G.R. No. 92740 March 23, 1992 2.
2. Can the Honorable Court award legally moral and temperate damages
PHILIPPINE AIRLINES, INC., petitioner,
vs.
JAIME M. RAMOS, NILDA RAMOS, ERLINDA ILANO, MILAGROS ILANO,
DANIEL ILANO AND FELIPA JAVALERA, respondents.
MEDIALDEA, J.:
This petition for review on certiorari seeks to reverse the decision of the
Court of Appeals dated March 15, 1990 affirming in toto the decision of the
Regional Trial Court of Imus, Cavite, Branch 21, directing the Philippine
Airlines, Inc. (PAL, for short) to pay the private respondents the amounts
specified therein as actual, moral and temperate damages as well as
attorney's fees and expenses of litigation.
The antecedents facts are briefly recounted by the appellate court, as
follows:
Plaintiffs Jaime Ramos, Nilda Ramos, Erlinda Ilano, Milagros Ilano, Daniel
Ilano and Felipe Javalera, are officers of the Negros Telephone Company
who held confirmed tickets for PAL Flight No. 264 from Naga City to Manila
on September 24, 1985, scheduled to depart for Manila at 4:25 p.m. The
tickets were brought sometime in August 1985. Among the conditions
included in plaintiffs tickets is the following:
1. CHECK-IN TIME — Please check in at the Airport Passenger check-in
counter at least one hour before PUBLISHED departure time of your flight.
We will consider your accommodation forfeited in favor of waitlisted
passenger if you fail to check-in at least 30 minutes before PUBLISHED
departure time. (Exhs. (1-A-A, 2-A-1, S-A, O-A-1, tsn. Nov 23, 1987, p. 8).
Plaintiffs claim in their Complaint that they went tot he check-in counter of
the defendant's Naga branch at least one (1) hour before the published
departure time but no one was at the counter until 30 minutes before
departure, but upon checking -in and presentation of their tickets to the
employee/clerk who showed up, their tickets were cancelled and the seats
awarded to chance passengers; plaintiffs had to go to Manila by bus, and
seek actual, moral and exemplary damages, and attorney's fees for breach
of contract of carriage.
Defendant disclaim any liability, claiming that the non-accommodation of
plaintiff on the said flight was due to their having check-in (sic) late for
their flight. It is averred even if defendant is found liable to the plaintiffs
such liability is confined to, and limited by, the CAB Economic Regulations
No. 7 in conjunction with P.D. 589.
The trial court rendered judgment finding defendant guilty of breach of
contract of carriage in bumping-off the plaintiffs from its F264 flight of
September 25, 1985, and ordered defendant to pay:
1) P1,250.20 — the total value of the tickets:
2) P22.50 — the total value of airport security fees
and terminal fees;
3) P20,000.00 — for each of the plaintiffs for moral
and temperate damages; and
4) P5,000.00 — for attorney's fees and expenses of
litigation. (Rollo, pp. 35-36)
PAL appealed to the Court of Appeals. On March 15, 990, the appellate
court rendered a decision, the dispositive portion of which, reads:
WHEREFORE, the decision appealed from is AFFIRMED in toto, with costs
against appellant.
SO ORDERED. (Rollo, p. 42)
Hence, this present petition with the following legal questions:
1. Can the Honorable Court of Appeals validity promulgate the questioned
decision by the simple expedient of adopting in toto the trial court's finding
that defendant-appellant is liable for damages on the sole issue of
credibility of witnesses without considering the material admissions made
by the plaintiffs and other evidence on record that substantiate the
defense of defendant-appellant.
plus attorney's fees of P5,000.00 contrary to the evidence and established
jurisprudence. (Rollo, p. 9)
Under Section 1, Rule 131 of the Rules of Court, each party in a case is
required to prove his affirmative allegations. In civil cases, the degree of
evidence required of a party in order to support his claim is preponderance
of evidence or that evidence adduced by one party which is more
conclusive and credible than that of the other party (Stronghold Insurance
Company, Inc. vs. Court of Appeals, et al., G.R. No. 83376, May 29, 1989,
173 SCRA 619, 625).
The case at bar presents a simple question of fact: Whether or not the
private respondents were late in checking-in for their flight from Naga City
to Manila on September 24. 1985. It is immediately apparent from the
records of this case that the claims of the parties on this question are
dramatically opposed. As a rule, the determination of a question of fact
depends largely on the credibility of witnesses unless some documentary
evidence is available which clearly substantiates the issue and whose
genuineness and probative value is not disputed (Legarda v. Miaile, 88 Phil.
637, 642). The exception to the rule now runs true in this case.
We reverse. This case once more illustrates Our power to re-weigh the
findings of lower courts when the same are not supported by the record or
not based on substantial evidence (see Cruz v. Villarin, G.R. No. 75679,
January 12, 1990, 181 SCRA 53, 61).
It is an admitted fact that the private respondents knew of the required
check-in time for passengers. The time requirement is prominently printed
as one of the conditions of carriage on their tickets, i.e., that the airport
passenger should check-in at least one hour before published departure
time of his flight and PAL shall consider his accommodation forfeited in
favor of waistlisted passengers if he fails to check-in at least 30 minutes.
We note that while the aforequoted condition has always been applied
strictly and without exception (TSN, December 16, 1987, p. 11), the station
manager, however, may exercise his discretion to allow passengers who
checked-in late to board provided the flight is not fully booked and seats
are available (ibid, pp. 17-18). On September 24, 1985, flight 264 from Naga
to Manila was fully booked owing to the Peñafrancia Festival (TSN, January
25, 1988, p.5). In addition, PAL morning flights 261 and 262 were canceled
resulting in a big number o f waitlisted passengers. (TSN, November 23,
1987, p. 6).
The private respondents claim that they were on time in checking-in for
their flight; that no PAL personnel attended to them until much later which
accounted for their late check-in; that PAL advanced the check-in time and
the departure of their flight resulting in their non-accommodation; and that
they suffered physical difficulties, anxieties and business losses.
The evidence on record does not support the above contentions. We note
that there were two other confirmed passengers who came ahead of the
private respondents but were refused accommodation because they were
late. Edmundo Araquel, then the check-in-clerk, testified on this point, as
follows:
Atty. Marcelino C. Calica, counsel for PAL
Q Before the plaintiffs arrive (sic) at the check-in counter, do you recall if
there were other passengers who arrived at the counter and they were
advised that they were late?
A Yes, sir.
Q Who were those persons?
A My former classmates at Ateneo, sir, Rose Capati and Go, Merly.
Q Were these two passengers also confirmed passengers on this flight?
A Yes, sir.
Q I show to you a document which is entitled "Passenger Manifest of flight
264, September 24, 1985," which we request to be marked as Exh. "5" you
said earlier that aside from the plaintiffs here there were two other
passengers who also checked in but they were also late and you mentioned
the names of these passengers as Capati and Go, please point to us that
entry which will show the names of Go and Capati?
A Here, sir, numbers 13 and 14 of the Manifest.
ATTY. CALICA: We request that passengers 13 and 14 be marked in
evidence, Go for 13 and Capati for 14 as Exh. "5-A."
Q You said that these two passengers you mentioned were also similarly
denied accommodations because they checked in late, did they check in
before or after the plaintiffs?
A Before, sir.
Q What time did they appear at the counter?
A 4:01 p.m., sir.
Q What happened when they checked in at 4:01?
A I told them also that they were late so they cannot be accommodated
and they tried to protest, but they decided later on just to refund the
ticket. (TSN of November 23, 1987, pp. 11-12)
Shortly after, the private respondents followed the aforesaid two
passengers at the counter. At this juncture, Araquel declared, thus:
Q Now, you said that you met the plaintiffs in this case because they were
passengers of Flight 264 on September 24, 1985 and they were not
accommodated because they checked in late, what time did these plaintiffs
check in?
A Around 4:02 p.m., sir.
Q Who was the clerk at the check in counter who attended to them?
A I was the one, sir.
xxx xxx xxx
Q You said when you were presented the tickets of the plaintiffs in this case
and noting that they were late for checking in, immediately after advising
them that they were late, you said you made annotation on the tickets?
A Yes, sir.
Q I am showing to you Exhs. "A," "B," "C," and "D," which are the tickets of
Mr. & Mrs. Jaime Ramos for Exh. "A," Exh. "B" ticket of Mr. & Mrs. Daniel
Ilano, "C" ticket of Felipa Javalera and "D" ticket of Erlinda Ilano, will you
please go over the same and point to us the notations you said you made
on these tickets?
A This particular time, sir. (Witness pointing to the notation "Late" and the
time "4:02" appearing at the upper righthand of the tickets Exhs. "A," "B,"
"C," and "D.")
Q How long did it take after the tickets were tendered to you for checking
in and before you made this notation?
A It was just seconds, sir.
Q On the tickets being tendered for check-in and noting that they were
late, you mean to say you immediately made annotations?
A Yes, sir. That is an S.O.P. of the office.
Q So on what time did you base that 4:02?
A At the check-in counter clock, sir.
Q At the time you placed the time, what was the time reflected at the
counter clock?
A 4:02, sir. (ibid, pp. 8-11)
The private respondents submitted no controverting evidence. As clearly
manifested above, the intervening time between Capati and Go and the
private respondents took only a mere second. If indeed, the private
respondents were at the check-in counter at 3:30 p.m., they could have
been the first ones to be attended to by Araquel than Capati and Go. They
cold have also protested if they were the earliest passengers at the counter
but were ignored by Araquel in favor of Go and Capati. They did not.
It is likewise improbable that not a single PAL personnel was in attendance
at the counter when the check-in counter was supposed to be opened at
3:25 p.m. It mist be remembered that the morning flight to Manila was
canceled and hence, it is not farfetched for Us to believe that the PAL
personnel then have their hands full in dealing with the passengers of the
morning flight who became waitlisted passengers. Moreover, the emphatic
assertions of private respondent Daniel Javalora Ilano regarding the
absence of a PAL personnel lost its impact during the cross examination:
ATTY. CALICA —
Q So, you maintain therefore that for all the time that you waited for there
for the whole twenty (20) minutes the check-in counter and other PAL
Offices there — the whole counter was completely unmanned? I am
referring to the whole area there where it is enclosed by a counter.
I will describe to you, for the benefit of the court.
When you approach the counter at Naga Airport, the counter is enclosed, I
mean, you cannot just go inside the PAL office, right? there is some sort of
counter where you deal with the PAL personnel and you approximate this
counter to be five (5) to six (6) meters. Now, this space after the counter,
did you observe what fixtures or enclosures are contained there inside the
enclosed space?
A I am not sure whether there are offices or enclosures there.
Q You have been traveling and had opportunity to check-in your tickets so
may times. Everytime that you check-in, how many personnel are manning
the check-in counter?
A There are about three (3) or four (4), sir.
Q Everytime, there are three (3) or four (4)?
A Everytime but not that time.
Q I am referring to your previous trips, I am not referring to this incident.
On previous occasions when you took the flight with Pili Airport and you
see three (3) or four (4) personnel everytime, are all these three (3) or four
(4) personnel at the counter or some are standing at the counter or others
are seated on the table doing something or what? Will you describe to us?
A Some are handling the baggages and some are checking-in the tickets.
Q So, on most occasions when you check-in and say, there were at least
three (3) of four (4) people at the check-in counter, one would attend to
the tickets, another to the check in baggage, if any. Now, do you notice if
somebody evade when you check-in your ticket. This other person would
receive the flight coupon which is detached from your ticket and record it
on what we call passenger manifest?
A That's true.
Q Now, it is clear one would attend to the baggage, another person would
receive the ticket, detach the coupon and one would record it on the
passenger manifest. What about the fourth, what was he doing, if you
recall?
A I think, putting the identification tags on the baggages (sic). (TSN,
November 17, 1986, p. 38)
Ilano's declaration becomes even more patently unreliable in the face of
the Daily Station Report of PAL dated September 24, 1985 which contained
the working hours of its personnel from 0600 to 1700 and their respective
assignments, as follows:
ATTY. CALICA
Q Normally upon opening of the check-in counter, how many PAL
personnel are assigned to man the counter?
EDMUNDO ARAQUEL
A A total of four personnel with the assistance of others.
Q Who are these personnel are assigned to the counter and what specific
duties they performed?
A Mr. Oropesa handled the cargo, Mr. Espiritu handled the ticketing, Mr.
Valencia and me handled the checking in of passengers.
Q Are you referring to this particular flight 264 on September 24, 1985?
A Yes, sir.
Q Who was assigned as check-in clerk that particular time?
A I was the one with Mr. Valencia, sir.
Q What was Mr. Valencia doing?
A He assisted me, sir.
Q How?
A If a group of passengers simultaneously check in, we divided the work
between us. (TSN, November 23, 1987, p. 7)
xxx xxx xxx
Q When the plaintiffs testified in this case particularly plaintiff Daniel Ilano
and Felipa Javalera at the previous hearings said plaintiffs stated that they
arrived at the check-in counter at about 3:25 or 3:30 and there was nobody
in the counter, what can you say to that?
A We cannot leave the counter, sir. That was always manned from 3:25 up
to the last minute. We were there assigned to handle the checking in of the
passengers.
Q You mentioned earlier that aside from you there were other personnel
assigned to the check-in counter and you even mentioned about a certain
Valencia assisting you, do you have any evidence to show said assignment
of personnel at the airport?
A Yes, sir.
Q I show to you a daily station report from 24 September 1985 covering
working hours 0600 to 1700, will you please go over the same and
thereafter tell us from the personnel listed in this Daily Station Report what
were the name (sic) of the personnel assigned to man a check-in counter at
that time?
A There (sic) persons assigned were Mr. Oropesa, Mr. Espiritu, Mr.
Medevilla, myself and Mr. Valencia.
Q You mentioned about Mr. Espiritu, what was his specific task at that
time?
A He was handling the ticketing, sir.
Q What about Mr. Medevilla?
A He was taking care of the ramp handling.
Q And Mr. Oropesa?
A He was handling the incoming cargo.
ATTY. CALICA: We request that this Daily Station Report be marked Exh. "6"
and the portion of the Report which shows the deployment of personnel of
PAL Naga Station on September 24, 1985 as "6-A."
Q Plaintiffs in this case testified that when they checked in there was
nobody manning the counter and they had to wait for twenty minutes
before someone came in to the counter, what can you say to that?
A It is not true because all the time we were there from the start, an hour
before the flight we were there because we were assigned there.
Q Plaintiff Daniel Ilano testified that he went to the counter twice, first at
3:25 and it was only at 4:00 p.m. that somebody went to the counter and
attended to him and while he expected his boarding pass he was told
instead that plaintiffs could not be accommodated because they were late,
what can you say to that?
A The truth is we were always there and we never left the counter from the
start of the check-in time of 3:25 we were all there, we never left the
counter.
Q Until what time did you remain at the check-in counter?
A At around 4:15 p.m., sir.
Q You said that the check-in counter was closed at 3:55, for what purpose
were you still manning the check-in counter?
A To attend to the passenger who are late in checking in because they also
need assistance in explaining to them the situation.
Q So it was for that purpose you were there?
A Yes, sir. (ibid., pp. 16-18)
It is significant to note that there were no other passenger who checked-in
late after the private respondents (TSN, November 23, 1987, p. 13). In the
absence of any controverting evidence, the documentary evidence
presented to corroborate the testimonies of PAL's witnesses are prima
facie evidence of the truth of their allegations. The plane tickets of the
private respondents, exhs. "1," "2," "3," "4," (with emphasis on the printed
condition of the contract of carriage regarding check-in time as well as on
the notation "late 4:02" stamped on the flight coupon by the check-in clerk
immediately upon the check-in of private respondents) and the passenger
Manifest of Flight PR 264, exh. "5," (which showed the non-
accommodation of Capati and Go an the private respondents)are entries
made in the regular course of business which the private respondents failed
to overcome with substantial and convincing evidence other than their
testimonies. Consequently, they carry more weight and credence.
A writing or document made contemporaneously with a transaction in
which are evidenced facts pertinent to an issue, when admitted as proof of
those facts, is ordinarily regarded as more reliable proof and of greater
probative force than the oral testimony of a witness as to such facts based
upon memory and recollection (20 Am Jur S 1179, 1029 cited in
Francisco, Revised Rules of Court in the Philippines Annotated, 1973 Edition,
Volume VII, Part II, p. 654).
Spoken words could be notoriously unreliable as against a written
document that speaks a uniform language (Spouses Vicente and Salome de
Leon v. CA., et al., G.R. No. 95511, January 30, 1992). This dictum is amply
demonstrated by the diverse allegations of the private respondents in their
complaint (where they claimed that no one was at the counter until thirty
(30) minutes before the published departure time and that the
employee who finally attended to them marked them late, Records, p. 2)
and in their testimonies (where they contended that there were two
different PAL personnel who attended to them at the check-in counter.
TSNs of November 17, 1986, pp. 41-45 and of May 18, 1987, pp. 5-6).
Private respondents' only objection to these documents is that they are
self-serving cannot be sustained. The hearsay rule will not apply in this case
as statements, acts or conduct accompanying or so nearly connected with
the main transaction as to form a part of it, and which illustrate, elucidate,
qualify or characterize the act, are admissible as apart of the res gestae (32
C.J.S., S. 411, 30-31). Based on these circumstances, We are inclined to
believe the version of PAL. When the private respondents purchased their
tickets, they were instantaneously bound by the conditions of the contract
of carriage particularly the check-in time requirement. The terms of the
contract are clear. Their failure to come on time for check-in should not
militate against PAL. Their non-accommodation on that flight was the result
of their own action or inaction and the ensuing cancellation of their tickets
by PAL is only proper.
Furthermore, We do not find anything suspicious in the fact that PAL flight
264 departed at 4:13 p.m. instead of 4:25 p.m. Apart from their verbal
assertions, the private respondents did not show any evidence of
irregularity. It being clear that all the passengers have already boarded,
there was no sense in keeping them waiting for the scheduled time of
departure before the plane could take flight.
ACCORDINGLY, the petition is GRANTED. The questioned decision of the
Court of Appeals dated March 15, 1990 is hereby ANNULLED and SET ASIDE.
No costs.
SO ORDERED.
G.R. No. 140023 August 14, 2003
RUDY LAO, Petitioner,
vs.
STANDARD INSURANCE CO., INC., Respondent.
DECISION
QUISUMBING, J.:
The instant petition seeks the reversal of the Court of Appeals’
Decision1 dated February 4, 1999, as well as its Resolution,2 dated
September 7, 1999, in CA-G.R. CV No. 47227. The assailed decision
dismissed petitioner’s appeal and the resolution denied petitioner’s motion
for reconsideration.
The original action was lodged before the Regional Trial Court of Iloilo City,
Branch 25, as Civil Case No. 17045 for breach of contract and damages, as a
result of the insurance company’s refusal of petitioner’s claim on the
insurance policy of his truck which figured in an accident during the
effectivity of the policy.
The following are the antecedent facts:
Petitioner Rudy Lao is the owner of a Fuso truck with Plate No. FCG-538.
The truck was insured with respondent Standard Insurance Co., Inc. under
Policy No. CV-210743 for the maximum amount of ₱200,000 and an
additional sum of ₱50,000 to cover any damages that might be caused to
his goods.
While the policy was in effect, an accident occurred. At around 8:00 p.m. of
April 24, 1985, in Barangay Buhang, Jaro, Iloilo City, the insured truck
bumped another truck, with Plate No. FBS-917, also owned by petitioner
Lao. The latter truck was running ahead of the insured truck and was
bumped from the rear. The insured truck sustained damages estimated to
be around ₱110,692, while the damage to the other truck and to properties
in the vicinity of the accident, were placed at ₱35,000 more or less.
Petitioner filed a claim with the insurance company for the proceeds from
his policy. However, the claim was denied by the insurance company on the
ground that when its adjuster went to investigate the matter, it was found
that the driver of the insured truck, Leonardo Anit, did not possess a proper
driver’s license at the time of the accident. The restriction4 in Leonardo
Anit’s driver’s license provided that he can only drive four-wheeled vehicles
weighing not more than 4,500 kgs. Since the insured truck he was driving
weighed more than 4,500 kgs., he therefore violated the "authorized
driver" clause5 of the insurance policy. In addition, respondent cited the
following excerpts from the police blotter of the Iloilo INP, to wit:
C-UN-85 DAMAGE TO PROPERTY W/ PHY INJURIES – R/ IMPRUDENCE
11:30 PM – Sgt. A. Bernas informed this office that a collision took place at
Brgy. Buhang, Jaro, IC. Investigation conducted by Pat. Villahermosa,
assisted by Lt. P. Baclaron (OD), disclosed that at about 8:00 PM this date at
the aforementioned place, a collision took place between a truck (Hino)
with Plate Nr FB[S] 917 owned by Rudy Lao and driven by BOY GIDDIE Y
COYEL, 38 yrs, a res. of Balasan, Iloilo, with License Nr DLR 1108142
and another truck with Plate Nr. FCG-538 owned by Rudy Lao and driver
(sic) by LEONARDO ANIT Y PANES, 33 yrs, a res. of Brgy Laya, Balasan, Iloilo
with License Nr 1836482.… (Emphasis supplied.)6
Petitioner claims that at the time of the accident, it was in fact another
driver named Giddie Boy Y Coyel who was driving the insured truck. Giddie
Boy possessed a driver’s license authorizing him to drive vehicles such as
the truck which weighed more than 4,500 kgs. As evidence, petitioner
presented the Motor Vehicle Accident Report7 wherein the Investigating
Officer, Pat. Felipe D. Villahermosa, stated that it was Giddie Boy driving
the insured truck and not Leonardo Anit. The said report was made three
days after the accident or on April 27, 1985. However, respondent
insurance company was firm in its denial of the claim.
Hence, petitioner filed the civil case before the RTC. After trial, the court
disposed of the case as follows:
WHEREFORE, premises considered, the Court finds that plaintiff lacks
sufficient cause of action against the defendant and hence ordered his case
dismissed and further orderes (sic) him to pay the defendant the following:
1) P20,000.00 as attorney’s fees plus P500.00 for appearance fee; and
2) P50,000.00 as exemplary damages.
SO ORDERED.8
On appeal with the Court of Appeals, the RTC decision was affirmed. The
petition was dismissed and the motion for reconsideration was denied. The
CA stated:
IN VIEW OF THE FOREGOING, the decision appealed from is hereby
AFFIRMED. Consequently, the complaint is DISMISSED for lack of merit.
SO ORDERED.9
In his petition for review now before us, petitioner cites the following as
grounds therefor:
A. THE HONORABLE COURT OF APPEALS AND THE LOWER COURT RELIED
MAINLY ON SECTION 44, RULE 130 OF THE RULES OF COURT IN UPHOLDING
THE ENTRY IN THE POLICE BLOTTER WHICH STATED THAT THE DRIVER OF
THE INSURED VEHICLE WAS LEONARDO ANIT Y PANES, WHO WAS NOT AN
AUTHORIZED DRIVER. UNDER THE SAID SECTION 44, RULE 130 ITSELF
HOWEVER, THE POLICE BLOTTER IS MERELY A PRIMA FACIE EVIDENCE OF
THE FACTS STATED THEREIN WHICH MAY BE NULLIFIED BY OTHER
EVIDENCE;10
B. PERCEPTION OF THE HONORABLE COURT OF APPEALS’ ON THE
"DIMINISHED" CREDIBILITY OF PAT. FELIPE VILLAHERMOSA, THE TRAFFIC
POLICE INVESTIGATOR, IS MISPLACED AND UNFOUNDED;11
C. THE DRIVER OF THE INSURED TRUCK WITH PLATE NR. FCG-538 WAS
GIDDIE BOY Y COYEL, AN AUTHORIZED DRIVER OF THE SAID TRUCK. THE
DRIVER OF THE OTHER TRUCK INVOLVED IN THE ACCIDENT WITH PLATE NR.
FBS-917 WAS LEONARDO ANIT Y PANES;12
D. THE HONORABLE COURT OF APPEALS MISAPPLIED ARTICLES 2232 AND
2208 OF THE NEW CIVIL CODE IN GRANTING EXEMPLARY DAMAGES AND
ATTORNEY’S FEES TO RESPONDENT. UNDER ARTICLES 2229 AND 2234 OF
THE NEW CIVIL CODE, EXEMPLARY DAMAGES CANNOT BE AWARDED IN
THE ABSENCE OF AN AWARD FOR MORAL, TEMPERATE, LIQUIDATED OR
COMPENSATORY DAMAGES;13
E. TESTIMONIES OF THE WITNESSES OF RESPONDENT NAMELY, SGT.
BERNAS, THE DESK OFFICER AND ROMEO GUIERGEN, INSURANCE
ADJUSTER, WERE INCONSISTENT AND UNRELIABLE;14 and
F. THE HONORABLE COURT OF APPEALS UPHELD THE DECISION OF THE
LOWER COURT DESPITE GLARING MISAPPLICATION OF THE LAW AND
JURISPRUDENCE ESTABLISHED BY THIS HONORABLE SUPREME COURT AS
WELL AS CLEAR MISAPPREHENSION OF THE FACTS IN THIS CASE.15
Three issues must be resolved: (1) The admissibility and probative value of
the police blotter as evidence; (2) The assessment of the credibility of
witnesses; and (3) The propriety and basis of the awards for exemplary
damages and attorney’s fees. Also pertinent here is the factual issue of
whether or not Leonardo Anit, an unauthorized driver, was driving the
insured truck at the time of the accident.
Petitioner assails the admissibility and evidentiary weight given to the
police blotter, as a basis for the factual finding of the RTC and the CA. He
contends that the same entry was belied by the Motor Vehicle Accident
Report and testimony of the investigating policeman himself, attesting that
it was Giddie Boy Coyel, not Leonardo Anit, who was driving the insured
vehicle.16
Respondent avers that the same police report and testimony were of
dubious nature. Both trial and appellate courts noted that the report was
made three days after the accident and did not form part of the official
police records.17
The police blotter was admitted under Rule 130, Section 44 of the Rules of
Court.18 Under the said rule, the following are the requisites for its
admissibility:
(a) that the entry was made by a public officer, or by another person,
specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties,
or by such other person in the performance of a duty specially enjoined by
law;
(c) that the public officer or other person had sufficient knowledge of the
facts by him stated, which must have been acquired by him personally or
through official information.19
We agree with the trial and appellate courts in finding that the police
blotter was properly admitted as they form part of official records.20 Entries
in police records made by a police officer in the performance of the duty
especially enjoined by law are prima facie evidence of the fact therein
stated, and their probative value may be either substantiated or nullified
by other competent evidence.21 Although police blotters are of little
probative value, they are nevertheless admitted and considered in the
absence of competent evidence to refute the facts stated therein.

