Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. no. 171762

June 5, 2009

LYNN MAAGAD and the DIRECTOR OF LANDS, Petitioners,

vs.
JUANITO MAAGAD, Respondent.
DECISION
PUNO, C.J.:
This petition for review on certiorari1 assails the Decision of the Court of Appeals (CA)2 in CAG.R. CV No. 56663. The CA reversed and set aside the Decision of the Regional Trial Court
(RTC)3 of Misamis Oriental, which dismissed for lack of evidence the Complaint for Annulment
and/or Reconveyance of Title with Damages filed by herein respondent.
The parcel of land in dispute is Lot No. 6297, Cad-237, C-5 (Lot 6297) with an area of five
thousand, one hundred thirty-four square meters (5,134 sq. m.) located in Bulua, Cagayan de Oro
City. Lot 6297 formed part of the estate of Proceso Maagad. Upon his death sometime in 19634
or 1965,5 he was survived by his children Amadeo, Adelo (father of petitioner Lynn), Loreto and
Juanito (respondent), all surnamed Maagad.
On 20 June 1972, the heirs of Proceso executed an Extrajudicial Partition of Real Estate
(Partition)6 dividing among themselves their fathers properties. In the Partition, Lot 6297 was
conveyed to Adelo while Lot No. 62707 was allotted to respondent Juanito.
Respondent Juanito claimed that the Partition mistakenly adjudicated Lot 6297 to Adelo, and Lot
No. 6270 to himself, when it should have been the reverse. He asserted that: (1) he had been in
continuous possession of Lot 6297 even before the death of their father, Proceso; (2) the lot was
given to him by their father when Juanito married in 1952; (3) he had been religiously paying the
realty taxes due the land; and (4) Adelo, up to his death in 1989, recognized and respected
Juanitos possession and ownership over Lot 6297 and, in turn, possessed and paid realty taxes
for Lot No. 6270.
To rectify the alleged mistake, respondent Juanito and the children of Adelo, namely: Dina, Ely
and petitioner Lynn, executed on 29 January 1990 a Memorandum of Exchange which stated in
part:
xxx

2. That the ownership of the parties over the said properties [is] not absolute considering
the fact that there was a mistake in designating the owner of the respective properties. Lot
No. 6270 should have been given to the Party of the Second Part and Lot No. 6297
should have been allotted to the Party of the First Part. This wrong designation was
committed in the settlement and partition of the estate of the late Proceso Maagad.
3. That the parties herein in order to correct the foregoing error, do hereby covenanted
and/or agreed to EXCHANGE THE SAID PROPERTIES in such a way that LOT NO.
6270 shall now belong or [be] exclusively owned by the Party of the Second Par[t], while
LOT NO. 6297 shall be owned and belong to the Party of the First Part. That proper
transfer of tax declarations shall be made in accordance with this agreement of exchange.8
However, an erroneous assignment of the "Party of the First Part" and the "Party of the Second
Part" resulted in a repeat of the mistake attendant in the Partition which the parties had intended
to correct. Thus, once again, Lot 6297 was allotted to the heirs of the now deceased Adelo while
Lot No. 6270 was partitioned to respondent Juanito. The latter only discovered the error later on
in the year when petitioner Lynn caused the publication of the Partition in a local newspaper.
Unbeknownst to respondent Juanito, on 15 October 1992, petitioner Lynn, representing his
siblings, applied for a free patent over Lot 6297 with the Bureau of Lands, Cagayan de Oro City.
On 6 January 1993, he wrote respondent demanding the surrender of the possession of Lot 6297
which the latter ignored, believing in good faith that the demand had no basis.
Subsequently, petitioner Lynns free patent application was approved and Free Patent No.
104305-93-932 was issued on 4 August 1993. Pursuant thereto, OCT No. P-3614,9 in the name of
the Heirs of Adelo Maagad represented by Lynn V. Maagad, was issued and recorded in the
Register of Deeds of Cagayan de Oro City on 10 August 1993.
Thus, on 21 February 1994, respondent Juanito filed a Complaint for Annulment of Title with
Damages before the RTC, which was later amended to include a prayer for the alternative relief
of reconveyance of title.
Trial ensued. After presentation of the plaintiffs evidence, then defendant and herein petitioner,
Lynn Maagad, filed a demurrer to evidence alleging that based on the facts established and the
laws applicable to the case, then plaintiff and herein respondent, Juanito Maagad, had not shown
any right to the reliefs prayed for.
On 6 March 1997, the RTC granted the demurrer and dismissed the case for lack of evidence. It
ratiocinated, viz.:
When the heirs of Proceso Maagad executed the Extra-judicial Partition, all the four (4) heirs
signed the document on the agreement that what was adjudicated to them should now belong to
each of them. The allegation of the witnesses for plaintiff [now respondent] that Lot No. 6297
was only mistakenly adjudicated to Adelo Maagad as plaintiffs children were in possession of
the property is belied by the fact that plaintiff signed the Extra-judicial Partition. Whatever right
plaintiff may have had over the property had been waived by his signing the document.

It is worthy to note that a Deed of Exchange was executed at the instance of plaintiff 18 years
after the partition. But still, it is clear under the terms of the document that Lot No. 6297 belongs
to Adelo Maagad and Lot No. 6270 belongs to Juanito. [The] [p]ertinent provision of law
applicable to the aforestated issue is Section 9 of Rule 130 which states:
"SECTION 9. Evidence of written agreements. When the terms of an agreement have been
reduced to writing, i[t] i[s] considered as containing all the terms agreed upon and there can be,
between the parties and their successors in interest, no evidence of such terms other tha[n] the
contents of the written agreement."
Plaintiff is not allowed to alter the contents of the extra-judicial partition by parol evidence. Parol
evidence rule forbids any addition to or contradiction of the terms of a written instrument. x x x
Even granting arguendo that there was a mistake in the extra-judicial partition, plaintiffs
evidence still fall[s] short of justifying the reformation of the instrument. The testimonies of its
witnesses have not proved by clear and convincing evidence that the alleged mistake did not
express the true intention of the parties.
xxxx
WHEREFORE, premises considered, judgment is hereby rendered dismissing the above-entitled
case for lack of evidence.10
On appeal, the CA reversed and set aside the ruling of the RTC, viz.:
WHEREFORE, all the foregoing considered, the appeal is hereby GRANTED and the assailed
decision is REVERSED AND SET ASIDE. OCT No. P-3614 issued to the Heirs of Adelo
Maagad is hereby declared NULL AND VOID and plaintiff-appellant declared the rightful owner
and possessor of Lot No. 6297, Cad 237, C-5.11
Hence, this petition for review on certiorari which calls upon the Court to resolve the following
issues: (1) whether Juanito Maagad has a superior right over Lot 6297; (2) whether OCT No. P3614, issued pursuant to the free patent application, should be declared null and void; and
corollarily, (3) whether the title can be reconveyed to respondent.
On the question of whether respondent Juanito Maagad has a superior right over Lot 6297, the
CA ruled in the affirmative, viz.:
The records of the case indubitably show that the Deed of Extrajudicial Partition executed in
1972 between and among the heirs of Proce[s]o Maagad, namely Adelo, Juanito, Loreto and
Amadeo, contained a patent mistake by the erroneous adjudication of Lot No. 6297 to Adelo,
herein defendant-appellees [now petitioners] father, considering that the said lot had long been
in the actual possession of plaintiff-appellant [now respondent], through his father, and of the
adjudication of Lot No. 6270 to plaintiff-appellant when the same had already been declared in
Adelos name.

Consequently, the necessity to rectify the error arose. Hence, on January 29, 1990, plaintiffappellant together with Adelos heirs, including herein defendant-appellee Lynn, executed a
Memorandum of Exchange to conform to the real intention of the extra-judicial partition. The
instrument intended to exchange [Lot Nos.] 6297 and 6270; specifically, to transfer Lot No. 6297
from the heirs of Adelo Maagad to plaintiff-appellant, and in turn, to effect the transfer of Lot
No. 6270 from the latter to the former. But for reasons beyond the intervention of the parties, the
Memorandum of Exchange reflected the same mistake, thus, no exchange of property was in
reality effected.
We find, however, that notwithstanding the failure to effect the exchange of the properties,
defendant-appellees voluntary and active participation in the execution of the Memorandum of
Exchange clearly demonstrated his recognition of the mistake in the instrument of partition. The
intent to effect the exchange in order to correct the defect in the partition was strongly
manifested when defendant-appellee voluntarily subscribed to the instrument. By his act, the
latter is estopped from negating the existence of the mistake in the adjudication of the properties
and of plaintiff-appellants pre-existing rights over Lot No. 6297.
Hence, We find defendant-appellees contention tenuous that Lot No. 6297 belonged to him and
his siblings by way of inheritance from their father Adelo, who in turn obtained the same through
the Extrajudicial Partition. It would be highly illogical and absurd for the parties to execute a
Memorandum of Exchange in the first place if there was nothing to exchange at all, unless the
purpose of said exchange was precisely to rectify and effect the correct adjudication of the two
lots in question.12 (emphasis added)
The parol evidence rule, 13 as relied on by the RTC to decide in favor of Lynn Maagad,
proscribes any addition to or contradiction of the terms of a written agreement by testimony
purporting to show that, at or before the signing of the document, other or different terms were
orally agreed upon by the parties.14 However, the rule is not absolute and admits of exceptions.
Thus, among other grounds, a party may present evidence to modify, explain, or add to the terms
of the written agreement if he puts in issue in his pleading a mistake in the written agreement.
For the mistake to validly constitute an exception to the parol evidence rule, the following
elements must concur: (1) the mistake should be of fact; (2) the mistake should be mutual or
common to both parties to the instrument; and (3) the mistake should be alleged and proved by
clear and convincing evidence.15
We find that all the elements are present in the case at bar and there was indeed a mistake in the
terms of the Partition, thus exempting respondent Juanito from the general application of the
parol evidence rule.
We agree with the CA that "[i]t would be highly illogical and absurd for the parties to execute a
Memorandum of Exchange in the first place if there was nothing to exchange at all, unless the
purpose of said exchange was precisely to rectify and effect the correct adjudication of the two
lots in question."16 The mere fact of execution of a Memorandum of Exchange itself indicates the
existence of a mistake in the Partition which the parties sought to correct. The existence of such
mistake is further cemented with statements in the Memorandum of Exchange, viz.:

xxx
2. That the ownership of the parties over the said properties [is] not absolute considering
the fact that there was a mistake in designating the owner of the respective properties. x x
x
3. That the parties herein in order to correct the foregoing error, do hereby covenanted
and/or agreed to EXCHANGE THE SAID PROPERTIES x x x.17 (emphases added)
The strongest evidence of mistake, however, is the admission by the petitioner himself. In his
Petition for Review on Certiorari, petitioner admits that, because of mutual mistake, the
Memorandum of Exchange failed to express the agreement of the parties to exchange the
properties. Moreover, he quotes, and agrees with, the decision of the CA and even refers to the
reformation of the original contract. Petitioner states:
In the case at bar, it became apparent that there was failure of the Memorandum of Exchange to
disclose the real agreement of the parties brought about by the mutual mistakes of the parties as
reflected in the said instrument (Article 1361, Civil Code of the Philipp[in]es).18
Thus[,] by reason of the mutual mistake which did not express the true intent and agreement of
the parties from a prior oral agreement to exchange the property before they have attempted to
reduce it in writing, which attempt fails by reason of such mistake, hence reformation enforces
the original contract, if necessary.
As aptly quoted from the basic decision, p. 15, thus:
"Hence, WE find defendant-appellees contention tenuous that Lot No. 6297 belonged to him
and his siblings by way of inheritance from their father, Adelo, who in turn obtained the same
through Extra-judicial Partition. It would be highly illogical and absurd for the parties to execute
a Memorandum of Exchange in the first place if there was nothing to exchange at all, unless the
purpose of said exchange was precisely to rectify and effect the correct adjudication of the two
lots in question.
Indeed there was an attempt to rectify and effect the correct adjudication of the two lots in
question.19 (emphases added)
It is well-settled that a judicial admission conclusively binds the party making it. He cannot
thereafter take a position contradictory to, or inconsistent with his pleadings. Acts or facts
admitted do not require proof and cannot be contradicted unless it is shown that the admission
was made through palpable mistake or that no such admission was made.20 In the case at bar,
there is no proof of such exceptional circumstances, nor were they even alleged or availed of by
the petitioner.1avvphi1
Therefore, with the mistake in both the Partition and the Memorandum of Exchange duly shown
and admitted, we agree with the CA that respondent Juanito Maagad has a superior right over Lot
6297 pursuant to the intended distribution of properties in the Partition.

We now proceed to the second and third issues of whether OCT No. P-3614 should be declared
null and void; and corollarily, whether it can be reconveyed to respondent. The CA held that the
certificate of title, having been issued pursuant to an invalid free patent, is null and void. Being
null and void, it cannot be reconveyed as it produced no legal effect.
Again, we agree with the CA.
The pertinent provision of the Public Land Act,21 as amended by Republic Act No. 6940,22
explicitly states the requirements for a free patent to be issued, viz.:
Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twelve
(12) hectares and who, for at least thirty (30) years prior to the effectivity of this amendatory Act,
has continuously occupied and cultivated, either by himself or through his predecessors-ininterest a tract or tracts of agricultural public lands subject to disposition, who shall have paid the
real estate tax thereon while the same has not been occupied by any person shall be entitled,
under the provisions of this Chapter, to have a free patent issued to him for such tract or tracts of
such land not to exceed twelve (12) hectares.
The Order approving the free patent application of petitioner Lynn, representing the Heirs of
Adelo Maagad, stated that "the applicant ha[d] already complied with all the requirements of the
law for the issuance of patent to the land."23 As clearly provided by Sec. 44 of the Public Land
Act, the requirements include, among others, that: (1) the applicant has continuously occupied
and cultivated, either by himself or through his predecessors-in-interest, the tract or tracts of
agricultural public lands; (2) he shall have paid the real estate tax thereon; and (3) the land has
not been occupied by any person.
A perusal of the records clearly shows, however, that petitioner is not entitled to apply for, much
less be granted, a free patent over Lot 6297. When petitioner filed his free patent application on
15 October 1992, he claimed prior, actual, and continuous possession and cultivation of the lot.
Yet such claim is belied by the letter, dated 6 January 1993, he subsequently sent to respondent
demanding surrender of the possession of the property. The letter reads:
January 6, 1993
Mr. Juanito Maagad
Zone 8, Bulua,
Cagayan de Oro City
Dear Mr. Maagad,
Please be informed that the parcel of land, Lot No. 6297 which has been occupied by your
children situated at Bulua, Cagayan de Oro City had been the same property adjudicated in favor
of ADELO MAAGAD as per Extra-Judicial Partition of Real Estate executed by and between the
Heirs of Proceso Maagad before Notary Public, Ricardo A. Tapia per Doc. No. 433, Page No. 88,
Book No. IV, series of 1972.

In this connection, my client, Lynn V. Maagad, one of the Heirs of Adelo Maagad, desires to
recover possession over the said Lot No. 6297. And, being close relatives it is hoped that you
could peacefully turn-over possession over the said property to Lynn V. Maagad, without
resorting to the costly avenue of litigation.
Anticipating your kind cooperation on the matter.
Very truly yours,
(SGD.) ELIZER C. FLORES
At my instance:
(SGD.) LYNN V. MAAGAD24 (emphases added)
The letter proves that (1) petitioner Lynn was not in possession, much less occupation, of Lot
6297; and (2) he had knowledge that the same was occupied by another person, contrary to the
claims he made when he applied for the free patent. Moreover, the records show that it was, in
fact, respondent who had possessed, occupied and cultivated Lot 6297 by planting coconut trees
thereon since around 1950.
Petitioner also claims that he had been religiously paying the realty taxes due Lot 6297
presenting, as evidence, Tax Declaration No. 9365-140001 in the name of the Heirs of Adelo
Maagad25 and an Official Receipt.26 The claim is again belied by a perusal of the evidence. The
tax declaration and official receipt were issued only on 15 September 1993 and 8 October 1993,
respectively, both after the land title to the subject property had already been issued on 10 August
1993. In fact, the tax declaration notes that it was transferred by virtue of such land title. The
records again show that it was respondent Juanito who had been paying the realty taxes.
In view of the foregoing, we hold that petitioner Lynn Maagad committed fraud and gross
misrepresentation in his free patent application. Actual or positive fraud proceeds from an
intentional deception practiced by means of misrepresentation of material facts,27 which in this
case was the conscious misrepresentation by petitioner that he was a fully qualified applicant
possessing all the requirements provided by law. Moreover, failure and intentional omission of
the petitioner-applicant to disclose the fact of actual physical possession by the respondent
constitutes an allegation of actual fraud. It is likewise fraud to knowingly omit or conceal a fact,
upon which benefit is obtained to the prejudice of a third person.28
Petitioner Lynn Maagad was never qualified to apply for a free patent. Hence, the free patent
granted on the bases of fraud and misrepresentation is null and void. Consequently, OCT No. P3614 issued pursuant thereto is likewise null and void. Being such, it cannot be reconveyed.
Quod nullum est, nullum producit effectum. That which is a nullity produces no effect.
IN VIEW WHEREOF, the instant petition for review on certiorari is DENIED. The assailed 7
February 2006 Decision of the Court of Appeals in CA-G.R. CV No. 56663 is AFFIRMED.

Costs against petitioner.

SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

LUCAS P. BERSAMIN
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1

Under Rule 45 of the Revised Rules of Court.

Promulgated on 7 February 2006; penned by Associate Justice Rodrigo F. Lim, Jr., with
the concurrence of Associate Justices Teresita Dy-Liacco Flores and Ramon R. Garcia,
Twenty-First Division; rollo, pp. 18-40.
3

Promulgated on 6 March 1997; CA rollo, pp. 46-53.

Records, p. 32.

Id. at 113; TSN, 15 November 1995, p.9.

Exhibit "N," index of exhibits, pp. 22-27.

Also forms part of Proceso Maagads estate, with an area of one thousand, nine hundred
ten square meters (1,910 sq. m.).
8

Exhibit "L," index of exhibits, p. 19.

Exhibit "F," id. at 9-10.

10

CA rollo, pp. 51-53.

11

Rollo, p. 40.

12

Id. at 30-32.

13

Revised rules on Evidence, Rule 130, Section 9.

SEC. 9. Evidence of written agreements. 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 terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of
the written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement
of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors-ininterest after the execution of the written agreement.
The terms "agreement" includes wills. (7a)

14

Amoncio v. Benedicto, G.R. No. 171707, 28 July 2008, 560 SCRA 219.

15

Bank of the Philippine Islands v. Fidelity & Surety Co., 51 Phil. 57 (1927).

16

Rollo, p. 32.

17

Exhibit "L," index of exhibits, p. 19;

The Memorandum of Exchange failed to rectify the mistake in the Partition
because of another mistake. In this instance, there was an error in the
identification of the "Party of the First Part" and the "Party of the Second Part"

such that the erroneous distribution of Lot Nos. 6297 and 6270 in the Partition
was reflected in the Memorandum.
This comedy of errors where a mistake exists in two written agreements, with the
latter agreement executed to correct the former, deserves further discussion. While
it is true that the natural presumption is that one always acts with due care and
signs with full knowledge of all the contents of a document for which he cannot
repudiate the transaction (Tan Tua Sia v. Yu Biao Sontua, 56 Phil. 707 [1932]), the
presumption does not apply when the contract is in a language not understood by
one of the parties. The pertinent provision of the Civil Code reads:
Art. 1332. When one of the parties is unable to read, or if the contract is in a
language not understood by him, and mistake or fraud is alleged, the person
enforcing the contract must show that the terms thereof have been fully explained
to the former. (n)
Teodora Maagad, wife of respondent and witness to the execution of the
Memorandum of Exchange, testified that the Memorandum was in English and
was not translated to Visayan dialect (TSN, 15 November 1995, p. 54) which is
the language used and fully understood by the respondent. She also stated that the
content of the Memorandum was read aloud to the parties by the son of the lawyer
who prepared the document. Her husband, hard of hearing, just signed it (TSN, 15
November 1995, p. 46). Courts are given a wide latitude in weighing the facts or
circumstances in a given case and in deciding in favor of what they believe
actually occurred, considering the age, physical infirmity, intelligence,
relationship and the conduct of the parties at the time of making the contract and
subsequent thereto (Leonardo v. Court of Appeals, G.R. No. 125485, 13
September 2004, 438 SCRA 201). We consider the advanced age of the
respondent, his hearing defect, his unfamiliarity with the English language used in
the Memorandum, and the fact that he was executing it among his relatives as
sufficient reasons to grant him some leniency for failing to detect yet another
mistake in a written agreement he has signed.
18

Art. 1361. When a mutual mistake of the parties causes the failure of the instrument to
disclose their real agreement, said instrument may be reformed.
19

Rollo, pp. 14-15.

20

St. Marys Farm, Inc. v. Prima Real Properties, Inc., G.R. No. 158144, 31 July 2008,
560 SCRA 704.
21

22

Commonwealth Act No. 141.

An Act Granting a Period Ending on December 31, 2000 for Filing Applications for
Free Patent and Judicial Confirmation of Imperfect Title to Alienable and Disposable

Lands of the Public Domain Under Chapters VII and VIII of the Public Land Act (CA
141, as amended).
23

Exhibit "E," index of exhibits, p. 8.

