant shoot the victim, and that he did so only seven months thereafter. Municipal Mayor Jonathan Sanico, the appellants cousin, appointed the latter as head of the Civilian Volunteers Organization under the Office of the Mayor Fearing retaliation from the appellant, the mayor and his henchmen, Job hesitated, not wanting to be involved in the incident. He was afraid to divulge to the police authorities that he witnessed the commission of the crime. It was only after Mayor Sanico lost in the election and was replaced that Job divulged what he knew about the shooting incident. Moreover, the appellant had left Banate. The peril to his life having diminished considerably, Job found it safe to come out and report what he knew about the killing. We agree with the ruminations of the trial court, to wit: With respect to the delay of Job Bieren to report to concerned authority on what he saw and identify the accused as the assailant for more than seven months after its commission, the court finds such delay to have been sufficiently explained by said witness. He testified that he was afraid to come out to the open because they are in power and they might run after him. Obviously, he was referring to Mayor Jonathan Sanico, then the incumbent mayor of Banate, who is the first cousin of the accused. Besides, the accused was the head of the Bantay Dagat project of the local government, and a member of the CVO as he profess, with an issued firearm. In fact, the case was investigated by the Provincial Command of the Philippine National Police stationed at Sta. Barbara, Iloilo, and the criminal complaint was filed by SPO2 Hari Decena and not the local police of the Municipality of Banate. The reluctance of people out in the rural areas

to report the occurrence of crime or other unusual events to the public authorities is well known. More so in this case since the accused is working with the local government under a Municipal Mayor who is his relative, the possibility of vengeance is great.xxxvi[31] Job can hardly, if at all, be classified as a planted witness. The fact is that his testimony is corroborated by the physical evidence on record. Dr. Ricardo H. Jabonetas necropsy report shows that the victim sustained two gunshot wounds. He found powder burns on the body of the victim. Job testified that he heard a gunshot and saw the appellant pointing a pistol on the victims right temple with his right hand. He saw the appellant shoot the victim anew at the back, after the victim was dragged from the bamboo fence of Jose Vargas house to the edge of the highway. Indeed, the victim was found sprawled on the edge of the national highway. The policemen found a trail of bloodstains along the narrow passageway, to the edge of the road. This corroborates the testimony of Job, that the gunshot he heard coming from the highway was a second shot. The appellant must have already shot the victim before Job saw the appellant with his gun pointed at the victims head. Job even quoted Warlito Bagcal asking the appellant: Doy, why did you shoot Dan? There is no evidence on record that Job nurtured any ill motive to prevaricate and falsely testify that Warlito Bagcal was at the situs criminis. The presumption is that Job was not so actuated; hence, his testimony must be given credence and full probative weight.xxxvi[32] The trial court gave credence and full probative weight to the testimony of Job and disbelieved those of Vargas and Bagcal, thus: The cause of the prosecution draws its strength on the positive identification of Job Bieren, pinpointing to the accused as the one who shot the victim, Dan Cocjin. The principal prosecution witness remained steadfast in his testimony that he saw how the accused collared the victim, brought him out of the fence of Jose Vargas and shot him at the back. Job Bieren could not have been mistaken as to the identity of the accused as the assailant because he knew him even before the incident and he saw the accused at a distance of five (5) meters from him in broad daylight. In fact, the distance of six (6) arms-length was held sufficient to exclude any doubt in the identification of the accused. At the witness stand, he positively identified the accused as Dan Cocjins assailant. The court finds the testimony of Job Bieren worthy of credit. His testimony is clear and positive. It satisfies the court beyond reasonable doubt. Such positive identification demolish the alibi of the accused that he was at the sea on team patrol when the crime was committed. ...xxxvi[33] The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof are accorded high respect if not conclusive effect. This is precisely because of the trial courts unique advantage of observing and monitoring at close range the demeanor, deportment and misconduct of the said witnesses, unless it overlooked, ignored or misappreciated cogent facts and circumstances of substance, which, if considered, will change the outcome of the case.xxxvi[34]