In this case, the entries in the police blotter reflected the information
subject of the controversy. Stated therein was the fact that Leonardo Anit
was driving the insured truck with plate number FCG-538. This is unlike
People v. Mejia,22 where we said that "entries in the police blotters should
not be given undue significance or probative value," since the Court there
found that "the entries in question are sadly wanting in material
particulars".

Furthermore, in this case the police blotter was identified and formally
offered as evidence. The person who made the entries was likewise
presented in court; he identified and certified as correct the entries he
made on the blotter. The information was supplied to the entrant by the
investigating officer who did not protest about any inaccuracy when the
blotter was presented to him. No explanation was likewise given by the
investigating officer for the alleged interchange of names.

Petitioner also assails the credence given by the trial court to the version of
the respondents vis-à-vis the testimonies of the witnesses. Time and again
we have reiterated the settled doctrine that great weight, and even finality,
is given to the factual conclusions of the Court of Appeals which affirm
those of the trial courts.23 We find on this score no reason to overturn such
conclusions.

On the issue of damages, we agree with petitioner that the award of

exemplary damages was improper.1âwphi1 In Tiongco v. Atty.
Deguma24 we held that the entitlement to the recovery of exemplary
damages must be shown. In the case at bar, respondent have not shown
sufficient evidence that petitioner indeed schemed to procure the dubious
documents and lied through his teeth to establish his version of the facts.
What was found was that the document he presented was inadmissible,
and its contents were dubious. However, no proof was adduced to
sufficiently establish that it came to his hands through his employment of
underhanded means. In Tiongco, we further stated:

Although exemplary damages cannot be recovered as a matter of right,

they also need not be proved. But a complainant must still show that he is
entitled to moral, temperate or compensatory damages before the court
may consider the question of whether or not exemplary damages should be
awarded.25

Thus, it was error for the courts below to award exemplary damages in the
absence of any award for moral, temperate or compensatory damages.

The award of attorney’s fees must also be deleted. Such award was given in
its extraordinary concept as indemnity for damages to be paid by the losing
party to the prevailing party.26 But it was not sufficiently shown that
petitioner acted maliciously in instituting the claim for damages. Perforce,
the award of attorney’s fees was improper.

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals

are AFFIRMED, with the MODIFICATION that the award of exemplary
damages and attorney’s fees is hereby DELETED. No pronouncement as to
costs.

SO ORDERED.
G.R. No. 193261 April 24, 2012 14. Department of Education (DepEd) Lipa City Division Certification that
the names Bernadette Palomares, Mey Bernadette Sabili and Francis
Meynard Sabili (petitioner’s son) do not appear on its list of graduates19
MEYNARDO SABILI, Petitioner,
vs.
COMMISSION ON ELECTIONS and FLORENCIO LIBREA, Respondents. 15. Certification from the Office of the Election Officer of Lipa City that
Bernadette Palomares, Mey Bernadette Sabili and Francis Meynard Sabili
do not appear in its list of voters20
DECISION

16. Affidavit executed by Violeta Fernandez21

SERENO, J.:

17. Affidavit executed by Rodrigo Macasaet22

Before us is a Petition for Certiorari under Rule 64 in relation to Rule 65 of
the Rules of Court, seeking to annul the Resolutions in SPA No. 09-047 (DC)
dated 26 January 2010 and 17 August 2010 of the Commission on Elections 18. Affidavit Executed by Pablo Lorzano23
(COMELEC), which denied due course to and canceled the Certificate of
Candidacy (COC) of petitioner Meynardo Sabili (petitioner) for the position 19. Petitioner’s 2007 COC for Member of House of Representative24
of Mayor of Lipa City for the May 2010 elections. At the

For ease of later discussion, private respondent’s evidence shall be grouped

heart of the controversy is whether petitioner Sabili had complied with the
one-year residency requirement for local elective officials.
When petitioner filed his COC1 for mayor of Lipa City for the 2010 elections,
he stated therein that he had been a resident of the city for two (2) years
and eight (8) months. Prior to the 2010 elections, he had been twice
elected (in 1995 and in 1998) as Provincial Board Member representing the
4th District of Batangas. During the 2007 elections, petitioner ran for the
position of Representative of the 4th District of Batangas, but lost. The 4th
District of Batangas includes Lipa City.2 However, it is undisputed that when
petitioner filed his COC during the 2007 elections, he and his family were
then staying at his ancestral home in Barangay (Brgy.) Sico, San Juan,
Batangas.
as follows: (1) Certificates regarding ownership of real property; (2)
petitioner’s Voter Registration and Certification (common exhibits of the
parties); (3) petitioner’s COCs in previous elections; (3) Certifications
regarding petitioner’s family members; and (4) Affidavits of Lipa City
residents.
On the other hand, petitioner presented the following evidence to establish
the fact of his residence in Lipa City:
1. Affidavit executed by Bernadette Palomares25
2. Birth Certificate of Francis Meynard Sabili26

Private respondent Florencio Librea (private respondent) filed a "Petition 3. Affidavit of Leonila Suarez (Suarez)27
to Deny Due Course and to Cancel Certificate of Candidacy and to Disqualify
a Candidate for Possessing Some Grounds for Disqualification"3 against him
4. Certification of Residency issued by Pinagtong-ulan Barangay Captain,
before the COMELEC, docketed as SPA No. 09-047 (DC). Citing Section 78 in
Dominador Honrade28
relation to Section 74 of the Omnibus Election Code,4 private respondent
alleged that petitioner made material misrepresentations of fact in the
latter’s COC and likewise failed to comply with the one-year residency 5. Affidavit executed by Rosalinda Macasaet29
requirement under Section 39 of the Local Government Code. 5 Allegedly,
petitioner falsely declared under oath in his COC that he had already been a
6. Certificate of Appreciation issued to petitioner by the parish of Sto. Nino
resident of Lipa City for two years and eight months prior to the scheduled
of Pinagtong-ulan30
10 May 2010 local elections.

7. Designation of petitioner in the Advisory Body (AB) of Pinagtong-ulan,

In support of his allegation, private respondent presented the following:
San Jose/Lipa City Chapter of Guardians Brotherhood, Inc.31

1. Petitioner’s COC for the 2010 elections filed on 1 December 20096

8. COMELEC Voter Certification on petitioner issued by Election Officer Juan
Aguila, Jr.32
2. 2009 Tax Declarations for a house and lot (TCT Nos. 173355, 173356 and
buildings thereon) in Pinagtong-ulan, Lipa City registered under the name
9. COMELEC Application for Transfer/Transfer with Reactivation dated 6
of Bernadette Palomares, petitioner’s common-law wife7
June 2009 signed by Election Officer Juan Aguila, Jr.33

3. Lipa City Assessor Certification of Property Holdings of properties under

10. Petitioner’s Income Tax Return for 200734
the name of Bernadette Palomares8

11. Official Receipt for petitioner’s income tax payment for 200735
4. Affidavit executed by private respondent Florencio Librea9

12. Petitioner’s Income Tax Return for 200836

5. Sinumpaang Salaysay executed by Eladio de Torres10

6. Voter Certification on petitioner issued by COMELEC Election Officer Juan
D. Aguila, Jr.11
7. 1997 Voter Registration Record of petitioner12
8. National Statistics Office (NSO) Advisory on Marriages regarding
petitioner13
9. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 3, Brgy.
Lood, Lipa City registered in the name of petitioner14
10. NSO Certificate of No Marriage of Bernadette Palomares15
11. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 5, Brgy.
Lood, Lipa City registered in the name of petitioner16
13. Official Receipt for petitioner’s income tax payment for 200837
14. Birth Certificate of Mey Bernadette Sabili38
15. Affidavit executed by Jacinto Cornejo, Sr.39
16. Joint Affidavit of twenty-one (21) Pinagtong-ulan residents, including
past and incumbent Pinagtong-ulan officials.40
For ease of later discussion, petitioner’s evidence shall be grouped as
follows: (1) his Income Tax Returns and corresponding Official Receipts for
the years 2007 and 2008; (2) Certification from the barangay captain of
Pinagtong-ulan; (3) Affidavit of his common-law wife, Bernadette
Palomares; and (4) Affidavits from a previous property owner, neighbors,
Certificate of Appreciation from the barangay parish and Memorandum
from the local chapter of Guardians Brotherhood, Inc.