24

Exhibit "H," id. at 13.

25

Exhibit "B," id. at 4.

26

Id. at 5.

27

Gasataya v. Mabasa, G. R. No. 148147, 16 February 2007, 516 SCRA 105.

28

Heirs of Manuel A. Roxas v. Court of Appeals, G. R. No. 118436, 21 March 1997, 270
SCRA 309.
The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 150206

March 13, 2009

Heirs of TEOFILO GABATAN, namely: LOLITA GABATAN, POMPEYO GABATAN,

PEREGRINO GABATAN, REYNALDO GABATAN, NILA GABATAN AND JESUS
JABINIS, RIORITA GABATAN TUMALA and FREIRA GABATAN, Petitioners,
vs.
Hon. COURT OF APPEALS and LOURDES EVERO PACANA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Assailed and sought to be set aside in the instant petition for review on certiorari are the
Decision1 dated April 28, 2000, and Resolution2 dated September 12, 2001 of the Court of
Appeals (CA), in CA G.R. CV No. 52273. The challenged Decision affirmed the decision3 of the
Regional Trial Court (RTC) of Cagayan de Oro City, Branch 19, dated October 20, 1995 in Civil
Case No. 89-092, an action for Recovery of Property and Ownership and Possession, thereat
commenced by respondent Lourdes Evero Pacana against petitioners, heirs of Teofilo Gabatan,
Jesus Jabinis and Catalino Acantilado.
Subject of the present controversy is a 1.1062 hectare parcel of land, identified as Lot 3095 C-5
and situated at Calinugan, Balulang, Cagayan de Oro City. This lot was declared for taxation in
the name of Juan Gabatan. In the complaint before the RTC, respondent alleged that she is the
sole owner of Lot 3095 C-5, having inherited the same from her deceased mother, Hermogena
Gabatan Evero (Hermogena). Respondent further claimed that her mother, Hermogena, is the
only child of Juan Gabatan and his wife, Laureana Clarito. Respondent alleged that upon the
death of Juan Gabatan, Lot 3095 C-5 was entrusted to his brother, Teofilo Gabatan (Teofilo), and
Teofilos wife, Rita Gabatan, for administration. It was also claimed that prior to her death
Hermogena demanded for the return of the land but to no avail. After Hermogenas death,
respondent also did the same but petitioners refused to heed the numerous demands to surrender
the subject property. According to respondent, when Teofilo and his wife died, petitioners Jesus
Jabinis and Catalino Acantilado took possession of the disputed land despite respondents
demands for them to vacate the same.
In their answer, petitioners denied that respondents mother Hermogena was the daughter of Juan
Gabatan with Laureana Clarito and that Hermogena or respondent is the rightful heir of Juan
Gabatan. Petitioners maintained that Juan Gabatan died single in 1934 and without any issue and
that Juan was survived by one brother and two sisters, namely: Teofilo (petitioners predecessorin-interest), Macaria and Justa. These siblings and/or their heirs, inherited the subject land from
Juan Gabatan and have been in actual, physical, open, public, adverse, continuous and

uninterrupted possession thereof in the concept of owners for more than fifty (50) years and
enjoyed the fruits of the improvements thereon, to the exclusion of the whole world including
respondent. Petitioners clarified that Jesus Jabinis and Catalino Acantilado have no interest in the
subject land; the former is merely the husband of Teofilos daughter while the latter is just a
caretaker. Petitioners added that a similar case was previously filed by respondent against
Teofilos wife, Rita Vda. de Gabatan, on February 21, 1978, docketed as Civil Case No. 5840 but
the case was dismissed on May 3, 1983 for lack of interest. Finally, petitioners contended that the
complaint lacks or states no cause of action or, if there was any, the same has long prescribed
and/or has been barred by laches.
On June 20, 1989, the complaint was amended wherein the heirs of Teofilo were individually
named, to wit: Lolita Gabatan, Pompeyo Gabatan, Peregrino Gabatan, Reynaldo Gabatan, Nila
Gabatan and Jesus Jabinis, Riorita Gabatan Tumal and Freira Gabatan.
On July 30, 1990, petitioners filed an amended answer, additionally alleging that the disputed
land was already covered by OCT No. P-3316 in the name of the heirs of Juan Gabatan
represented by petitioner Riorita Gabatan (Teofilos daughter).
On October 20, 1995, the RTC rendered a decision in favor of respondent, the dispositive portion
of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants,
declaring the plaintiff the owner of Lot No. 3095 C-5 situated at Calinugan, Balulang, Cagayan
de Oro City; and ordering the defendants represented by Riorita Gabatan Tumala to
RECONVEY Original Certificate of Title No. P-3316 in favor of plaintiff Lourdes Evero Pacana,
free of any encumbrance; ordering the defendants to pay P10,000.00 by way of moral damages;
P10,000.00 as Attorneys fees; and P2,000.00 for litigation expenses.
SO ORDERED.4
Aggrieved, petitioners appealed to the CA whereat their recourse was docketed as CA-G.R. CV
No. 52273.
On April 28, 2000, the CA rendered the herein challenged Decision affirming that of the RTC.
Dispositively, the Decision reads:
WHEREFORE, premises considered, the questioned decision of the lower court dated October
20, 1995 is hereby AFFIRMED. With costs against appellants.
SO ORDERED.
Discounting petitioners argument that respondent is not related to Juan Gabatan, the CA
declared that respondents claim of filiation with Juan Gabatan was sufficiently established
during trial. Thus, the CA echoed a long line of jurisprudence that findings of fact of the trial
court are entitled to great weight and are not disturbed except for cogent reasons, such as when
the findings of fact are not supported by evidence.

The CA likewise gave weight to the Deed of Absolute Sale5 executed by Macaria Gabatan de
Abrogar, Teofilo, Hermogena and heirs of Justa Gabatan, wherein Hermogena was identified as
an heir of Juan Gabatan:
x x x HERMOGENA GABATAN, of legal age, married, Filipino citizen and presently residing at
Kolambugan, Lanao del Norte, Philippines, as Heir of the deceased, JUAN GABATAN; x x x.
To the CA, the Deed of Absolute Sale on July 30, 1966 containing such declaration which was
signed by Teofilo and the latters nearest relatives by consanguinity, is a tangible proof that they
acknowledged Hermogenas status as the daughter of Juan Gabatan. Applying Section 38, Rule
1306 of the Rules of Court on the declaration against interest, the CA ruled that petitioners could
not deny that even their very own father, Teofilo formally recognized Hermogenas right to
heirship from Juan Gabatan which ultimately passed on to respondent.
As to the issue of prescription, the CA ruled that petitioners possession of the disputed property
could not ripen into acquisitive prescription because their predecessor-in-interest, Teofilo, never
held the property in the concept of an owner.lawphil.net
Aggrieved, petitioners are now with this Court via the present recourse principally contending
that the CA committed the following reversible errors:
FIRST ERROR: The lower court erred in not declaring that Juan Gabatan died single and
without issue;
SECOND ERROR: The lower court erred in declaring the plaintiff-appellee (respondent)
as the sole and surviving heir of Juan Gabatan, the only child of a certain Hermogena
Clareto "GABATAN";
THIRD ERROR: The lower court erred in declaring that a certain Hermogena Clareto
"GABATAN" is the child and sole heir of Juan Gabatan;
FOURTH ERROR: The lower court erred in failing to appreciate by preponderance of
evidence in favor of the defendants-appellants (petitioners) claim that they and the heirs
of Justa and Macaria both surnamed Gabatan are the sole and surviving heirs of Juan
Gabatan and, therefore, entitled to inherit the land subject matter hereof;
FIFTH ERROR: The lower court erred in not declaring that the cause of action of
plaintiff-appellee (respondent) if any, has been barred by laches and/or prescription.7
Before proceeding to the merits of the case, we must pass upon certain preliminary matters.
In general, only questions of law may be raised in a petition for review on certiorari under Rule
45 of the Rules of Court. Questions of fact cannot be the subject of this particular mode of
appeal, for this Court is not a trier of facts.8 It is not our function to examine and evaluate the
probative value of the evidence presented before the concerned tribunal upon which its
impugned decision or resolution is based.91avvphi1

However, there are established exceptions to the rule on conclusiveness of the findings of fact by
the lower courts, such as (1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken; (3) when there is grave abuse
of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the admissions of both the appellant
and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioners main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered,
would justify a different conclusion.10
Moreover, our rules recognize the broad discretionary power of an appellate court to waive the
lack of proper assignment of errors and to consider errors not assigned. Thus, the Court is
clothed with ample authority to review rulings even if they are not assigned as errors in the
appeal in these instances: (a) grounds not assigned as errors but affecting jurisdiction over the
subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical
errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration
of which is necessary in arriving at a just decision and complete resolution of the case or to serve
the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically
assigned as errors on appeal but raised in the trial court and are matters of record having some
bearing on the issue submitted which the parties failed to raise or which the lower court ignored;
(e) matters not assigned as errors on appeal but closely related to an error assigned; and (f)
matters not assigned as errors on appeal but upon which the determination of a question properly
assigned, is dependent. 11
In the light of the foregoing established doctrines, we now proceed to resolve the merits of the
case.
The respondents main cause of action in the court a quo is the recovery of ownership and
possession of property. It is undisputed that the subject property, Lot 3095 C-5, was owned by
the deceased Juan Gabatan, during his lifetime.12 Before us are two contending parties, both
insisting to be the legal heir(s) of the decedent.
Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be
made in the proper special proceedings in court, and not in an ordinary suit for recovery of
ownership and possession of property. This must take precedence over the action for recovery of
possession and ownership. The Court has consistently ruled that the trial court cannot make a
declaration of heirship in the civil action for the reason that such a declaration can only be made
in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil
action is defined as one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact. It is then decisively clear that the

declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here
are seeking the establishment of a status or right.13
In the early case of Litam, et al. v. Rivera,14 this Court ruled that the declaration of heirship must
be made in a special proceeding, and not in an independent civil action. This doctrine was
reiterated in Solivio v. Court of Appeals15 where the Court held:
xxx where despite the pendency of the special proceedings for the settlement of the intestate
estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they
claimed that they were the children by a previous marriage of the deceased to a Chinese woman,
hence, entitled to inherit his one-half share of the conjugal properties acquired during his
marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants
were not children of the deceased, that the properties in question were paraphernal properties of
his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled
that such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in
Civil Case No. 2071, it being within the exclusive competence of the court in Special
Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue
until the presentation of the project of partition.
In the more recent case of Milagros Joaquino v. Lourdes Reyes,16 the Court reiterated its ruling
that matters relating to the rights of filiation and heirship must be ventilated in the proper probate
court in a special proceeding instituted precisely for the purpose of determining such rights.
Citing the case of Agapay v. Palang,17 this Court held that the status of an illegitimate child who
claimed to be an heir to a decedents estate could not be adjudicated in an ordinary civil action
which, as in this case, was for the recovery of property.
However, we are not unmindful of our decision in Portugal v. Portugal-Beltran,18 where the Court
relaxed its rule and allowed the trial court in a proceeding for annulment of title to determine the
status of the party therein as heirs, to wit:
It appearing, however, that in the present case the only property of the intestate estate of Portugal
is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to establish the status of petitioners
as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an
administration proceeding. And it is superfluous in light of the fact that the parties to the civil
case subject of the present case, could and had already in fact presented evidence before the
trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to still
subject Portugals estate to administration proceedings since a determination of petitioners status
as heirs could be achieved in the civil case filed by petitioners (Vide Pereira v. Court of Appeals,
174 SCRA 154 [1989]; Intestate Estate of Mercado v. Magtibay, 96 Phil. 383 [1955]), the trial
court should proceed to evaluate the evidence presented by the parties during the trial and render
a decision thereon upon the issues it defined during pre-trial, x x x. (emphasis supplied)

Similarly, in the present case, there appears to be only one parcel of land being claimed by the
contending parties as their inheritance from Juan Gabatan. It would be more practical to dispense
with a separate special proceeding for the determination of the status of respondent as the sole
heir of Juan Gabatan, specially in light of the fact that the parties to Civil Case No. 89-092, had
voluntarily submitted the issue to the RTC and already presented their evidence regarding the
issue of heirship in these proceeding. Also the RTC assumed jurisdiction over the same and
consequently rendered judgment thereon.
We GRANT the petition.
After a meticulous review of the records of this case, we find insufficient and questionable the
basis of the RTC in conferring upon respondent the status of sole heir of Juan Gabatan.
Respondent, in asserting to be entitled to possession and ownership of the property, pinned her
claim entirely on her alleged status as sole heir of Juan Gabatan. It was incumbent upon her to
present preponderant evidence in support of her complaint.
Under the Civil Code, the filiation of legitimate children is established by any of the following:
ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the
Civil Register, or by an authentic document or a final judgment.
ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be
proved by the continuous possession of status of a legitimate child.
ART. 267. In the absence of a record of birth, authentic document, final judgment or possession
of status, legitimate filiation may be proved by any other means allowed by the Rules of Court
and special laws.
Here, two conflicting birth certificates19 of respondent were presented at the RTC. Respondent,
during her direct testimony, presented and identified a purported certified true copy of her
typewritten birth certificate which indicated that her mothers maiden name was "Hermogena
Clarito Gabatan." Petitioners, on the other hand, presented a certified true copy of respondents
handwritten birth certificate which differed from the copy presented by respondent. Among the
differences was respondents mothers full maiden name which was indicated as "Hermogena
Calarito" in the handwritten birth certificate.
In resolving this particular issue, the trial court ruled in this wise:
The parties are trying to outdo with (sic) each other by presenting two conflicting Certificate
(sic) of Live Birth of plaintiff herein, Lourdes Evero Pacana, which are Exhibit "A" for the
plaintiff and Exhibit "1" for the defendants. Which of this (sic) is genuine, and which is falsified.
These (sic) issue is crucial and requires serious scrutiny. The Court is of the observation that
Exhibit "A" for the plaintiff which is a certified true copy is in due form and bears the "as is and
where is" rule. It has the impression of the original certificate. The forms (sic) is an old one used
in the 1950s. Her mothers maiden name appearing thereof is Hermogina (sic) Clarito Gabatan.

While Exhibit "1", the entries found thereof (sic) is handwritten which is very unusual and of
dubious source. The form used is of latest vintage. The entry on the space for mothers maiden
name is Hermogena Calarito. There seems to be an apparent attempt to thwart plaintiffs mother
filiation with the omission of the surname Gabatan. Considering these circumstances alone the
Court is inclined to believe that Exhibit "A" for the plaintiff is far more genuine and authentic
certificate of live birth.20
Having carefully examined the questioned birth certificates, we simply cannot agree with the
above-quoted findings of the trial court. To begin with, Exhibit A, as the trial court noted, was an
original typewritten document, not a mere photocopy or facsimile. It uses a form of 1950s
vintage21 but this Court is unable to concur in the trial courts finding that Exhibit 122 was of a
later vintage than Exhibit A which was one of the trial courts bases for doubting the authenticity
of Exhibit 1. On the contrary, the printed notation on the upper left hand corner of Exhibit 1
states "Municipal Form No. 102 (Revised, January 1945)" which makes it an older form than
Exhibit A. Thus, the trial courts finding regarding which form was of more recent vintage was
manifestly contradicted by the evidence on record. No actual signature appears on Exhibit A
except that of a certain Maximo P. Noriga, Deputy Local Civil Registrar of the Office of the
Local Civil Registrar, Cagayan de Oro City, who purportedly certified on July 6, 1977 that
Exhibit A was a true copy of respondents birth certificate. The names of the attendant at birth
(Petra Sambaan) and the local civil registrar (J.L. Rivera) in 1950 were typewritten with the
notation "(Sgd.)" also merely typewritten beside their names. The words "A certified true copy:
July 6, 1977" above the signature of Maximo P. Noriga on Exhibit A appear to be inscribed by
the same typewriter as the very entries in Exhibit A. It would seem that Exhibit A and the
information stated therein were prepared and entered only in 1977. Significantly, Maximo P.
Noriga was never presented as a witness to identify Exhibit A. Said document and the signature
of Maximo P. Noriga therein were identified by respondent herself whose self-serving testimony
cannot be deemed sufficient authentication of her birth certificate.
We cannot subscribe to the trial courts view that since the entries in Exhibit 1 were handwritten,
Exhibit 1 was the one of dubious credibility. Verily, the certified true copies of the handwritten
birth certificate of respondent (petitioners Exhibits 1 and 8) were duly authenticated by two
competent witnesses; namely, Rosita Vidal (Ms. Vidal), Assistant Registration Officer of the
Office of the City Civil Registrar, Cagayan de Oro City and Maribeth E. Cacho (Ms. Cacho),
Archivist of the National Statistics Office (NSO), Sta. Mesa, Manila. Both witnesses testified
that: (a) as part of their official duties they have custody of birth records in their respective
offices,23 and (b) the certified true copy of respondents handwritten birth certificate is a faithful
reproduction of the original birth certificate registered in their respective offices.24 Ms. Vidal,
during her testimony, even brought the original of the handwritten birth certificate before the trial
court and respondents counsel confirmed that the certified true copy (which was eventually
marked as Exhibit 1) was a faithful reproduction of the original.25 Ms. Vidal likewise
categorically testified that no other copy of respondents birth certificate exists in their records
except the handwritten birth certificate.26 Ms. Cacho, in turn, testified that the original of
respondents handwritten birth certificate found in the records of the NSO Manila (from which
Exhibit 8 was photocopied) was the one officially transmitted to their office by the Local Civil
Registry Office of Cagayan de Oro.27 Both Ms. Vidal and Ms. Cacho testified and brought their
respective offices copies of respondents birth certificate in compliance with subpoenas issued

by the trial court and there is no showing that they were motivated by ill will or bias in giving
their testimonies. Thus, between respondents Exhibit A and petitioners Exhibits 1 and 8, the
latter documents deserve to be given greater probative weight.
Even assuming purely for the sake of argument that the birth certificate presented by respondent
(Exhibit A) is a reliable document, the same on its face is insufficient to prove respondents
filiation to her alleged grandfather, Juan Gabatan. All that Exhibit A, if it had been credible and
authentic, would have proven was that respondents mother was a certain "Hermogena Clarito
Gabatan." It does not prove that same "Hermogena Clarito Gabatan" is the daughter of Juan
Gabatan. Even the CA held that the conflicting certificates of live birth of respondent submitted
by the parties only proved the filiation of respondent to Hermogena.28
It was absolutely crucial to respondents cause of action that she convincingly proves the filiation
of her mother to Juan Gabatan. To reiterate, to prove the relationship of respondents mother to
Juan Gabatan, our laws dictate that the best evidence of such familial tie was the record of birth
appearing in the Civil Register, or an authentic document or a final judgment. In the absence of
these, respondent should have presented proof that her mother enjoyed the continuous possession
of the status of a legitimate child. Only in the absence of these two classes of evidence is the
respondent allowed to present other proof admissible under the Rules of Court of her mothers
relationship to Juan Gabatan.
However, respondents mothers (Hermogenas) birth certificate, which would have been the best
evidence of Hermogenas relationship to Juan Gabatan, was never offered as evidence at the
RTC. Neither did respondent present any authentic document or final judgment categorically
evidencing Hermogenas relationship to Juan Gabatan.
Respondent relied on the testimony of her witnesses, Frisco Lawan, Felicisima Nagac Pacana
and Cecilia Nagac Villareal who testified that they personally knew Hermogena (respondents
mother) and/or Juan Gabatan, that they knew Juan Gabatan was married to Laureana Clarito and
that Hermogena was the child of Juan and Laureana. However, none of these witnesses had
personal knowledge of the fact of marriage of Juan to Laureana or the fact of birth of Hermogena
to Juan and Laureana. They were not yet born or were very young when Juan supposedly married
Laureana or when Hermogena was born and they all admitted that none of them were present at
Juan and Laureanas wedding or Hermogenas birth. These witnesses based their testimony on
what they had been told by, or heard from, others as young children. Their testimonies were, in a
word, hearsay.
Other circumstances prevent us from giving full faith to respondents witnesses testimonies. The
records would show that they cannot be said to be credible and impartial witnesses. Frisco
Lawan testified that he was the son of Laureana by a man other than Juan Gabatan and was
admittedly not at all related to Juan Gabatan.29 His testimony regarding the relationships within
the Gabatan family is hardly reliable. As for Felicisima Nagac Pacana and Cecilia Nagac
Villareal who are children of Justa Gabatan Nagac,30 this Court is wary of according probative
weight to their testimonies since respondent admitted during her cross-examination that her
(respondents) husband is the son of Felicisima Nagac Pacana.31 In other words, although these