In this case, we find no reason to deviate from the findings of the trial court, including its finding that appellants alibi is barren of factual basis: The alibi of the accused is unconvincing. The accused alleged he was out on routine sea patrol about two (2) kilometers from the Municipal Hall which usually take them about fifteen to thirty minutes to travel. The distance of the Municipal Hall to the scene of the crime is only about half a kilometer according to the accused. With such a distance, it is not impossible for him to be at the scene of the crime and go out on sea patrol after the commission thereof. Al[i]bi is the weakest defense an accused can concoct, In order to prosper, it must be so convincing as to preclude any doubt that the accused could not have been physically present at the place of the crime or its vicinity at the time of its commission. In the face of positive identification of the accused by prosecution witness, Job Bieren, an alibi crumbles like a sand fortress.xxxvi[35] Other than his sole testimony, the appellant failed to adduce clear and convincing evidence to prove his alibi. He could have presented official records that he was on sea patrol on January 4, 1992, but failed to do so. He even failed to present any of his companions while on patrol to corroborate his testimony. The appellants contention that Job testified against him because he had confronted Job twice for dynamite fishing, in violation of Presidential Decree No. 704, as amended, is hard to believe. The appellant admitted that he did not even file any criminal complaint against Job for such crimes. If indeed, Job was caught fishing with the use of dynamite, the appellant should have charged Job for violation of P.D. No. 704, as amended. The appellant did not do so, and even failed to explain such failure. We likewise do not believe that Job would testify and implicate the appellant in the killing of the victim simply because the appellant slapped him. In fine, we affirm the decision of the trial court, finding the appellant guilty beyond reasonable doubt of murder, and sentencing him to reclusion perpetua. With regard to the civil liability of the appellant, the trial court awarded the heirs of the victim the amount of P22,785.00 in actual damages, as supported by receipts,xxxvi[36] and P50,000.00 as civil indemnity arising from SPO1 Alfredo Dan Cocjins death. However, the trial court failed to award moral damages. The Court finds that the decision of the trial court should be modified, since the heirs of SPO1 Alfredo Dan Cocjin are also entitled to moral damages in the amount of P50,000.00. IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Iloilo City, Branch 38, finding appellant Edgardo Vargas y Lucero guilty of murder, and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law is AFFIRMED with MODIFICATION. The appellant is ordered to pay the heirs of the victim SPO1 Alfredo Dan Cocjin P22,785.00 as actual damages; P50,000.00 as civil indemnity; and P50,000.00 as moral damages.

SO ORDERED. Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ.., concur.

EN BANC [G.R. No. 128109. November 19, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. VENO ESPERAS, appellant. DECISION PANGANIBAN, J.: Appellant cannot be convicted of qualified rape, because the Informations did not allege his relationship with the victim. Moreover, the latters exact age at the time the crimes were committed was not proven by the prosecution. The Case For automatic review before this Court is the October 18, 1996 Joint Judgmentxxxvi[1] of the Regional Trial Court (RTC) of Palawan, Branch 52, in Criminal Case Nos. 12552, 12707 and 12708, finding Veno Esperas guilty beyond reasonable doubt of three counts of rape. The decretal portion of the Decision reads: WHEREFORE, premises considered, judgment is hereby rendered finding the accused VENO ESPERAS guilty beyond reasonable doubt as principal of three counts of rape as charged in: A. B. CRIMINAL CASE NO. 12,552; CRIMINAL CASE NO. 12,707; and

C. CRIMINAL CASE NO. 12,708; and as the commission of each of the offenses had been attended by the qualifying circumstance that, the offenses charged were committed against a victim below 18 years of age, and by an offender who is related to the offended party within the second degree of affinity, the accused is hereby sentenced to three (3) counts of death - one for each of the above entitled Criminal Cases in the manner prescribed by law; to pay the offended party and complainant Emie R. Adier civil indemnity of P50,000,00 for each of the three (3) offenses charged.xxxvi[2]