12. Lipa City Permits and Licensing Office Certification that petitioner has
no business therein17
13. Apparent printout of a Facebook webpage of petitioner’s daughter,
Mey Bernadette Sabili18
The COMELEC Ruling
In its Resolution dated 26 January 2010,41 the COMELEC Second Division
granted the Petition of private respondent, declared petitioner as
disqualified from seeking the mayoralty post in Lipa City, and canceled his
Certificate of Candidacy for his not being a resident of Lipa City and for his
failure to meet the statutory one-year residency requirement under the
law.
Petitioner moved for reconsideration of the 26 January 2010 Resolution of
the COMELEC, during the pendency of which the 10 May 2010 local
elections were held. The next day, he was proclaimed the duly elected
mayor of Lipa City after garnering the highest number of votes cast for the
said position. He accordingly filed a Manifestation42 with the COMELEC en
banc to reflect this fact.
In its Resolution dated 17 August 2010,43 the COMELEC en banc denied the
Motion for Reconsideration of petitioner. Although he was able to receive
his copy of the Resolution, no prior notice setting the date of promulgation
of the said Resolution was received by him. Meanwhile, Section 6 of
COMELEC Resolution No. 8696 (Rules on Disqualification Cases Filed in
Connection with the May 10, 2012 Automated National and Local Elections)
requires the parties to be notified in advance of the date of the
promulgation of the Resolution.
SEC. 6. Promulgation. – The promulgation of a Decision or Resolution of the
Commission or a Division shall be made on a date previously fixed, notice
of which shall be served in advance upon the parties or their attorneys
personally, or by registered mail, telegram, fax, or thru the fastest means of
communication.
Hence, petitioner filed with this Court a Petition (Petition for Certiorari with
Extremely Urgent Application for the Issuance of a Status Quo Order and
for the Conduct of a Special Raffle of this Case) under Rule 64 in relation to
Rule 65 of the Rules of Court, seeking the annulment of the 26 January
2010 and 17 August 2010 Resolutions of the COMELEC. Petitioner attached
to his Petition a Certificate of Canvass of Votes and proclamation of
Winning Candidates for Lipa City Mayor and Vice-Mayor issued by the
City/Municipal Board of Canvassers,44 as well as a copy of his Oath of
Office.45 He also attached to his Petition another Certification of
Residency46 issued by Pinagtong-ulan Barangay Captain Dominador
Honrade and sworn to before a notary public.
On 7 September 2010, this Court issued a Status Quo Ante Order 47 requiring
the parties to observe the status quo prevailing before the issuance of the
assailed COMELEC Resolutions. Thereafter, the parties filed their
responsive pleadings.
Issues
The following are the issues for resolution:
1. Whether the COMELEC acted with grave abuse of discretion when it
failed to promulgate its Resolution dated 17 August 2010 in accordance
with its own Rules of Procedure; and
2. Whether the COMELEC committed grave abuse of discretion in holding
that Sabili failed to prove compliance with the one-year residency
requirement for local elective officials.
The Court’s Ruling
1. On whether the COMELEC acted with grave abuse of discretion when it
failed to promulgate its Resolution dated 17 August 2010 in accordance
with its own Rules of Procedure
Petitioner argues that the assailed 17 August 2010 COMELEC Resolution,
which denied petitioner’s Motion for Reconsideration, is null and void. The
Resolution was allegedly not promulgated in accordance with the
COMELEC’s own Rules of Procedure and, hence, violated petitioner’s right
to due process of law.
The rules governing the Petition for Cancellation of COC in this case is
COMELEC Resolution No. 8696 (Rules on Disqualification of Cases Filed in
Connection with the May 10, 2010 Automated National and Local
Elections), which was promulgated on 11 November 2009. Sections 6 and 7
thereof provide as follows:
SEC. 6. Promulgation. - The promulgation of a Decision or Resolution of the
Commission or a Division shall be made on a date previously fixed, notice
of which shall be served in advance upon the parties or their attorneys
personally, or by registered mail, telegram, fax or thru the fastest means of
communication.
SEC. 7. Motion for Reconsideration. - A motion to reconsider a Decision,
Resolution, Order or Ruling of a Division shall be filed within three (3) days
from the promulgation thereof. Such motion, if not pro-forma, suspends
the execution for implementation of the Decision, Resolution, Order or
Ruling.
Within twenty-four (24) hours from the filing thereof, the Clerk of the
Commission shall notify the Presiding Commissioner. The latter shall within
two (2) days thereafter certify the case to the Commission en banc.
The Clerk of the Commission shall calendar the Motion for Reconsideration
for the resolution of the Commission en banc within three (3) days from the
certification thereof.
However, the COMELEC Order dated 4 May 201048 suspended Section 6 of
COMELEC Resolution No. 8696 by ordering that "all resolutions be delivered
to the Clerk of the Commission for immediate promulgation" in view of
"the proximity of the Automated National and Local Elections and lack of
material time." The Order states:
ORDER
Considering the proximity of the Automated National and Local Elections
and lack of material time, the Commission hereby suspends Sec. 6 of
Resolution No. 8696 promulgated on November 11, 2009, which reads:
Sec. 6. Promulgation. – The promulgation of a Decision or Resolution of the
Commission or a Division shall be made on a date previously fixed, notice
of which shall be served upon the parties or their attorneys personally, or
by registered mail, telegram, fax or thru the fastest means of
communication."
Let all resolutions be delivered to the Clerk of the Commission for
immediate promulgation.
SO ORDERED.
Petitioner claims that he did not receive notice of the said suspension of
Section 6 of COMELEC Resolution No. 8696. Thus, his right to due process
was still violated. On the other hand, the COMELEC claims that it has the
power to suspend its own rules of procedure and invokes Section 6, Article
IX-A of the Constitution, which gives it the power "to promulgate its own
rules concerning pleadings and practice before it or before any of its
offices."
We agree with the COMELEC on this issue.
In Lindo v. Commission on Elections,49 petitioner claimed that there was no
valid promulgation of a Decision in an election protest case when a copy
thereof was merely furnished the parties, instead of first notifying the
parties of a set date for the promulgation thereof, in accordance with
Section 20 of Rule 35 of the COMELEC’s own Rules of Procedure, as follows:
Sec. 20. Promulgation and Finality of Decision. — The decision of the court
shall be promulgated on a date set by it of which due notice must be given
the parties. It shall become final five (5) days after promulgation. No
motion for reconsideration shall be entertained.
Rejecting petitioner’s argument, we held therein that the additional rule
requiring notice to the parties prior to promulgation of a decision is not
part of the process of promulgation. Since lack of such notice does not
prejudice the rights of the parties, noncompliance with this rule is a
procedural lapse that does not vitiate the validity of the decision. Thus:
This contention is untenable. Promulgation is the process by which a
decision is published, officially announced, made known to the public or
delivered to the clerk of court for filing, coupled with notice to the parties
or their counsel (Neria v. Commissioner of Immigration, L-24800, May 27,
1968, 23 SCRA 812). It is the delivery of a court decision to the clerk of court
for filing and publication (Araneta v. Dinglasan, 84 Phil. 433). It is the filing
of the signed decision with the clerk of court (Sumbing v. Davide, G.R. Nos.
86850-51, July 20, 1989, En Banc Minute Resolution). The additional
requirement imposed by the COMELEC rules of notice in advance of
promulgation is not part of the process of promulgation. Hence, We do not
agree with petitioner’s contention that there was no promulgation of the
trial court's decision. The trial court did not deny that it had officially made
the decision public. From the recital of facts of both parties, copies of the
decision were sent to petitioner's counsel of record and petitioner’s (sic)
himself. Another copy was sent to private respondent.
What was wanting and what the petitioner apparently objected to was not
the promulgation of the decision but the failure of the trial court to serve
notice in advance of the promulgation of its decision as required by the
COMELEC rules. The failure to serve such notice in advance of the
promulgation may be considered a procedural lapse on the part of the trial
court which did not prejudice the rights of the parties and did not vitiate
the validity of the decision of the trial court nor (sic) of the promulgation of
said decision.
Moreover, quoting Pimping v. COMELEC,50 citing Macabingkil v. Yatco,51 we
further held in the same case that failure to receive advance notice of the
promulgation of a decision is not sufficient to set aside the COMELEC’s
judgment, as long as the parties have been afforded an opportunity to be
heard before judgment is rendered, viz:
The fact that petitioners were not served notice in advance of the
promulgation of the decision in the election protest cases, in Our view,
does not constitute reversible error or a reason sufficient enough to compel
and warrant the setting aside of the judgment rendered by the Comelec.
Petitioners anchor their argument on an alleged denial to them (sic) due
process to the deviation by the Comelec from its own made rules. However,
the essence of due process is that, the parties in the case were afforded an
opportunity to be heard.
In the present case, we read from the COMELEC Order that the exigencies
attendant to the holding of the country’s first automated national elections
had necessitated that the COMELEC suspend the rule on notice prior to
promulgation, and that it instead direct the delivery of all resolutions to the
Clerk of the Commission for immediate promulgation. Notably, we see no
prejudice to the parties caused thereby. The COMELEC’s Order did not
affect the right of the parties to due process. They were still furnished a
copy of the COMELEC Decision and were able to reckon the period for
perfecting an appeal. In fact, petitioner was able to timely lodge a Petition
with this Court.
Clearly, the COMELEC validly exercised its constitutionally granted power to
make its own rules of procedure when it issued the 4 May 2010 Order
suspending Section 6 of COMELEC Resolution No. 8696. Consequently, the
second assailed Resolution of the COMELEC cannot be set aside on the
ground of COMELEC’s failure to issue to petitioner a notice setting the date
of the promulgation thereof.
2. On whether the COMELEC committed grave abuse of discretion in
holding that Sabili failed to prove compliance with the one-year residency
requirement for local elective officials
As a general rule, the Court does not ordinarily review the COMELEC’s
appreciation and evaluation of evidence. However, exceptions thereto
have been established, including when the COMELEC's appreciation and
evaluation of evidence become so grossly unreasonable as to turn into an
error of jurisdiction. In these instances, the Court is compelled by its
bounden constitutional duty to intervene and correct the COMELEC's
error.52
In Mitra v. Commission on Elections, (G.R. No. 191938, 2 July 2010), we
explained that the COMELEC’s use of wrong or irrelevant considerations in
deciding an issue is sufficient to taint its action with grave abuse of
discretion -
As a concept, "grave abuse of discretion" defies exact definition; generally,
it refers to "capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction;" the abuse of discretion must be patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of
passion and hostility. Mere abuse of discretion is not enough; it must be
grave. We have held, too, that the use of wrong or irrelevant
considerations in deciding an issue is sufficient to taint a decision-maker's
action with grave abuse of discretion.
Closely related with the limited focus of the present petition is the
condition, under Section 5, Rule 64 of the Rules of Court, that findings of
fact of the COMELEC, supported by substantial evidence, shall be final and
non-reviewable. Substantial evidence is that degree of evidence that a
reasonable mind might accept to support a conclusion.
In light of our limited authority to review findings of fact, we do not
ordinarily review in a certiorari case the COMELEC's appreciation and
evaluation of evidence. Any misstep by the COMELEC in this regard
generally involves an error of judgment, not of jurisdiction.
In exceptional cases, however, when the COMELEC's action on the
appreciation and evaluation of evidence oversteps the limits of its
discretion to the point of being grossly unreasonable, the Court is not only
obliged, but has the constitutional duty to intervene. When grave abuse of
discretion is present, resulting errors arising from the grave abuse mutate
from error of judgment to one of jurisdiction.
Before us, petitioner has alleged and shown the COMELEC’s use of wrong or
irrelevant considerations in deciding the issue of whether petitioner made
a material misrepresentation of his residency qualification in his COC as to
order its cancellation. Among others, petitioner pointed to the COMELEC’s
inordinate emphasis on the issue of property ownership of petitioner’s
declared residence in Lipa City, its inconsistent stance regarding
Palomares’s relationship to the Pinagtong-ulan property, and its failure to
consider in the first instance the certification of residence issued by the
barangay captain of Pinagtong-ulan. Petitioner bewails that the COMELEC
required "more" evidence to show the change in his residence,
notwithstanding the various pieces of evidence he presented and the fact
that under the law, the quantum of evidence required in these cases is
merely substantial evidence and not clear and convincing evidence.
Petitioner further ascribes grave abuse of discretion in the COMELEC’s
brushing aside of the fact that he has been filing his ITR in Lipa City (where
he indicates that he is a resident of Pinagtong-ulan) on the mere expedient
that the law allows the filing of the ITR not only in the place of legal
residence but, alternately, in his place of business. Petitioner notes that
private respondent’s own evidence shows that petitioner has no business
in Lipa City, leaving only his residence therein as basis for filing his ITR
therein.
Hence, in resolving the issue of whether the COMELEC gravely abused its
discretion in ruling that petitioner had not sufficiently shown that he had
resided in Lipa City for at least one year prior to the May 2010 elections, we
examine the evidence adduced by the parties and the COMELEC’s
appreciation thereof.
In the present case, the parties are in agreement that the domicile of origin
of Sabili was Brgy. Sico, San Juan, Batangas. He claims that he abandoned
his domicile of origin and established his domicile of choice in Brgy.
Pinagtong-ulan, Lipa City, thereby making him qualified to run for Lipa City
mayor. On the other hand, respondent COMELEC held that no such change
in domicile or residence took place and, hence, the entry in his Certificate
of Candidacy showing that he was a resident of Brgy. Pinagtong-ulan, Lipa
City constituted a misrepresentation that disqualified him from running for
Lipa City mayor.
To establish a new domicile of choice, personal presence in the place must
be coupled with conduct indicative of the intention to make it one's fixed
and permanent place of abode.53 As in all administrative cases, the
quantum of proof necessary in election cases is substantial evidence, or
such relevant evidence as a reasonable mind will accept as adequate to
support a conclusion.54
The ruling on private respondent’s evidence
We begin with an evaluation of the COMELEC’s appreciation of private
respondent’s evidence.
a) Petitioner’s Voter Certification, Registration and COCs in previous
elections
Petitioner’s Voter Certification is a common exhibit of the parties. It states,
among others, that petitioner is a resident of Pinagtong-ulan, Lipa City,
Batangas; that he had been a resident of Lipa City for two (2) years and
three (3) months; and that he was so registered on 31 October 2009. The
information therein was "certified correct" by COMELEC Election Officer
Juan B. Aguila, Jr.
Private respondent presented this document as proof that petitioner
misrepresented that he is a resident of Lipa City. On the other hand, the
latter presented this document as proof of his residency.
The COMELEC correctly ruled that the Voter Certification issued by the
COMELEC Election Officer, Atty. Juan B. Aguila, Jr., was not conclusive proof
that petitioner had been a resident of Lipa City since April 2007. It noted
that Aguila is not the competent public officer to certify the veracity of this
claim, particularly because petitioner’s COMELEC registration was approved
only in October 2009.
The Voter Registration Record of petitioner accomplished on 21 June 1997
showing that he was a resident of Sico, San Juan, Batangas, as well as his
various COCs dated 21 June 1997 and March 2007 indicating the same
thing, were no longer discussed by the COMELEC – and rightly so. These
pieces of evidence showing that he was a resident of Sico, San Juan,
Batangas on the said dates are irrelevant as, prior to April 2007, petitioner
was admittedly a resident of Sico, San Juan Batangas. Rather, the relevant
time period for consideration is that from April 2007 onwards, after
petitioner’s alleged change of domicile.
b) Certificates regarding ownership of real property
The various certificates and tax declarations adduced by private
respondent showed that the Lipa property was solely registered in the
name of petitioner’s common-law wife, Bernadette Palomares. In
discussing the import of this document, the COMELEC reasoned that, being
a "seasoned politician," he should have registered the Lipa property (which
he claimed to have purchased with his personal funds) in his own name.
Such action "would have offered positive proof of intent to change actual
residence" from San Juan, Batangas to Lipa City, considering that he had
previously declared his ancestral home in San Juan, Batangas as his
domicile. Since Palomares and petitioner are common-law spouses not
capacitated to marry each other, the property relation between them is
governed by Article 148 of the Family Code,55 where only the parties’ actual
contributions are recognized. Hence, petitioner cannot prove ownership of
a property and residence in Lipa City through the registered ownership of
the common-law wife of the property in Lipa City.
On the other hand, petitioner bewails the inordinate emphasis that the
COMELEC bestowed upon the question of whether the Lipa property could
be considered as his residence, for the reason that it was not registered in
his name. He stresses that the issue should be residence, not property
ownership.
It is true that property ownership is not among the qualifications required
of candidates for local election.56 Rather, it is a candidate’s residence in a
locality through actual residence in whatever capacity. Indeed, we
sustained the COMELEC when it considered as evidence tending to
establish a candidate’s domicile of choice the mere lease (rather than
ownership) of an apartment by a candidate in the same province where he
ran for the position of governor.57 In the more recent case of Mitra v.
Commission on Elections,58 we reversed the COMELEC ruling that a
candidate’s sparsely furnished, leased room on the mezzanine of a feedmill
could not be considered as his residence for the purpose of complying with
the residency requirement of Section 78 of the Omnibus Election Code.59
The Dissent claims that the registration of the property in Palomares’s
name does not prove petitioner’s residence as it merely showed "donative
intent" without the necessary formalities or payment of taxes.
However, whatever the nature of the transaction might be, this point is
immaterial for the purpose of ascertaining petitioner’s residence. We have
long held that it is not required that a candidate should have his own house
in order to establish his residence or domicile in a place. It is enough that
he should live in the locality, even in a rented house or that of a friend or
relative.60 What is of central concern then is that petitioner identified and
established a place in Lipa City where he intended to live in and return to
for an indefinite period of time.
Hence, while the COMELEC correctly ruled that, of itself, Palomares’
ownership of the Lipa property does not prove that she or – and in view of
their common-law relations, petitioner – resides in Lipa City, nevertheless,
the existence of a house and lot apparently owned by petitioner’s
common-law wife, with whom he has been living for over two decades,
makes plausible petitioner’s allegation of bodily presence and intent to
reside in the area.
c) Certifications regarding the family members of petitioner
Private respondent presented a Certification from the DepEd, Lipa City
Division, indicating that the names Bernadette Palomares, Mey Bernadette
Sabili (petitioner’s daughter) and Francis Meynard Sabili (petitioner’s son)
do not appear on the list of graduates of Lipa City. Private respondent also
presented a Certification from the Office of the Election Officer of Lipa City
that the names of these family members of petitioner do not appear in its
list of voters.
As the issue at hand is petitioner’s residence, and not the educational or
voting record of his family, the COMELEC properly did not consider these
pieces of evidence in arriving at its Resolution.
The Dissent nevertheless asserts that because his children do not attend
educational institutions in Lipa and are not registered voters therein, and
because petitioner does not maintain a business therein nor has property
in his name, petitioner is unable to show the existence of real and
substantial reason for his stay in Lipa City.
As to the Dissent’s first assertion, it must be stressed that the children, like
the wife, do not dictate the family domicile. Even in the context of
marriage, the family domicile is jointly decided by both husband and
wife.61 In addition, we note that the transfer to Lipa City occurred in 2007,
when petitioner’s children were already well into college and could very
well have chosen to study elsewhere than in Lipa City.
Also, it is petitioner’s domicile which is at issue, and not that of his