witnesses are indeed blood relatives of petitioners, they are also the mother and the aunt of
respondents husband. They cannot be said to be entirely disinterested in the outcome of the case.
Aside from the testimonies of respondents witnesses, both the RTC and the CA relied heavily on
a photocopy of a Deed of Absolute Sale32 (Exhibit H) presented by respondent and which
appeared to be signed by the siblings and the heirs of the siblings of Juan Gabatan. In this
document involving the sale of a lot different from Lot 3095 C-5, "Hermogena Gabatan as heir
of the deceased Juan Gabatan" was indicated as one of the vendors. The RTC deemed the
statement therein as an affirmation or recognition by Teofilo Gabatan, petitioners predecessor in
interest, that Hermogena Gabatan was the heir of Juan Gabatan.33 The CA considered the same
statement as a declaration against interest on the part of Teofilo Gabatan.34
However, the admission of this Deed of Absolute Sale, including its contents and the signatures
therein, as competent evidence was vigorously and repeatedly objected to by petitioners counsel
for being a mere photocopy and not being properly authenticated.35 After a close scrutiny of the
said photocopy of the Deed of Absolute Sale, this Court cannot uphold the admissibility of the
same.
Under the best evidence rule, when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself.36 Although the best evidence
rule admits of exceptions and there are instances where the presentation of secondary evidence
would be allowed, such as when the original is lost or the original is a public record, the basis for
the presentation of secondary evidence must still be established. Thus, in Department of
Education Culture and Sports v. Del Rosario,37 we held that a party must first satisfactorily
explain the loss of the best or primary evidence before he can resort to secondary evidence. A
party must first present to the court proof of loss or other satisfactory explanation for nonproduction of the original instrument.
In the case at bar, a perusal of the transcript of the testimony of Felicisima Nagac Pacana (who
identified the photocopy of the Deed of Absolute Sale) plainly shows that she gave no testimony
regarding the whereabouts of the original, whether it was lost or whether it was recorded in any
public office.
There is an ostensible attempt to pass off Exhibit H as an admissible public document. For this,
respondent relied on the stamped notation on the photocopy of the deed that it is a certified true
xerox copy and said notation was signed by a certain Honesto P. Velez, Sr., Assessment Officer,
who seems to be an officer in the local assessors office. Regarding the authentication of public
documents, the Rules of Court38 provide that the record of public documents, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the
officer having legal custody of the record, or by his deputy.39 The attestation of the certifying
officer must state, in substance, that the copy is a correct copy of the original, or a specific part
thereof, as the case may be.40
To begin with, no proof whatsoever was presented by respondent that an original of Exhibit H
was registered or exists in the records of the local assessors office. Furthermore, the stamped
certification of Honesto P. Velez is insufficient authentication of Exhibit H since Velezs

certification did not state that Exhibit H was a true copy from the original. Even worse, Velez
was not presented as a witness to attest that Exhibit H was a true copy from the original. Indeed,
it is highly doubtful that Velez could have made such an attestation since the assessors office is
not the official repository of original notarized deeds of sale and could not have been the legal
custodian contemplated in the rules.
It is the notary public who is mandated by law to keep an original of the Deed of Absolute Sale
in his notarial register and to forward the same to the proper court. It is the notary public or the
proper court that has custody of his notarial register that could have produced the original or a
certified true copy thereof. Instead, the Deed of Absolute Sale was identified by Felicisima
Nagac Pacana who, despite appearing to be a signatory thereto, is not a disinterested witness and
as can be gleaned from her testimony, she had no personal knowledge of the preparation of the
alleged certified true copy of the Deed of Absolute Sale. She did not even know who secured a
copy of Exhibit H from the assessors office.41 To be sure, the roundabout and defective manner
of authentication of Exhibit H renders it inadmissible for the purpose it was offered, i.e. as proof
that Teofilo Gabatan acknowledged or admitted the status of Hermogena Gabatan as heir of Juan
Gabatan.
Even if we are to overlook the lack of proper authentication of Exhibit H and consider the same
admissible, it still nonetheless would have only provided proof that a certain Hermogena
Gabatan was the heir of Juan Gabatan. Exhibit H does not show the filiation of respondent to
either Hermogena Gabatan or Juan Gabatan. As discussed above, the only document that
respondent produced to demonstrate her filiation to "Hermogena Gabatan" (respondents Exhibit
A) was successfully put in doubt by contrary evidence presented by petitioners.
As for the issue of laches, we are inclined to likewise rule against respondent. According to
respondents own testimony,42 Juan Gabatan died sometime in 1933 and thus, the cause of action
of the heirs of Juan Gabatan to recover the decedents property from third parties or to quiet title
to their inheritance accrued in 1933. Yet, respondent and/or her mother Hermogena, if they were
truly the legal heirs of Juan Gabatan, did not assert their rights as such. It is only in 1978 that
respondent filed her first complaint to recover the subject property, docketed as Civil Case No.
5840, against Rita Gabatan, the widow of Teofilo Gabatan.43 However, that case was dismissed
without prejudice for failure to prosecute.44 Again, respondent waited until 1989 to refile her
cause of action, i.e. the present case.45 She claimed that she waited until the death of Rita
Gabatan to refile her case out of respect because Rita was then already old.46
We cannot accept respondents flimsy reason. It is precisely because Rita Gabatan and her
contemporaries (who might have personal knowledge of the matters litigated in this case) were
advancing in age and might soon expire that respondent should have exerted every effort to
preserve valuable evidence and speedily litigate her claim. As we held in Republic of the
Philippines v. Agunoy: "Vigilantibus, sed non dormientibus, jura subveniunt, the law aids the
vigilant, not those who sleep on their rights[O]ne may not sleep on a right while expecting to
preserve it in its pristine purity."47
All in all, this Court finds that respondent dismally failed to substantiate, with convincing,
credible and independently verifiable proof, her assertion that she is the sole heir of Juan

Gabatan and thus, entitled to the property under litigation. Aggravating the weakness of her
evidence were the circumstances that (a) she did not come to court with clean hands for she
presented a tampered/altered, if not outright spurious, copy of her certificate of live birth and (b)
she unreasonably delayed the prosecution of her own cause of action. If the Court cannot now
affirm her claim, respondent has her own self to blame.
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision in CA-G.R. CV No.
52273, affirming the decision of the Regional Trial Court in Civil Case No. 89-092, is hereby
REVERSED and SET ASIDE. The complaint and amended complaint in Civil Case No. 89-092
are DISMISSED for lack of merit.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO**
Associate Justice
ANTONIO T. CARPIO***
Associate Justice
Acting Chairperson

RENATO C. CORONA
Associate Justice

ARTURO D. BRION****
Associate Justice
AT T E S T AT I O N
I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division
ANTONIO T. CARPIO
Associate Justice
Acting Chairperson, First Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Acting Division Chairpersons
Attestation, I certify that the conclusions in the above decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Acting Chief Justice

Footnotes
*

Chief Justice Reynato S. Puno is on official leave

**

Additional member in lieu of Chief Justice Reynato S. Puno as per Special Order No.
584.
***

Acting Chairperson as per Special Order No. 583.

****

Additional member as per Special Order No. 570.

Penned by Associate Justice Mario M. Umali (ret.) with Presiding Justice Conrado M.
Vasquez, Jr., and Associate Justice Edgardo P. Cruz, concurring; rollo, pp. 16-34.
2

Rollo, p. 35.

Id. at. 37-47.

Supra, note 3.

Rollo, pp. 309-311.

Rule 130.
Sec. 38. Declaration against interest. The declaration made by a person
deceased, or unable to testify, against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position would not have
made the declaration unless he believed it to be true, may be received in evidence
against himself or his successors in interest and against third persons.

Rollo, p. 8.

Air Philippines Corporation v. International Business Aviation Services Phils., Inc., G.R.
No. 151963, September 9, 2004, 438 SCRA 51, 76 .
9

Junson v. Martinez, G.R. No. 141324, July 8, 2003, 405 SCRA 390, 393.

10

Toriano v. Trieste, G.R. No. 146937, January 23, 2007, 512 SCRA 264, 267-268;
Madrigal v. Court of Appeals, G.R. No. 142944, April 15, 2005, 456 SCRA 247, 256.
11

Catholic Bishop of Balanga v. Court of Appeals, G.R. No. 112519, November 14, 1996,
332 Phil. 206, 217.

12

It is only on appeal that petitioners posit the contention that Juan Gabatan and his
siblings were co-owners in equal shares of Lot 3095 C-5 since they allegedly inherited
the same from their parents. However, it is well-settled that points of law, theories, issues
and arguments not adequately brought to the attention of the lower court need not be
considered by the reviewing court as they cannot be raised for the first time on appeal
(Multi-Realty Development Corporation v. Makati Tuscany Condominium Corporation,
G.R. No. 146726, June 16, 2006, 491 SCRA 9, 23). In this instance, petitioners conceded
in their answer and other pleadings with the court a quo that the subject property was
owned by Juan Gabatan and their claim of ownership was based on their status as heirs of
Juan Gabatan.
13

Heirs of Yaptinchay v. del Rosario, G.R. No. 124320 March 2, 1999, 304 SCRA 18, 23.

14

G.R. No. L-7644, November 27, 1956, 100 Phil. 364, 378.

15

182 SCRA 119, 128 (1990).

16

G.R. No. 154645, 434 SCRA 260, 274 (2004).

17

342 Phil. 302, 313 (1997).

18

G.R. No. 155555, 467 SCRA 184, 199 (2005).

19

Record, pp. 251 and 415.

20

Rollo, p. 44.

21

The printed notation on the upper left hand corner of Exhibit A states "Municipal Form
No. 102 (Revised on Dec. 1, 195X)." The last digit of the year is not clear and appears
to be either 1953 or 1958. In any event, considering that respondents birth date is
December 17, 1950, the Court believes that it is impossible that respondents true birth
certificate would use a form that appears to have only come into existence after her birth.
22

Exhibit 1 is a certified true copy of respondents birth certificate which was identified
by witness Rosita Vidal of the Local Civil Registrars Office, Cagayan de Oro. It is
identical in material respects to Exhibit 8 which was identified by witness Maribeth
Cacho of the National Statistics Office, Manila.
23

TSN of Ms. Vidals Testimony dated February 16, 1993 at p. 5 and TSN of Ms. Cachos
Deposition dated June 16, 1993 at p. 6.
24

TSN of Ms. Vidals Testimony dated February 16, 1993 at p. 6 and TSN of Ms. Cachos
Deposition dated June 16, 1993 at p. 8.
25

TSN of Ms. Vidals Testimony dated February 16, 1993 at p. 5.

26

Id. at. 6-7.

27

TSN of Ms. Cachos Deposition dated June 16, 1993 at p. 9.

28

CA Decision, p. 14; rollo, p. 29.

29

TSN of Frisco Lawans testimony dated December 13, 1990 at p. 8.

30

Justa Gabatan Nagac was the sister of Juan Gabatan.

31

TSN of respondents testimony dated March 31, 1992 at p. 43.

32

Supra, at note 5.

33

RTC Decision at pp. 8-9; rollo, pp. 44-45.

34

CA Decision at pp. 14-16; rollo, pp. 29-31.

35

TSN of the Deposition of Felicisima Nagac Pacana dated July 8, 1992 at pp. 7, 8, 15,
21, 27-28 and 38-39.
36

Rule 130, Section 3, Rules of Court.

37

G.R. No. 146586, January 26, 2005, 449 SCRA 299, 313.

38

Rule 132, Sections 24 and Section 25 of the 1989 Rules of Evidence and the present
Rules of Court are similarly worded.
39

Rule 132, Section 24.

40

Rule 132, Section 25.

41

Supra note 35, at p. 28.

42

Supra note 31, at p. 7.

43

Id. at 36

44

Id. at 40; see also rollo, p. 51.

45

The complaint was filed on March 15, 1989 and the amended complaint was filed on
June 20, 1989; Records, at pp. 1 and 38.
46

Supra note 31, at p. 40.

47

G.R. No. 155394, February 17, 2005; 451 SCRA 749.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
EN BANC
G. R. No. 172326

January 19, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff

vs.
ALFREDO PASCUAL Y ILDEFONSO Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:

Under review is the Decision1 dated December 9, 2005 of the Court of Appeals (CA) in CA-G.R.
CR.-HC No. 01493 finding accused-appellant Alfredo Pascual y Ildefonso alias BOYET guilty
beyond reasonable doubt of the crime of Rape with Homicide and sentencing him to suffer the
penalty of death. Said decision affirmed that of the Regional Trial Court (RTC), Branch 211,
Mandaluyong City, albeit with the modification that granted an additional award of P100,000.00
as civil indemnity to the heirs of the deceased-victim.
The conviction of accused-appellant stemmed from an Amended Information2 dated February 23,
2001, filed with the RTC for the crime designated as Rape with Homicide and Robbery, the
accusatory portion of which reads:
That on or about the 25th day of December 2000 in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, by the use of force and intimidation, did then and there willfully, unlawfully and
feloniously, lie and have carnal knowledge of one LORELYN PACUBAS y TAMAYO, against
the latters will and consent.
During the occasion or by reason of the rape with intent to kill and taking advantage of superior
strength, covered the face of said victim with a pillow, thus suffocating her which ultimately led
to her instantaneous death. Likewise, during or on occasion of the rape with intent to gain and by
means of force, violence and intimidation employed upon the person of Lorelyn Pacubas y

Tamayo, did then and there willfully, unlawfully and feloniously take, steal and carry away the
following, to wit:
a). one (1) gold necklace with pendant
b). one (1) pair of gold earring
c). college ring
d). Seiko ladys wristwatch
all in the total amount of P10,000.00 more or less, belonging to victim Lorelyn Pacubas y
Tamayo, to the damage and prejudice of the latter.
When arraigned, appellant pleaded not guilty to the charge. Trial thereafter ensued.
During trial, the prosecution presented seven (7) witnesses; namely, Rodolfo Jundos, Jr. and
Arlene Gorospe, both neighbors of the victim; Eduardo Velasco, a friend of the victims sister;
Police officers (PO)2 Fernando Aguilan and Police Inspector (P/Insp.) Russel Leysa; Dr. Felimon
Porciuncula, Jr., the Philippine National Police (PNP) medico-legal officer; and Lorenza
Pacubas, the victims mother. The prosecutions version of the facts, as narrated in the decision
under review, follows:
The incident xxx happened in a room at the second floor of House No. 724, Ballesteros St.,
Barangay New Zaniga, Mandaluyong City. The sketch of the house (Exh. A, p. 148 Records)
shows it has three (3) rooms; on the first floor, one occupied by Arlene Gorospe and family (exh.
A-1); the second, by Alfredo Pascual and his family (Exh. A-2); and the third is the residence of
Rodolfo Jundos, Jr. and his family. On the second floor is another room occupied by the family
of the victim Lorelyn Pacubas y Tamayo (alias Ling-Ling) and her siblings.
Last December 24, 2000, at around 10:00 oclock in the evening, Rodolfo Jundos, Jr. was
preparing to celebrate noche buena with his son and the accused-appellant, Alfredo Pascual who
was with Christopher, his 2-year old youngest child. Alfredo Pascual appeared to have had liquor
already. For three (3) instances, the accused would ask permission to go inside the house as he
was already sleepy and drunk but nonetheless will return 10 to 15 minutes later, twice still with
the child and only to continue drinking every time he returned. On the third time, he was without
the child anymore and partake (sic) of liquor until 1:00 oclock a.m. when he left, leaving
Rodolfo Jundos, Jr. alone just outside the aforesaid house at 724 Ballesteros St. (Exh. A-8).
Twenty (20) minutes later, Divina Pascual, appellants wife, came out the house looking for her
husband. When informed that the latter had already left, Divina started looking for him inside the
house and later in the billiard hall 10 or 15 minutes away. Moments later, Divina went passed
(sic) the place where Rodolfo Jundos, Jr. was drinking, rushing upstairs to the second floor of the
house. Soon after, Jundos saw Divina chasing Alfredo running out towards the gate at the same
time asked (sic) Jundos for help saying Kuya, tulungan mo ako, si Boyet (referring to Alfredo
Pascual)). Thinking that Alfredo Pascual was making trouble, Rodolfo Jundos, Jr. joined the
chase but could not catch up as Alfredo was running very fast. So Divina told him to instead go

upstairs as the accused might have done something wrong to Ling-ling (Lorelyn) [T.S.N. pp. 411, October 24, 2002]. Rodolfo Jundos, Jr. is the husband of appellants older sister, Laarni.
Together, Jundos and Divina rushed to the second floor. As the place was dark, they switched on
the light and there they saw Ling-ling (Lorelyn Pacubas) flat on her back on the floor almost
naked with arms and legs open, her panty and shorts down to her ankle and t-shirt pulled up
above the breast with blood on the right breast. They tried to wake up Ling-ling but the latter was
already dead. Rodolfo Jundos, Jr. was shocked at what he saw. Divina got hysterical and
repeatedly told Arlene Gorospe what happened (T.S.N., supra, pp. 11-14). It did not take long
before policemen from the Southern Command (SOCO) arrived.
That same morning Rodolfo Jundos, Jr. gave his statement before PO2 Fernando Aguilan (Exh.
C, p. 150 Records) and so did Divina Gorospe Pascual (Exh. D, p. 151). Arlene Gorospe likewise
executed his Sinumpaang Salaysay that same day, December 25, 2000, before Police Inspector
Efren Pascua Jugo. (Exh. B, p. 149, Records) It was this witness Arlene Gorospe who prepared
the sketch (Exh. A, p. 148, Records). Later in (sic) that fateful morning, police investigators
appeared in (sic) the scene of the incident and took pictures of the place and the victim while still
lying on the floor (Exhs. E, E-1 to E-7 and F-1 to F-5 xxx, p. 152, Records).
After proper police investigation and coordination, the victim, Lorelyn Pacubas, was brought to
the PNP Crime Laboratory, for autopsy and the examination of the blood found in the place of
the incident (Medico Legal Report No. S 056 00, Exh. M, p. 162, Records). The printed
underwear with suspected seminal stains was likewise examined. Medico-Legal Report No. R007-00 (Exh. N, p. 163, Records) reveal absence of semen. In Medico-Legal Report No. M 932
00 (Exh. O, p. 164, Records), it was determined that the cause of death was asphyxia by
smothering. The same report gave the following postmortem findings on the injuries sustained by
the victim:
POSTMORTEM FINDINGS
Fairly developed, fairly nourished, female cadaver in rigor mortis with postmortem lividity at the
dependent portions of the body. Conjunctivae are pale. Lips and nailbeds are cyanotic.
HEAD
1) Lacerated wound, upper lip, measuring 0.8 x 0.5 cm, along the anterior
midline.
2) Contusion, right cheek, measuring 5 x 4 cm, 7 cm from the anterior midline.
TRUNK
1) Contusion, right pectoral region, measuring 3 x 2 cm, 11 cm from the anterior
midline.
2) Lacerated wound, right nipples, measuring 0.6 x 0.1 cm.

3) Contusion, right pectoral region, measuring 5 x 4 cm, 10 cm from the anterior

midline.
4) Contusion, sternal region, measuring 3 x 1 cm, along the anterior midline.
5) Contusion, left inguinal region, measuring 5 x 3.5 cm, 10 cm from the anterior
midline.
The stomach is full of partially digested food particles.
EXTREMITY
1) Contusion, proximal 3rd of the right forearm measuring 4 x 2 cm, 4 cm lateral
to its posterior midline.
2) Contusion, right ring finger, measuring 0.5 x 0.3 cm.
LARYNX, TRACHEA AND ESOPHAGUS
The larynx, trachea and esophagus are markedly congested and cyanotic with petechial
hemorrhages.
xxx xxx xxx
GENITAL
There is abundant growth of pubic hair, labia majora are full, convex and co-aptated with pinkish
brown labia minora presenting in between. On separating the same disclosed a fleshy type
hymen with deep healed lacerations at 3, 6 and 9 oclock positions with an abraded
posterior fourchette, measuring 1 x 0.4 cm.
Vaginal and peri urethral smears are POSITIVE for spermatozoa.
xxx xxx xxx
CONCLUSION:
Cause of death is Asphyxia by smothering. (p. 164, Records)
with the corresponding location of the said wounds on the attached sketches of the head (Exh. P,
p. 165, Records) and the human body in the anatomical sketch (Exh. Q, p. 166, Records).3
(Emphasis ours)
Accused-appellant denied the charges against him. He alleged that on December 24, 2000, he
was drinking with Rodolfo Jundos, Jr. and the latters son outside their residence from 10:00
p.m. until 1:00 a.m. of December 25, 2000. When he came home, he had a fight with his wife

Divina Pascual (Divina) because the latter allegedly wouldnt permit him to go to a friends
house in Sta. Mesa, Manila, as he was already drunk. Nonetheless, so accused-appellant claims,
he still went to Sta. Mesa and stayed at his friends house for more or less six days.4 Upon
learning from his wife that Lorelyn Pacubas was raped and killed and that he was the suspect
therein, he requested his wife to contact and coordinate with Major Pealosa for his voluntary
surrender. On cross-examination, accused-appellant admitted that he knew Lorelyn Pacubas was
staying alone on the second floor of the house on that fateful night, as her two (2) other siblings
had already gone home to the province.5 Moreover, he admitted having called his wife on
December 25, 2000, and was then told about the crime which happened to Lorelyn Pacubas and
that he was the suspect thereof.6
Defense witness Carlito Santos (Carlito) corroborated accused-appellants testimony of having
stayed in his house for six (6) days. Carlito testified that at about 2:00 oclock in the early
morning of December 25, 2000, accused-appellant arrived at his (Carlitos) house and told the
witness that he (accused-appellant) had a fight with his wife, Divina.7
Another defense witness, Aida Viloria-Magsipoc, forensic chemist of the National Bureau of
Investigation (NBI), testified on the result of the DNA analysis which she conducted on the
specimens submitted by the trial court consisting of the victims vaginal smear and panty.
According to her, no DNA sample from the suspect was present on the aforesaid specimens.8 On
cross-examination, she declared that based on DNA testing, she could not determine if a woman
was raped or not. She further declared that in this case, it was possible that the stained vaginal
smear prevented a complete and good result for the DNA profiling. Upon being questioned by
the court, the forensic chemist confirmed that DNA testing on the subject specimens was
inconclusive and that the result was not good, as the specimens submitted, i.e., the stained
vaginal smear and the dirty white panty, had already undergone serological analysis.9
In a decision10 dated March 11, 2004, the trial court rendered judgment, as follows:
WHEREFORE, finding accused, ALFREDO PASCUAL Y ILDEFONSO alias BOYET
GUILTY beyond reasonable doubt of the crime of Rape with Homicide, under the circumstances
prescribed in Article 266-A of the Revised Penal Code, as amended, absent any modifying
circumstance to aggravate or mitigate criminal liability, the court hereby sentences him to suffer
the penalty of DEATH.
He is also ordered to pay the heirs of the victim the amount of Php63,000.00 as actual damages;
the amount of Php50,000.00 as moral damages; the amount of Php25,000.00 as exemplary
damages; Php28,000.00 as burial expenses and the amount of Php250,000.00 for loss of
earnings. Additional actual expenses incurred not supported by receipts are denied pursuant to
Article 2199 of the Civil Code.
In so far as the charge of robbery is concerned, the same is hereby ordered DISMISSED, it
appearing that the valuables and other personal belongings of the victim are intact.
The accused is likewise ordered to pay the costs of the suit.