In three separate Informations -- one dated August 29, 1995; and two, November 7, 1995 -Prosecutor Reynaldo R. Guayco charged appellant as follows: Criminal Case No. 12552 That on August 4, 1995, at about 5:00 oclock in the afternoon, at Sitio Landing, Municipality of San Vicente, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, VENO ESPERAS, with violence, threat and intimidation by using a knife and with lewd design, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with EMIE R. ADIER, a girl of 15 years of age, against her will and consent to her damage and prejudice.xxxvi[3] Criminal Case No. 12707 That on the 4th day of August, 1995, at about 5:30 oclock in the afternoon, at Sitio Landing, Barangay New Agutaya, Municipality of San Vicente, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, threat and intimidation with the use of a knife, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with one, EMIE R. ADIER, a girl of 15 years of age, a minor, against her will and consent.xxxvi[4] Criminal Case No. 12708 That on the 4th day of August, 1995, at about 6:00 oclock in the afternoon, at Sitio Landing, Barangay New Agutaya, Municipality of San Vicente, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, threat, and intimidation with the use of a knife, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with one, EMIE R. ADIER, a girl of 15 years of age, a minor, against her will and consent.xxxvi[5] Upon his arraignment on November 10, 1995,xxxvi[6] appellant, with the assistance of counsel,xxxvi[7] pleaded not guilty to all the charges. After trial in due course, the court a quo rendered the assailed judgment. The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General (OSG) presents the prosecutions version of the facts in the following manner: In the morning of August 4, 1995, while the victim Emie Adier was cooking breakfast, her brother-in-law, appellant Veno Esperas, arrived and requested her to buy medicine for his fighting cocks and to bring it to his house after attending her class. Emie, who was then a

fifteen-year old barrio lass, had cordial relations with appellant who is the husband of her sister Elnora. Emie bought the medicine after attending school. She then proceeded to appellants house at Sitio Landing, Barangay New Agutaya, San Vicente, Palawan, which is about two (2) kilometers away from her school. Only appellant was at home because his wife, the victims sister, was away teaching at the far away town of Caruray, San Vicente, Palawan, where she and her child stayed during weekdays. Upon her arrival around 5:00 in the afternoon, the victim called the appellant and told him that she already bought the medicine he requested. Appellant appeared and went down the stairs. While she was handing the medicine to him, appellant immediately held her hand, pulled her up the stairs and dragged her inside the house. When inside the house, appellant hastily pointed a ten-inch jungle knife on Emies neck. The victim cried and shouted but appellant immediately covered her mouth with his hand. The victim told appellant not to proceed with his intentions because she treated him as her own brother but appellant told her not to treat him as her brother. Her pleas went unheeded. Appellant pushed Emie to lie down and proceeded to undress her of her uniform and underwear with his other hand. She kicked and struggled but she did not succeed in resisting appellant. Appellant thereby undressed. He then embraced and kissed the victim from her face to her vagina. Appellant placed his finger on her private part and while lying on top of the victim, inserted his organ to her vagina. The hapless victim felt pain. After about [ten] seconds, appellant removed his organ from the victims vagina and rested on top of her for 30 minutes. After resting, he again pointed his knife at Emies neck. She boxed and kicked appellant but she could not resist his strength. Appellant again inserted his organ to her genitalia and made a push and pull motion. After ravishing the victim, appellant sat and rested beside her. Emie attempted to run but appellant grabbed her and prevented her from running. In pain and feeling very weak, Emie was unable to escape. For the third time, he again poked the knife on Emies neck and once more placed his organ inside her vagina. He ravished her for ten minutes. After satisfying his lechery, appellant ordered the victim to dress up. Appellant forewarned the victim not to tell anybody, otherwise, Hindi ako aatras, papatayin ko kayong lahat. The victim who was hardly able to stand slowly dressed herself and headed home. She reached her house around 6:30 in the evening. She saw her parents and siblings but she was unable to immediately disclose her ordeal because she feared for their lives. In the succeeding days, however, her mother noticed that she looked weak and did not eat regularly. She confided to her mother three days after the incident. The victims mother went to the police. Emie executed three (3) complaints against appellant. The doctor who examined her days after the incident found that she suffered lacerations in her genitalia. The medical certificate dated August 10, 1995, signed by Dr. Ruthelma Gejon stated:

Grossly Female genitalia Noted healed laceration at 3, 8 and 11 oclock Admits one finger with tenderness Negative for spermatozoa Based on her findings, the doctor concluded that the lacerations could have been caused by penetration or trauma.xxxvi[8] (Citations omitted) Version of the Defense Appellant interposes the defense of denial. His version of the facts is as follows: The accused-appellant is a simple farmer, aged 25 years at the time of trial. His marriage to Elnora in 1993 was blessed with a child. Elnora teaches in a far place, which needs crossing the sea by pumpboat. During schooldays, Elnora and the child stay at her place of teaching assignment, leaving the accused-appellant alone at home to attend to their other concerns. Their house is a one-room nipa shack with a floor made of bamboo slats. Early in the morning of 4 August 1995, the accused-appellant went to the house of the accuser and asked her, being the younger sister of her wife, to buy some medicine for his fighting cocks, and to bring it to his house after class that day. As told, the accuser bought the medicine and brought it to the house of accused-appellant after class. Upon reaching the house of accused-appellant, she called out to him. She was on the ground, reaching out to him the medicine with her right hand. The accused-appellant was at the topmost part of stairs of his house. The floor of the house or nipa shack is about one meter from the ground. Thus, in the direct examination of the accuser. Q. A. Is the flooring elevated from the ground? Yes, sir, about a meter high.

While the accuser was in the act of giving the medicine to the accused-appellant, the latter took hold of her right hand with his left hand, forcibly pulling her up the stairs of his house, and while facing her directly, covered her mouth with his hand as she was shouting loudly even while she was still outside the house. The accused-appellant allegedly dragged her into his house, and when they were inside the house, pulled out from a scabbard tucked at the right side of his waist a jungle knife, poking the right side of her neck. Even with a knife poked at her neck, she continued to shout. The accused-appellant forcibly pushed her to the floor, and the accused-appellant while holding the knife with one hand, undresse[d] her totally, removing her blouse, skirt, bra and panty with his free hand, even as she was continuously shouting for help, with her back pressed against the floor. She was boxing, pushing, and kicking the accused-appellant. But still the accusedappellant succeeded in sexually abusing her.

At the time of the alleged sexual assault she was menstruating. But she felt and touched blood in her vagina only after the third sexual intercourse. The accused-appellant removed her palda while he was on top of her. As the accused-appellant removed her panty, the waistline of her panty got torn (although this was not presented as exhibit by the prosecution). On the second count of [the] alleged rape, the accuser testified that before raping her the second time, the accused-appellant poked the jungle knife to her neck. And while the accused-appellant was poking the jungle knife to her neck, she again boxed him and kicked him but she could not resist his strength. The prosecution did not formally offer to prove that the accuser was a minor. The prosecution reserved the presentation of the birth certificate but never presented it in evidence.xxxvi[9] (Citations omitted) Ruling of the Trial Court The RTC convicted appellant of three counts of rape for the following reasons. First, more than his negative assertion, it was complainants positive testimony that was given more weight. Second, the physical evidence -- the medical examination of complainant six days after the incident and the testimony of the examining physician -- was deemed to have corroborated the formers assertion that appellant had ravished her. The trial court discarded the denial proffered by appellant, saying that no woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and expose herself and her family to a public trial, if she was not moved by the desire to have her ravisher punished. Moreover, because the close and cordial relations between her and appellant would be adversely affected by the filing of the charges, only the desire to seek justice could have motivated her and her mother to file the charges, against him. Hence, this automatic review before us.xxxvi[10] The Issues Appellant raises the following errors for our consideration: 1.01. The trial court gravely erred in according credence to the testimony of the accuser, the scenes depicted in her testimony being highly improbable and inconsistent with physical laws and human behavior. The trial court gravely erred in imposing the death penalty on the accusedappellant as the qualifying circumstances of minority was not sufficiently proven, and that of relationship was not pleaded in the information.