children. But even assuming that it was petitioner himself (rather than his
children) who attended educational institutions or who registered as a
voter in a place other than Lipa City, we have held that "absence from
residence to pursue studies or practice a profession or registration as a
voter other than in the place where one is elected, does not constitute loss
of residence."62 In fact, Section 117 of the Omnibus Election Code provides
that transfer of residence to any other place by reason of one's
"occupation; profession; employment in private and public service;
educational activities; work in military or naval reservations; service in the
army, navy or air force, the constabulary or national police force; or
confinement or detention in government institutions in accordance with
law" is not deemed as loss of residence.
As to the Dissent’s second assertion, petitioner apparently does not
maintain a business in Lipa City. However, apart from the Pinagtong-ulan
property which both Suarez (the previous property owner) and Palomares
swear was purchased with petitioner’s own funds, the records also indicate
that there are two other lots in Lipa City, particularly in Barangay Lodlod,
Lipa City63 which are registered jointly in the name of petitioner and
Palomares. In fact, it was private respondent who presented the Lipa City
Assessor’s Certificate to this effect. Even assuming that this Court were to
disregard the two Lodlod lots, it is well-established that property
ownership (and similarly, business interest) in the locality where one
intends to run for local elective post is not requirement of the
Constitution.64
More importantly, we have gone so far as to rule that there is nothing
"wrong in an individual changing residences so he could run for an elective
post, for as long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period
required by law."65
d) Affidavits of Lipa City residents
Private respondent also presented the affidavits of Violeta Fernandez66 and
Rodrigo Macasaet,67 who were also residents of Pinagtong-ulan. Both
stated that petitioner did not reside in Pinagtong-ulan, as they had "rarely
seen" him in the area. Meanwhile, Pablo Lorzano,68 in his Affidavit, attested
that although the Lipa property was sometimes used for gatherings, he did
"not recall having seen" petitioner in their barangay. On the other hand,
private respondent69 and Eladio de Torres,70 both residents of Brgy.
Calamias, reasoned that petitioner was not a resident of Lipa City because
he has no work or family there.
The COMELEC did not discuss these Affidavits in its assailed Resolution. It
was correct in doing so, particularly considering that these Affidavits were
duly controverted by those presented by petitioner.
Moreover, even assuming the truth of the allegation in the Affidavits that
petitioner was "rarely seen" in the area, this does not preclude the
possibility of his residence therein. In Fernandez v. House of
Representatives Electoral Tribunal,71 we held that the averments of certain
barangay health workers – that they failed to see a particular candidate
whenever they made rounds of the locality of which he was supposed to be
a resident – is of no moment. It is possible that the candidate was out of
the house to attend to his own business at the time. The law does not
require a person to be in his home twenty-four (24) hours a day, seven (7)
days a week, to fulfill the residency requirement.
The ruling on petitioner’s evidence
We now evaluate how the COMELEC appreciated petitioner’s evidence:
a) Petitioner’s Income Tax Returns for 2007 and 2008
The Income Tax Returns of petitioner presented below showed that
petitioner had been paying his Income Tax (2007 and 2008) to the Revenue
District Office of Lipa City. In waving aside his Income Tax Returns, the
COMELEC held that these were not indications of residence since Section
51(B) of the National Internal Revenue Code does not only state that it shall
be filed in a person’s legal residence, but that it may alternatively be filed
in a person’s principal place of business.
In particular, Section 51(B) of the National Internal Revenue
Code72 provides that the Income Tax Return shall be filed either in the place
where a person resides or where his principal place of business is located.
However, private respondent’s own evidence – a Certification from the City
Permits and Licensing Office of Lipa City– showed that there was no
business registered in the City under petitioner’s name.
Thus, COMELEC failed to appreciate that precisely because an individual
income tax return may only be filed either in the legal residence OR the
principal place of business, as prescribed under the law, the fact that Sabili
was filing his Income Tax Returns in Lipa City notwithstanding that he had
no business therein showed that he had actively elected to establish his
residence in that city.
The Dissent claims that since the jurisdiction of RDO Lipa City includes both
San Juan and Lipa City, petitioner’s filing of his ITR therein can also support
an intent to remain in San Juan, Batangas - petitioner’s domicile of origin.
However, a simple perusal of the Income Tax Returns and Revenue Official
Receipts for 2007 and 2008 shows that petitioner invariably declares his
residence to be Pinagtong-ulan, Lipa City, rather than San Juan,
Batangas.73Hence, while petitioner may be submitting his income tax return
in the same RDO, the declaration therein is unmistakable. Petitioner
considers Lipa City to be his domicile.
b) Certification from the Barangay Captain of Pinagtong-ulan
The COMELEC did not consider in the first instance the Certification issued
by Pinagtong-ulan Barangay Captain Dominador Honrade74 (Honrade) that
petitioner had been residing in Brgy Pinagtong-ulan since 2007. When this
oversight was raised as an issue in petitioner’s Motion for Reconsideration,
the COMELEC brushed it aside on the ground that the said Certification was
not sworn to before a notary public and, hence, "cannot be relied on."
Subsequently, petitioner presented another, substantially identical,
Certification from the said Pinagtong-ulan Barangay Captain, save for the
fact that it had now been sworn to before a notary public.
We disagree with the COMELEC’s treatment of the Barangay Captain’s
Certification and find the same tainted with grave abuse of discretion.
Even without being sworn to before a notary public, Honrade’s Certification
would not only be admissible in evidence, but would also be entitled to due
consideration.
Rule 130, Section 44 of the Rules of Court provides:
SEC. 44. Entries in official records.—Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.
In Country Bankers Insurance Corporation v. Lianga Bay and Community
Multi-purpose Cooperative, Inc.,75 we explained that the following three (3)
requisites must concur for entries in official records to be admissible in
evidence:
(a) The entry was made by a public officer, or by another person specially
enjoined by law to do so;
(b) It was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law;
and
(c) The public officer or other person had sufficient knowledge of the facts
stated by him, which facts must have been acquired by him personally or
through official information.
As to the first requisite, the Barangay Secretary is required by the Local
Government Code to "keep an updated record of all inhabitants of the
barangay."76 Regarding the second requisite, we have explicitly recognized
in Mitra v. Commission on Elections,77 that "it is the business of a punong
barangay to know who the residents are in his own barangay." Anent the
third requisite, the Barangay Captain’s exercise of powers and
duties78 concomitant to his position requires him to be privy to these
records kept by the Barangay Secretary.
Accordingly, there is basis in faulting the COMELEC for its failure to consider
Honrade’s Certification on the sole ground that it was initially not
notarized.
Meanwhile, the Dissent opines that the sworn affidavit of the barangay
chair of Pinagtong-ulan that petitioner is a resident of Lipa City does not
help petitioner’s case because it was not shown that the term "resident" as
used therein carries the same meaning as domicile, that is, not merely
bodily presence but also, animus manendi or intent to return. This Court
has ruled otherwise.
In Mitra v. Commission on Elections,79 the declaration of Aborlan’s punong
barangay that petitioner resides in his barangay was taken to have the
same meaning as domicile, inasmuch as the said declaration was made in
the face of the Court’s recognition that Mitra "might not have stayed in
Aborlan nor in Palawan for most of 2008 and 2009 because his office and
activities as a Representative were in Manila."
Assuming that the barangay captain’s certification only pertains to
petitioner’s bodily presence in Pinagtong-ulan, still, the COMELEC cannot
deny the strength of this evidence in establishing petitioner’s bodily
presence in Pinagtong-ulan since 2007.
c) Affidavit of petitioner’s common law wife
To substantiate his claim of change of domicile, petitioner also presented
the affidavit of Palomares, wherein the latter swore that she and petitioner
began residing in Lipa City in 2007, and that the funds used to purchase the
Lipa property were petitioner’s personal funds. The COMELEC ruled that
the Affidavit was self-serving for having been executed by petitioner’s
common-law wife. Also, despite the presentation by petitioner of other
Affidavits stating that he and Palomares had lived in Brgy. Pinagtong-ulan
since 2007, the latter’s Affidavit was rejected by the COMELEC for having
no independent collaboration.
Petitioner faults the COMELEC’s stand, which it claims to be inconsistent.
He argues that since the property regime between him and Palomares is
governed by Article 148 of the Family Code (based on the parties’ actual
contribution) as the COMELEC stressed, then Palomares’s Affidavit
expressly stating that petitioner’s money alone had been used to purchase
the Lipa property (notwithstanding that it was registered in her name) was
not self-serving, but was in fact, a declaration against interest.
Petitioner’s argument that Palomares’s affidavit was a "declaration against
interest" is, strictly speaking, inaccurate and irrelevant. A declaration
against interest, under the Rules of Civil Procedure, refers to a "declaration
made by a person deceased, or unable to testify against the interest of a
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."80 A declaration against interest is an exception to the hearsay
rule.81 As such, it pertains only to the admissibility of, not the weight
accorded to, testimonial evidence.82
Nevertheless, we see the logic in petitioner’s claim that the COMELEC had
committed grave abuse of discretion in being inconsistent in its stand
regarding Palomares, particularly regarding her assertion that the Lipa
property had been purchased solely with petitioner’s money. If the
COMELEC accepts the registration of the Lipa property in her name to be
accurate, her affidavit disavowing ownership thereof in favor of petitioner
was far from self-serving as it ran counter to her (and her children’s)
property interest.
The Dissent states that it was not unreasonable for the COMELEC to believe
that Palomares may have committed misrepresentations in her affidavit
considering that she had perjured herself as an informant on the birth
certificates of her children with respect to the supposed date and place of
her marriage to petitioner. However, this was not the reason propounded
by the COMELEC when it rejected Palomares’ affidavit.
Moreover, it is notable that Palomares’ assertion in her affidavit that she
and petitioner have been living in the Pinagtong-ulan property since April
2007 is corroborated by other evidence, including the affidavits of
Pinagtong-ulan barangay officials and neighbors.
d) Affidavits from a previous property owner, neighbors, certificate from
parish and designation from socio-civic organization
The Affidavit issued by Leonila Suarez83 (erstwhile owner of the Lipa house
and lot) states that in April 2007, after she received the down payment for
the Lipa property and signed an agreement that petitioner would settle her
bank obligations in connection with the said transaction, he and Palomares
actually started residing at Pinagtong-ulan. The COMELEC brushed this
Affidavit aside as one that "merely narrates the circumstances surrounding
the sale of the property and mentions in passing that Sabili and Palomares
lived in Pinagtong-ulan since April 2007 up to the present."84
We disagree with the COMELEC’s appreciation of the Suarez Affidavit. Since
she was its owner, transactions for the purchase of the Lipa property was
within her personal knowledge. Ordinarily, this includes the arrangement
regarding who shall pay for the property and when, if ever, it shall be
occupied by the buyers. We thus consider that her statements impact
positively on petitioner’s claim of residence.
The Dissent on the other hand argues that the claim that petitioner started
living in the Lipa house and lot in April 2007 is made dubious by the fact
that (1) there might not be enough time to effect an actual and physical
change in residence a month before the May 2007 elections when
petitioner ran for representative of the 4th District of Batangas; and (2) the
Deed of Absolute Sale was notarized, and the subsequent transfer of
ownership in the tax declaration was made, only in August 2008.
Before further discussing this, it is pertinent to point out that these were
not the reasons adduced by the COMELEC in the assailed Resolutions.
Assuming that the above reasons were the unuttered considerations of the
COMELEC in coming up with its conclusions, such reasoning still exhibits
grave abuse of discretion.
As to the Dissent’s first argument, it must be remembered that a transfer of
domicile/residence need not be completed in one single instance. Thus,
in Mitra v. Commission on Elections,85 where the evidence showed that in
2008, petitioner Mitra had leased a small room at Maligaya Feedmills
located in Aborlan and, in 2009 purchased in the same locality a lot where
he began constructing his house, we recognized that petitioner
"transferred by incremental process to Aborlan beginning 2008 and
concluded his transfer in early 2009" and thus, he transferred his residence
from Puerto Princesa City to Aborlan within the period required by law. We
cannot treat the transfer to the Pinagtong-ulan house any less than we did
Mitra’s transfer to the Maligaya Feedmills room.1âwphi1
Moreover, the Joint Affidavit of twenty-one (21) Pinagtong-ulan residents,
including former and incumbent barangay officials, attests that petitioner
had begun living in the Pinagtong-ulan house and lot before the May 2007
elections such that it was where his coordinators for the May 2007
elections went to meet him.86 Jacinto Cornejo Sr., the contractor who
renovated the Pinagtong-ulan house when it was bought by petitioner, also
swore that petitioner and his family began living therein even while it was
being renovated.87 Another Affidavit petitioner adduced was that of
Rosalinda Macasaet, a resident of Brgy. Pinagtong-ulan,88 who stated that
she also sold a lot she owned in favor of petitioner and Palomares. The
latter bought her lot since it was adjacent to the Lipa house and lot they
had earlier acquired. Macasaet also swore that the couple had actually
resided in the house located in Pinagtong-ulan since April 2007, and that
she knew this because her own house was very near the couple’s own.
Macasaet’s Affidavit is a positive assertion of petitioner’s actual physical
presence in Brgy. Pinagtong-ulan, Lipa City.
While private respondent had adduced affidavits of two Pinagtong-ulan
residents (that of Violeta Fernandez89 and Rodrigo Macasaet)90 attesting
that petitioner could not be a resident of Pinagtong-ulan as he was "rarely
seen" in the area, these affidavits were controverted by the Joint affidavit
of twenty-one (21) Pinagtong-ulan residents who plainly accused the two of
lying. Meanwhile, the affidavits of private respondent91 and Eladio de
Torres92 stating that petitioner is not a resident of Lipa City because he has
no work or family there is hardly worthy of credence since both are
residents of Barangay Calamias, which is, and private respondent does not
contest this, about 15 kilometers from Pinagtong-ulan.
As to the Dissent’s second argument, the fact that the notarization of the
deed of absolute sale of the property was made months after April 2007
does not negate petitioner’s claim that he started residing therein in April
2007. It is clear from the Affidavit of the property’s seller, Leonila Suarez,
that it was not yet fully paid in April 2007, so it was understandable that a
deed of absolute sale was not executed at the time. Thus:
That initially, the contract to sell was entered into by and between Mr. &
Mrs. Meynardo Asa Sabili and Bernadette Palomares and myself, but
eventually the spouses changed their mind, and after the couple settled all
my loan obligations to the bank, they requested me to put the name of Ms.
Bernadette P. Palomares instead of Mr. & Mrs. Meynardo Asa Sabili and
Bernadette Palomares in the absolute deed of sale;
That it was Mr. Meynardo Asa Sabili who came to my former residence at
Barangay Pinagtong-ulan sometime in the month of April 2007. At that
time, Mr. Meynardo Asa Sabili was still running for Representative
(Congressman) in the 4th District of Batangas;
That after payment of the down payment and signing of an agreement that
Mr. Meynardo Asa Sabili will be the one to settle my bank obligations, Mr.
& Mrs. Meynardo A. Sabili and Bernadette Palomares had an actual
transfer of their residence at Barangay Pinagtong-ulan, Lipa City;
That they started living and residing in Pinagtong-ulan in the month of
April, 2007 up to this point in time; xxx93
As to the rest of the documents presented by petitioner, the COMELEC held
that the Memorandum issued by the Guardians Brotherhood Inc. San
Jose/Lipa City Chapter merely declares the designation of petitioner in the
organization, without any showing that residence in the locality was a
requirement for that designation. Meanwhile, the Certificate of
Appreciation was nothing more than an acknowledgment of petitioner’s
material and financial support, and not an indication of residence.
We agree that considered separately, the Guardians Brotherhood
Memorandum and the Pinagtong-ulan Parish Certificate of Appreciation do
not establish petitioner’s residence in Pinagtong-ulan, Lipa City.
Nevertheless, coupled with the fact that petitioner had twice been elected
as Provincial Board Member representing the Fourth District of Batangas,
which encompasses Lipa City, petitioner’s involvement in the religious life
of the community, as attested to by the certificate of appreciation issued to
him by the Pinagtong-ulan parish for his "material and financial support" as
President of the Barangay Fiesta Committee in 2009, as well as his
assumption of a leadership role in the socio-civic sphere of the locality as a
member of the advisory body of the Pinagtong-ulan, San Jose/Lipa City
Chapter of the Guardians Brotherhood Inc. , manifests a significant level of
knowledge of and sensitivity to the needs of the said community. Such,
after all, is the rationale for the residency requirement in our elections
laws, to wit:
The Constitution and the law requires residence as a qualification for
seeking and holding elective public office, in order to give candidates the
opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office
seekers’ qualifications and fitness for the job they aspire for xxx. 94
Considering all of the foregoing discussion, it is clear that while separately,
each evidence presented by petitioner might fail to convincingly show the
fact of his residence at Pinagtong-ulan since 2007, collectively, these pieces
of evidence tend to sufficiently establish the said fact.
Petitioner’s actual physical presence in Lipa City is established not only by
the presence of a place (Pinagtong-ulan house and lot) he can actually live
in, but also the affidavits of various persons in Pinagtong-ulan, and the
Certification of its barangay captain. Petitioner’s substantial and real
interest in establishing his domicile of choice in Lipa City is also sufficiently
shown not only by the acquisition of additional property in the area and
the transfer of his voter registration, but also his participation in the
community’s socio-civic and religious life, as well as his declaration in his
ITR that he is a resident thereof.
We therefore rule that petitioner has been able to adduce substantial
evidence to demonstrate compliance with the one-year residency
requirement for local elective officials under the law.
In view of this Court’s finding that petitioner has not misrepresented his
residence at Pinagtong-ulan and the duration thereof, there is no need to
further discuss whether there was material and deliberate
misrepresentation of the residency qualification in his COC.1âwphi1
As a final note, we do not lose sight of the fact that Lipa City voters
manifested their own judgment regarding the qualifications of petitioner
when they voted for him, notwithstanding that the issue of his residency
qualification had been raised prior to the elections. Petitioner has garnered
the highest number of votes (55,268 votes as opposed to the 48,825 votes
in favor of his opponent, Oscar Gozos)95 legally cast for the position of
Mayor of Lipa City and has consequently been proclaimed duly elected
municipal Mayor of Lipa City during the last May 2010 elections96
In this regard, we reiterate our ruling in Frivaldo v. Commission on
Elections97 that "(t)o successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the ineligibility
is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of
the people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote."
Similarly, in Japzon v. Commission on Elections,98 we concluded that "when
the evidence of the alleged lack of residence qualification of a candidate for
an elective position is weak or inconclusive and it clearly appears that the
purpose of the law would not be thwarted by upholding the victor's right to
the office, the will of the electorate should be respected. For the purpose of
election laws is to give effect to, rather than frustrate, the will of the
voters."
In sum, we grant the Petition not only because petitioner sufficiently
established his compliance with the one-year residency requirement for
local elective officials under the law. We also recognize that "(a)bove and
beyond all, the determination of the true will of the electorate should be
paramount. It is their voice, not ours or of anyone else, that must prevail.
This, in essence, is the democracy we continue to hold sacred."99