SO ORDERED.11
The case was directly elevated to this Court for automatic review. However, in a Resolution12
dated July 26, 2005 and pursuant to our ruling in People v Mateo13 the case was transferred to the
CA.
In its Decision14 dated December 9, 2005, the CA affirmed with modification the trial courts
decision. Dispositively, the CA decision reads:
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED with the
modification that the heirs of Lorelyn Pacubas is further awarded the amount of P100,000.00 as
civil indemnity, in addition to the other damages in the lower courts judgment. Costs de officio.
SO ORDERED.
In view of the foregoing, accused-appellant comes again to this Court for a final review of his
case.
In a Resolution15 dated June 13, 2006, the Court required the parties to file their respective
supplemental briefs, if they so desired. In their respective Manifestations,16 the parties waived the
filing of supplemental briefs and instead merely adopted their earlier briefs before the CA.
Two (2) questions present themselves for resolution in this case. First, was the circumstantial
evidence presented against the accused-appellant sufficient for his conviction? Second, does the
result of the DNA examination entitle the accused-appellant to an acquittal?
We answer the first question in the affirmative.
It is settled that in the special complex crime of rape with homicide, both the rape and the
homicide must be established beyond reasonable doubt. 17 In this regard, we have held that the
crime of rape is difficult to prove because it is generally unwitnessed and very often only the
victim is left to testify for herself. It becomes even more difficult when the complex crime of
rape with homicide is committed because the victim could no longer testify. Thus, in crimes of
rape with homicide, as here, resort to circumstantial evidence is usually unavoidable.18
Considering that no one witnessed the commission of the crime charged herein, the weight of the
prosecutions evidence must then be appreciated in light of the well-settled rule that an accused
can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence
is presented by the prosecution to prove beyond doubt that the accused committed the crime. 19
Circumstantial evidence consists of proof of collateral facts and circumstances from which the
existence of the main fact may be inferred according to reason and common experience.20 Under
Section 4, Rule 133 of the Revised Rules of Court, circumstantial evidence is sufficient for
conviction if the following requisites concur:

(a) there is more than one circumstance; (b) the facts from which the inferences are derived have
been established; and (c) the combination of all the circumstances is such as to warrant a finding
of guilt beyond reasonable doubt.
Verily, for circumstantial evidence to be sufficient to support a conviction, all the circumstances
must be consistent with each other, consistent with the hypothesis that accused is guilty and at
the same time inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt.21 Thus, a judgment of conviction based on circumstantial
evidence can be sustained only when the circumstances proved form an unbroken chain which
leads to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as
the culprit.
Here, the circumstances testified to by the prosecution witnesses lead to the inevitable conclusion
that the accused-appellant is the author of the crime charged.
The chain of events that led to the subject unfortunate incident was candidly narrated by Rodolfo
Jundos, Jr. Said witness testified that on December 24, 2000 at 10:00 p.m., he, together with his
family and other relatives, was preparing for their small celebration outside the house; that
accused-appellant (who appeared to be already drunk) was also there together with his 2-year-old
child; that accused-appellant stayed with them up to 1:00 a.m. of December 25; that during the
course of his stay with the group, accused-appellant left twice to go inside the house but kept on
coming back to continue drinking; that when accused-appellant left for the third time, he did not
come back anymore leaving him (Jundos) alone as his son, Christopher, also left to go to some
other place.22 Some 20 minutes later, accused-appellants wife, Divina, asked him about the
whereabouts of the accused-appellant and he instructed her to look for her husband in several
places. Having failed to locate accused-appellant, Divina went back inside the house.23 What
transpired next can be gleaned from the following pertinent portions of Jundos testimony:
"Q - When you are still on that particular place where you are drinking alone, do you remember
any unusual incident that happened?
A - Yes sir.
Q - What is that incident?
A - Nong umuwi na po si Divina sa kanila nong sinabi nya na napapagod na sya, maya-maya po
ay nakita ko si Divina na nag-tatatakbo, dumaan po doon sa harap ko at nag-tatatakbo patungong
itaas po.
Q - Itaas ng?
A - Second floor sir.
xxx
Q - And what happened after Divina went up stairs of the second floor?

A - Nakita ko po na naghahabulan si Divina at yong asawa nya si Alfredo Pascual.

Q - Did you see where did they came from?
A - Hindi ko po nakita kong saan sila naggaling, ang nakita ko lang dito po sa gilid ko
papuntang gate.
Q - So, you see them coming out of that building and proceeding towards the gate?
A - Yes sir.
Q - And who was ahead?
A - Alfredo Pascual sir.
Q - And what was Divina doing at that time?
A - Shes chasing Alfredo Pascual.
Q - Did you hear her saying something?
A - Yes sir.
Q - What [did] she say?
A - Humihingi po sya sa akin ng tulong, sabi nya po, kuya tulongan mo ako si Boyet kasi ang
palayaw po ni Alfredo Pascual e Boyet.
Q - And what was your interpretation then when you heard her asking for your help, this Divina,
the wife of the accused?
A - Ang pagkaintindi ko po na humihingi si Divina ng tulong, akala ko po nagwala kasi lasing
po, kaya humihingi po ng tulong yong asawa, kaya (po) ako poy tumakbo doon at nakinakipaghabol po sa kanila.
Q - And what happened next after that?
A - Tumakbo rin po ako at nakihabol rin ako sa kanila, pero nong nandoon na po ako sa kalsada,
yong street po naming Ballesteros, nasa kalagitnaan na po ako, nakita ko na po si Divina at
sinalubong na po ako, ang sabi sa akin, kuya hindi na maabutan kasi mabilis tumakbo tulungan
mo nalang ako, samahan mo ako, aakyat tayo sa taas kasi baka kung anong ginawa nya don kay
Ling-Ling, the victim in this case.
Q - So, what did you do when Divina ask for your assistance?

A - Sinamahan ko po, umakyat po kami sa second floor at nakita namin sa second floor,
madilim, parang walang sindi ang mga ilaw.
Q - What was the condition of the door going inside the second floor when you went up?
A - Open sir.
Q - And did you and Divina do when you were already (inside) in the second floor?
A - Hinanap po nami yong mga switches, kasi ako po bihirang bihira po akong makaakyat don
kaya sabi ko kay Divina hanapin natin yong switch kasi hindi ko kabisado rito, yon kinakapa po
naming kong saan po yong mga switches, habang kinakapa po naming yong mga switches tapos
pinupukpok ko po yong dingding tapos nag-tatawag po ako ng pangalan ni Ling-Ling, Ling
saan ka naroon.
Q - And then what happened next?
A - Yan po habang hinahanap po naming yong mga switches at kinakatok po naming yong mga
dingding bigla pong sumigaw si Divina na kuya halika dito ng marining ko po na tinatawag
yong pangalan ko e lumapit po ako kung saan sya naroon.
Q - What happened next?
A - Nandon po sya sa loob ng kwarto, bukas po yong pinto, doon nakita ko po si Ling-Ling,
yong biktima.
Q - Where was the victim at the first time or instance that you saw her at that particular time?
A - At the floor sir.
Q - What was the physical appearance of the victim when you first saw her?
A - When I first saw the victim she was lieing (sic) in the floor with open arms (sic) and open
legs and her short and panty was already loose off down to her ankle and her (the) shirt is up.
Q - Up to where?
A - Nakataas po, labas ang kanyang didi at nakita ko pong may dugo sa gilid.
Q - Where did you find the blood?
A - On her left side breast sir.
Q - On that particular instance, when heard Divina calling for help, was there already light inside
that house?

A - There was a light sir.

Q - Where was that light coming from?
A - Came from the ceiling.
Q - Inside the room where Divina found the body of the victim?
A - Yes sir.
xxx
Q - When you first enter that room where you find the body of the victim Lorelyn Bacubas, what
was the condition of the room?
A - Nakita ko po na magulo yong kama tapos yong drawer na lagayan ng mga damit kasi
salamin po yong ibaba may mga basag po at may mga patak ng dugo.
Q - What else did you find?
A - May scissor po sa left side ng braso nya, sa gilid po.
xxx
Q - What did you do when you saw the victim in this case already sprawled on the floor?
A - Nung nakita na naming hindi na gumagalaw si Ling-Ling at ang pagkaalam namin ay patay
na, bumaba na po kami.
xxx
Q - After you went down, what did you do next?
A - Pag-baba po namin ni Divina, tumakbo po kami don sa pinto, sa bahay po ng bayaw ko at
humingi po kami ng tulong.
Q - Who is your brother-in-law?
A - Arleen Gorospe sir.
xxx
Q - What did you do with Arleen Gorospe?

A - Pag-bukas po ng pinto, una pong pumasok si Divina at nag-hysterical na nagsisigaw na

Manang Rose, yong asawa po ni Arleen Gorospe, si Ling-Ling ginahasa at pinatay ni
Boyet.
Q - And what next happened?
A - Sinalaysay po ni Divina, pero ako poy na shock at napaupo na lang ako sa sopa, umakyat
din po si Arleen sa taas at may tumawag na rin ng pulis.24 (Emphasis Ours)
Arlene Gorospe corroborated the testimony of Jundos that in the early morning of December 25,
2000, Jundos and the accused-appellants wife, Divina, knocked at his door to inform him of the
incident after which he immediately proceeded upstairs and saw the victim naked and lifeless
with her t-shirt pulled up.25
Prior to the discovery of her dead body, Jundos also testified that the victim was alone in her
room on the second floor of the house.26 This fact was known to accused-appellant who admitted
as much in his cross-examination.27 Eduardo Velasco, who used to visit the sister of the victim
and have drinks with accused-appellant, testified that the latter confided to him his love for the
victim.28
PO2 Fernando Aguilan and P/Insp. Russel Leysa testified that upon arrival at the place where the
subject incident happened on December 25, 2000 at about 2:30 a.m., they found the lifeless body
of the victim lying on the floor naked, with bloodstain on her clothes and appearing lifeless.29
The police also found at the scene of the crime the victims belongings scattered all over the
place.
Dr. Felimon Porciuncula, who conducted the post-mortem examination on the cadaver of the
victim on the morning of December 25, 2000, testified that the victim died of asphyxia by
smothering. The doctor also testified that apart from contusions, hymenal lacerations were
discovered on the body at 3, 6 and 9 oclock positions, but there is an abrasion or abrated
posterior meaning that the injury was fresh30 or was inflicted right before the death of the
victim.31 Dr. Porciuncula further testified that spermatozoa was found in the vagina of the
victim.32
Furthermore, the statements of accused-appellants wife, Divina, immediately after the fateful
incident all the more convince the Court as to accused-appellants guilt. Part of the res gestae and
admissible in evidence as an exception to the hearsay rule were Divinas utterances to Gorospe
after seeing the dead and raped body of the victim, i.e., May nagyari sa itaas at galing doon si
Boyet, and her subsequent narration of seeing the accused-appellant going out of the victims
room and running away therefrom.33
In People v Cantonjos34the Court held that:
Res gestae utterances refer to those exclamations and statements made by either the participants,
victims, or spectators to a crime immediately before, during, or after the commission of the
crime, when the circumstances are such that the statements were made as a spontaneous reaction

or utterance inspired by the excitement of the occasion and there was no opportunity for the
declarant to deliberate and to fabricate a false statement. A declaration is deemed part of the res
gestae and thus admissible in evidence as an exception to the hearsay rule when the following
requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements
were made before the declarant had time to contrive or devise; and (3) the statements must
concern the occurrence in question and its immediately attending circumstances.
The aforementioned requisites are present in this case. The res gestae or the startling event is the
rape and death of the victim. The statements of Divina to Gorospe were made spontaneously and
before she had the time to contrive or devise such declarations, and said statements all concerned
the occurrence in question or the immediately attending circumstances thereof.
In the absence of evidence that the witnesses for the prosecution were actuated by improper
motive, the presumption is that they were not so actuated and their testimonies are entitled to full
faith and credit.35
Here, accused-appellant claimed that at 2 oclock on the morning of December 25, 2000, he was
at his friends house in Sta. Mesa, having left his house in Mandaluyong because of a quarrel
with his wife, Divina. Prosecution witness Jundos testimony, however, positively placed the
accused-appellant near the scene of the crime at the same time on December 25, 2000. Surely,
between the positive assertions of the prosecution witness and the negative averments of
accused-appellant, the former indisputably deserve more credence and evidentiary weight.36
Thus, accused-appellants twin defenses of denial and alibi pale in the light of the array of
circumstantial evidence presented by the prosecution. Equally damning is accused-appellants
failure to prove with clear and convincing evidence that he was at another place at the time the
crime was committed or to demonstrate the impossibility of his presence at the scene of the
crime when the same was committed.
Denial is intrinsically a weak defense and must be supported by strong evidence of nonculpability in order to be credible. Correspondingly, courts view the defense of alibi with
suspicion and caution, not only because it is inherently weak and unreliable, but also because it
can be fabricated easily. 37
Furthermore, this Court cannot ignore the positive testimony on record that accused-appellant
was seen running away from the scene of the crime immediately before the discovery thereof. If
accused-appellant was as innocent as he claimed to be, he should have immediately cleared
himself of suspicion. Instead, accused-appellant stayed at his friends house for six or seven
days, despite having learned from his wife he was a suspect in the crime. Undoubtedly, accusedappellants flight is an indication of his guilt or of a guilty mind. Indeed, the wicked man flees
though no man pursueth, but the righteous are as bold as a lion.38
Accused-appellant makes much of the result of the DNA analysis conducted by the NBI that his
profile was not in the victims vaginal smear. Hence, he argues he is innocent of the crime
charged.

In People v Yatar, we held that in assessing the probative value of DNA evidence, courts should
consider, inter alia, the following factors: how the samples were collected, how they were
handled, the possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the tests, and
the qualification of the analyst who conducted the tests.39
Here, while the DNA analysis of the victims vaginal smear showed no complete profile of the
accused-appellant, the same is not conclusive considering that said specimen was already stained
or contaminated which, according to the forensic chemist, Aida Villoria-Magsipoc, deters a
complete and good result for DNA profiling. She explained in her testimony that generally, with
the vaginal smear, they could see if there is a male profile in the smear. However in this case,
when they received the vaginal smear on the stained slide, the same had already undergone
serological analysis. Hence, according to the chemist, the DNA testing conducted on the
specimen subject of this case was inconclusive.40 In light of this flawed procedure, we hold that
the result of the DNA examination does not entitle accused-appellant to an acquittal.
Viewed in its entirety, the evidence in this case inevitably leads to the conclusion that accusedappellant is guilty beyond reasonable doubt of the special complex crime of Rape with
Homicide.
Rape with Homicide under Article 335 of the Revised Penal Code, in relation to Republic Act
(R.A.) 7659, provides that when by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death. However, in view of the subsequent passage of R.A. No.
9346, entitled An Act Prohibiting the Imposition of the Death Penalty in the Philippines, which
was signed into law on June 24, 2006, the Court is mandated to impose on the accused-appellant
the penalty of reclusion perpetua.
We likewise affirm the CAs additional award of P100,000.00 as civil indemnity pursuant to
current jurisprudence41 that in cases of rape with homicide, civil indemnity in the amount of
P100,000.00 should be awarded to the heirs of the victim. As to moral damages, recent
jurisprudence allows the amount of P75,000.00 to be awarded in cases of rape with homicide.42
Thus, the P50,000.00 award given by the court below as moral damages should be increased to
P75,000.00. The P25,000.00 exemplary damages, however, should be deleted because under
Article 2230 of the New Civil Code, exemplary damages in criminal cases may be imposed when
the crime was committed with one or more aggravating circumstances, and there is none in this
case. The rest of the awards given by the trial court are affirmed.
WHEREFORE, the appealed decision of the CA in CA-G.R. CR HC No. 01493 is hereby
AFFIRMED with MODIFICATION. Accused-appellant is found guilty beyond reasonable
doubt of the crime of rape with homicide and is hereby sentenced to suffer the penalty of
reclusion perpetua and to pay the heirs of the victim, Lorelyn Pacubas, the amounts of
P100,000.00 as civil indemnity, P75,000.00 as moral damages, P63,000.00 as actual damages,
P28,000.00 as burial expenses and P250,000.00 for loss of earnings.
No costs.

SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TONIO EDUARDO B.
NACHURA
Associate Justice

ARTURO D. BRION
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1

Penned by now Presiding Justice Conrado M. Vasquez, Jr. with Associate Justice Juan
Q. Enriquez and former Associate Justice Vicente Q. Roxas, concurring; rollo, pp. 3-23.
2

CA rollo, pp.13-14.

Rollo, pp. 3-6.

TSN, September 8, 2003, p. 3; Records, p. 410

TSN, October 6, 2003, p. 8; Records, p. 423

Id. pp. 10-11; Records, pp. 425-426

TSN, November 17, 2003, p. 3; Records, p. 436

TSN, June 11, 2003, p. 15; Records, p. 396

TSN, July 2, 2003, pp. 1-5; Records, pp. 399-403

10

CA rollo, pp. 29-54.

11

CA rollo, p. 111.

12

Id. at 165.

13

G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640

14

Supra note 1.

15

Rollo, p. 25.

16

Id. at pp. 26-27 & 28-29.

17

People v. Nanas, G.R. No. 137299, August 21, 2001, 362 SCRA 452, 464.

18

Id.

19

People v. Yatar, G.R. No. 150224, May 19, 2004, 428 SCRA 504, 513.

20

People v Darilay, G.R. Nos. 139751-52, January 26, 2004, 421 SCRA 45, 61.

21

Id.

22

TSN., October 24, 2002, pp. 3-6; Records, pp. 355-358.

23

Id., pp. 7-9; Records, pp. 359-361

24

TSN, October 24, 2002, pp. 9-13; Records, pp 361-365

25

TSN, October 17, 2001, p. 6; Records, p. 240

26

TSN, October 24, 2002, p. 6; Records, p. 366

27

TSN , October 6, 2003, p. 8; Records, p. 423

28

TSN, December. 5, 2002, p. 3; Records, p. 329.

29

TSN November 7, 2001, p. 2; Records p. 249.

30

TSN November 28, 2001 p. 8; Records, p. 313

31

Id, p. 19; Records, p. 324

32

Id. pp. 9-10; records, pp. 314-315.

33

TSN, October 17, 2001, p. 6; Records, p. 240

34

G.R. No. 136748. November 21, 2001, 370 SCRA 105, 118-119.

35

Velasco v. People, G.R. No. 166479. February 28, 2006, 483 SCRA 649, 668.

36

People v. Dela Cruz, G.R. No. 152176, October 1, 2003, 412 SCRA 503, 509.

37

People v. Dela Cruz, G.R. No. 152176. October 1, 2003, 412 SCRA 503, 508-509.

38

Id.

39

Supra note 19, at p. 515.

40

TSN, July 2, 2003, pp. 1-5; Records, pp. 399-403.