1.02.

1.03.

The trial court erred in finding that the physical evidence culled from the physicians physical/medical examination of the accuser six days after the alleged rape was consistent with the latters complaint of rape. The trial court gravely erred in ruling that the defense of denial by the accused is inherently weak, without putting to scrutiny the contradictory and improbable testimony of the accuser. The trial court gravely erred in holding appellant liable to pay his accuser the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity.xxxvi[11]

[1.04.]

[1.05.]

Simply put, the main arguments of appellant are as follows: 1) the circumstances surrounding the offense charged are highly improbable; (2) the commissions of rape cannot be drawn from the physical evidence presented by the prosecution; and (3) the trial court erred in appreciating the minority of the victim and her relationship with him. The Courts Ruling We affirm the conviction of appellant for three counts of rape, but reduce the penalty for each count to reclusion perpetua for the failure of the Informations to allege his relationship with the victim and for the failure of the prosecution to prove her exact age. First Issue: Probability of Circumstances Appellant questions why complainant did not sustain injuries despite the resistance she was supposed to have put up against him -- boxing and kicking him while loudly shouting for help. Such struggle should have caused bodily injuries not confined only to the genitalia. Abrasions, hematoma or contusions should have resulted if he had indeed forcibly pulled her from the ground up to his house, which was about a meter above the ground. Moreover, a mark or cut would have been left on her neck, if he had truly poked a knife at it. He adds as improbable the failure of his neighbors to hear her cries if she truly shouted for help. Among them was Ely Peralta who testified that she was inside her house, which was about 10 meters away from his, yet she did not hear any shouts at the time. Allegedly unable to fathom why complainant and her mother would fabricate the charges against him despite his cordial relations with them, he contends that the trial court should not have applied the rule that no decent woman would file a rape charge if she was not motivated by the desire to seek justice. We reject his arguments. The assigned errors, being essentially factual, may readily be explained upon a careful review of the records.

First, the records do not show whether the victim suffered other bodily injuries. During the trial, questions on this matter were limited to the lacerations of her genitalia. As to other injuries, none was propounded to her, her mother or the examining physician. Second, appellant did not pull the victim from the ground while he was still inside his nipa house. She clearly testified that he had gone down the stairs; gripped her hand; and dragged her from there, up the stairs, and into the house.xxxvi[12] It was not improbable that the whole process left her unscathed, assuming that she was. Third, his claim that the victim did not suffer injuries when he poked a knife at her neck is of no moment. It must be clarified that the word poke in the transcript was interchangeably used with the word pointed,xxxvi[13] which indicates that it was a rough translation of the Filipino word tinutok. Naturally, a knife that does not touch the skin would not cause injury. Nonetheless, the presence of injuries is not vital to establishing the guilt of appellant. The alleged absence of external injuries on the victim does not detract from the fact that rape was committed.xxxvi[14] Even, assuming arguendo that there were no signs of other bodily injuries, the occurrence of rape is still not negated, since their absence is not an essential element of the crime.xxxvi[15] Neither is the fact of the rape weakened by the claim of appellant that none of his neighbors heard any shout for help from the victim. As can be gleaned from the records, he quickly halted her shouts by covering her mouth with his hand and poking a knife at her neck.xxxvi[16] He also warned her that he would kill her if she made any noise.xxxvi[17] From time to time he silenced her succeeding shoutsxxxvi[18] until she eventually became too weak to make any noise.xxxvi[19] Thus, the circumstances surrounding the rapes are not implausible, as appellant would like this Court to believe. These are immaterial, as they refer to explainable details that have nothing to do with the essential fact of the commission of the crime of rape -- carnal knowledge through force or intimidation. Appellants denial cannot overcome the victims positive assertion. Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given greater evidentiary value than the positive testimony of a rape victim.xxxvi[20] Time and time again this Court has said that when a woman -- more so when she is a minor -- says she has been raped, she says in effect all that is required to prove the ravishment.xxxvi[21] Furthermore, appellant failed to show any ill motive, on the part of the victim and her mother, to fabricate such a story. A witness testifying candidly, trustworthily and consistently -- without any ill motive -- is surely more credible than an appellant who simply denies the charge.xxxvi[22] Where there is no evidence to show any improper motive on the part of the rape victim to testify falsely against the accused or to implicate him falsely in the commission of a crime, the logical conclusion is that the testimony is worthy of full faith and credence.xxxvi[23]