WHEREFORE, premises considered, the Petition is GRANTED. The assailed

COMELEC Resolutions dated 26 January 2010 and 17 August 2010 in
Florencio Librea v. Meynardo A. Sabili [SPA No. 09-047(DC)] are ANNULLED.
Private respondent’s Petition to cancel the Certificate of Candidacy of
Meynardo A. Sabili is DENIED. The Status Quo Ante Order issued by this
Court on 7 September 2010 is MADE PERMANENT.

SO ORDERED.
G.R. No. 185374
SIMPLICIA CERCADO-SIGA and LIGAYA CERCADO-BELISON, Petitioners,
vs.
VICENTE CERCADO, JR., MANUELA C. ARABIT, LOLITA C. BASCO, MARIA C.
ARALAR and VIOLETA C. BINADAS, Respondents.
DECISION
PEREZ, J.:
Not too long ago, we were called to pass upon the issue of the probative
value of a marriage contract issued by the church to prove the fact of
marriage.1 Once again, it behooves upon us to determine whether the
marriage contract or Contrato Matrimonial, as it is denominated in this
case, is sufficient to prove the fact of marriage.
This Petition for Review on Certiorari assails the 5 August 2008 Decision 2 of
the Court of Appeals and its 14 November 2008 Resolution3 in CA-G.R. CV
No. 89585 reversing the 30 January 2007 Decision4 of the Regional Trial
Court (RTC) of Binangonan, Rizal, Branch 69, which nullified the
Extrajudicial Settlement of Estate of the Deceased Vicente Cercado, Sr.
(Vicente) and Leonora Ditablan (Leonora).
In their Complaint against respondents Vicente Cercado, Jr., Manuela C.
Arabit, Lolita Basco, Maria C. Aralar, Violeta C. Binadas and the Registrar of
Deeds of Binangonan, Rizal, petitioners Simplicia Cercado-Siga (Simplicia)
and Ligaya Cercado-Belison (Ligaya) claimed that they are the legitimate
children of the late Vicente and Benita Castillo (Benita), who were married
last 9 October 1929 in Pililla, Rizal. Petitioners alleged that during the
lifetime of their parents, their father acquired by gratuitous title a parcel of
land identified as Lot No. 7627 Cad 609-D located at Barangay Kinagatan,
Binangonan, Rizal with an area of 6,032 square meters and covered by Tax
Declaration No. BIP-021-0253. Petitioners claimed that upon the death of
their father Vicente and by virtue of intestate succession, ownership over
the subject land pertained to them as heirs; that upon the death of Benita,
her share was acquired by petitioners by operation of law. Sometime in
September 1998, petitioners read from a newspaper a notice that the
estate of Vicente and a certain Leonora Ditablan has been extrajudicially
settled by their heirs, respondents herein. Upon verification, petitioners
were furnished a copy of the Extrajudicial Settlement of the Estate (Deed)
executed and signed by respondents. Petitioners insist that Vicente and
Leonora were not married or if they were so married, then said marriage
was null and void by reason of the subsisting marriage of their parents,
Vicente and Benita. Petitioners prayed for the declaration of the Deed as
null and void; for the Office of the Register of Deeds of Rizal to correct the
entry on the marital status of Vicente; and for the payment of damages and
attorney’s fees.5
To prove the marriage between Vicente and Benita, petitioners presented
the following documents: 1) Contrato Matrimonial or the marriage
contract;6 2) Certification dated 19 November 2000 issued by Iglesia Filipina
Independiente of its acceptance of original marriage contract;7 3)
Certification of non-production of record of birth of Simplicia issued by the
Office of the Municipal Civil Registrar of Pililla, Rizal;8 4) Certificate of
Baptism of Simplicia;95) Certification of non-production of record of birth of
Ligaya issued by the Office of the Municipal Civil Registrar of Pililla,
Rizal;10 and 6) Joint Affidavit of two disinterested persons attesting that
Ligaya is the child of Vicente and Benita.11
In their Answer, respondents alleged that they are the legitimate heirs of
Vicente and Leonora, who were married on 27 June 1977 as evidenced by a
marriage certificate registered with the Local Civil Registrar of Binangonan,
Rizal. They averred that petitioners are not the real-parties- interest to
institute the case because they failed to present their birth certificates to
prove their filiation to Vicente; that the marriage between Vicente and
Benita was not valid; that the document showing that Vicente was married
to Benita is not a certified true copy; and that they are now estopped by
laches.12
On 30 January 2007, the RTC rendered judgment in favor of petitioners. The
dispositive portion reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1.The Extra-Judicial Settlement of Estate of the deceased Vicente Cercado,
Sr. and Benita Ditablan is hereby declared null and void and therefore no
force and effect;
2.The [petitioners] and the [respondents] are entitled to share pro- indiviso
in the subject property as follows:
a.2,639 square meters – For [petitioner] Simplicia Cercado-Siga;
b.2,639 square meters – For [petitioner]Ligaya Cercado-Belison;
c.150.8 square meters – For [respondent] Vicente Cercado, Jr.;
d.150.8 square meters – For [respondent] Manuela C. Arabit;
e.150.8 square meters – For [respondent]Lolita C. Basco;
f.150.8 square meters – For [respondent]Maria C. Aralar; and
g.150.8 square meters – For [respondent] Violeta C. Binadas;
3.In the event that the property has already been sold by the
[respondents], they are hereby ordered to pay the [petitioners] the amount
equivalent to their share, at the time the subject property was sold;
4.[respondents] to pay [petitioners] the amount of P30,000.00 attorney’s
fees; and
5.To pay the cost of suit.13
The trial court reduced the issues into three: 1) whether the Extra- Judicial
Settlement of the Estate of the Deceased Vicente Cercado, Sr. and Leonora
Ditablan-Cercado is valid; 2) whether petitioners are entitled to recover
from respondents their share in the property; and 3) whether petitioners
are entitled to damages and attorney’s fees.
In resolving the issues, the trial court relied on the following material
findings:
The [petitioners] are the legitimate children of the late Vicente Cercado, Sr.
and Benita Castillote/Castillo who were married on October 9, 1929, as
evidenced by a Contrato Matrimonial x x x.14
The trial court first upheld the validity of the marriage between Vicente and
Benita and considered the subsequent marriage between Vicente and
Leonora as void and bigamous before it concluded that the subject
property was part of the conjugal property of Vicente and Benita.
Consequently, the trial court held that the Deed is null and void because it
deprived Benita of her share of the property as surviving spouse and
impaired the shares and legitimes of petitioners.15 Thus, the trial court
ruled that petitioners are entitled to recover from respondents their share
in the property subject of this action.
Respondents appealed from said judgment and assigned the following
errors: 1) the trial court erred in passing upon the validity of the marriage
between Vicente and Leonora; 2) the trial court failed to consider the
probative value of the certificate of marriage between Vicente and Benita;
3) the trial court failed to consider the probative value of the certificate of
live birth to prove filiation; and 4) the trial court erred when it relied on the
baptismal certificate to prove filiation.16
The appellate court ruled that the trial court "can pass upon the issue of
the validity of marriage of Vicente and Leonora [because] no judicial action
is necessary to declare a marriage an absolute nullity and the court may
pass upon the validity of a marriage even in a suit not directly instituted to
question the same, as long as it is essential to the determination of the case
before it."17 However, the appellate court found that the Contrato
Matrimonial of Vicente and Benita, being a private document, was not
properly authenticated, hence, not admissible in evidence. Moreover, the
appellate court did not consider the baptismal certificate submitted by
petitioners as conclusive proof of filiation. The Joint Affidavit executed by a
certain Mario Casale and Balas Chimlangco attesting to the birth of Ligaya
to Vicente and Benita was not given credence by the appellate court for
being a hearsay evidence. For failure of petitioners to prove their cause of
action by preponderance of evidence, the appellate court reversed and set
aside the Decision and Resolution of the RTC.
Petitioners filed a Motion for Reconsideration, but the Court of Appeals
denied it in its Resolution18 dated 14 November 2008.
Hence, the instant petition based on the following grounds:
I
THE RESPONDENT COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
WHEN IT DID NOT CONSIDER THE MARRIAGE CONTRACT AS A PUBLIC
DOCUMENT – AND SO WITH ITS DUPLICATE ORIGINAL. THE CONTRATO
MATRIMONIAL BUTTRESSED A CERTIFICATION ISSUED BY THE IGLESIA
FILIPINA INDEPENDIENTE IS A PUBLIC DOCUMENT, [IT] BEING REQUIRED BY
LAW TO BE KEPT NOT ONLY BY THE CHURCH CONCERNED BUT BY THE
OFFICE OF THE LOCAL CIVIL REGISTRAR – AND THE NATIONAL STATISTIC
OFFICE. AND THE DUPLICATE ORIGINAL COPY OF THE SAME IS ALSO
CONSIDERED ORIGINAL (SECTION 4, RULE 130) (AND HENCE ALSO A PUBLIC
DOCUMENT UNDER THE RULE) ON EVIDENCE.
II
THE COURT OF APPEALS, WITH ALL DUE RESPECT, COMMITTED ANOTHER
REVERSIBLE ERROR, WHEN IT DID NOT CONSIDER THE SAID DUPLICATE
ORIGINAL OF THE SUBJECT MARRIAGE CONTRACT AS AN ANCIENT
DOCUMENT, BESIDES, THE SAID DOCUMENT, MORE THAN 30 YEARS IN
EXISTENCE IS CONSIDERED AS AN ANCIENT DOCUMENT, OUTSIDE THE
NEEDED REQUIREMENT OF AUTHENTICATION APPLICABLE TO PRIVATE
DOCUMENT.
III
THE APPELLATE COURT COMMITTED A REVERSIBLE ERROR WHEN IT
IGNORED THE PROBATIVE VALUE OF A BAPTISMAL CERTIFICATE AND
PETITIONERS’ PARENTS YEARS [OF] COHABITATION. THE BAPTISMAL
CERTIFICATE WHILE NOT ADMISSIBLE AS DIRECT EVIDENCE FOR A MARITAL
CONTRACT, THE SAME IS OF STRONG EVIDEN[T]IARY SUPPORT TO THE
EXISTENCE OF MARRIAGE OF [PETITIONERS’] PARENTS, EVIDENCED BY
EXHIBIT "A" AND EXHIBIT "A-1" AND BY THE CERTIFICATE OF ITS
DESTRUCTION DURING WORLD WAR II, ALSO, BY THE OPEN AND PUBLIC
COHABITATION OF [PETITIONERS’] PARENTS, ADDED THE PRESUMPTION IN
FAVOR OF SUCH MARRIAGE, BOLSTERED BY THE OPEN AND PUBLIC
COHABITATION.
IV
THE APPELLATE COURT COMMITTED ANOTHER REVERSIBLE ERROR WHEN
IT IGNORED THE WEIGHT AND PROBATIVE VALUE OF THE JOINT AFFIDAVIT
OF TWO (2) DISINTERESTED PERSONS. THE AFFIDAVIT OF TWO (2)
DISINTERESTED PERSONS BEING A REQUIREMENT BY THE LOCAL CIVIL
REGISTRAR AND/OR THE NSO TO SUPPORT THE EXISTENCE OF
[PETITIONERS’] PARENTS MARRIAGE, AND IN THAT SINCE BECOMES ALSO A
PUBLIC DOCUMENT OR AT THE VERY LEAST, A CIRCUMSTANTIAL
DOCUMENTARY PROOF, WHICH IF ADDED TO THE BAPTISMAL CERTIFICATE
EXHIBIT "H-1", THE CONTRATO MATRIMONIAL AND THE CERTIFICATION
ISSUED BY THE IGLESIA FILIPINA INDEPENDIENTE TAKEN TOGETHER, PLUS
THE OPEN AND PUBLIC COHABITATION OF THE [PETITIONERS’] PARENTS
MARRIAGE, AND THE PRESUMPTION OF MARRIAGE PROVIDED FOR BY
LAW, BANDED TOGETHER, ARE STRONG EVIDENCE TO PROVE THE
EXISTENCE OF [PETITIONERS’] PARENTS MARRIAGE.
V be authenticated. Petitioners’ argument still has no merit. Section 21, Rule
THE COURT OF APPEALS COMMITTED ANOTHER YET SERIOUS REVERSIBLE
ERROR, WHEN IT DID NOT CONSIDER THE RESPONDENTS’ PARENTS’
MARRIAGE AS BIGAMOUS. THE NULLITY OF THE [RESPONDENTS’] PARENTS’
MARRIAGE, FOR BEING BIGAMOUS, AND BEING THE INCIDENT
NECESSARILY INTERTWINED IN THE ISSUES PRESENTED, AND IT BEING A
BIGAMOUS MARRIAGE, CAN BE COLLATERALLY ATTACK[ED] OR SLAIN AT
SIGHT WHEREVER AND WHENEVER ITS HEAD (THE [RESPONDENTS’]
PARENTS MARRIAGE) IS EXHIBITED.19
Petitioners insist that the Contrato Matrimonial is a public document
because it is required by law to be recorded in the local civil registrar and
the National Statistics Office (NSO). Petitioners claim to have in their
possession a duplicate original of the Contrato Matrimonial which should
be regarded as original. Petitioners emphasize that the certification issued
by the Iglesia Filipina Independiente Church, the joint affidavit of two
disinterested persons, the baptismal certificate presented by petitioners,
and the open and public cohabitation of petitioners’ parents are sufficient
proof of their marriage.
Granting that the Contrato Matrimonial is a private document, petitioners
maintain that said document should be considered an ancient document
which should be excluded from the requirement of authentication.
Petitioners aver that the Court of Appeals should have considered the
marriage between Vicente and Leonora as bigamous.
In their Comment,20 respondents submit that the Contrato Matrimonial is a
private document and the fact that marriages are required to be registered
in the local civil registrar does not ipso facto make it a public document.
Respondents assert that the certificate of baptism is likewise a private
document which tends to prove only the administration of the sacrament
of baptism and not the veracity of the declarations therein. Respondents
moreover refute the certification issued by the local civil registry arguing
that it does not prove filiation but only the fact that there is no record of
Ligaya on file with said office.
With respect to the joint affidavit attesting to the marriage of Vicente and
Benita, respondents assert that it is inadmissible for being a hearsay
evidence because the two affiants were never presented on the witness
stand.
The validity of the Extrajudicial Settlement of the Estate of Vicente and
Leonora hinges on the existence of the first marriage of Vicente and Benita.
In support of the existence of the alleged first marriage, petitioners
presented a copy of the Contrato Matrimonial.21There is no dispute that
said marriage contract was issued by Iglesia Filipina Independiente church.
The Court of Appeals correctly ruled that it is a private document. As early
as in the case of U.S. v. Evangelista,22 it has been settled that church
registries of births, marriages, and deaths made subsequent to the
promulgation of General Orders No. 6823 and the passage of Act No. 190 are
no longer public writings, nor are they kept by duly authorized public
officials. They are private writings and their authenticity must therefore be
proved as are all other private writings in accordance with the rules of
evidence.24
Under Section 20, Rule 132, Rules of Court,25 before a private document is
admitted in evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was acknowledged, any
person who was present and saw it executed, or who after its execution,
saw it and recognized the signatures, or the person to whom the parties to
the instruments had previously confessed execution thereof.26 As observed
by the Court of Appeals, petitioners failed to present any one of such
witnesses. In fact, only Simplicia testified that her mother gave her the
marriage contract. Unfortunately however, she was not present during its
execution nor could she identify Benita’s handwriting because Simplicia
admitted that she is illiterate.
Petitioners insist on the admissibility of the marriage contract on the
ground that it is a duplicate original, hence, the original need not be
produced. We do not agree. We had previously ruled in Vallarta v. Court of
Appeals27 that " a signed carbon copy or duplicate of a document executed
at the same time as the original is known as a duplicate original and maybe
introduced in evidence without accounting for the non- production of the
original. But, an unsigned and uncertified document purporting to be a
carbon copy is not competent evidence. It is because there is no public
officer acknowledging the accuracy of the copy."28
Next, while petitioners concede that the marriage contract is a private
document, they now argue that it is an ancient document which need not
132 defines an ancient document as one that: 1) is more than 30 years old;
2) is produced from custody in which it would naturally be found if genuine;
and 3) is unblemished by any alteration or by any circumstance of
suspicion. The marriage contract was executed on 9 October 1929, hence it
is clearly more than 30-years old. On its face, there appears to be no
evidence of alteration.
The marriage contract however does not meet the second requirement.
Ancient documents are considered from proper custody if they come from
a place from which they might reasonably be expected to be found.
Custody is proper if it is proved to have had a legitimate origin or if the
circumstances of the particular case are such as to render such an origin
probable. If a document is found where it would not properly and naturally
be, its absence from the proper place must be satisfactorily accounted for.29
Gibson v. Poor30 cited the reason why it is required that an ancient
document shall be produced from the proper depository:
x x x that thereby credit is given to its genuineness. Were it not for its
antiquity, and the presumption that consequently arises that evidence of
its execution cannot be obtained, it would have to be proved. It is not that
any one particular place of deposit can have more virtue in it than another,
or make that true which is false; but the fact of its coming from the natural
and proper place, tends to remove presumptions of fraud, and strengthens
the belief in its genuineness. It may be false, and so shown,
notwithstanding the presumptions in its favor. If found where it would not
properly and naturally be, its absence from the proper place must be
satisfactorily accounted for; but that being done and all suspicions against
its genuineness removed, we can discover no reason why it may not be
read in evidence. The real question which is to affect its consideration is,
whether the instrument offered is genuine, and contains a true statement
of what it purports to. In the Bishop of Meath v. Marquis of Winchester, 2
Bing. 183, Tindal, C. J., speaking of ancient documents, holds this language.
"It is not necessary that they should be found in the best and most proper
place of deposit. If documents continued in such custody, there never
would be any question as to their authenticity; but it is when documents
are found in other than their proper place of deposit, that the investigation
commences whether it was reasonable and natural under the
circumstances in the particular case, to expect that they should have been
in the place where they are actually found; for it is obvious, that while
there can be only one place of deposit strictly and absolutely proper, there
may be many and various that are reasonable and probable, though
differing in degree; some being more so, some less; and in those cases the
proposition to be determined is, whether the actual custody is so
reasonably and probably accounted for, that it impresses the mind with the
conviction, that the instrument found in such custody must be genuine."
Some authorities hold, that the antiquity of the document is alone
sufficient to entitle it to be read, and that the other circumstances only go
to its effect in evidence.

In Bartolome v. Intermediate Appellate Court,31 the Court ruled that the

requirement of proper custody was met when the ancient document in
question was presented in court by the proper custodian thereof who is an
heir of the person who would naturally keep it. In this case however, we
find that Simplicia also failed to prove her filiation to Vicente and Benita.
She merely presented a baptismal certificate which has long been held "as
evidence only to prove the administration of the sacrament on the dates
therein specified, but not the veracity of the declarations therein stated
with respect to her kinsfolk. "The same is conclusive only of the baptism
administered, according to the rites of the Catholic Church, by the priest
who baptized subject child, but it does not prove the veracity of the
declarations and statements contained in the certificate concerning the
relationship of the person baptized."32 As such, Simplicia cannot be
considered as an heir, in whose custody the marriage contract is expected
to be found. It bears reiteration that Simplicia testified that the marriage
contract was given to her by Benita but that Simplicia cannot make out the
contents of said document because she cannot read and write.

On the other hand, the document presented to prove Ligaya’s kinship is a

Joint Affidavit executed by two persons to the effect that she was born to
Vicente and Benita. These two affiants were never presented in court.
Thus, their statement is tantamount to hearsay evidence.

Petitioners also presented certifications from the local civil registrar

certifying that the records of birth from 1930 to 1946 were destroyed by
fire and/or war. In said documents, there contains an advice that
petitioners may make a further verification with the NSO because the local
civil registrar submits a copy of the birth certificate of every registered birth
with the NSO. The advice was not heeded. Petitioners failed to present a
certification from NSO whether such records do exist or not.

While we acknowledge the difficulty of obtaining old records, we simply

cannot ignore the rules on evidence, specifically the rule on authentication
with respect to private documents which is precisely in place to prevent the
inclusion of spurious documents in the body of evidence that will
determine the resolutions of an issue.

Considering that petitioners failed to prove the validity of the marriage

between Vicente and Benita, it follows that they do not have a cause of
action in the case for the declaration of nullity of the Extrajudicial
Settlement of the Estate of Vicente and Leonora.

WHEREFORE, the petition is DENIED. The 5 August 2008 Decision of the

Court of Appeals in CA-G.R. CV No. 89585 reversing and setting aside the 30
January 2007 Decision and 16 April 2007 Resolution of the Regional Trial
Court, Branch 69 of Binangonan, Rizal in Civil Case No. R-98-047 is
AFFIRMED.