41

People v. Sevilleno, G.R. No. 152954, March 10, 2004, 425 SCRA 247, 257; People v.
Darilay G.R. Nos. 139751-52, January 26, 2004, 421 SCRA 45, 64.
42

People v. Sevilleno, id. at p. 258.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 180507

November 20, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
NESTOR BAJADA y BAUTISTA, VICTOR CALISAY y LOYAGA, and JOHN DOE,
accused-appellants.
DECISION
VELASCO, JR., J.:
This is an appeal from the February 7, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 01043 which affirmed the conviction of and death penalty for accused-appellants
for the crime of robbery with homicide. Said judgment was originally handed down on October
30, 20012 by the Regional Trial Court (RTC), Branch 28 in Sta. Cruz, Laguna in Criminal Case
No. SC-8076.
The Facts
An information dated January 21, 2000 was filed against accused-appellants Nestor Bajada y
Bautista, Victor Calisay y Loyaga, and John Doe which accused them of committing robbery
with homicide and serious physical injuries, as follows:
That on or about 11:30 o'clock in the evening of December 22, 1999, at Brgy.
Calumpang, Municipality of Liliw, Province of Laguna and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to gain, without the knowledge
and consent of the owner thereof, and by means of violence and intimidation upon
person, enter the house of one ANTONIO C. VILLAMAYOR, and once inside, did then
and there willfully, unlawfully and feloniously, take, steal and carry away the following
valuables, to wit:

Cash Money

PhP 20,000.00;

Assorted jewelry

80,000.00;

$500.00 (current rate $1.00=40.00)

20,000.00;
and some pertinent
documents

with the total amount of HUNDRED TWENTY THOUSAND (PhP 120,000.00) PESOS,
Philippine Currency, for their own personal use and benefit, owned and belonging to said
Antonio C. Villamayor, and in the course of the said occasion, above-named accused
while conveniently armed with a handgun and bladed weapon, conspiring, confederating
and mutually helping one another, with intent to kill, did then and there willfully,
unlawfully and feloniously, kick, attack, assault and stab ANTONIO C. VILLAMAYOR,
resulting [in] his instantaneous death, and also inflicted upon ANABELLE ASAYTONO,
stab wound on her left chest, thus, accused had commenced all the acts of execution
which could have produced the crime of Homicide, as a consequence, but nevertheless,
did not produce it by reason/cause independent of the will of the accused, which
prevented her death, to the damage and prejudice of the herein surviving heirs of Antonio
Villamayor and offended party, Anabelle Asaytono.
CONTRARY TO LAW.3
Bajada and Calisay pleaded not guilty to the charge.
During trial, the prosecution sought to establish the following facts: Bajada and Calisay were
overseers at Antonio C. Villamayor's farm in Bayate, Laguna. As overseers, they visited
Villamayor's house in Liliw, Laguna at least four times a week to deliver vegetables from the
farm.4
On December 22, 1999, around 11:30 p.m., while 81-year old Villamayor was at home with his
24 year-old live-in partner, Anabelle Asaytono, they heard someone call for Villamayor asking
for coffee. The caller introduced himself as "Hector," Villamayor's grandson, but Asaytono
recognized the voice as Bajada's. As Villamayor opened the door, the caller, "Hector," pushed the
door open with the barrel of a two-foot long gun. Asaytono recognized "Hector" as Bajada
because of his average physique, repulsive smell, the black bonnet which he often wore at work,
the deep-set eyes, mouth, a lump on his cheek, and the green shirt which was given to him by
Villamayor. Asaytono likewise recognized one of the men as Calisay, noting his hair cut, eye
bags, and voice. Calisay wore a red handkerchief across his face and carried a 14-inch knife in
his right hand. The third unidentified man, John Doe, wore a bonnet and carried a 2 foot long
gun with a magazine.5
Upon entering the house, John Doe said, "There are many people in Calumpang who are angry at
you because you are a usurer engaged in 5-6, so give me PhP 100,000 right now." John Doe
made Villamayor sit down but when the latter refused, John Doe made him lie face down on the
floor and kicked his back several times. Meanwhile, Bajada pointed his gun at Asaytono and
demanded for money. Asaytono denied having any money. She was then made to lie face down
on the ground and was kicked. John Doe asked from Villamayor the key to the cabinet which

was a meter away from the latter. Villamayor brought out a key from his pocket and handed it to
Bajada. Asaytono, who was able to stand up, saw the three accused unlock Villamayor's cabinet
and took out its contents which consisted of documents and clothes. Accused-appellants also
opened the drawer and took jewelry valued at PhP 80,000 and the PhP 20,000 and USD 500
cash.6
Thereafter, Bajada pushed Asaytono towards Villamayor, laying her head sideways on
Villamayor's head. In this position, Asaytono was able to see Calisay repeatedly stab Villamayor
on the back. Calisay then stabbed Asaytono on her left breast. Asaytono pretended to be dead as
she lied on Villamayor who was still moving. The three men then hurriedly left the house.
Asaytono stood up and saw through the three men move towards the rice field. She noticed that
Villamayor's dog wagged its tail as it followed the three men, the way it did when accusedappellants would visit Villamayor.7
Assured that the men had left the area, Asaytono ran to the house of her neighbor, Cristy
Samparada, for help. After telling about incident to her neighbor, Asaytono lost consciousness
and regained the same after two days at the Philippine General Hospital (PGH) in Manila. Dr.
Michael Baccay, the attending physician, testified that Asaytono suffered pneumochemo thorax,
or the presence of air and blood in the thoracic cavity of the left lung, which could cause death in
six to eight hours if left untreated. Dr. Marilou Cordon, the medico-legal officer, testified that
Villamayor's death was caused by hypovolemic shock secondary to stab wounds. She opined that
the stab wounds may have been caused by a single bladed knife inflicted by one person. She
added that the stab which pierced the right lung may have caused his instantaneous death due to
blood loss.8
The incident was reported to the police of Liliw, Laguna on December 22, 1999. Based on the
information given by Villamayor's daughter, Perlita, PO2 Ronald Pana invited Bajada for
questioning on December 26. The following day, the police also invited Calisay for questioning.
Thereafter, PO2 Pana and his team went to PGH to interview Asaytono. On December 28, 1999,
Asaytono gave her sworn statement to the police officers of Liliw, Laguna and identified Bajada
and Calisay as the perpetrators of the crime. The following day, she reiterated her statement
during the preliminary investigation conducted by Judge Renato Bercales of the Municipal
Circuit Trial Court (MCTC) in Magdalena, Laguna.
The defense presented Bajada, Calisay, and Editha Loyaga Calisay as witnesses. Bajada is
Calisay's stepfather, while Editha is Bajada's live-in partner and Calisay's mother. Bajada and
Calisay denied committing the crime and offered an alibi. They said they were husking coconuts
until around 11:00 p.m. on December 22, 1999. They went to sleep afterwards in view of the
work they had to do at Villamayor's farm on the following day. Editha corroborated this alibi
alleging that she helped accused-appellants in gathering young coconuts on the night in question.
Calisay testified that he learned about the death of Villamayor from Villamayor's nephew when
he and Editha chanced upon him in town. Calisay and his mother thereafter went to the funeral
parlor to see the body of Villamayor. When they got home, they informed Bajada of the news.
Bajada went to see the remains of Villamayor to know the circumstances surrounding the latter's
death. Bajada was arrested in the wake, questioned by the police, and eventually charged with
the crime.9

Bajada testified that he had known Villamayor for two years and had a good relationship with the
latter and Asaytono. He believed that Asaytono accused him as the perpetrator because he
dissuaded Villamayor from visiting Asaytono's relatives in Bicol since Villamayor was too old
and frail to travel. This was allegedly overheard by Asaytono. Bajada added that Villamayor fully
trusted him with the secret that Asaytono will not inherit any land from Villamayor. Bajada also
alleged that Asaytono accused him of the crime because he warned Villamayor not to leave
money in the house because Bajada suspected Asaytono's motives. Calisay added that Asaytono
used to get angry whenever Bajada would get money from Villamayor. Calisay, however,
testified that he did not see any ill motive on the part of Asaytono when she testified against
accused-appellants.
On October 30, 2001, the RTC rendered judgment, the dispositive portion of which reads:
WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the
Court finds both the accused NESTOR BAJADA and VICTOR CALISAY as GUILTY
BEYOND REASONABLE DOUBT as co-principals of the offense of ROBBERY
WITH HOMICIDE as defined and punished under paragraph No. (1) of Article 294 of
the Revised Penal Code as amended by the Death Penalty Law (RA 7659) and as charged
in the Information and taking into consideration the two (2) aggravating circumstances
enumerated hereinbefore without any mitigating circumstance that would offset the same,
hereby sentences both the said accused to suffer the SUPREME PENALTY OF DEATH
and to pay the heirs of the deceased Antonio Villamayor the sum of P50,000.00 as death
indemnity and the sum of P78,620.00 as reasonable expenses incurred by reasons of said
death and to pay the cost of the instant suit.10
Accused-appellants filed their brief before this Court on April 3, 2003, docketed as G.R. No.
153218. On September 21, 2004, we transferred the case to the CA in accordance with People v.
Mateo.11
The Ruling of the CA
In their appeal before the CA, accused-appellants reiterated their defenses of denial and alibi.
They claimed that Asaytono's testimonies in court on March 30, 2000 and April 4 and 6, 2000
were inconsistent to the statements she gave to the police on December 28, 1999, and with the
statements given to MCTC Judge Bercales on December 29, 1999. These alleged inconsistencies
referred to the identity of the caller, the state of intoxication of accused-appellants, and the
manner of identification of accused-appellants as the perpetrators of the crime.
The CA held that Asaytono's testimony was categorical and straightforward, and her
identification of accused-appellants was consistent. Having worked with accused-appellants in
the farm for a year, she can readily identify their facial features, voices, physique, and smell.
According to the CA, the details which were lacking in her sworn statement but which she
supplied in open court only served to strengthen her testimony. The CA did not lend credence to
accused-appellants' defense of alibi since it was possible for them to be at the crime scene--they
claimed that they slept at 11:00 p.m. while the incident happened at 11:30 p.m.; and the victims'
house was only 15 minutes away by jeep from the farm.

The CA, however, disagreed with the trial court's finding of the aggravating circumstances of
dwelling and additional serious physical injury. It said that the information failed to specifically
allege the aggravating circumstance of dwelling; hence, it cannot be appreciated even if proved
during trial. Also, applying People v. Abdul, the appellate court held that the homicides or
murders and physical injuries committed on occasion or by reason of the robbery are merged in
the composite crime of "robbery with homicide."12 It concluded that absent any mitigating or
aggravating circumstances, the penalty should be reduced to reclusion perpetua. The dispositive
portion of the CA's judgment reads:
WHEREFORE, the instant appeal is DISMISSED. The Decision, dated 30 October
2001, of the Regional Trial Court of Sta. Cruz, Laguna, Branch 28, is hereby
AFFIRMED with MODIFICATION. Accused-appellants are found guilty beyond
reasonable doubt of robbery with homicide. Considering that there are neither mitigating
nor aggravating circumstance which attended the commission of the crime, accusedappellants are, hereby, sentenced to suffer the penalty of reclusion perpetua.13
Bajada's motion for reconsideration was denied in a resolution dated July 24, 2007. The Public
Attorney's Office filed a Notice of Appeal; however, per verification, there was neither a motion
for reconsideration nor appeal on behalf of Calisay. Thus, on August 24, 2007, the CA granted
Bajada's notice of appeal and entered judgment insofar as Calisay was concerned.14
Assignment of Error
In the instant appeal, accused-appellant Bajada reiterates his defenses and assigns the following
error:
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH
HOMICIDE WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND
REASONABLE DOUBT.
Bajada asserts that the lower court erred in convicting him and his co-accused based on the
testimony in open court of the prosecution witness, Asaytono. Such testimony is allegedly
inconsistent with the December 28, 1999 sworn statement given to the police and the December
29, 1999 statement given before MCTC Judge Bercales during the preliminary investigation. In
her December 28, 1999 sworn statement, Asaytono mentioned that she recognized Bajada as the
caller though the latter misrepresented himself as "Hector." Asaytono also said that while the
three accused were inside the house, they smelled like they had lambanog, a native wine. These
facts, Bajada alleges, were never mentioned in the preliminary investigation and in court.
Moreover, while Asaytono told the police that she was able to identify the two accused because
of the fluorescent lamp at the kitchen, she failed to mention what parts of accused-appellants'
faces were covered by the bonnet and kerchief. She supplied these details only during the
preliminary investigation and examination in open court. Furthermore, when Asaytono sought
the help of her neighbor, Samparada, she only told the latter that three persons robbed their house
and stabbed her and Villamayor, without identifying Bajada and Calisay as the perpetrators.
Bajada believes that the manner of identification is suspicious since he and his co-accused were

identified only after their arrest and detention based on the statements of random witnesses and
not by Asaytono.15 Lastly, Bajada tries to discredit Asaytono by pointing out that as a paramour
of Villamayor, she had no compunction about seducing an 81-year-old man to meet her financial
needs. Her alleged interest in inheriting from Villamayor led her to cause the latter's death and
find a fall guy for it; hence, she accused Bajada and Calisay.16 Bajada and Calisay also sent a
letter entitled "Petition" addressed to former Chief Justice Artemio Panganiban. Said letter
alleged that an eyewitness who was afraid to testify revealed to Bajada that it was Asaytono's
live-in partner and the children of Villamayor who were responsible for the crime. Two
handwritten letters from the said eyewitness were attached to the "Petition."
The Court's Ruling
The appeal has no merit.
The inconsistencies in the sworn statements and testimony of the prosecution witness, Asaytono,
referred to by accused-appellant Bajada do not affect her credibility. The details which she
supplied to the police and to the investigating judge are trivial compared to the testimony she
gave in open court. What is important is that in all three statements, i.e., sworn statement before
the police, sworn statement before Judge Bercales, and testimony in open court, Asaytono
consistently and clearly identified accused-appellants as the perpetrators. The essential facts do
not differ: three men entered and robbed the house of Villamayor and stabbed him and Asaytono,
and Asaytono witnessed the stabbing and recognized two of the accused because she was
familiar with the latter's physical attributes.
Also, the Solicitor General correctly pointed out that the defense counsel did not confront
Asaytono with these alleged inconsistencies. In People v. Castillano, Sr., we held that:
Before the credibility of a witness and the truthfulness of his testimony can be impeached
by evidence consisting of his prior statements which are inconsistent with his present
testimony, the cross-examiner must lay the predicate or the foundation for impeachment
and thereby prevent an injustice to the witness being cross-examined. The witness must
be given a chance to recollect and to explain the apparent inconsistency between his two
statements and state the circumstances under which they were made. This Court held in
People v. Escosura that the statements of a witness prior to her present testimony cannot
serve as basis for impeaching her credibility unless her attention was directed to the
inconsistencies or discrepancies and she was given an opportunity to explain said
inconsistencies.17
This is in line with Section 13, Rule 132 of the Revised Rules of Court which states:
Section 13. How witness impeached by evidence of inconsistent statements.Before a
witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be related to him, with the
circumstances of the times and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to explain them. If the statements be

in writing, they must be shown to the witness before any question is put to him
concerning them.
More controlling is our ruling in People v. Alegado where we held that inconsistencies between
the sworn statement and the testimony in court do not militate against the witness' credibility
since sworn statements are generally considered inferior to the testimony in open court.18
In any case, Asaytono was able to sufficiently identify Bajada as one of the perpetrators to the
satisfaction of the trial court. Asaytono's familiarity with Bajada cannot be denied; she has
known Bajada and Calisay for more than a year prior to the incident. The two accused were also
frequent visitors at the victim's house. Hence, Asaytono was acquainted with Bajada's physical
features. The trial court found her testimony to be credible, frank, straightforward, and consistent
throughout the trial. We see no reason to disturb this finding since trial courts are in a unique
position to observe the demeanor of witnesses.19 The trial court's findings regarding the witness'
credibility are accorded the highest degree of respect.
Furthermore, Bajada could not ascribe any plausible ill motive against the witness. His
accusation against Asaytono that the latter was interested in inheriting from Villamayor is selfserving and uncorroborated. Even Bajada's own stepson, Calisay, stated that there was no prior
misunderstanding between him and Asaytono and that he did not know any reason why Asaytono
would accuse them of a crime. The letters allegedly written by an eyewitness who was afraid to
testify in trial cannot be given probative value. The letters accused Asaytono as one of the
culpritsa defense which was already dismissed by the courts a quo. There was no evidence to
support such allegation. The said letters were belatedly submitted, uncorroborated, and cannot be
admitted in evidence.
Bajada's alibi likewise deserves no merit. For alibi to prosper, it must be shown that the accused
was somewhere else at the time of the commission of the offense and that it was physically
impossible for the accused to be present at the scene of the crime at the time of its commission.20
Bajada himself admitted, however, that the travel time from Bayate, Liliw, Laguna to the crime
scene is only 15 minutes by jeep. Hence, it was possible for him to be at the crime scene at or
around the time the offense was committed.
The appellate court correctly reduced the penalty to reclusion perpetua. The aggravating
circumstance of dwelling was not specifically alleged in the information. As regards the
additional charge of "serious physical injuries," we held in Abdul21 that this is merged in the
crime of robbery with homicide.
WHEREFORE, the February 7, 2006 Decision of the CA in CA-G.R. CR-H.C. No. 01043 is
AFFIRMED IN TOTO. No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA
Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's
Attestation, it is hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.
REYNATO S. PUNO
Chief Justice

Footnotes

Rollo, pp. 3-20. Penned by Associate Justice Noel G. Tijam and concurred in by
Associate Justices Elvi John S. Asuncion and Mariflor P. Punzalan Castillo.
2

CA rollo, pp. 25-38. Penned by Judge Fernando M. Paclibon, Jr.

Id. at 11-12.

Rollo, p. 5.

Id. at 5-6.

Id. at 6-7.

Id. at 7.

Id. at 8.

CA rollo, pp. 31-32.

10

Supra note 2, at 37-38.

11

G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

12

G.R. No. 128074, July 13, 1999, 310 SCRA 246, 269.

13

Supra note 1, at 19-20.

14

Rollo, pp. 21-22.

15

CA rollo, pp. 48-67.

16

Id. at 131-136.

17

G.R. No. 139412, April 2, 2003, 400 SCRA 401, 416.

18

G.R. No. 80532, November 8, 1993, 227 SCRA 514, 520.

19

People v. Cabareo, G.R. No. 138645, January 16, 2001, 349 SCRA 297, 304.

20

People v. Torrefiel, G.R. No. 115431, April 18, 1996, 256 SCRA 369, 375; citations
omitted.
21

Supra note 12.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 91646 August 21, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMIL MARCOS Y ISIDRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Emerito M. Salva & Associates for accused-appellant.

GUTIERREZ, JR., J.:

Appellant Romil Marcos y Isidro was charged with the crime of Violation of Section 4,
Article II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs
Act of 1972 in an information filed by the Office of the City Fiscal of Zamboanga City
with the Regional Trial Court of Zamboanga City. The information alleged:
That on or about June 7, 1989, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, not being authorized by
law, did then and there wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI
six (6) sticks of marijuana cigarettes, knowing same to be a prohibited drug. (Rollo, p. 7)

When arraigned the appellant pleaded not guilty.

After trial on the merits, the appellant was found by the court guilty as charged and was
sentenced to suffer imprisonment of reclusion perpetua at the San Ramon Penal Colony
and to pay the costs.
The trial court gave credence to the buy-bust operation conducted by the prosecution
witnesses, all of them Narcom agents, wherein the appellant sold six (6) sticks of
marijuana to Sgt. Amado Ani, a member of the operation, who acted as the poseurbuyer. The other target of the operation, a certain Ballena eluded arrest and escaped.
The trial court summarized the buy-bust operation leading to the arrest of the appellant
as follows:

. . . The arrest of the accused was carefully planned. After receiving the information from
the civilian informant named "Bobby" that the accused and another person was selling
marijuana at Talon-Talon more particularly at Lucy's Store, the Narcom Agents conducted
a surveillance in said place riding on two motorcycles a day before the raid. They saw the
accused selling marijuana. The following day, again, the Narcom Agents held a
conference and each of them was briefed by their team leader. One of them who was
Sgt. Amado Ani was to act as poseur buyer while others, namely: Sgt. Jesus Belarga,
Sgt. Bernardo Lego and Sgt. Julieto Vega as arresting officers. The following day, June 7,
1989, at about 11:00 a.m., said team consisting of Narcom Agents proceeded to the
place. Three were left at a vulcanizing shop, namely, Sgts. Belarga, Lego, and Vega;
while Sgt. Amado Ani, the poseur buyer, proceeded to the Lucy's store. There he met the
accused Romil Marcos who asked said poseur buyer how much he was buying and the
latter answered him P10.00 worth. The accused entered the store, gave the P10.00
marked money given by Sgt. Ani to his companion Ballena and the latter gave the
accused Romil Marcos the six sticks of marijuana cigarettes which were wrapped. Sgt.
Ani examined the same and upon verifying that it was marijuana, he proceeded to the
street and made the pre-arranged signal by wiping his face with a handkerchief. The
three Narcom Agents rushed to the place where Sgt. Amado Ani was. However, after Sgt.
Ani gave the signal, he returned to where the accused Romil Marcos and alias Ballena
were, introduced himself as Narcom Agent and grabbed the accused Romil Marcos but
the latter was able to escape. While escaping, the Narcom Agents saw him throw a stick
of marijuana cigarette which Sgt. Belarga retrieved. Later, they apprehended Romil
Marcos and brought him to their office at Upper Calarian, this City. He was turned over to
the chief investigator Sgt. Mihasun together with the six sticks of marijuana cigarettes that
were sold by the said accused Romil Marcos to the poseur buyer, Sgt. Ani. The Five
sticks were examined by the PCCI and found the same to be positive of marijuana (Rollo,
p. 24)