The victim recounted how appellant -- armed with a knife -- defiled her thrice on that fateful day: FISCAL ESTOLANO (cont) What else did he remove from his body? A Q A Q A He removed his pants and brief. After removing his brief, what did he do? He again pointed the knife to me. And what happened next? While he was pointing the knife, I continued pushing him, but I cannot resist his strength. xxx Q A Q A What happened next? He placed his finger inside my vagina. Then what happened next? He inserted his organ to my vagina. xxx xxx

FISCAL ESTOLANO (cont) What was his position when he inserted his penis inside your vagina? A Q A Q A He was on top of me. After inserting his penis to your vagina, what did you feel? I felt pain. After inserting his penis to your vagina, what did you do and while he was on top of you? He is still pointing the knife to my neck.xxxvi[24]

xxx "Q A Q A

xxx

xxx

When you said rested, what do you mean by rested? He was resting. Where was his penis while resting? Where did he rest? On top of me.

COURT (to witness) Did he sleep on top of you? A No, sir.

FISCAL ESTOLANO (cont) While the accused was resting, what did you do? A While he was resting I kept on boxing him.

[FISCAL ESTOLANO] (to witness) Was the penis still inside your vagina? A Q A No more, sir. How long did Veno Esperas rest? For 30 minutes.

COURT (to witness) On top of you he rested for 30 minutes? A Yes, sir.

FISCAL ESTOLANO (cont) Why did you say that he was resting there? A Q A Q A Q A Because at that time he was no longer moving. No longer moving his what? He is no longer moving his body. After resting for 30 minutes, what did Veno Esperas do? He again point a jungle knife on my neck. What did you do when he pointed the jungle knife to your neck? I again boxed him and kicked him but I cannot resist his strength.

FISCAL ESTOLANO (cont) What happened next? A Q A Q A Q A He again inserted his male organ to my vagina. What did you feel when he inserted his penis inside your vagina? I felt pain. How long did the penis stay inside your vagina? For 10 minutes. While his penis was inside your vagina, what was he doing? He was then kissing me. xxx FISCAL ESTOLANO (cont) xxx xxx

After 10 minutes what did Veno Esperas do? A Q A He again rested himself. When you said he rested, what was his position when resting? He was sitting beside me.

FISCAL ESTOLANO (cont) How about you, what did you do since his body was no longer on top of you? A When he was resting I was about to run away but he immediately held my hand, so I was not able to run. Q A Q A How long did Veno Esperas rest? For 10 minutes. After he rested what happened next? He again inserted his penis to my vagina.

Q How was he able to insert his penis inside your vagina when you said he was sitting beside you and you were about to run away? A While he rested, he again raped me.xxxvi[25]

It is a hornbook doctrine that that the competence and the credibility of witnesses are best determined by the trial courtxxxvi[26] because of its unique opportunity to observe their deportment while testifying.xxxvi[27] Binding and conclusive on this Court are its factual findings, absent any arbitrariness or oversight of facts or circumstances of weight and substance.xxxvi[28] In the present case, the court a quo gave more credence to the positive testimony of the victim, and we find no reason to set aside its factual findings. Second Issue: Physical Evidence Appellant contends that the physical evidence from the medical examination is not consistent with the finding of rape. He argues that the examining physician should not have concluded hastily that complainant had been raped, because the medical findings merely showed that her genitalia was positive for lacerations. He adds that such lacerations are not conclusive of the commission of rape. Allegedly, although the examination was intended to determine its factual