SO ORDERED.
G.R. No. 127598 August 1, 2000
MANILA ELECTRIC COMPANY, petitioner,
vs.
HON. SECRETARY OF LABOR LEONARDO QUISUMBING and MERALCO
EMPLOYEES AND WORKERS ASSOCIATION (MEWA), respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On February 22, 2000, this Court promulgated a Resolution with the
following decretal portion:
WHEREFORE, the motion for reconsideration is PARTIALLY GRANTED and
the assailed Decision is MODIFIED as follows: (1) the arbitral award shall
retroact from December 1, 1995 to November 30, 1997; and (2) the award
of wage is increased from the original amount of One Thousand Nine
Hundred Pesos (P1,900.00) to Two Thousand Pesos (P2,000.00) for the
years 1995 and 1996. This Resolution is subject to the monetary advances
granted by petitioner to its rank-and-file employees during the pendency of
this case assuming such advances had actually been distributed to them.
The assailed Decision is AFFIRMED in all other respects.
SO ORDERED.
Petitioner Manila Electric Company filed with this Court, on March 17,
2000, a "Motion for Partial Modification (Re: Resolution Dated 22 February
2000)" anchored on the following grounds:
I ART. 253-A. Terms of a collective bargaining agreement. --- Any Collective
With due respect, this Honorable Court’s ruling on the retroactivity issue:
(a) fails to account for previous rulings of the Court on the same issue; (b)
fails to indicate the reasons for reversing the original ruling in this case on
the retroactivity issue; and (c) is internally inconsistent.
II
With due respect, the Honorable Court’s ruling on the retroactivity issue
does not take into account the huge cost that this award imposes on
petitioner, estimated at no less than P800 Million.
In the assailed Resolution, it was held:
Labor laws are silent as to when an arbitral award in a labor dispute where
the Secretary (of Labor and Employment) had assumed jurisdiction by
virtue of Article 263 (g) of the Labor Code shall retroact. In general, a CBA
negotiated within six months after the expiration of the existing CBA
retroacts to the day immediately following such date and if agreed
thereafter, the effectivity depends on the agreement of the parties. On the
other hand, the law is silent as to the retroactivity of a CBA arbitral award
or that granted not by virtue of the mutual agreement of the parties but by
intervention of the government. Despite the silence of the law, the Court
rules herein that CBA arbitral awards granted after six months from the
expiration of the last CBA shall retroact to such time agreed upon by both
employer and the employees or their union. Absent such an agreement as
to retroactivity, the award shall retroact to the first day after the six-month
period following the expiration of the last day of the CBA should there be
one. In the absence of a CBA, the Secretary’s determination of the date of
retroactivity as part of his discretionary powers over arbitral awards shall
control.
Petitioner specifically assails the foregoing portion of the Resolution as
being logically flawed, arguing, first, that while it alludes to the Secretary’s
discretionary powers only in the absence of a CBA, Article 253-A of the
Labor Code always presupposes the existence of a prior or subsisting CBA;
hence the exercise by the Secretary of his discretionary powers will never
come to pass. Second, petitioner claims that the Resolution contravenes
the jurisprudential rule laid down in the cases of Union of Filipro Employees
v. NLRC,1 Pier 8 Arrastre and Stevedoring Services v. Roldan-
Confesor2 and St. Luke’ s Medical Center v. Torres.3 Third, petitioner
contends that this Court erred in holding that the effectivity of CBA
provisions are automatically retroactive. Petitioner invokes, rather, this
Court’s ruling in the Decision dated January 27, 1999, which was modified
in the assailed Resolution, that in the absence of an agreement between
the parties, an arbitrated CBA takes on the nature of any judicial or quasi-
judicial award; it operates and may be executed only prospectively unless
there are legal justifications for its retroactive application. Fourth,
petitioner assigns as error this Court’s interpretation of certain acts of
petitioner as consent to the retroactive application of the arbitral
award. Fifth, petitioner contends that the Resolution is internally flawed
because when it held that the award shall retroact to the first day after the
six-month period following the expiration of the last day of the CBA, the
reckoning date should have been June 1, 1996, not December 1, 1995,
which is the last day of the three-year lifetime of the economic provisions
of the CBA.
Anent the second ground, petitioner alleges that the retroactive application
of the arbitral award will cost it no less than P800 Million. Thus, petitioner
prays that the two-year term of the CBA be fixed from December 28, 1996
to December 27, 1998. Petitioner also seeks this Court’s declaration that
the award of P2,000.00 be paid to petitioner’s rank-and-file employees
during this two-year period. In the alternative, petitioner prays that the
award of P2,000.00 be made to retroact to June 1, 1996 as the effectivity
date of the CBA.
Private respondent MEWA filed its Comment on May 19, 2000, contending
that the Motion for Partial Modification was unauthorized inasmuch as Mr.
Manuel M. Lopez, President of petitioner corporation, has categorically
stated in a memorandum to the rank-and-file employees that management
will comply with this Court’s ruling and will not file any motion for
reconsideration; and that the assailed Resolution should be modified to
conform to the St. Luke’sruling, to the effect that, in the absence of a
specific provision of law prohibiting retroactivity of the effectivity of
arbitral awards issued by the Secretary of Labor pursuant to Article 263(g)
of the Labor Code, he is deemed vested with plenary and discretionary
powers to determine the effectivity thereof.
This Court has re-examined the assailed portion of the Resolution in this
case vis-à-vis the rulings cited by petitioner. Invariably, these cases involve
Articles 253-A in relation to Article 263 (g)4 of the Labor Code. Article 253-A
is hereunder reproduced for ready reference:
Bargaining Agreement that the parties may enter into shall, insofar as the
representation aspect is concerned, be for a term of five (5) years. No
petition questioning the majority status of the incumbent bargaining agent
shall be entertained and no certification election shall be conducted by the
Department of Labor and Employment outside of the sixty-day period
immediately before the date of expiry of such five year term of the
Collective Bargaining Agreement. All other provisions of the Collective
Bargaining Agreement shall be renegotiated not later than three (3) years
after its execution. Any agreement on such other provisions of the
Collective Bargaining Agreement entered into within six (6) months from
the date of expiry of the term of such other provisions as fixed in such
Collective Bargaining Agreement, shall retroact to the day immediately
following such date. If any such agreement is entered into beyond six
months, the parties shall agree on the duration of retroactivity thereof. In
case of a deadlock in the renegotiation of the collective bargaining
agreement, the parties may exercise their rights under this Code.5
The parties’ respective positions are both well supported by jurisprudence.
For its part, petitioner invokes the ruling in Union of Filipro Employees6 ,
wherein this Court upheld the NLRC’s act of giving prospective effect to the
CBA, and argues that the two-year arbitral award in the case at bar should
likewise be applied prospectively, counted from December 28, 1996 to
December 27, 1998. Petitioner maintains that there is nothing in Article
253-A of the Labor Code which states that arbitral awards or renewals of a
collective bargaining agreement shall always have retroactive effect.
The Filipro case was applied more recently in Pier 8 Arrastre & Stevedoring
Services, Inc. v. Roldan-Confesor7 thus:
In Union of Filipro Employees v. NLRC, 192 SCRA 414 (1990), this Court
interpreted the above law as follows:
"In light of the foregoing, this Court upholds the pronouncement of the
NLRC holding the CBA to be signed by the parties effective upon the
promulgation of the assailed resolution. It is clear and explicit from Article
253-A that any agreement on such other provisions of the CBA shall be
given retroactive effect only when it is entered into within six (6) months
from its expiry date. If the agreement was entered into outside the six (6)
month period, then the parties shall agree on the duration of the
retroactivity thereof.
"The assailed resolution which incorporated the CBA to be signed by the
parties was promulgated June 5, 1989, and hence, outside the 6 month
period from June 30, 1987, the expiry date of the past CBA. Based on the
provision of Section 253-A, its retroactivity should be agreed upon by the
parties. But since no agreement to that effect was made, public respondent
did not abuse its discretion in giving the said CBA a prospective effect. The
action of the public respondent is within the ambit of its authority vested
by existing laws."
In the case of Lopez Sugar Corporation v. Federation of Free Workers, 189
SCRA 179 (1991), this Court reiterated the rule that although a CBA has
expired, it continues to have legal effects as between the parties until a
new CBA has been entered into. It is the duty of both parties to the CBA to
keep the status quo, and to continue in full force and effect the terms and
conditions of the existing agreement during the 60-day freedom period
and/or until a new agreement is reached by the parties (National Congress
of Unions in the Sugar Industry of the Philippines v. Ferrer-Calleja, 205 SCRA
478 [1992]). Applied to the case at bench, the legal effects of the
immediate past CBA between petitioner and private respondent
terminated, and the effectivity of the new CBA began, only on March 4,
1993, when public respondent resolved their dispute.8
On the other hand, respondent MEWA invokes the ruling in St. Luke’s
Medical Center, Inc. v. Torres,9 which held that the Secretary of Labor has
plenary and discretionary powers to determine the effectivity of arbitral
awards.10 Thus, respondent maintains that the arbitral award in this case
should be made effective from December 1, 1995 to November 30, 1997.
The ruling in the St. Luke’s case was restated in the 1998 case of Manila
Central Line Corporation v. Manila Central Line Free Workers Union-
National Federation of Labor, et al.,11 where it was held that:
Art. 253-A refers to collective bargaining agreements entered into by the
parties as a result of their mutual agreement. The CBA in this case, on the
other hand, is part of an arbitral award. As such, it may be made
retroactive to the date of expiration of the previous agreement. As held
in St. Luke’s Medical Center, Inc. v. Torres:
Finally, the effectivity of the Order of January 28, 1991, must retroact to the
date of the expiration of the previous CBA, contrary to the position of
petitioner. Under the circumstances of the case, Article 253-A cannot be
properly applied to herein case. As correctly stated by public respondent in
his assailed Order of April 12, 1991 dismissing petitioner’s Motion for
Reconsideration –
Anent the alleged lack of basis for the retroactivity provisions awarded, we
would stress that the provision of law invoked by the Hospital, Article 253-
A of the Labor Code, speaks of agreements by and between the parties, and
not arbitral awards . . . (p. 818 Rollo).
Therefore, in the absence of a specific provision of law prohibiting
retroactivity of the effectivity of arbitral awards issued by the Secretary of
Labor pursuant to Article 263(g) of the Labor Code, such as herein involved,
public respondent is deemed vested with plenary and discretionary powers
to determine the effectivity thereof (223 SCRA 779, 792-793 [1993];
reiterated in Philippine Airlines, Inc. v. Confessor 231 SCRA 41 [1994]).
petitioner will have to bear as a consequence of the full retroaction of the
arbitral award to the date of expiry of the CBA, and the inevitable effect
that it would have on the national economy. On the other hand, under the
policy of social justice, the law bends over backward to accommodate the
interests of the working class on the humane justification that those with
less privilege in life should have more in law.15 Balancing these two
contrasting interests, this Court turned to the dictates of fairness and
equitable justice and thus arrived at a formula that would address the
concerns of both sides. Hence, this Court held that the arbitral award in this
case be made to retroact to the first day after the six-month period
following the expiration of the last day of the CBA, i.e., from June 1, 1996 to
May 31, 1998.
This Court, therefore, maintains the foregoing rule in the assailed
Resolution pro hac vice. It must be clarified, however, that consonant with
this rule, the two-year effectivity period must start from June 1, 1996 up to
May 31, 1998, not December 1, 1995 to November 30, 1997.1âwphi1
During the interregnum between the expiration of the economic provisions
of the CBA and the date of effectivity of the arbitral award, it is understood
that the hold-over principle shall govern, viz:
"[I]t shall be the duty of both parties to keep the status quo and to
continue in full force and effect the terms and conditions of the existing
agreement during the 60-day freedom period and/or until a new
agreement is reached by the parties." Despite the lapse of the formal
effectivity of the CBA the law still considers the same as continuing in force
and effect until a new CBA shall have been validly executed.16
Finally, this Court finds that petitioner’s prayer, that the award of Two
Thousand Pesos shall be paid to rank-and-file employees during the two-
year period, is well-taken. The award does not extend to supervisory
employees of petitioner.
WHEREFORE, the Motion for Partial Modification is GRANTED. The
Resolution of February 22, 2000 is PARTIALLYMODIFIED as follows: (a) the
arbitral award shall retroact to the two-year period from June 1, 1996 to
May 31, 1998; (b) the increased wage award of Two Thousand Pesos
(P2,000.00) shall be paid to the rank-and-file employees during the said
two-year period. This Resolution is subject to the monetary advances
granted by petitioner to said employees during the pendency of this case,
assuming such advances had actually been distributed to them.
SO ORDERED.

Indeed, petitioner has not shown that the question of effectivity was not
included in the general agreement of the parties to submit their dispute for
arbitration. To the contrary, as the order of the labor arbiter states, this
question was among those submitted for arbitration by the parties:

As regards the "Effectivity and Duration" clause, the company proposes

that the collective bargaining agreement shall take effect only upon its
signing and shall remain in full force and effect for a period of five years.
The union proposes that the agreement shall take effect retroactive to
March 15, 1989, the expiration date of the old CBA.

And after an evaluation of the parties’ respective contention and argument

thereof, it is believed that that of the union is fair and reasonable. It is the
observation of this Arbitrator that in almost subsequent CBAs, the
effectivity of the renegotiated CBA, usually and most often is made
effective retroactive to the date when the immediately preceding CBA
expires so as to give a semblance of continuity. Hence, for this particular
case, it is believed that there is nothing wrong adopting the stand of the
union, that is that this CBA be made retroactive effective March 15, 1989.12

Parenthetically, the Decision rendered in the case at bar on January 27,

199913 ordered that the CBA should be effective for a term of two years
counted from December 28, 1996 (the date of the Secretary of Labor’s
disputed Order on the parties’ motion for reconsideration) up to December
27, 1998.14 That is to say, the arbitral award was given prospective effect.

Upon a reconsideration of the Decision, this Court issued the assailed

Resolution which ruled that where an arbitral award granted beyond six
months after the expiration of the existing CBA, and there is no agreement
between the parties as to the date of effectivity thereof, the arbitral award
shall retroact to the first day after the six-month period following the
expiration of the last day of the CBA. In the dispositive portion, however,
the period to which the award shall retroact was inadvertently stated as
beginning on December 1, 1995 up to November 30, 1997.