The trial court rejected the appellant's defense that he was not the object of the buybust operation and that he was arrested when he refused to testify against Ballena who
was actually the target of the buy-bust operation. He testified as follows:
. . . That on June 7, 1989, past 11:00 o'clock in morning, he was at Lucy's Store waiting
for a jeep going to Sta. Catalina to find out when he was going to work at the Peninsula
Construction Company because he was temporarily laid off. That while he was at the
Lucy's Store, a motorcycle stopped in the store. Immediately, the people on board said
motorcycle chased a certain Ballena who is his neighbor. That Ballena's complete name
is Romeo Ballena who is known as Mimi or Mi. Then he heard a shot when they were
chasing Ballena but does not know who fired the same. The people on board the
motorcycle were not able to catch up with Ballena, so they returned to the store. Upon
returning to the store, one of them pointed at him and said that he was a companion of
Ballena at the same time handcuffing him. At that time there were many people at the
Lucy's Store numbering about thirty; that there were three CAFGUs who arrived in the
place and one of them asked the people who were riding earlier in the motorcycle what
were those shots for. One of them in the motorcycle answered that they must not
interfere as they are Narcom Agents, and the CAFGU did not interfere. After that they
placed him between the motorcycle driver and the other person and took him with them
to Calarian; that the persons who took him were the same people who chased Ballena;
that while on their way to Calarian, one of the two persons who chased Ballena in a
motorcycle told him that he must act as witness against Ballena. However, said accused
told them that he would not like to testify because he does not know what was that about.
They said that they are going to place him in jail because he does not want to be a
witness against Ballena. (RTC Decision, p. 6, Rollo, p. 21)

In his appeal the appellant assigns the alleged errors of the trial court as follows:
A. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON
TESTIMONIES OF PROSECUTION WITNESSES WHICH WERE NOT PROPERLY
OFFERED IN EVIDENCE AND ON REAL EVIDENCE CONSISTING OF SIX (6) STICKS
OF MARIJUANA WHICH WERE NOT ALSO OFFERED IN EVIDENCE.
B. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE
TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION WHICH WERE
FRAUGHT WITH SERIOUS DOUBT, AND THEREFORE, CLEARLY APPEAR TO BE
INCREDIBLE AND UNBELIEVABLE.
C. THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT THE GUILT OF
ACCUSED-APPELLANT HAS BEEN PROVED BEYOND REASONABLE DOUBT.
(Appellant's Brief, p. 20)

In the first assigned error, the appellant contends that the testimonies of prosecution
witnesses Sgt. Jesus Belarga, Sgt. Amado Ani, Jr. and Mrs. Athena Elias Anderson
were not formally offered, hence, the trial court erred in considering their testimonies.
He cites sections 34 and 35, Rule 132 of the Rules of Court to prove his point, to wit:
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 must be specified.
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.
xxx xxx xxx

Contrary to the assertion of the appellant, Sgt. Amado Ani's testimony was formally
offered by the prosecution. Hence, when Sgt. Ani was called to testify for the
prosecution, Prosecuting Fiscal Deogracias Avecilla said that Sgt. Amado Ani's
testimony was being offered "to the effect that he was the poseur-buyer of this case."
(TSN October 23, 1989, p. 15)
As regards the other mentioned prosecution witnesses, we agree with the appellant that
their testimonies were not formally offered at the time the said witnesses were called to
testify. However, the records reveal that the testimonies of the prosecution witnesses
were offered during the formal offer of documentary evidence by the prosecuting Fiscal.
The appellant did not object to such offer. In such a case we rule that the appellant is
now estopped from questioning the inclusion of the subject testimonies by the trial court
in convicting him of the crime charged.
At any rate, the appellant was not deprived of any of his constitutional rights in the
inclusion of the subject testimonies. The appellant was not deprived of his right to crossexamine all these prosecution witnesses.
The appellant also faults the trial court for considering the six (6) marijuana sticks as
evidence for the prosecution despite the fact that they were not offered as evidence.

The record reveals that when the prosecuting Fiscal offered the prosecution's
documentary evidence among these offered was Inhibit "E" which was described as
"the wrapper containing the six (6) sticks handrolled cigarette which were sold by the
accused Romil Marcos to the poseur-buyer Sgt. Ani, and as part of the testimony of the
Forensic Chemist Athena Anderson and Sgt. Belarga and also Sgt. Mihasun" Marcos
alleges that nowhere in the offer of documentary evidence is there a mention as regards
the six (6) sticks of marijuana sold by the appellant to Sgt. Ani during the buy-bust
operation. Under these circumstances, the appellant argues that the appellant should
be acquitted for failure of the prosecution to offer the six (6) sticks of marijuana sold by
the appellant to Sgt. Ani.
This argument is not well taken.
We rule that Exhibit "E" does not refer to the wrapper alone but also refers to the six (6)
marijuana sticks sold by the appellant to Sgt. Ani during the buy-bust operation. It is to
be noted that Exhibit "E" was offered as evidence in relation to the testimonies of Sgt.
Belarga, Forensic Chemist Athena Anderson and Sgt. Mihasun. The record is clear to
the effect that in their testimonies, Sgt. Belarga, Forensic Chemist Athena Anderson and
Sgt. Mihasun referred to Exhibit "E" as the six (6) sticks of marijuana sold by the
appellant to Sgt. Ani during the buy-bust operation conducted by the Narcom agents led
by Sgt. Belarga at Talon-Talon, Zamboanga City on June 7, 1989.
The second and third assigned errors raise the issue on credibility of witnesses. In this
regard the appellant points out alleged circumstances of the prosecution witnesses
which "render their testimonies lacking in probative weight or value." The appellant
focuses on the alleged inconsistent statements of the Narcom agents as regards how
long they have known their informant named "Bobby" to the point that the appellant
suggests that there was no informant and that the surveillance on June 6, 1989 and the
buy-bust operation conducted on June 7, 1989 never took place at all.
Whether or not the prosecution witnesses, particularly the Narcom agents have known
their informant Bobby for one year is not a material point in the crime of illegal sale of
marijuana drug under Section 4, Art. II of the Dangerous Drugs Act. This crime requires
merely the consummation of the selling transaction. (People v. Dekingco, 189 SCRA
512 [1990]; and People v. Catan, G.R. No. 92928, January 21, 1992) in case of a "buybust operation", the crucial point is that the poseur-buyer received the marijuana from
the appellant and the same was presented as evidence in court. Proof of the transaction
is sufficient. (People v. Catan, supra; and People v. Mariano, 191 SCRA 136 [1990])
In the case at bar, the transaction was established by the evidence on record.
Prosecution witness Sgt. Ani who acted as poseur-buyer positively identified the
appellant as the one who sold him six (6) sticks of marijuana for the amount of P10.00.
He testified as follows:
Q On June 7, 1989, at 11:00 o'clock in the morning, who were those who
proceeded to Bandariba, Talon-Talon, this City?

A We were together with Sgt. Belarga, Sgt. Lago and Sgt. Vega.
Q And from your headquarters to Talon-Talon, this City, how did you go?
A We went there to Bandariba by using the motorcycle.
Q What particular place at Bandariba, Talon-Talon, Zamboanga City, did
your group go?
A We stopped first at a little vulcanizing area near the road.
Q What did you do there in that area of vulcanizing?
A Our team leader, Sgt. Lego and Sgt. Vega left at the vulcanizing area.
Q How about you?
A I proceeded to the vicinity where the Lucy store is located.
Q How far is this vulcanizing to Lucy store where you proceeded?
A About 30 to 40 meters.
Q You were able to proceed to the Lucy store?
A Yes, sir.
Q What happened when you were at the Lucy Store?
A In front of the store I was met by Romil Marcos and he asked me what
I want.
Q In that dialect did Romil Marcos ask to what you like for?
A In Tagalog dialect.
Q What did you say to this question of Romil Marcos?
A I said "mayroon ba tayong stock?"
COURT:
Q What do you mean by that?
A "If you have marijuana stock."
FISCAL AVECILLA:
Q Did Romil answer you when you asked that question?
A Yes, he answered.

Q What did he say to you?

A He asked me, "How much?"
Q What did you do when he asked "How much?"
A I handed the P10.00.
Q When you handed that P10.00, what happened next?
A He said "you wait for me near the waiting shed."
Q What happened when you were told to wait in the waiting shed?
A After a while, Romil Marcos left and went inside in a portion of the
store.
Q What happened there, if any?
A When he came back, he brought a paper wrapper where the six (6)
sticks of marijuana cigarettes were found inside.
Q How did you know inside that wrapper are the six sticks of marijuana?
A I opened the wrapper and I found these six sticks of marijuana
cigarettes inside.
Q Do you know where Romil got this wrapper in which you found the six
sticks of marijuana cigarettes?
A Yes, sir.
Q Please tell the court.
A Romil told me, "you wait for a while". I saw he approached a certain
fellow whom we later came to know as Ballena. Then that person got the
money from Romil Marcos, placed inside his pocket and he got inside
from his pocket the paper wrapper containing several sticks of marijuana.
Q You have been talking about this Romil Marcos. Would you be able to
recognize if you see him again?
A Yes, sir.
Q Please look inside the courtroom and see around, and go down from
the witness stand and tap him on his shoulder.
(Witness pointed to a man in court who identified himself as Romil
Marcos when asked) (TSN, October 23, 1989, pp. 18-19)

Second, the appellant points out the supposed inconsistency of the testimonies of Sgt.
Ani, the poseur-buyer and prosecution witness Athena Elias Anderson, document
examiner and forensic chemist of the PC/INP Crime Laboratory Service, Recom IX,
Zamboanga City, who examined the six (6) marijuana sticks (Exhibit "E") submitted for
analysis as regards the wrapper containing the six (6) marijuana sticks which were sold
to the former by the appellant. Thus, while Sgt. Ani testified that the six (6) sticks of
marijuana sold to him by the appellant were wrapped in newspaper, Anderson declared
that the wrapper used and submitted to her containing the six (6) sticks of marijuana
was a primary ruled pad and not a newspaper. The appellant submits that what was
obtained from the appellant is different from the one submitted for examination by
Anderson.
We are not impressed.
The records show that when Sgt. Ani turned over the six (6) marijuana sticks wrapped in
paper sold to him by the appellant, Sgt. Belarga placed his initial, the date, as well as
the sign of a star on the six (6) sticks for identification purposes. (TSN, p. 8, October 23,
1989) The records further reveal that the six (6) sticks of marijuana examined and
analyzed by Anderson were identified in court by Sgt. Belarga as the same six (6) sticks
of marijuana sold by the appellant to Sgt. Ani during the buy-bust operation conducted
at Talon-Talon, Zamboanga City. (TSN, p. 6, October 25, 1989 in relation to TSN pp. 1213, October 25, 1989)
In sum we find no compelling reason to disturb the findings of facts of the trial court. We
give credence to the narration of the incident by the prosecution witnesses who are
police officers and presumed to have performed their duties in a regular manner in the
absence of any evidence to the contrary. (People v. Napat-a, 179 SCRA 403 [1989];
People v. Castillo y Martinez, G.R. No. 93408, April 10, 1992.) Moreover, the buy-bust
operation was methodically executed with surveillance operations done one (1) day
before the arrest of the appellant. We find the procedure adapted by the police officers
in consonance with the application of regularity in the performance of official duties.
(People v. De Jesus, G.R. No. 93852, January 24, 1992; People v. Castillo y Martinez,
supra).
However, the trial court erred in sentencing the appellant to suffer imprisonment of
reclusion perpetua. The proper penalty to be imposed on appellant should be life
imprisonment, not reclusion perpetua and a fine of TWENTY THOUSAND PESOS
(P20,000.00) in accordance with Sec. 4, Article II of Republic Act No. 6425, as
amended. (People v. Catan, supra).
WHEREFORE, the judgment appealed from is AFFIRMED except for the
MODIFICATION that the penalty shall be life imprisonment and a fine of TWENTY
THOUSAND PESOS (P20,000.00) instead of reclusion perpetua. Judgment appealed
from is AFFIRMED.
SO ORDERED.

Bidin, Davide, Jr. and Romero, JJ., concur.

Feliciano, J., is on leave.
The Lawphil Project - Arellano Law Foundation
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 84951 November 14, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SUSANA NAPAT-A y MACABIO, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Jimmy R. Pablito for accused-appellant.

GRIO-AQUINO, J.:
The accused-appellant, Susana Napat-a, was convicted of drug-pushing by the
Regional Trial Court, Branch VI, Baguio City, and sentenced "to LIFE IMPRISONMENT
and to pay a fine of TWENTY THOUSAND (P20,000) PESOS without subsidiary
imprisonment in case of insolvency and to pay the costs."
On February 3, 1985, the Narcotics Regional Unit in Baguio City received information
that a certain Susana Napat-a was looking for a buyer of marijuana leaves. Acting on
this report, Captain Emmanuel Manzano formed a group composed of CIC Leo
Quevedo, A2C Serafin Artizona and Pat. Maximiano Peralta, to conduct a buy-bust
operation. The group proceeded to the public market on Magsaysay Avenue. There, the
informer introduced to the appellant his companion, CIC Leo Quevedo, as an interested
buyer of marijuana. Pat. Peralta, who was then posted at a strategic distance, heard
Quevedo order three (3) kilos of dried marijuana leaves for the price of P800 per kilo set
by Napat-a.
Having closed the deal, the appellant, accompanied by Quevedo and the informer, rode
on a jeep to Brookside, Baguio City, Artizona and Peralta took a taxi and followed them.
Upon reaching Brookside, Peralta and Artizona posted themselves near a store. They

observed Quevedo and the informer standing at the junction of lower and upper
Brookside waiting for Susana Napat-a The latter soon reappeared carrying a brown
carton box which she handed to Quevedo who thereupon made the pre-arranged
signal. On seeing Quevedo's signal, Peralta and Artizona rushed to the scene. CIC
Quevedo held Susana by the arm and placed her under arrest. The three narcotics
agents brought her to their office for investigation. Quevedo, Artizona and Peralta,
executed a joint affidavit (Exh. H) narrating the circumstances leading to the arrest of
the appellant.
The contents of the brown carton box were referred to Lt. Carlos Figueroa, a forensic
chemist of the PC Crime Laboratory in Camp Bado Dangwa, for examination. In his
Chemistry Report No. D-019-85 (Exh. G), Lt. Figueroa affirmed that a qualitative
examination of the specimens taken from the brown carton box showed them to be
marijuana.
In her defense, the appellant claimed that she was a vegetable vendor in the market;
that on February 3, 1985 at about 10:30 A.M. she went home to Brookside to cook food
for her children. On her way back to the city market, she met Naty Doguiwen, who was
also a vegetable vendor. Naty Doguiwen was holding a small box. While they were
waiting for a ride, a man approached Naty. The two talked (which appellant could not
hear), then Naty handed to the man the box she was holding. Suddenly two men
approached Naty who speedily ran way. The two men gave chase but were unable to
catch her. To Susana's surprise, the two men came back and arrested her. She was
brought to headquarters where she was investigated. She submitted her counteraffidavit to the City Fiscal (Exh. 1).
On cross-examination, appellant admitted she signed Exhibit "I" for the prosecution
which shows that her rights were read to her before the investigation. She was informed
of her right to remain silent and to have counsel. All this took place on February 3, 1985
in the presence of her counsel, Atty. Ricardo Tangalin, of the IBP Legal Aid Office.
During the investigation, she signed a receipt for the property that was seized from her
and marked as Exhibit "J". She admitted that the brown carton box containing four
bundles of dried marijuana leaves weighing about three (3) kilos, were seized from her
at M. Roxas, Brookside, Baguio City on February 3, 1985, at 2:30 P.M. During the
custodial investigation, she waived her rights under Article 125 of the Revised Penal
Code, so the investigation could continue (Exh. K).
In this appeal, appellant impugns the receipt (Exh. J) she signed. She alleges that the
receipt is inadmissible as evidence against her because her constitutional right against
self-incrimination was violated when she was made to sign it without being informed of
her rights to counsel and to remain silent.
This contention has no merit. Appellant admitted at the trial that she was assisted by
counsel when she signed Exhibit "J" (t.s.n. March 7, 1988, p. 17). She also signed the
Investigation Report dated February 3, 1985 (Exh. I) which states that during the
custodial investigation, she was informed of her right to remain silent and to counsel,

and that she was assisted by Atty. Ricardo Tangalin of the IBP Legal Aid Office (t.s.n.
March 7, 1988, p. 15).
Appellant questions the non-presentation of the poseur-buyer (Quevedo) who died
before the trial, and the informer, as witnesses at the trial. But, as the trial court pointed
out, the death of Quevedo did not destroy the case of the prosecution, for the sale and
actual delivery of the marijuana by appellant to Quevedo were witnessed by Pat. Peralta
and A2C Artizona, who testified at the trial (t.s.n. Nov. 7, 1986, pp. 3-4).
In support of her denial, appellant cited the testimony of A2C Artizona that he did not
see her handing the brown carton box to Quevedo (t.s.n. August 27, 1987, p. 9).
However, Peralta testified that he saw her give the illegal package to the poseur-buyer
(t.s.n. November 7, 1 986, p. 5). The positive Identification of the accused as the seller
of the marijuana prevails over her denials.
Her defense that she was framed up by the NARCOM team is the usual story of drug
pushers or sellers, which does not impress us (People vs. Agapito, 154 SCRA 694). The
law enforcers are presumed to have performed their duties regularly in the absence of
proof to the contrary (People vs. Natipravat, 145 SCRA 483; People vs. Asio, G.R. No.
84960, September 1, 1989).
Appellant's contention that the trial court erred in convicting her in view of the
prosecution's failure to present to the Court the brown carton box (Exh. B) and its
contents (dried marijuana leaves) (Exhs. C, D, E and F) is not well taken. Carlos V.
Figueroa, Forensic Chemist of the PC Crime Laboratory, testified that the box and its
contents were presented, Identified and marked as exhibits in court (t.s.n. November 6,
1985, pp. 3-8). The subsequent loss of these exhibits did not affect the case for the trial
court had described the evidence in the records (t.s.n. April 13, 1988, p. 2). In People
vs. Mate, 103 SCRA 484, we ruled that "(e)ven without the exhibits which have been
incorporated into the records of the case, the prosecution can still establish the case
because the witnesses properly Identified those exhibits and their testimonies are
recorded." Furthermore, in this case, appellant's counsel had cross- examined the
prosecution witnesses who testified on those exhibits (t.s.n. November 6, 1985, pp. 89).
WHEREFORE, we affirm the decision of the trial court finding appellant Susana Napta-a
guilty beyond reasonable doubt of having violated Section 21(b), Article IV, in relation to
Section 4, Article 11 of R.A. No. 6425, as amended, sentencing her to suffer the penalty
of reclusion perpetua, and to pay a fine of Twenty Thousand Pesos (P20,000) without
subsidiary imprisonment in case of insolvency. The effects of the crime are forfeited in
favor of the State and referred to the Dangerous Drugs Board for immediate destruction.
Costs against the appellant.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 91628 August 22, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MACARIO SANTITO, JR., ALLAN CABALLERO, DIOSCORO CANDIA, BENJAMIN
CAPANGPANGAN and WILLIAM NARCISO, accused-appellants.
The Solicitor General for plaintiff-appellee.
Rolindo A Navarro for accused-appellants.