truth, the physician should not have rendered the conclusion that complainant had indeed been raped. He further alleges that the doctor was not even an expert witness, having commenced medical practice only a year after she passed her licensure examination. Moreover, her previous examinations on more than 10 rape victims supposedly resulted in inconclusive findings. We disagree with appellant. While vaginal lacerations alone cannot establish rape, they are corroborative of its commission. The straightforward and unwavering testimony of the victim, coupled with her vaginal lacerations, proved that rape was committed, and that he was the perpetrator. It was the totality of evidence -- not the mere presence or absence of those lacerations -- that established his culpability for the offense charged. Third Issue: Minority and Relationship Appellant claims that the RTC imposed on him the penalty of death, because the trial court had appreciated the minority of the victim and his alleged relationship by affinity to her. We are persuaded. Minority of the Victim Not Proven Beyond Reasonable Doubt We agree with appellant that the minority of the victim was not proven beyond reasonable doubt. The prosecution failed to present her birth certificate despite its reservation to present it during the trial. It must be noted that the rapes were committed prior to the effectivity of RA No. 8353, otherwise known as The Anti-Rape Law of 1997. Applicable, then is the old provision -- Section 11 of RA No. 7659 -- which reads as follows: SEC. 11. Article 335 of the same Code is hereby amended to read as follows: xxx xxx xxx

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. xxx xxx xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim. Minority not having been sufficiently established, the trial court committed reversible error in appreciating it as a qualifying circumstance; as such, it must be proved with equal certainty and clearness as the crime itself. Required, therefore, is independent proof of the agexxxvi[29] of the victim, such as, her birth certificate or her mothers testimony.xxxvi[30] The victim testified that she was born on August 14, 1979, and was thus 15 years old on the date of the trial.xxxvi[31] On the other hand, her mother testified that she was born in September 1979.xxxvi[32] These conflicting -- albeit casual -- testimonies cast a serious doubt on the victims exact age at the time of rape. In People v. Brigildo,xxxvi[33] the Court held that minority as a qualifying circumstance under Section 11 of RA No. 7659 had not been properly proven when the testimony of the mother as to the true age of the victim contradicted that of the latter. The Court was thus constrained to reduce to reclusion perpetua the penalty of death imposed by the trial court. Appellants Relationship by Affinity to the Victim Another error committed by the RTC was its appreciation of the qualifying circumstance of relationship of appellant with the victim. He is allegedly her brother-in-law, but because this fact was not alleged in the Informations, it should not have been used by the trial court to qualify the crime. Well-settled is the rule that the relationship of the perpetrator with the victim must be duly alleged in order to justify the imposition of the death penalty.xxxvi[34] If the offender is merely a relation not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim -- the specific relationship must be alleged in the information, i.e., that he is a relative by consanguinity or affinity [as the case may be] within the third civil degree.xxxvi[35] Civil Liability In addition to indemnity ex delicto, the victim should be awarded moral damages in the sum of P50,000.xxxvi[36] This Court has granted the same to victims of rape without need of proof other than the fact of rape, which by itself shows the factual bases for the award. Also, exemplary damages of P25,000xxxvi[37] is proper, since the prosecution was able to prove the relationship of appellant with the victim. Even if not alleged in the Information, their proven relationship is sufficient basis for this civil liability.xxxvi[38] WHEREFORE, the Joint Judgment promulgated on October 18, 1996 by the Regional Trial Court of Palawan, finding appellant guilty of three counts of qualified rape, is MODIFIED. He is found GUILTY of three counts of SIMPLE RAPE only, and for each count he is sentenced to

three (3) terms of reclusion perpetua. Furthermore, for each count of rape he is ordered to pay the victim moral damages of P50,000 and exemplary damages of P25,000, in addition to the P50,000 civil indemnity imposed by the RTC for each count. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.