In resolving the motions for reconsideration in this case, this Court took
into account the fact that petitioner belongs to an industry imbued with
public interest. As such, this Court can not ignore the enormous cost that
G.R. Nos. 115338-39 September 16, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LANIE ORTIZ-MIYAKE, accused-appellant.
REGALADO, J.:
Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment
in large scale in the Regional Trial Court of Makati on a complaint initiated
by Elenita Marasigan, Imelda Generillo and Rosamar del Rosario. In
addition, she was indicted for estafa by means of false pretenses in the
same court, the offended party being Elenita Marasigan alone.
The information in the charge of illegal recruitment in large scale in
Criminal Case No. 92-6153 reads as follows:
That in or about the period comprised from June 1992 to August 1992, in
the Municipality of Parañaque, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, falsely
representing herself to have the capacity and power to contract, enlist and
recruit workers for employment abroad did then and there willfully,
unlawfully, and feloniously collect for a fee, recruit and promise
employment/job placement abroad to the following persons, to wit: 1)
Rosamar del Rosario; 2) Elenita Marasigan; 3) Imelda Generillo, without
first securing the required license or authority from the Department of
Labor and Employment, thus amounting to illegal recruitment in large
scale, in violation of the aforecited law.1
The information in the charge for estafa in Criminal Case No. 92-6154
alleges:
That in or about or sometime in the month of August, 1992, in the
Municipality of Parañaque, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means
of false pretenses executed prior to or simultaneously with the commission
of the fraud, falsely pretending to have the capacity and power to send
complainant Elenita Marasigan to work abroad, succeeded in inducing the
latter to give and deliver to her the total sum of P23,000.00, the accused
knowing fully well that the said manifestations and representation are false
and fraudulent and calculated only to deceive the said complainant to part
with her money, and, once in possession thereof, the said accused did then
and there willfully, unlawfully and feloniously appropriate, apply and
convert the same to her own personal use and benefit, to the damage and
prejudice of the said Elenita Marasigan, in the aforementioned amount of
P23,000.00.2
Upon arraignment, appellant pleaded not guilty to the charges and the
cases were tried jointly in Branch 145 of the Regional Trial Court of Makati.
Of the three complainants in the case for illegal recruitment in large scale,
Marasigan was the only one who testified at the trial. The two other
complainants, Generillo and Del Rosario, were unable to testify as they
were then abroad.
Marasigan testified that she was a 32 year-old unmarried sales
representative in 1992 when she was introduced to appellant by her co-
complainants.3 Appellant promised Marasigan a job as a factory worker in
Taiwan for a P5,000.00 fee. At that time, Marasigan had a pending
application for overseas employment pending in a recruitment agency.
Realizing that the fee charged by appellant was much lower than that of
the agency, Marasigan withdrew her money from the agency and gave it to
appellant.4
Marasigan paid appellant P5,000.00, but she was later required to make
additional payments. By the middle of the year, she had paid a total of
P23,000.00 on installment basis.5 Save for two receipts,6 Marasigan was not
issued receipts for the foregoing payments despite her persistence in
requesting for the same.
Marasigan was assured by appellant that obtaining a Taiwanese visa would
not be a problem.7 She was also shown a plane ticket to Taiwan, allegedly
issued in her name.8 Appellant issued Marasigan a photocopy of her plane
ticket,9the original of which was promised to be given to her before her
departure.10
Marasigan was never issued a visa.11 Neither was she given the promised
plane ticket. Unable to depart for Taiwan, she went to the travel agency
which issued the ticket and was informed that not only was she not booked
by appellant for the alleged flight, but that the staff in the agency did not
even know appellant.
Later, Marasigan proceeded to the supposed residence of appellant and
was informed that appellant did not live there.12 Upon verification with the
Philippine Overseas Employment Administration (POEA), it was revealed
that appellant was not authorized to recruit workers for overseas
employment.13 Marasigan wanted to recover her money but, by then,
appellant could no longer be located.
The prosecution sought to prove that Generillo and Del Rosario, the two
other complainants in the illegal recruitment case, were also victimized by
appellant. In lieu of their testimonies, the prosecution presented as
witnesses Lilia Generillo, the mother of Imelda Generillo, and Victoria
Amin, the sister of Del Rosario.
Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her
application for placement abroad which was made through
appellant.14 Twice, she accompanied her daughter to the residence of
appellant so that she could meet her; however, she was not involved in the
transactions between her daughter and appellant.15 Neither was she
around when payments were made to appellant. Imelda Generillo was
unable to leave for abroad and Lilia Generillo concluded that she had
become a victim of illegal recruitment.
The prosecution presented Victoria Amin, the sister of Rosamar Del
Rosario, to show that the latter was also a victim of illegal recruitment.
Victoria Amin testified that appellant was supposed to provide her sister a
job abroad. She claimed that she gave her sister a total of P10,000.00 which
was intended to cover the latter's processing fee.16
Victoria Amin never met appellant and was not around when her sister
made payments. She assumed that the money was paid to appellant based
on receipts, allegedly issued by appellant, which her sister showed
her.17 Del Rosario was unable to leave for abroad despite the
representations of appellant. Victoria Amin claimed that her sister, like
Marasigan and Generillo, was a victim of illegal recruitment.
The final witness for the prosecution was Riza Balberte,18 a representative
of the POEA, who testified that appellant was neither licensed nor
authorized to recruit workers for overseas employment, POEA certificate
certification.19
Upon the foregoing evidence, the prosecution sought to prove that
although two of the three complainants in the illegal recruitment case were
unable to testify, appellant was guilty of committing the offense against all
three complainants and, therefore, should be convicted as charged.
On the other hand, appellant, who was the sole witness for the defense,
denied that she recruited the complainants for overseas employment and
claimed that the payments made to her were solely for purchasing plane
tickets at a discounted rate as she had connections with a travel agency.20
She denied that she was paid by Marasigan the amount of P23,000.00,
claiming that she was paid only P8,000.00, as shown by a receipt. She
further insisted that, through the travel agency,21 she was able to purchase
discounted plane tickets for the complainants upon partial payment of the
ticket prices, the balance of which she guaranteed. According to her, the
complainants were supposed to pay her the balance but because they
failed to do so, she was obliged to pay the entire cost of each ticket.
The evidence presented by the parties were thus contradictory but the trial
court found the prosecution's evidence more credible. On December 17,
1993, judgment was rendered by said court convicting appellant of both
crimes as charged.22
In convicting appellant of illegal recruitment in large scale, the lower court
adopted a previous decision of Branch 78 of the Metropolitan Trial Court of
Parañaque as a basis for the judgment. Said previous decision was a
conviction for estafa promulgated on July 26, 1993,23 rendered in Criminal
Cases Nos. 74852-53, involving the same circumstances in the instant case,
wherein complainants Generillo and Del Rosario charged appellant with
two counts of estafa. This decision was not appealed and had become final
and executory.
In thus convicting appellant in the illegal recruitment case, the decision
therein of the Regional Trial Court stated that the facts in the foregoing
estafa cases were the same as those in the illegal recruitment case before
it. It, therefore, adopted the facts and conclusions established in the earlier
decision as its own findings of facts and as its retionale for the conviction in
the case before it.24
In Criminal Case No. 92-6153, the Makati court sentenced appellant to
serve the penalty of life imprisonment for illegal recruitment in large scale,
as well as to pay a fine of P100,000.00. Appellant was also ordered to
reimburse the complainants the following payments made to her, viz.: (a)
Marasigan, P23,000.00; (b) Generillo, P2,500.00; and (c) Del Rosario,
P2,500.00.
In the same judgment and for the estafa charged in Criminal Case No. 92-
6154, the Makati court sentenced appellant to suffer imprisonment of four
(4) years and two (2) months of prision correccional, as minimum, to eight
(8) years of prision mayor, as maximum, and to pay the costs.
In the instant petition, appellant seeks the reversal of the foregoing
judgment of the Regional Trial Court of Makati convicting her of illegal
recruitment in large scale and estafa. Specifically, she insists that the trial
court erred in convicting her of illegal recruitment in large scale as the
evidence presented was insufficient.
Moreover, appellant claims that she is not guilty of acts constituting illegal
recruitment, in large scale or otherwise, because contrary to the findings of
the trial court, she did not recruit the complainants but merely purchased
plane tickets for them. Finally, she contends that in convicting her of estafa,
the lower court erred as she did not misappropriate the money paid to her
by Marasigan, hence there was no damage to the complainants which
would substantiate the conviction.
We uphold the finding that appellant is guilty but we are, compelled to
modify the judgment for the offenses she should be convicted of and the
corresponding penalties therefor.
Appellant maintains that her conviction for illegal recruitment in large scale
is erroneous. It is her view that in the prosecution of a case for such
offense, at least three complainants are required to appear as witnesses in
the trial and, since Marasigan was the only complainant presented as a
witness, the conviction was groundless.
The Solicitor General also advocates the conviction of appellant for simple
illegal recruitment which provides a lower penalty. The Court finds the
arguments of the Solicitor General meritorious and adopts his position.
The Labor Code defines recruitment and placement as ". . . any act of
canvassing, enlisting, contracting transporting, utilizing, hiring or procuring
workers and includes referrals, contract services, promising or advertising
for employment, locally or abroad, whether for profit or not . . . ."25
Illegal recruitment is likewise defined and made punishable under the
Labor Code, thus:
Art. 38. Illegal Recruitment. —
(a) Any recruitment activities, including the prohibited practices
enumerated under Article 34 of this Code, to be undertaken by non-
licensees or non-holders of authority shall be deemed illegal and
punishable under Article 39 of this Code. . . .
(b) Illegal recruitment when committed by a syndicate or in large scale shall
be considered an offense involving economic sabotage and shall be
penalized in accordance with Article 39 hereof.
. . . Illegal recruitment is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
Art. 39. Penalties. —
(a) The penalty of life imprisonment and a fine of One Hundred Thousand
Pesos (P100,000.00) shall be imposed if Illegal Recruitment constitutes
economic sabotage as defined herein;
xxx xxx xxx
(c) Any person who is neither a licensee nor a holder of authority under this
Title found violating any provision thereof or its implementing rules and
regulations shall, upon conviction thereof, suffer the penalty of
imprisonment of not less than four (4) years nor more than eight (8) years
or a fine of not less than P20,000.00 nor more than P100,000.00, or both
such imprisonment and fine, at the discretion of the court. . . .26
During the pendency of this case, Republic Act No. 8042, otherwise known
as the "Migrant Workers and Overseas Filipinos Act of 1995," was passed
increasing the penalty for illegal recruitment. This new law, however, does
not apply to the instant case because the offense charged herein was
committed in 1992, before the effectivity of said Republic Act No. 8042.
Hence, what are applicable are the aforecited Labor Code provisions.
It is evident that in illegal recruitment cases, the number of persons
victimized is determinative. Where illegal recruitment is committed against
a lone victim, the accused may be convicted of simple illegal recruitment
which is punishable with a lower penalty under Article 39(c) of the Labor
Code. Corollarily, where the offense is committed against three or more
persons, it is qualified to illegal recruitment in large scale which provides a
higher penalty under Article 39(a) of the same Code.
The position of the Solicitor General is that the conviction of appellant
should be merely for the lesser offense of simple illegal recruitment. He
submits that the Regional Trial Court of Makati erred in convicting
appellant of illegal recruitment in large scale because the conviction was
based on an earlier decision of the Metropolitan Trial Court of Parañaque
where appellant was found guilty of estafa committed against Generillo
and Del Rosario.
It is argued that the Makati court could not validly adopt the facts
embodied in the decision of the Parañaque court to show that illegal
recruitment was committed against Generillo and Del Rosario as well.
Illegal recruitment was allegedly proven to have been committed against
only one person, particularly, Elenita Marasigan. Appellant, therefore, may
only be held guilty of simple illegal recruitment and not of such offense in
large scale.
He further submits that the adoption by the Makati court of the facts in the
decision of the Parañaque court for estafa to constitute the basis of the
subsequent conviction for illegal recruitment is erroneous as it is a violation
of the right of appellant to confront the witnesses, that is, complainants
Generillo and Del Rosario, during trial before it. He cites the pertinent
provision of Rule 115 of the Rules of Court, to wit:
Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the
accused shall be entitled:
xxx xxx xxx
(f) To confront and cross-examine the witnesses against him at the trial.
Either party may utilize as part of its evidence the testimony of a witness
who is deceased, out of or cannot, with due diligence be found in the
Philippines, unavailable or otherwise unable testify, given in another case
or proceeding, judicial or administrative, involving the same parties and
subject matter, the adverse party having had the opportunity to cross-
examine him.
xxx xxx xxx
It will be noted that the principle embodied in the foregoing rule is likewise
found in the following provision of Rule 130:
Sec. 47. Testimony or deposition at a former proceeding. — The testimony
or deposition of a witness deceased or unable to testify, given in a former
case or proceeding, judicial or administrative, involving the same parties
and subject matter, may be given in evidence against the adverse party
who had the opportunity to cross-examine him.
Under the aforecited rules, the accused in a criminal case is guaranteed the
right of confrontation. Such right has two purposes: first, to secure the
opportunity of cross-examination; and, second, to allow the judge to
observe the deportment and appearance of the witness while testifying.27
This right, however, is not absolute as it is recognized that it is sometimes
impossible to recall or produce a witness who has already testified in a
previous proceeding, in which event his previous testimony is made
admissible as a distinct piece of evidence, by way of exception to the
hearsay rule.28 The previous testimony is made admissible because it makes
the administration of justice orderly and expeditious.29
Under these rules, the adoption by the Makati trial court of the facts stated
in the decision of the Parañaque trial court does not fall under the
exception to the right of confrontation as the exception contemplated by
law covers only the utilization of testimonies of absent witnesses made in
previous proceedings, and does not include utilization of previous decisions
or judgments.
In the instant case, the prosecution did not offer the testimonies made by
complainants Generillo and Del Rosario in the previous estafa case. Instead,
what was offered, admitted in evidence, and utilized as a basis for the
conviction in the case for illegal recruitment in large scale was the previous
decision in the estafa case.
A previous decision or judgment, while admissible in evidence, may only
prove that an accused was previously convicted of a crime.30 It may not be
used to prove that the accused is guilty of a crime charged in a subsequent
case, in lieu of the requisite evidence proving the commission of the crime,
as said previous decision is hearsay. To sanction its being used as a basis for
conviction in a subsequent case would constitute a violation of the right of
the accused to confront the witnesses against him.
As earlier stated, the Makati court's utilization of and reliance on the
previous decision of the Parañaque court must be rejected. Every
conviction must be based on the findings of fact made by a trial court
according to its appreciation of the evidence before it. A conviction may
not be based merely on the findings of fact of another court, especially
where what is presented is only its decision sans the transcript of the
testimony of the witnesses who testified therein and upon which the
decision is based.
Furthermore, this is not the only reason why appellant may not be held
liable for illegal recruitment in large scale. An evaluation of the evidence
presented before the trial court shows us that, apart from the adopted
decision in the previous estafa case, there was no other basis for said trial
court's conclusion that illegal recruitment in large scale was committed
against all three complainants.
The distinction between simple illegal recruitment and illegal recruitment
in large scale are emphasized by jurisprudence. Simple illegal recruitment is
committed where a person: (a) undertakes any recruitment activity defined
under Article 13(b) or any prohibited practice enumerated under Articles 34
and 38 of the Labor Code; and (b) does not have a license or authority to
lawfully engage in the recruitment and placement of workers.31 On the
other hand, illegal recruitment in large scale further requires a third
element, that is, the offense is committed against three or more persons,
individually or as a group.32
In illegal recruitment in large scale, while the law does not require that at
least three victims testify at the trial, it is necessary that there is sufficient
evidence proving that the offense was committed against three or more
persons. This Court agrees with the trial court that the evidence presented
sufficiently proves that illegal recruitment was committed by appellant
against Marasigan, but the same conclusion cannot be made as regards
Generillo and Del Rosario as well.
The testimonies of Generillo's mother, Lilia Generillo, and Del Rosario's
sister, Victoria Amin, reveal that these witnesses had no personal
knowledge of the actual circumstances surrounding the charges filed by
Generillo and Del Rosario for illegal recruitment in large scale. Neither of
these witnesses was privy to the transactions between appellant and each
of the two complainants. The witnesses claimed that appellant illegally
recruited Generillo and Del Rosario. Nonetheless, we find their averments
to be unfounded as they were not even present when Generillo and Del
Rosario negotiated with and made payments to appellant.
For insufficiency of evidence and in the absence of the third element of
illegal recruitment in large scale, particularly, that "the offense is
committed against three or more persons," we cannot affirm the conviction
for illegal recruitment in large scale. Nonetheless, we agree with the finding
of the trial court that appellant illegally recruited Marasigan, for which she
must be held liable for the lesser offense of simple illegal recruitment.
Appellant's defense that she did not recruit Marasigan but merely
purchased a plane ticket for her is belied by the evidence as it is undeniable
that she represented to Marasigan that she had the ability to send people
to work as factory workers in Taiwan. Her pretext that the fees paid to her
were merely payments for a plane ticket is a desperate attempt to
exonerate herself from the charges and cannot be sustained.
Furthermore, no improper motive may be attributed to Marasigan in
charging appellant. The fact that Marasigan was poor does not make her so
heartless as to contrive a criminal charge against appellant. She was a
simple woman with big dreams and it was appellant's duplicity which
reduced those dreams to naught. Marasigan had no motive to testify falsely
against appellant except to tell the truth.33
Besides, if there was anyone whose testimony needed corroboration, it
was appellant as there was nothing in her testimony except the bare denial
of the accusations.34 If appellant really intended to purchase a plane ticket
and not to recruit Marasigan, she should have presented evidence to
support this claim. Also, in her testimony, appellant named an employee in
the travel agency who was allegedly her contact person for the purchase of
the ticket. She could have presented that person, or some other employee
of the agency, to show that the transaction was merely for buying a ticket.
Her failure to do the foregoing acts belies her pretensions.
The Court likewise affirms the conviction of appellant for estafa which was
committed against Marasigan. Conviction under the Labor Code for illegal
recruitment does not preclude punishment under the Revised Penal Code
for the felony of estafa.35 This Court is convinced that the prosecution
proved beyond reasonable doubt that appellant violated Article 315(2) (a)
of the Revised Penal Code which provides that estafa is committed:
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.
The evidence is clear that in falsely pretending to possess power to deploy
persons for overseas placement, appellant deceived the complainant into
believing that she would provide her a job in Taiwan. Her assurances made
Marasigan exhaust whatever resources she had to pay the placement fee
required in exchange for the promised job. The elements of deceit and
damage for this form of estafa are indisputably present, hence the
conviction for estafa in Criminal Case No. 92-6154 should be affirmed.
Under the Revised Penal Code, an accused found guilty of estafa shall be
sentenced to:
. . . The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but
does not exceed 22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos. . . .36
The amount involved in the estafa case is P23,000.00. Applying the
Indeterminate Sentence Law, the maximum penalty shall be taken from the
maximum period of the foregoing basic penalty, specifically, within the
range of imprisonment from six (6) years, eight (8) months and twenty-one
(21) days to eight (8) years.
On the other hand, the minimum penalty of the indeterminate sentence
shall be within the range of the penalty next lower in degree to that
provided by law, without considering the incremental penalty for the
amount in excess of P22,000.00.37 That penalty immediately lower in
degree is prison correccional in its minimum and medium periods, with a
duration of six (6) months and one (1) day to four (4) years and two (2)
months. On these considerations, the trial court correctly fixed the
minimum and maximum terms of the indeterminate sentence in the estafa
case.
While we must be vigilant and should punish, to the fullest extent of the
law, those who prey upon the desperate with empty promises of better
lives, only to feed on their aspirations, we must not be heedless of the
basic rule that a conviction may be sustained only where it is for the correct
offense and the burden of proof of the guilt of the accused has been met by
the prosecution.
WHEREFORE, the judgment of the court a quo finding accused-appellant
Lanie Ortiz-Miyake guilty beyond reasonable doubt of the crimes of illegal
recruitment in large scale (Criminal Case No. 92-6153) and estafa (Criminal
Case No. 92-6154) is hereby MODIFIED, as follows.
1) Accused-appellant is declared guilty beyond reasonable doubt of simple
illegal recruitment, as defined in Article 38(a) of the Labor Code, as
amended. She is hereby ordered to serve an indeterminate sentence of
four (4) years, as minimum, to eight (8) years, as maximum, and to pay a
fine of P100,000.00.
2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is
ordered to serve an indeterminate sentence of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, and to reimburse Elenita Marasigan the sum of
P23,000.00.
In all other respects, the aforestated judgment is AFFIRMED, with costs
against accused-appellant in both instances.
SO ORDERED.
G.R. No. 185527 July 18, 2012
HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET
AL., Respondents.
DECISION
PERLAS-BERNABE, J.:
The procedure for taking depositions in criminal cases recognizes the
prosecution's right to preserve testimonial evidence and prove its case
despite the unavailability of its witness. It cannot, however, give license to
prosecutorial indifference or unseemly involvement in a prosecution
witness' absence from trial. To rule otherwise would effectively deprive the
accused of his fundamental right to be confronted with the witnesses
against him.
In this Petition for Review on Certiorari under Rule 45 of the Revised Rules
of Court, petitioners seek to nullify and set aside the February 19, 2008
Decision1 and November 28, 2008 Resolution2 of the Court of Appeals (CA)
in CA-G.R. SP No. 99383, which reversed the September 12, 2006
Order3 issued by the Regional Trial Court (RTC) of Manila, Branch 27 in Civil
Case No. 06-114844 and upheld the grant of the prosecution’s motion to
take the testimony of a witness by oral depositions in Laos, Cambodia.
Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged
before the Metropolitan Trial Court (MeTC) of Manila for Other Deceits
under Article 318 of the Revised Penal Code (RPC) docketed as Criminal
Case No. 396447. The Information4 dated September 24, 2003, later
amended5 on September 14, 2004, reads:
"That sometime in August 1996, in the City of Manila, Philippines, the said
accused, conspiring, confederating together and helping one another, did
then and there willfully, unlawfully and feloniously defraud Highdone
Company Ltd. Represented by Li Luen Ping, in the following manner, to wit:
all said accused, by means of false manifestations and fraudulent
representations which they made to said Li Luen Ping to the effect that
they have chattels such as machinery, spare parts, equipment and raw
materials installed and fixed in the premises of BGB Industrial Textile Mills
Factory located in the Bataan Export Processing Zone (BEPZ) in Mariveles,
Bataan, executed a Deed of Mortgage for a consideration of the amount of
$464,266.90 or its peso equivalent at P20,892,010.50 more or less in favor
of ML Resources and Highdone Company Ltd. Representing that the said
deed is a FIRST MORTGAGE when in truth and in fact the accused well knew
that the same had been previously encumbered, mortgaged and foreclosed
by CHINA BANK CORPORATION as early as September 1994 thereby causing
damage and prejudice to said HIGHDONE COMPANY LTD., in the said
amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or
less."
Upon arraignment, petitioners pleaded not guilty to the charge.
The prosecution's complaining witness, Li Luen Ping, a frail old businessman
from Laos, Cambodia, traveled from his home country back to the
Philippines in order to attend the hearing held on September 9, 2004.
However, trial dates were subsequently postponed due to his
unavailability.
On October 13, 2005, the private prosecutor filed with the MeTC a Motion
to Take Oral Deposition6 of Li Luen Ping, alleging that he was being treated
for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and
that, upon doctor's advice, he could not make the long travel to the
Philippines by reason of ill health.
Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion
after the prosecution complied with the directive to submit a Medical
Certificate of Li Luen Ping. Petitioners sought its reconsideration which the
MeTC denied,9 prompting petitioners to file a Petition for Certiorari10 before
the RTC.
On September 12, 2006, the RTC granted the petition and declared the
MeTC Orders null and void.11 The RTC held that Section 17, Rule 23 on the
taking of depositions of witnesses in civil cases cannot apply suppletorily to
the case since there is a specific provision in the Rules of Court with respect
to the taking of depositions of prosecution witnesses in criminal cases,
which is primarily intended to safeguard the constitutional rights of the
accused to meet the witness against him face to face.
Upon denial by the RTC of their motion for reconsideration through an
Order dated March 5, 2006,12 the prosecution elevated the case to the CA.
On February 19, 2008, the CA promulgated the assailed Decision which held
that no grave abuse of discretion can be imputed upon the MeTC for
allowing the deposition-taking of the complaining witness Li Luen Ping
because no rule of procedure expressly disallows the taking of depositions
in criminal cases and that, in any case, petitioners would still have every
opportunity to cross-examine the complaining witness and make timely
objections during the taking of the oral deposition either through counsel
or through the consular officer who would be taking the deposition of the
witness.
On November 28, 2008, the CA denied petitioners' motion for
reconsideration. Hence, this petition alleging that –
I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
METROPOLITAN TRIAL COURT INFRINGED THE CONSTITUTIONAL RIGHT OF
THE PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE TAKING OF THE
DEPOSITION OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA.
II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION
TAKING OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN
INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO
CONFRONT THE SAID WITNESS FACE TO FACE.
III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL
LEGISLATION COMMITTED BY THE METROPOLITAN TRIAL COURT IN
APPLYING THE RULES ON DEPOSITION-TAKING IN CIVIL CASES TO CRIMINAL
CASES.
IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL
DEFINITION OF GRAVE ABUSE OF DISCRETION, OVERLOOKING THE
ESTABLISHED RULE THAT VIOLATION OF THE CONSTITUTION, THE LAW OR
JURISPRUDENCE SIMILARLY COMES WITHIN THE PURVIEW OF GRAVE
ABUSE OF DISCRETION.
We rule in favor of petitioners.
The Procedure for Testimonial Examination of an Unavailable Prosecution
Witness is Covered Under Section 15, Rule 119.
The examination of witnesses must be done orally before a judge in open
court.13 This is true especially in criminal cases where the Constitution
secures to the accused his right to a public trial and to meet the witnessess
against him face to face. The requirement is the "safest and most
satisfactory method of investigating facts" as it enables the judge to test
the witness' credibility through his manner and deportment while
testifying.14 It is not without exceptions, however, as the Rules of Court
recognizes the conditional examination of witnesses and the use of their
depositions as testimonial evidence in lieu of direct court testimony.
Even in criminal proceedings, there is no doubt as to the availability of
conditional examination of witnesses – both for the benefit of the defense,
as well as the prosecution. The Court's ruling in the case of Vda. de
Manguerra v. Risos15 explicitly states that –
"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the
different modes of discovery that may be resorted to by a party to an
action. These rules are adopted either to perpetuate the testimonies of
witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13
and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took
effect on December 1, 2000, allow the conditional examination of both the
defense and prosecution witnesses." (Underscoring supplied)16
The procedure under Rule 23 to 28 of the Rules of Court allows the taking
of depositions in civil cases, either upon oral examination or written
interrogatories, before any judge, notary public or person authorized to
administer oaths at any time or place within the Philippines; or before any
Philippine consular official, commissioned officer or person authorized to
administer oaths in a foreign state or country, with no additional
requirement except reasonable notice in writing to the other party.17
But for purposes of taking the deposition in criminal cases, more
particularly of a prosecution witness who would forseeably be unavailable
for trial, the testimonial examination should be made before the court, or
at least before the judge, where the case is pending as required by the clear
mandate of Section 15, Rule 119 of the Revised Rules of Criminal
Procedure. The pertinent provision reads thus:
SEC. 15. Examination of witness for the prosecution. – When it satisfactorily
appears that a witness for the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to leave the Philippines with no
definite date of returning, he may forthwith be conditionally examined
before the court where the case is pending. Such examination, in the
presence of the accused, or in his absence after reasonable notice to attend
the examination has been served on him shall be conducted in the same
manner as an examination at the trial. Failure or refusal of the accused to
attend the examination after notice shall be considered a waiver. The
statement taken may be admitted in behalf of or against the accused.
Since the conditional examination of a prosecution witness must take place
at no other place than the court where the case is pending, the RTC
properly nullified the MeTC's orders granting the motion to take the
deposition of Li Luen Ping before the Philippine consular official in Laos,
Cambodia. We quote with approval the RTC's ratiocination in this wise:
The condition of the private complainant being sick and of advanced age
falls within the provision of Section 15 Rule 119 of the Rules of Court.
However, said rule substantially provides that he should be conditionally
examined before the court where the case is pending. Thus, this Court
concludes that the language of Section 15 Rule 119 must be interpreted to
require the parties to present testimony at the hearing through live
witnesses, whose demeanor and credibility can be evaluated by the judge
presiding at the hearing, rather than by means of deposition. No where in
the said rule permits the taking of deposition outside the Philippines
whether the deponent is sick or not.18(Underscoring supplied)
Certainly, to take the deposition of the prosecution witness elsewhere and
not before the very same court where the case is pending would not only
deprive a detained accused of his right to attend the proceedings but also
deprive the trial judge of the opportunity to observe the prosecution
witness' deportment and properly assess his credibility, which is especially
intolerable when the witness' testimony is crucial to the prosecution's case
against the accused. This is the import of the Court's ruling in Vda. de
Manguerra19 where we further declared that –
While we recognize the prosecution's right to preserve the testimony of its
witness in order to prove its case, we cannot disregard the rules which are
designed mainly for the protection of the accused's constitutional rights.
The giving of testimony during trial is the general rule. The conditional
examination of a witness outside of the trial is only an exception, and as
such, calls for a strict construction of the rules.20 (Underscoring supplied)
It is argued that since the Rules of Civil Procedure is made explicitly
applicable in all cases, both civil and criminal as well as special proceedings,
the deposition-taking before a Philippine consular official under Rule 23
should be deemed allowable also under the circumstances.
However, the suggested suppletory application of Rule 23 in the
testimonial examination of an unavailable prosecution witness has been
categorically ruled out by the Court in the same case of Vda. de Manguerra,
as follows:
It is true that Section 3, Rule 1 of the Rules of Court provides that the rules
of civil procedure apply to all actions, civil or criminal, and special
proceedings. In effect, it says that the rules of civil procedure have
suppletory application to criminal cases. However, it is likewise true that
criminal proceedings are primarily governed by the Revised Rules of
Criminal Procedure.
Considering that Rule 119 adequately and squarely covers the situation in
the instant case, we find no cogent reason to apply Rule 23 suppletorily or
otherwise." (Underscoring supplied)
The Conditional Examination of a Prosecution Witness Cannot Defeat the
Rights of the Accused to Public Trial and Confrontation of Witnesses
The CA took a simplistic view on the use of depositions in criminal cases
and overlooked fundamental considerations no less than the Constitution
secures to the accused, i.e., the right to a public trial and the right to
confrontation of witnesses. Section 14(2), Article III of the
Constitution provides as follows:
Section 14. (1) x x x
(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable. (Underscoring supplied)
In dismissing petitioners' apprehensions concerning the deprivation of their
constitutional rights to a public trial and confrontation, the CA opined that
petitioners would still be accorded the right to cross-examine the deponent
witness and raise their objections during the deposition-taking in the same
manner as in a regular court trial.
We disagree. There is a great deal of difference between the face-to- face
confrontation in a public criminal trial in the presence of the presiding
judge and the cross-examination of a witness in a foreign place outside the
courtroom in the absence of a trial judge. In the aptly cited case of People
v. Estenzo,21 the Court noted the uniqueness and significance of a witness
testifying in open court, thus:
"The main and essential purpose of requiring a witness to appear and
testify orally at a trial is to secure for the adverse party the opportunity of
cross-examination. "The opponent", according to an eminent authority,
"demands confrontation, not for the idle purpose of gazing upon the
witness, or of being gazed upon by him, but for the purpose of cross
examination which cannot be had except by the direct and personal putting
of questions and obtaining immediate answers." There is also the
advantage of the witness before the judge, and it is this – it enables the
judge as trier of facts "to obtain the elusive and incommunicable evidence
of a witness' deportment while testifying, and a certain subjective moral
effect is produced upon the witness. It is only when the witness testifies
orally that the judge may have a true idea of his countenance, manner and
expression, which may confirm or detract from the weight of his testimony.
Certainly, the physical condition of the witness will reveal his capacity for
accurate observation and memory, and his deportment and physiognomy
will reveal clues to his character. These can only be observed by the judge if
the witness testifies orally in court. x x x"22 (Underscoring supplied)1âwphi1
The right of confrontation, on the other hand, is held to apply specifically to
criminal proceedings and to have a twofold purpose: (1) to afford the
accused an opportunity to test the testimony of witnesses by cross-
examination, and (2) to allow the judge to observe the deportment of
witnesses.23 The Court explained in People v. Seneris24 that the
constitutional requirement "insures that the witness will give his testimony
under oath, thus deterring lying by the threat of perjury charge; it forces
the witness to submit to cross-examination, a valuable instrument in
exposing falsehood and bringing out the truth; and it enables the court to
observe the demeanor of the witness and assess his credibility."25
As the right of confrontation is intended "to secure the accused in the right
to be tried as far as facts provable by witnesses as meet him face to face at
the trial who give their testimony in his presence, and give to the accused
an opportunity of cross-examination,"26 it is properly viewed as a guarantee
against the use of unreliable testimony in criminal trials. In the American
case of Crawford v. Washington,27 the US Supreme Court had expounded on
the procedural intent of the confrontation requirement, thus:
Where testimonial statements are involved, we do not think the Framers
meant to leave the Sixth Amendment's right to confront witness face to
face protection to the vagaries of the rules of evidence, much less to
amorphous notions of "reliability". Certainly, none of the authorities
discussed above acknowledges any general reliability exception to the
common-law rule.
Admitting statements deemed reliable by a judge is fundamentally at odds
with the right of confrontation. To be sure, the Clause's ultimate goal is to
ensure reliability of evidence, but it is a procedural rather than a
substantive guarantee. It commands, not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the crucible of
cross-examination. The Clause thus reflects a judgment, not only about the
desirability of reliable evidence (a point on which there could be little
dissent), but about how reliability can best be determined." (Underscoring
supplied)
The Webb Ruling is Not on All Fours with the Instant Case
The CA found the frail and infirm condition of the prosecution witness as
sufficient and compelling reason to uphold the MeTC Orders granting the
deposition-taking, following the ruling in the case of People v. Webb28 that
the taking of an unavailable witness' deposition is in the nature of a
discovery procedure the use of which is within the trial court's sound
discretion which needs only to be exercised in a reasonable manner and in
consonance with the spirit of the law.29
But the ruling in the cited case is not instantly applicable herein as the
factual settings are not similar.1âwphi1 The accused in the Webb case had
sought to take the oral deposition of five defense witnesses before a
Philippine consular agent in lieu of presenting them as live witnesses,
alleging that they were all residents of the United States who could not be
compelled by subpoena to testify in court. The trial court denied the
motion of the accused but the CA differed and ordered the deposition
taken. When the matter was raised before this Court, we sustained the trial
court's disallowance of the deposition-taking on the limited ground that
there was no necessity for the procedure as the matter sought to be proved
by way of deposition was considered merely corroborative of the evidence
for the defense.30