REGALADO, J.:p
Appellants seek the reversal of the decision of the Regional Trial Court of Toledo City,
Branch XXIX, in Criminal Case No. TCS-792, 1 finding them guilty of robbery with
homicide and sentencing them to suffer the penalty of reclusion perpetua and to
restitute jointly and severally the amount of P10,000.00, to indemnify the heirs of the
victim in the amount of P30,000.00 and to pay compensatory damages representing
funeral expenses in the amount of P23,240.00 and moral damages of P10,000.00. They
were, however, "given full credit of their preventive imprisonment provided they
complied with the rules and regulations (for) convicted prisoners." 2
As found by the lower court, in the morning of January 20, 1987, Jovil Pesquera * was
sent on an errand by his father-in-law, Paulino Rosario, to Abucayan and Arpili and was
given P10,000.00 to buy cattle there. However, he was not able to buy any so he went
home, arriving at Balamban at about 5:00 o'clock in the afternoon of the same day. He
returned the money to his father-in-law who placed the same in the left side pocket of
his trousers. After they had conversed for about two hours on business matters, his
father-in-law then directly went with his son, Emmanuel Rosario, to the church plaza
where his cattle were grazing with the money still in his pocket since he never gave it to
any person. 3
At about 8:00 o'clock in the evening of that day, thirteen-year old Emmanuel Rosario
and his father, Paulino Rosario, were accordingly at the church plaza in Balamban,

Cebu, to get their three cows which were pastured there. Emmanuel noticed the
presence of appellants Allan Caballero, Dioscoro Candia, William Narciso, Benjamin
Capangpangan and Macario Santito, Jr. who were sitting near the statue in the place
where the cows were tied. After Emmanuel had untied the ropes of the cows, appellants
approached them and encircled Paulino. Allan Caballero "wrestled" the neck of Paulino
while Macario Santito, Jr. grappled with the latter. The three other appellants attempted
to help Caballero and Santito, Jr. by trying to participate in the wrestling. Out of fear,
Emmanuel ran away and went to the store of his brother-in-law, Jovil Pesquera, to
report the incident and obtain help.
Forthwith, he and Jovil ran to the plaza and saw appellants still around Paulino who was
lying unconscious. Allan Caballero, Dioscoro Candia and Benjamin Capangpangan
were holding the body of Paulino while William Narciso and Macario Santito, Jr. were
standing by. As Emmanuel and Jovil approached the place appellants ran away toward
the rear of the rural bank. Emmanuel went to his father and noticed that his face was
covered with blood. 4 Jovil ran after appellants but failing to catch up with them, he went
back to the place where his father-in-law was and told Emmanuel that he knew the said
assailants. They checked the pockets of Paulino which they noticed were turned inside
out and found out that the P10,000.00 in the left pocket of his trousers was missing. 5 All
the aforesaid facts and events were visible and known to them as the scene of the
crime was lighted by a nearby mercury lamp and two fluorescent lamps. 6
Emmanuel and Jovil then went to their mother and to the Philippine Constabulary
detachment to report the incident. Sgt. Cueva and Sgt. Cabarrubias accompanied them
back to the scene of the crime and recovered the following: one slipper of Paulino, one
stone, one broken hollow block and one handkerchief. They then brought Paulino to the
family store, then to the Balamban Emergency Hospital where he was treated. 7 On the
advice of the doctor in Balamban, Paulino Rosario was brought to the Cebu Doctor's
Hospital in Cebu City where he died of "intra-cranial hemorrhage, massive, with skull
fracture, traumatic" that evening of January 20, 1987. 8
Dr. Jesus P. Cerna, medical officer of the PC-INP, Cebu Metrodiscom testified that he
conducted a medico-legal examination and submitted a necropsy report on Paulino
Rosario showing that the victim sustained hematoma on the temporal region, lacerated
wounds on the occipital region and a depressed fracture on the right occipital region. He
opined that the injuries could have been caused by a blunt instrument or hard object
with a rough surface in view of the abrasions on the skin. 9
On the strength of the foregoing facts, the following information was filed on July 17,
1987:
That on or about the 20th day of January 1987 at 8:00 o'clock in the evening, more or
less, inside the church plaza of Poblacion, Municipality of Balamban, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one another by means of violence against
and intimidation upon persons, with intent to gain did then and there willfully, unlawfully
and feloniously take, steal and carry away without the consent of the owner thereof, cash
in the amount of P10,000.00, Philippine currency, belonging to Paulino Rosario, to the

damage and prejudice of the owner in the amount aforestated; that by reason or on
occasion of said robbery and for the apparent purpose of enabling the accused to take,
steal and carry away the amount aforementioned, the herein accused conspiring,
confederating and mutually helping one another in pursuance of their intention to rob and
to gain, with intent to kill, did then and there treacherously attack, assault and use
personal violence upon said Paulino Rosario by inflicting several injuries which resulted
(in) his instantaneous death.
CONTRARY TO LAW. 10

Upon arraignment, duly assisted by their respective counsel, appellants entered pleas
of not guilty to the crime charged. 11 Thereafter, trial on the merits ensued.
Appellants offered alibi as their defense. Dioscoro Candia was allegedly viewing a
betamax show in the house of Mayor Lito To-ong at Asturias, Cebu at about the time of
the incident in question. 12 This was corroborated by his friend, Edilberto Ypil who
supposedly also viewed the show together with Candia. 13 Benjamin Capangpangan
was reportedly at Lahug, Cebu City on that fateful night as he delivered money for the
house rental of his sister, Virginia Capangpangan, who was then a tenant of Vernon
Hermoso. 14 This was corroborated by Vemon Hermoso. 15 William Narciso claimed he
was at Pasil, Cebu City at the time of the incident as he worked there as a fish laborer. 16
Allan Caballero declared that he was at a mahjongg den at Sta. Cruz, Balamban, Cebu,
just watching the gambling among several persons. 17 Macario Santito, Jr. asserted that
he was at his home at Prensa, Balamban, Cebu. 18
On the bases of the evidence presented by the parties, the trial court rendered the
assailed decision. Appellants interposed the present appeal after their motion for new
trial or reconsideration was denied, faulting the court a quo with this lone error:
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO SUPPOSED
EYEWITNESSES' ACCOUNTS DESPITE SUBSTANTIAL INCONSISTENCIES IN THEIR
TESTIMONIES vis-a-vis THE ENTRY IN THE POLICE BLOTTER, AND THE
INCREDIBILITY OF THEIR TESTIMONIES. 19

It is doctrinally entrenched that the evaluation of the testimony of witnesses by the trial
court is received on appeal with the highest respect because it is the trial court that has
the direct opportunity to observe them on the stand and detect if they are telling the
truth or lying in their teeth. The assessment is accepted as correct by the appellate
court is indeed binding upon it in the absence of a clear showing that it was
reached arbitrarily. 20 Thus, the principle is firmly settled that the consequent findings of
the trial court as to the credibility of witnesses are entitled to such a degree of respect
by the appellate court. 21
It is the contention of appellants that the testimonies of the prosecution witnesses are
belied by Entry No. 08 dated January 21, 1987 in the Police Blotter of the Balamban
Police Station. They make much of the fact that the said entry is not completely
consistent with the prosecution witnesses' testimonies in open court, although there is

no indication as to who supplied the data appearing in said entry. The pertinent part
thereof which is relied upon by appellants is as follows:
... Investigation conducted revealed that Paulino Rosario together with his son got their
cows which were pastured at the church plaza. The son went ahead leaving his father.
But because Paulino Rosario have (sic) not yet returned, his son went back and his son
found out that Paulino Rosario was struck at his head and it was further discovered that
the money amounting to P8,000.00 capital for purchase of livestock was lost. In this
connection, investigation relative to the incident is going on. 22

A police blotter is a book which records criminal incidents reported to the police. 23
Entries in official records, as in the case of a police blotter, are only prima facie
evidence of the facts therein stated. They are not conclusive. The entry in the police
blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate,
sometimes from either partial suggestions or for want of suggestion or inquiries, without
the aid of which the witness may be unable to recall the connected collateral
circumstances necessary for the correction of the first suggestion of his memory and for
his accurate recollection of all that pertain to the subject. It is understandable that the
testimony during the trial would be more lengthy and detailed than the matters stated in
the police blotter. 24
Furthermore, the said entry in the police blotter was never presented nor offered as
evidence by the defense during the proceedings a quo. 25 Counsel for appellants,
however, insists that said entry appears in "Annex 'A-l'" to Urgent Ex-Parte Motion, Etc.
filed by Atty. Crescendo N. Perolino for accused Santito found on pages 36, 37, 38, 39
and 40 of the Records. 26 This is merely a motion dated March 25, 1987 filed in the
Municipal Circuit Court of Asturias-Balamban, Cebu for the early disposition of the
preliminary investigation and the immediate remand of the same to the provincial fiscal.
Even assuming that the same had been identified in court, it would have no evidentiary
value. Identification of documentary evidence must be distinguished from its formal offer
as an exhibit. The first is done in the course of the trial and is accompanied by the
marking of the evidence as an exhibit. The second is done only when the party rests its
case and not before. The mere fact that a particular document is identified and marked
as an exhibit does not mean it will be or has been offered as part of the evidence of the
party. The party may decide to formally offer it if it believes this will advance its cause,
and then again it may decide not to do so at all. 27
In the case at bar, the defense did not identify or formally offer the said entry in the
police blotter as evidence for appellants. Section 35, Rule 132 of the Rules of Court
provides that the court shall consider no evidence which has not been formally offered;
and it could not have been offered without being identified and marked as an exhibit.
Hence, contrary to the desperate gambit of appellants, the said entry cannot be given
any consideration at all.
Moreover, the imputed inconsistency in the testimonies of the prosecution witnesses on
minor details reinforces rather than weakens their credibility 28 for the reaction of

persons when confronted with a shocking incident varies, 29 as what happened to the
obviously excited and agitated prosecution witnesses in this case when they reported
the incident to the police. Testimonial discrepancies could be caused by the natural
fickleness of memory which tend to strengthen, rather than weaken, credibility as they
erase any suspicion of rehearsed testimony. It would have been more suspicious if
complainant had been able to pinpoint with clarity or describe with precision the exact
sequence of events. The most candid witness oftentimes makes mistakes but such
honest lapses do not necessarily impair his intrinsic credibility. 30
It is true that there was no eyewitness to the actual killing of Paulino Rosario in the
mortiferous robbery subject of this case. However, the prosecution circumstantiates the
guilt of appellants through the testimonies of its principal witnesses, Emmanuel Rosario
and Jovil Pesquera, whose testimonies are positive, straightforward and clearly
revelatory only of the truth of the facts they witnessed, without any dubious motive
shown why they would bear false witness against appellants.
Essential in the success of the prosecution of an offense is the proof of the identity of
the offender. In lieu thereof, the prosecution endeavors to gather all other evidence that
will lead to the inescapable inference of one's culpability. Necessity justifies and both
jurisprudence and law consistently accept resort to circumstantial evidence which
consists in the piecing together of tiny bits of evidence with a view to ascertaining that
the accused is the person responsible for the commission of the offense. 31 To
technically require eyewitness testimony would be, in some cases, placing a premium
against crime detection and granting a passport of immunity to a malefactor.
Circumstantial evidence is sufficient to convict where the circumstances point to the
accused as the culprits. The following circumstances are sufficient to establish the
culpability of appellants in this case beyond reasonable doubt: (a) appellants were all
present and recognized by Emmanuel Rosario when he and his father arrived at the
church plaza to get their cows; (b) appellants were the ones who approached
Emmanuel and his father; (c) appellants concertedly encircled Paulino, "wrestled" his
neck and held him; (d) they were still there when Emmanuel ran away from the place to
seek help from his brother-in-law; (e) when Emmanuel and Jovil Pesquera returned to
the church plaza, appellants were clustered around and holding the body of their father,
whose face was covered with blood; (f) when appellants saw Emmanuel and Jovil, they
ran away toward the rear of the rural bank; (g) they were the same persons who were
chased by Jovil; and (h) the stone and the broken hollow block near the body of the
victim were the probable and logical instruments used in the infliction of the cranial
injuries on the victim.
In a similar case, it was held that direct evidence of the actual stabbing is not necessary
when circumstantial evidence sufficiently establishes that fact. A resort to circumstantial
evidence is, in the very nature of things, a necessity. 32 Circumstantial evidence is
sufficient for conviction if (a) there is more than one circumstance, (b) the facts from
which the inference is derived are proven, and (c) the combination of all the

circumstances is such as to produce a conviction beyond reasonable doubt.

aforementioned requisites are present in the case at bar.

33

All the

Furthermore, Emmanuel and Jovil easily identified appellants because the place where
the crime occurred was sufficiently lighted. Where considerations of visibility are
favorable and the witness does not appear to be biased against the accused, his or her
assertions as to the identity of the malefactor should be normally accepted. This is more
so when the witness is the victim or his near relative because such witness usually
strives to remember the faces of the assailants. 34
The same considerations hold true for the component of robbery in the composite crime
charged. The untraversed evidence shows that the money returned by his son-in-law to
the victim was placed in the latter's pocket and he never gave the same to any person
or passed by any other place to leave the amount there; the victim went directly to the
church plaza to get his cattle, presumably in a hurry to do so because of the lateness of
the hour; he was then set upon and overpowered by appellants; when help came, he
was lying bloody and unconscious, surrounded and his body being held by appellants
and all his pockets turned inside out, all empty and with the money gone; appellants ran
away upon the approach of the victim's son-in-law; and the money was never found or
recovered. It bears further mention, for both the killing and the robbery, that the only
interval of time in the entire series of events which did not have the benefit of an
eyewitness was the few minutes from the time Emmanuel Rosario ran away from where
his father was being ganged upon up to the time when he and Jovil Pesquera returned
to the crime scene to rescue the victim.
Finally, the defense interposed by appellants was properly disregarded by the trial court.
Their alibi is unavailing due to the positive identification by the prosecution witnesses.
Alibi is admittedly and consistently considered 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. 35 Appellants failed to show that they could not have gone
to the locus criminis from the place where they claimed to be at the time the crime was
committed.
Thus, appellant Candia claimed that he was then watching a betamax show at Asturias,
but Asturias and Balamban are just adjoining municipalities. Appellant Caballero alleged
that he was watching a game in a mah-jongg den right in Sta. Cruz, Balamban barely a
kilometer away. Appellant Capangpangan was supposedly in Cebu City to pay rentals
on a house rented by his sister; but although the alleged receipts of payment were
marked as exhibits, the same were not even presented in evidence. Appellant Santito,
Jr. testified that he was in their house at Prensa, Balamban, around three kilometers
away. Appellant Narciso claimed that he was then working in Pasil, Cebu City, carrying
fish from the fishing boat to the market but although he had allegedly been working as
such since 1986, he could not give the names of the pumpboat owner., any of his coworkers or the fish vendor for whom he carried the fish. 36 These facts were not denied.
Furthermore, categorical declarations of witnesses for the prosecution on the details of

the crime are more credible than the denials and uncorroborated alibi interposed by the
accused. 37
The Court is satisfied from its evaluation of the evidence that the trial court acted
correctly in finding appellants guilty as charged. That appellants acted in conspiracy in
the commission of the special complex crime is evident from their proven coordinated
acts before, during and after the perpetration of the offense.
WHEREFORE, the assailed judgment of the trial court is hereby AFFIRMED, with the
modification that the indemnity for the death of the victim is increased to P50,000.00
consonant with the present policy of the Court.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras and Sarmiento, JJ., concur.

Separate Opinions
PADILLA, J., dissenting:
I regret that I have to dissent, consistent with my opinion in G.R. No. 89376 (People of
the Philippines vs. Dionisio Lorenzo y De Ocampo, et al.) with particular reference to the
elements that make up the complex crime of robbery with homicide.
To sustain a conviction for robbery with homicide, it must be established with certitude
that the killing was a mere incident to the robbery, the latter being the main purpose and
objective of the culprit. A situation is contemplated where the homicide results by reason
or on the occasion of the robbery (People vs. Robante G.R. No. 69307,16 October
1989, 178 SCRA 552,561, citing People vs. Aquino, G.R. No, 50523, 29 September
1983, 124 SCRA 835).
Stated differently, in the complex crime of robbery with homicide, an intent to commit
robbery must precede the taking of human life (U.S. vs. Villorente, 30 Phil. 59). It is not
enough to suppose that the purpose of the author of the homicide was to rob, a mere
presumption of such fact is not sufficient to sustain a conviction for the crime of robbery
with homicide (U.S. vs. Bosito, 4 Phil. 100; U.S. vs. Baguiao 4 Phil. 110).
Stated a little more differently, it is the intention of the actor which supplies the
connection between the homicide and the robbery, which is necessary to constitute the
complex offense; and if that intention comprehends the robbery, it is immaterial that the

homicide may immediately precede instead of follow the robbery in point of time (People
vs. Manuel, 44 Phil. 333).
In the present case, the prosecution, in my view, failed to prove that the homicide was
committed for the purpose of committing the robbery. It did not present any evidence as
to the motive which prompted the appellants to kill the deceased. The prosecution also
failed to adduce evidence that the appellants knew of the existence of the amount of
P10,000.00 in the left side pocket of the victim's trousers. The trial court merely
presumed that the killing of the deceased was for the purpose of robbing him. Thus, it
held:
From the evidence presented to this court it indicates that the acts and behavior of the
accused reveal their common purpose to assault instinct harm against Paulino Rosario.
There was a concerted execution of that common purpose from which the elements of
conspiracy can be reasonably deduced.
The crime for which the accused stands charged is a special complex crime when by
reason or occasion by robbery means that the homicide, serious physical injuries defined
under par. 1 & 2 Art. 294 must be committed in the course or the cause of robbery. In the
instant case, as testified to by Jovil Pesquera, he return to his father-in-law, the
deceased, the amount of P10,000.00 which the deceased placed in his left pocket (pp. 12 TSN Dec. 9, 1987 Aurelio Mansueto), before said deceased together with his son
Emmanuel Rosario went to the plaza in order to get the three (3) cows which were
pastured there. Prosecution witnesses Jovil Pesquera as well as Sgt. Eriberto
Cabarrubias, testified that when they went to the crime scene they saw the deceased
already lying down and the left side pocket already inverted where the amount of
P10,000.00 was placed and was already missing. Killing first the victim and thereafter
taking the money from the body of the deceased is robbery with homicide (Pp. vs.
Hernandez, 46 Phil. 48). ...
In the case at bar, taking into considerations the circumstances prior to and after the
killing they could deduced that the victim was killed first then afterwards money was
taken from his body, as his left side pocket was already inverted as observed by Jovil
Pesquera. (Rollo, pp. 78-80) (Emphasis supplied)

It would appear, therefore, that the robbery (even if conclusively pinpointed against
appellants, despite absence of direct evidence on this point) followed the homicide only
as an afterthought. Robbery was not the motive or objective. Hence, the criminal acts of
the appellants should be viewed as two (2) separate offenses (assuming that the
robbery is conclusively attributed to appellants) and not as a single complex offense of
robbery with homicide.
Moreover, in People vs. Pacala, G.R. No. L-26647, 15 August 1974, 58 SCRA 370, the
Court held that:
In order for the crime of robbery with homicide to exist it is necessary that it be clearly
established that a robbery has actually taken place, and that, as a consequence or on the
occasion of such robbery, a homicide was committed. Where the evidence does not
conclusively prove the robbery, the killing of the victim would, therefore, be classified
either as a simple homicide or murder, depending upon the absence of presence of any
qualifying circumstances and not the complex crime of robbery with homicide.

In this case, the circumstantial evidence is insufficient and does not prove conclusively
that robbery was committed by the appellants.
It results from the foregoing opinion that appellants are guilty of homicide or probably
murder for the killing of Paulino Rosario but not of the complex came of robbery with
homicide.

Separate Opinions
PADILLA, J., dissenting:
I regret that I have to dissent, consistent with my opinion in G.R. No. 89376 (People of
the Philippines vs. Dionisio Lorenzo y De Ocampo, et al.) with particular reference to the
elements that make up the complex crime of robbery with homicide.
To sustain a conviction for robbery with homicide, it must be established with certitude
that the killing was a mere incident to the robbery, the latter being the main purpose and
objective of the culprit. A situation is contemplated where the homicide results by reason
or on the occasion of the robbery (People vs. Robante G.R. No. 69307,16 October
1989, 178 SCRA 552,561, citing People vs. Aquino, G.R. No, 50523, 29 September
1983, 124 SCRA 835).
Stated differently, in the complex crime of robbery with homicide, an intent to commit
robbery must precede the taking of human life (U.S. vs. Villorente, 30 Phil. 59). It is not
enough to suppose that the purpose of the author of the homicide was to rob, a mere
presumption of such fact is not sufficient to sustain a conviction for the crime of robbery
with homicide (U.S. vs. Bosito, 4 Phil. 100; U.S. vs. Baguiao 4 Phil. 110).
Stated a little more differently, it is the intention of the actor which supplies the
connection between the homicide and the robbery, which is necessary to constitute the
complex offense; and if that intention comprehends the robbery, it is immaterial that the
homicide may immediately precede instead of follow the robbery in point of time (People
vs. Manuel, 44 Phil. 333).
In the present case, the prosecution, in my view, failed to prove that the homicide was
committed for the purpose of committing the robbery. It did not present any evidence as
to the motive which prompted the appellants to kill the deceased. The prosecution also
failed to adduce evidence that the appellants knew of the existence of the amount of
P10,000.00 in the left side pocket of the victim's trousers. The trial court merely
presumed that the killing of the deceased was for the purpose of robbing him. Thus, it
held:

From the evidence presented to this court it indicates that the acts and behavior of the
accused reveal their common purpose to assault instinct harm against Paulino Rosario.
There was a concerted execution of that common purpose from which the elements of
conspiracy can be reasonably deduced.
The crime for which the accused stands charged is a special complex crime when by
reason or occasion by robbery means that the homicide, serious physical injuries defined
under par. 1 & 2 Art. 294 must be committed in the course or the cause of robbery. In the
instant case, as testified to by Jovil Pesquera, he return to his father-in-law, the
deceased, the amount of P10,000.00 which the deceased placed in his left pocket (pp. 12 TSN Dec. 9, 1987 Aurelio Mansueto), before said deceased together with his son
Emmanuel Rosario went to the plaza in order to get the three (3) cows which were
pastured there. Prosecution witnesses Jovil Pesquera as well as Sgt. Eriberto
Cabarrubias, testified that when they went to the crime scene they saw the deceased
already lying down and the left side pocket already inverted where the amount of
P10,000.00 was placed and was already missing. Killing first the victim and thereafter
taking the money from the body of the deceased is robbery with homicide (Pp. vs.
Hernandez, 46 Phil. 48). ...
In the case at bar, taking into considerations the circumstances prior to and after the
killing they could deduced that the victim was killed first then afterwards money was
taken from his body, as his left side pocket was already inverted as observed by Jovil
Pesquera. (Rollo, pp. 78-80) (Emphasis supplied)

It would appear, therefore, that the robbery (even if conclusively pinpointed against
appellants, despite absence of direct evidence on this point) followed the homicide only
as an afterthought. Robbery was not the motive or objective. Hence, the criminal acts of
the appellants should be viewed as two (2) separate offenses (assuming that the
robbery is conclusively attributed to appellants) and not as a single complex offense of
robbery with homicide.
Moreover, in People vs. Pacala, G.R. No. L-26647, 15 August 1974, 58 SCRA 370, the
Court held that:
In order for the crime of robbery with homicide to exist it is necessary that it be clearly
established that a robbery has actually taken place, and that, as a consequence or on the
occasion of such robbery, a homicide was committed. Where the evidence does not
conclusively prove the robbery, the killing of the victim would, therefore, be classified
either as a simple homicide or murder, depending upon the absence of presence of any
qualifying circumstances and not the complex crime of robbery with homicide.

In this case, the circumstantial evidence is insufficient and does not prove conclusively
that robbery was committed by the appellants.
It results from the foregoing opinion that appellants are guilty of homicide or probably
murder for the killing of Paulino Rosario but not of the complex came of robbery with
homicide.
Footnotes
1 Penned by Judge Gualberto P. Delgado.

2 Original Record, 270-271.

* This witness is also referred to in some portions of the record as Jovil Pequera.
3 TSN, December 9, 1987, 1-12, 36-37.
4 Ibid., September 21, 1987, 3-8.
5 Ibid., Id., 11-12; December 9, 1987, 11-12.
6 Ibid., November 19, 1987, 4.
7 Ibid., September 21, 1987, 13-16.
8 Ibid., Id., 18-19; Exhibit "G", Original Record, 15.
9 Ibid., January 28, 1988, 4-7.
10 Original Record, 1-2.
11 Rollo, 8.
12 TSN, April 21, 1988, 15.
13 Ibid., December 9, 1988, 4.
14 Ibid., July 25, 1988, 6.
15 Ibid., June 28, 1989, 4.
16 Ibid., October 13, 1988, 3.
17 Ibid., May 26, 1988, 5.
18 Ibid., November 10, 1988,15.
19 Appellant's Brief, 3; Rollo, 61.
20 People vs. Manalansan, 189 SCRA 619 (1990).
21 People vs. Catubig, et al., G.R. No. 71626, March 22, 1991.
22 Appellant's Brief, 6; Rollo, 64.
23 Moreno, Philippine Law Dictionary, 708, 3rd Ed., citing People vs. Panganiban, 20772-CR, December 6,1979.
24 Ford vs. Court of Appeals, et al., 186 SCRA 21 (1990).
25 Rollo, 3-4.
26 Ibid., 60. This is actually found on pages 4044 of the Original Record.
27 Interpacific Transit, Inc. vs. Aviles, 186 SCRA 385 (1990).
28 People vs. Obando, et al., 182 SCRA 95 (1990).
29 People vs. Yagong 181 SCRA 479 (1990).

30 People vs. Pasco, et al., 181 SCRA 233 (1990).

31 People vs. Gamboa, G.R. No. 91374, February 25, 1991.
32 People vs. Roa, 167 SCRA 116 (1988).
33 people vs. Agan, 181 SCRA 856 (1990); Section 4, Rule 133, Rules of Court.
34 People vs. Beringuel et al., G.R. Nos. 63753-54, December 21, 1990.
35 People vs. Cinco, et al., G.R. No. 79497, February 27, 1991.
36 Memorandum for the Private Prosecution, Original Record, 244-247.
37 People vs. Besa, 183 SCRA 533 (1990).

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 85423 May 6, 1991

JOSE TABUENA, petitioner,
vs.
COURT OF APPEALS and EMILIANO TABERNILLA, JR., respondents.
Ramon Dimen for petitioner.
Dionisio A. Hernandez for private respondent.

CRUZ, J.:p
The petitioner faults the decision of the trial court, as affirmed by the respondent court,
for lack of basis. It is argued that the lower courts should not have taken into account
evidence not submitted by the private respondent in accordance with the Rules of
Court.
The subject of the dispute is a parcel of residential land consisting of about 440 square
meters and situated in Poblacion, Makato, Aklan. In 1973, an action for recovery of
ownership thereof was filed in the Regional Trial Court of Aklan by the estate of Alfredo

Tabernilla against Jose Tabuena, the herein petitioner. After trial, judgment was
rendered in favor of the plaintiff and the defendant was required to vacate the disputed
lot. 1
As the trial court found, the lot was sold by Juan Peralta, Jr. sometime in 1926 to Alfredo
Tabernilla while the two were in the United States. Tabernilla returned to the Philippines
in 1934, and Damasa Timtiman, acting upon her son Juan's instruction, conveyed the
subject land to Tabernilla. At the same time, she requested that she be allowed to stay
thereon as she had been living there all her life. Tabernilla agreed provided she paid the
realty taxes on the property, which she promised to do, and did. She remained on the
said land until her death, following which the petitioner, her son and half-brother of Juan
Peralta, Jr., took possession thereof. The complaint was filed when demand was made
upon Tabuena to surrender the property and he refused, claiming it as his own.
The trial court rejected his defense that he was the absolute owner of the lot, which he
inherited from his parents, who acquired it even before World War II and had been living
thereon since then and until they died. Also disbelieved was his contention that the
subject of the sale between Peralta and Tabernilla was a different piece of land planted
to coconut trees and bounded on three sides by the Makato River.
Tabuena appealed to the respondent court, complaining that, in arriving at its factual
findings, the trial court motu proprio took cognizance of Exhibits "A", "B" and "C", which
had been marked by the plaintiff but never formally submitted in evidence. The trial
court also erred when, to resolve the ownership of the subject lot, it considered the
proceedings in another case involving the same parties but a different parcel of land.
The said exhibits are referred to in the pre-trial order as follows:
Plaintiff proceeded to mark the following exhibits: Exh. "A", letter dated October 4, 1921
addressed in Makato, Capiz, Philippines; Exh. "A-1", paragraph 2 of the letter indicating
that the amount of P600.00the first P300.00 and then another P300.00 as interest
since October 4, 1921; Exh. "A-2", is paragraph 3 of the letter; Exh. "B", a Spanish
document; Exh. "C", deed of conveyance filed by Tomasa Timtiman and Alfredo Tabernilla
in 1923; and Exh. "C-1", paragraph 4 of Exh. "C".

In sustaining the trial court, the respondent court held that, contrary to the allegations of
the appellant, the said exhibits were in fact formally submitted in evidence as disclosed
by the transcript of stenographic notes, which it quoted at length. 2 The challenged
decision also upheld the use by the trial court of testimony given in an earlier case, to
bolster its findings in the second case.
We have examined the record and find that the exhibits submitted were not the abovedescribed documents but Exhibits "X" and "T" and their sub-markings, which were the
last will and testament of Alfredo Tabernilla and the order of probate. It is not at all
denied that the list of exhibits does not include Exhibits "A", "B" and "C". In fact, the trial
court categorically declared that "Exhibits "A-1, "A-2", "B", "C" and "C-l," were not
among those documents or exhibits formally offered for admission by plaintiff-

administratrix." This is a clear contradiction of the finding of the appellate court, which
seems to have confused Exhibits "A," "B" and "C" with Exhibits "X" and "Y", the
evidence mentioned in the quoted transcript.
Rule 132 of the Rules of Court provides in Section 35 thereof as follows:
Sec. 35. Offer of evidence.The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.

The mere fact that a particular document is marked as an exhibit does not mean it has
thereby already been offered as part of the evidence of a party. It is true that Exhibits
"A," "B" and "C" were marked at the pre-trial of the case below, but this was only for the
purpose of identifying them at that time. They were not by such marking formally offered
as exhibits. As we said in Interpacific Transit, Inc. vs. Aviles, 3 "At the trial on the merits,
the party may decide to formally offer (the exhibits) if it believes they will advance its
cause, and then again it may decide not to do so at all. In the latter event, such
documents cannot be considered evidence, nor can they be given any evidentiary
value."
Chief Justice Moran explained the rationale of the rule thus:
. . . The offer is necessary because it is the duty of a judge to rest his findings of facts and
his judgment only and strictly upon the evidence offered by the patties at the trial. 4

We did say in People vs. Napat-a 5 that even if there be no formal offer of an exhibit, it
may still be admitted against the adverse party if, first, it has been duly identified by
testimony duly recorded and, second, it has itself been incorporated in the records of
the case. But we do not find that these requirements have been satisfied in the case
before us. The trial court said the said exhibits could be validly considered because,
even if they had not been formally offered, one of the plaintiffs witnesses, Cunegunda
Hernandez, testified on them at the trial and was even cross-examined by the
defendant's counsel. We do not agree. Although she did testify, all she did was identify
the documents. Nowhere in her testimony can we find a recital of the contents of the
exhibits.
Thus, her interrogation on Exhibit "A" ran:
LEGASPI: That is this Exh. "A" about ?
A The translation of the letter.
Q What is the content of this Exh. "A", the letter of the sister of Juan
Peralta to Alfredo Tabernilla?
Court: The best evidence is the document. Proceed.

She also did not explain the contents of the other two exhibits.

The respondent court also held that the trial court committed no reversible error in
taking judicial notice of Tabuena's testimony in a case it had previously heard which was
closely connected with the case before it. It conceded that as a general rule "courts are
not authorized to take judicial notice, in the adjudication of cases pending before them,
of the contents of the records of other cases, even when such cases have been tried or
are pending in the same court, and notwithstanding the fact that both cases may have
been heard or are actually pending b before the same judge. 7 Nevertheless, it applied
the exception that:
. . . in the absence of objection, and as a matter of convenience to all parties, a court may
properly treat all or any part of the original record of a case filed in its archives as read
into the record of a case pending before it, when, with the knowledge of the opposing
party, reference is made to it for that purpose, by name and number or in some other
manner by which it is sufficiently designated; or when the original record of the former
case or any part of it, is actually withdrawn from the archives by the court's direction, at
the request or with the consent of the parties, and admitted as a part of the record of the
case then pending. 8

It is clear, though, that this exception is applicable only when, "in the absence of
objection," "with the knowledge of the opposing party," or "at the request or with the
consent of the parties," the case is clearly referred to or "the original or part of the
records of the case are actually withdrawn from the archives" and "admitted as part of
the record of the case then pending." These conditions have not been established here.
On the contrary, the petitioner was completely unaware that his testimony in Civil Case
No. 1327 was being considered by the trial court in the case then pending before it. As
the petitioner puts it, the matter was never taken up at the trial and was "unfairly sprung"
upon him, leaving him no opportunity to counteract.
The respondent court said that even assuming that the trial court improperly took
judicial notice of the other case, striking off all reference thereto would not be fatal to the
plaintiff's cause because "the said testimony was merely corroborative of other
evidences submitted by the plaintiff." What "other evidences"? The trouble with this
justification is that the exhibits it intends to corroborate, to wit, Exhibits "A", "B" and "C",
have themselves not been formally submitted.
Considering the resultant paucity of the evidence for the private respondent, we feel that
the complaint should have been dismissed by the trial court for failure of the plaintiff to
substantiate its allegations. It has failed to prove that the subject lot was the same
parcel of land sold by Juan Peralta, Jr. to Alfredo Tabernilla and not another property, as
the petitioner contends. Even assuming it was the same lot, there is no explanation for
the sale thereof by Juan Peralta, Jr., who was only the son of Damasa Timtiman.
According to the trial court, "there is no question that before 1934 the land in question
belonged to Damasa Timtiman." Juan Peralta, Jr. could not have validly conveyed title
to property that did not belong to him unless he had appropriate authorization from the
owner. No such authorization has been presented.
It is true that tax declarations are not conclusive evidence of ownership, as we have
held in many cases. However, that rule is also not absolute and yields to the accepted

and well-known exception. In the case at bar, it is not even disputed that the petitioner
and his predecessors-in-interest have possessed the disputed property since even
before World War II. In light of this uncontroverted fact, the tax declarations in their
name become weighty and compelling evidence of the petitioner's ownership. As this
Court has held:
While it is true that by themselves tax receipts and declarations of ownership for taxation
purposes are not incontrovertible evidence of ownership they become strong evidence of
ownership acquired by prescription when accompanied by proof of actual possession of
the property. 9
It is only where payment of taxes is accompanied by actual possession of the land
covered by the tax declaration that such circumstance may be material in supporting a
claim of ownership. 10
The tax receipts accompanied by actual and continuous possession of the subject
parcels of land by the respondents and their parents before them for more than 30 years
qualify them to register title to the said subject parcels of land. 11

The Court can only wonder why, if Alfredo Tabernilla did purchase the property and
magnanimously allowed Damasa Timtiman to remain there, he did not at least require
her to pay the realty taxes in his name, not hers. The explanation given by the trial court
is that he was not much concerned with the property, being a bachelor and fond only of
the three dogs he had bought from America. That is specious reasoning. At best, it is
pure conjecture. If he were really that unconcerned, it is curious that he should have
acquired the property in the first place, even as dacion en pago. He would have
demanded another form of payment if he did not have the intention at all of living on the
land. On the other hand, if he were really interested in the property, we do not see why
he did not have it declared in his name when the realty taxes thereon were paid by
Damasa Timtiman or why he did not object when the payments were made in her own
name.
In comparison, all the acts of Damasa Timtiman and Jose Tabuena indicate that they
were the owners of the disputed property. Damasa Timtiman and her forebears had
been in possession thereof for more than fifty years and, indeed, she herself stayed
there until she died. 12 She paid the realty taxes thereon in her own name. 13 Jose
Tabuena built a house of strong materials on the lot. 14 He even mortgaged the land to
the Development Bank of the Philippines and to two private persons who acknowledged
him as the owner. 15 These acts denote ownership and are not consistent with the
private respondent's claim that the petitioner was only an overseer with mere
possessory rights tolerated by Tabernilla.
It is the policy of this Court to accord proper deference to the factual findings of the
courts below and even to regard them as conclusive where there is no showing that
they have been reached arbitrarily. The exception is where such findings do not conform
to the evidence on record and appear indeed to have no valid basis to sustain their
correctness. As in this case.

The conclusions of the trial court were based mainly on Exhibits "A", "B" and "C", which
had not been formally offered as evidence and therefore should have been totally
disregarded, conformably to the Rules of Court. The trial court also erred when it relied
on the evidence submitted in Civil Case No. 1327 and took judicial notice thereof
without the consent or knowledge of the petitioner, in violation of existing doctrine. Thus
vitiated, the factual findings here challenged are as an edifice built upon shifting sands
and should not have been sustained by the respondent court.
Our own finding is that the private respondent, as plaintiff in the lower court, failed to
prove his claim of ownership over the disputed property with evidence properly
cognizable under our adjudicative laws. By contrast, there is substantial evidence
supporting the petitioner's contrary contentions that should have persuaded the trial
judge to rule in s favor and dismiss the complaint.
WHEREFORE, the petition is GRANTED. The appealed decision is REVERSED and
SET ASIDE, with costs against the private respondent. It is so ordered.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Rollo, pp. 59-72; decided by Judge Gerardo M.S. Pepito.
2 Ibid., pp. 27-29; Gonzaga-Reyes, J., ponente, with Bellosillo and Marigomen, JJ.,
concurring.
3 186 SCRA 385.
4 Moran, Comments on the Rules of Court, Vol. 6, 1970 Ed., p. 21.
5 179 SCRA 403.
6 TSN, April 17, 1980, p. 32.
7 Rollo, p. 25.
8 U.S. vs. Claveria, 29 Phil. 527.
9 Republic vs. Court of Appeals, 131 SCRA 533.
10 Heirs of Celso Amarante vs. Court of Appeals, 185 SCRA 585.
11 Samson vs. Court of Appeals, 141 SCRA 194.
12 Rollo, p. 64.
13 Exh. "7".

14 Rollo, pp. 39-40.

15 Exhs. "12," "13" and "l4."

The Lawphil Project - Arellano Law Foundation

The Lawphil Project - Arellano Law Foundation

Judicial Affidavit Rule A.M. No. 12-8-8-SC

Whereas, case congestion and delays plague most courts in cities,
given the huge volume of cases filed each year and the slow and
cumbersome adversarial system that the judiciary has in place;
Whereas, about 40% of criminal cases are dismissed annually
owing to the fact that complainants simply give up coming to court after repeated
postponenments;
Whereas, few foreign businessmen make long-term investments in the Philippines because its
courts are unable to provide ample and speedy protection to their investments, keeping its people
poor;
Whereas, in order to reduce the time needed for completing the testimonies of witnesses in cases
under litigation, on February 21, 2012 the Supreme Court approved for piloting by trial courts in
Quezon City the compulsory use of judicial affidavits in place of the direct testimonies of
witnesses;
Whereas, it is reported that such piloting has quickly resulted in reducing by about two-thirds the
time used for presenting the testimonies of witnesses, thus speeding up the hearing and
adjudication of cases;
Whereas, the Supreme Court Committee on the Revision of the Rules of Court, headed by Senior
Associate Justice Antonio T. Carpio, and the Sub-Committee on the Revision of the Rules on
Civil Procedure, headed by Associate Justice Roberto A. Abad, have recommended for adoption
a Judicial Affidavit Rule that will replicate nationwide the success of the Quezon City experience
in the use of judicial affidavits; and
Whereas, the Supreme Court En Banc finds merit in the recommendation;
NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates the following:
Section 1. Scope. (a) This Rule shall apply to all actions, proceedings, and incidents requiring
the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial
Courts, the Municipal Circuit Trial Courts, and the Sharia Circuit Courts but shall not apply to
small claims cases under A.M. 08-8-7-SC;
(2) The Regional Trial Courts and the Sharia District Courts;
(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Sharia
Appellate Courts;
(4) The investigating officers and bodies authorized by the Supreme Court to receive evidence,
including the Integrated Bar of the Philippine (IBP); and
(5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the
provisions of this Rule.[1]
(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers
shall be uniformly referred to here as the court.
Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. (a) The
parties shall file with the court and serve on the adverse party, personally or by licensed courier
service, not later than five days before pre-trial or preliminary conference or the scheduled
hearing with respect to motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses direct
testimonies; and
(2) The parties documentary or object evidence, if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the
plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.
(b) Should a party or a witness desire to keep the original document or object evidence in his
possession, he may, after the same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a
faithful copy or reproduction of that original. In addition, the party or witness shall bring the
original document or object evidence for comparison during the preliminary conference with the
attached copy, reproduction, or pictures, failing which the latter shall not be admitted.
Sec. 3. Contents of Judicial Affidavit. A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino, accompanied by a translation in English
or Filipino, and shall contain the following:
(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he
does so under oath, and that he may face criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:
(1) Show the circumstances under which the witness acquired the facts upon which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the case presents; and
(3) Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer who is
authorized by law to administer the same.
Sec. 4. Sworn attestation of the lawyer. (a) The judicial affidavit shall contain a sworn
attestation at the end, executed by the lawyer who conducted or supervised the examination of
the witness, to the effect that:
(1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding
answers that the witness gave; and
(2) Neither he nor any other person then present or assisting him coached the witness regarding
the latters answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.
Sec. 5. Subpoena. If the government employee or official, or the requested witness, who is
neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a
judicial affidavit or refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual production in court,
the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the
witness in this case shall be the same as when taking his deposition except that the taking of a
judicial affidavit shall be understood to be ex parte.
Sec. 6. Offer of and objections to testimony in judicial affidavit. The party presenting the
judicial affidavit of his witness in place of direct testimony shall state the purpose of such
testimony at the start of the presentation of the witness. The adverse party may move to
disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of
inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the
marking of any excluded answer by placing it in brackets under the initials of an authorized court

personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of
the Rules of Court.
Sec. 7. Examination of the witness on his judicial affidavit. The adverse party shall have the
right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the
same. The party who presents the witness may also examine him as on re-direct. In every case,
the court shall take active part in examining the witness to determine his credibility as well as the
truth of his testimony and to elicit the answers that it needs for resolving the issues.
Sec. 8. Oral offer of and objections to exhibits. (a) Upon the termination of the testimony of his
last witness, a party shall immediately make an oral offer of evidence of his documentary or
object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for
which he offers the particular exhibit.
(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his
objection, if any, to its admission, and the court shall immediately make its ruling respecting that
exhibit.
(c) Since the documentary or object exhibits form part of the judicial affidavits that describe and
authenticate them, it is sufficient that such exhibits are simply cited by their markings during the
offers, the objections, and the rulings, dispensing with the description of each exhibit.
Sec. 9. Application of rule to criminal actions. (a) This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty
involved; or
(3) With respect to the civil aspect of the actions, whatever the penalties involved are.
(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days
before the pre-trial, serving copies of the same upon the accused. The complainant or public
prosecutor shall attach to the affidavits such documentary or object evidence as he may have,
marking them as Exhibits A, B, C and so on. No further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit his judicial affidavit as well as those of his
witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on
the public and private prosecutor, including his documentary and object evidence previously
marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear before the court to testify.
Sec. 10. Effect of non-compliance with the Judicial Affidavit Rule. (a) A party who fails to
submit the required judicial affidavits and exhibits on time shall be deemed to have waived their

submission. The court may, however, allow only once the late submission of the same provided,
the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting
party pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the
court.
(b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled
hearing of the case as required. Counsel who fails to appear without valid cause despite notice
shall be deemed to have waived his clients right to confront by cross-examination the witnesses
there present.
(c) The court shall not admit as evidence judicial affidavits that do not conform to the content
requirements of Section 3 and the attestation requirement of Section 4 above. The court may,
however, allow only once the subsequent submission of the compliant replacement affidavits
before the hearing or trial provided the delay is for a valid reason and would not unduly
prejudice the opposing party and provided further, that public or private counsel responsible for
their preparation and submission pays a fine of not less than Pl,000.00 nor more than P5,000.00,
at the discretion of the court.
Sec. 11. Repeal or modification of inconsistent rules. The provisions of the Rules of Court and
the rules of procedure governing investigating officers and bodies authorized by the Supreme
Court to receive evidence are repealed or modified insofar as these are inconsistent with the
provisions of this Rule.
The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby
disapproved.
Sec. 12. Effectivity. This rule shall take effect on January 1, 2013 following its publication in
two newspapers of general circulation not later than September 15, 2012. It shall also apply to
existing cases.
Manila, September 4, 2012.