In this case, where it is the prosecution that seeks to depose the

complaining witness against the accused, the stringent procedure under
Section 15, Rule 119 cannot be ignored without violating the constitutional
rights of the accused to due process.

Finally, the Court takes note that prosecution witness Li Luen Ping had
managed to attend the initial trial proceedings before the MeTC of Manila
on September 9, 2004. At that time, Li Luen Ping's old age and fragile
constitution should have been unmistakably apparent and yet the
prosecution failed to act with zeal and foresight in having his deposition or
testimony taken before the MeTC pursuant to Section 15, Rule 119 of the
Revised Rules of Court. In fact, it should have been imperative for the
prosecution to have moved for the preservation of Li Luen Ping's testimony
at that first instance given the fact that the witness is a non-resident alien
who can leave the Philippines anytime without any definite date of return.
Obviously, the prosecution allowed its main witness to leave the court's
jurisdiction without availing of the court procedure intended to preserve
the testimony of such witness. The loss of its cause is attributable to no
other party.

Still, even after failing to secure Li Luen Ping's conditional examination

before the MeTC prior to said witness' becoming sick and unavailable, the
prosecution would capitalize upon its own failure by pleading for a liberal
application of the rules on depositions. It must be emphasized that while
the prosecution must provide the accused every opportunity to take the
deposition of witnesses that are material to his defense in order to avoid
charges of violating the right of the accused to compulsory process, the
State itself must resort to deposition-taking sparingly if it is to guard
against accusations of violating the right of the accused to meet the
witnesses against him face to face. Great care must be observed in the
taking and use of depositions of prosecution witnesses to the end that no
conviction of an accused will rely on ex parte affidavits and deposition.31

Thus, the CA ignored the procedure under the Revised Rules of Criminal
Procedure for taking the deposition of an unavailable prosecution witness
when it upheld the trial court's order allowing the deposition of
prosecution witness Li Luen Ping to take place in a venue other than the
court where the case is pending. This was certainly grave abuse of
discretion.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated

February 19, 2008 and the Resolution dated November 28, 2008 of the
Court of Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of
the Regional Trial Court which disallowed the deposition-taking in Laos,
Cambodia is REINSTATED.

SO ORDERED.
G.R. No. 197813 September 25, 2013 Allegedly, on that day, the two buddies were having their regular drinking
session at Edwin’s house when they heard a commotion outside. Curious
about the ruckus, they approached and saw Wilfredo prostrate on the
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
ground; Jesus, held an iron bar and was being held back by his sister who
vs.
was shouting, "Tama na! Tama na!." Edwin then called for a tricycle so
EDWIN IBANEZ y ALBANTE and ALFREDO (FREDDIE) NULLA y
Wilfredo could be brought to a hospital and given medical attention.
IBANEZ, Accused-appellants.
Alfredo stood by and merely watched as events transpired.

DECISION
To corroborate their claim of innocence, the defense called Aniceta Dosil
(Aniceta) to the witness stand who testified as follows:
PEREZ, J.:
(1) She sold doormats for a living which she peddled on the road;
Before us is an appeal via a Notice of Appeal from the Decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 04051.1 The appellate court affirmed in
(2) On 29 August 2004, Rachel helped her in selling the doormats;
toto the Decision2 of the Regional Trial Court (RTC), Branch18, Malolos,
Bulacan which convicted accused-appellants Edwin Ibañez y Albante
(Edwin) and Alfredo Nulla y Ibañez (Alfredo) of Murder in Criminal Case No. (3) On that day, they finished at around 6:00 p.m. and headed to their
3517-M-2004. respective residences along the railroad track;

Appellants Edwin and Alfredo, with Jesus Monsillo y Taniares (Jesus), were
all charged in an Information for Murder under Article 248 of the Revised
Penal Code, which reads:
The undersigned Asst. Provincial Prosecutor accuses Jesus Montisillo y
Taniares @ Dodong, Edwin Ibañez y Albante and Alfredo(Freddie) Nulla y
Ibañez of the crime of murder, penalized under the provisions of Article 248
of the Revised Penal Code, committed as follows:
(4) Upon arriving at their vicinity, Aniceta witnessed the immediate
aftermath of the purported fight between Jesus and Wilfredo;
(5) At that juncture, Jesus was being embraced by his sister, Marilou, and
the two were two meters away from the body of Wilfredo;
(6) Marilou recounted to Aniceta that Jesus had hit Wilfredo with an iron
bar, a preemptive move because Wilfredo was about to stab Jesus;

That on or about the 29th day of August, 2004, in the municipality of (7) While Aniceta and Marilou discussed the incident, Rachel stood and
Bocaue, province of Bulacan, Philippines, and within the jurisdiction of this listened to them;
Honorable Court, the above-named accused, armed with a soil digger
(bareta) and with intent to kill one Wilfredo Atendido y Dohenog,
conspiring, confederating and helping one another did then and there (8) At that time, only the four of them, Jesus, Marilou, Aniceta and Rachel,
willfully, unlawfully and feloniously, with evident premeditation, abuse of were at the place of the incident;
superior strength and treachery, attack, assault and hit with the said
soildigger (bareta) the said Wilfredo Atendido y Dohenog, hitting the latter (9) After learning the entirety of what had transpired, Aniceta, who was
on his head, thereby inflicting upon him serious physical injuries which afraid to get involved, and Rachel, ran to their respective houses;
directly caused his death.3
(10) For the duration of the day, Aniceta did not step out of her house,
During arraignment, Edwin and Alfredo pleaded not guilty. Jesus, on the neither did she volunteer information to the police when the case was
other hand, remained at large; the case against him was archived. investigated in the following days; and
Thereafter, trial ensued.
(11) Aniceta only came forward to testify at the request of Adela Ibañez,
The prosecution’s version was testified to by the victim’s wife and wife of Edwin.
daughter, in succession.
As previously adverted to, the trial court convicted Edwin and Alfredo of
On that fateful day, Wilfredo Atendido y Dohenog (Wilfredo) was invited by Murder. It disposed of the case, to wit:
Alfredo to a drinking session with Jesus and Edwin making them a party of
four. Rachel, Wilfredo’s daughter, an adolescent at the time, was
underneath the house (silong in the vernacular) of a neighbor, three WHEREFORE, accused Edwin Ibañez y Albante and Alfredo (Freddie) Nulla y
Ibañez are hereby found GUILTY beyond reasonable doubt of the crime of
(3)meters away from the place where Wilfredo and his companions were
murder and are hereby sentenced to suffer imprisonment of reclusion
ostensibly in merrymaking.
perpetua and to indemnify the heirs of Wilfredo D. Atendido in the amount
of:
Rachel saw her father step away from the group to urinate. While Wilfredo
relieved himself, Edwin snatched a t-shirt from a nearby clothesline, and
a) Fifty Thousand Pesos (₱50,000.00) as civil indemnity;
hooded the t-shirt over the head and face of Wilfredo. Robbed of vision as
his head was fully covered, Wilfredo was wrestled and pinned down by
Edwin, while Alfredo boxed the left side of Wilfredo’s chest. Jesus, armed b) Twenty-Five Thousand Pesos (₱25,000.00) as temperate damages;
with a long iron bar, swung at and hit Wilfredo in the head. Terrified,
Rachel stood immobilized as she watched the attack on father. Thereafter,
c) Fifty Thousand Pesos (₱50,000.00) as moral damages;
she saw her mother running out of their house and crying for help.

d) Twenty-Five Thousand Pesos (₱25,000.00) as exemplary damages; and

On that same auspicious date, 29 August 2004, Rowena, Wilfredo’s wife
and Rachel’s mother, was inside their house taking care of their youngest
daughter. She heard a commotion coming from the neighboring house, e) One Million Nine Hundred Forty-Six Thousand and One Hundred Eighty
about eight (8) steps away, so she rushed in that direction. Once outside Pesos (₱1,946,180.00) for the unearned income of Wilfredo Atendido.4
their house, she saw Wilfredo prostrate on the ground covered with blood
on his face and forehead. Upon reaching Wilfredo, Rowena saw accused On appeal, Edwin and Alfredo found no reprieve. The Court of Appeals did
Jesus, standing one meter away from Wilfredo, holding an iron bar. Edwin not deviate from the RTC’s ruling and affirmed in toto its finding of guilt.
and Alfredo stood beside Jesus; Edwin held a white shirt. Forthwith, Jesus
and Alfredo ran away while Edwin went home. Rowena asked for help to
bring Wilfredo to the hospital. However, Wilfredo did not reach the In this appeal, Edwin and Alfredo assign the following as errors:
hospital alive and was pronounced dead on arrival.
I
Expectedly, the defense mainly of Edwin and Alfredo, proffered an
altogether different version of the events. THE LOWER COURTS GRAVELY ERRED IN GIVING FULLWEIGHT AND
CREDENCE TO THE TESTIMONY OF THEALLEGED PROSECUTION
The two accused-appellants pointed to Jesus as the sole culprit, proclaimed EYEWITNESS.
their innocence and professed to being at the scene of the crime only
because of their curiosity for what had occurred. II
THE LOWER COURTS GRAVELY ERRED IN NOT GIVINGWEIGHT AND A: I do not know because I do not know how to read time.
CREDENCE TO THE DEFENSE‘S EVIDENCE.
xxxx
III
Q: But do you know whether or when your father went to sleep? It was
THE LOWER COURTS GRAVELY ERRED IN CONVICTING THEACCUSED- morning, noon or afternoon or nighttime or daytime?
APPELLANTS WHEN THEIR GUILT WAS NOT PROVENBEYOND REASONABLE
DOUBT.5
A: "Hapon po." (In the afternoon.)

In sum, the issue is whether the accused are guilty of murder.

Q: Early afternoon, late afternoon or mid-afternoon?

Edwin and Alfredo maintain their innocence and point to Jesus as the sole
A: Late in the afternoon, Your Honor. ("bandang hapon-hapon po.")
perpetrator of the crime. They insist that they were at the scene of the
crime only because they wanted to know what the commotion was all
about. They claim that, in fact, Edwin called for a tricycle so Wilfredo could Q: Was it already dark?
be brought to a hospital. To discredit the eyewitness testimony of Rachel,
they presented Aniceta who testified that she and Rachel were out on that A: Not yet, your Honor.
day selling doormats and only returned at 6:00 p.m. Thus, Rachel could not
have witnessed the murder of Wilfredo.
PROS. LAGROSA:

Both lower courts, however, found the testimony of Rachel credible:

Q: According to you, your father went to sleep, where were you when your
father went to sleep?
This Court finds the testimony of Rachel clear and convincing. The
testimony flows from a person who was present in the place where the
killing occurred. They are replete with details sufficient to shift the burden A: I was in the house, ma’am.
of evidence to appellants. We have no reason to doubt Rachel’s credibility.
Her candid account of the incident, standing alone, clearly established the xxxx
components of the crime of murder. Appellants’ defense of denial, not
sufficiently proven, cannot overcome the conclusions drawn from said
evidence. We find no cogent reason to deviate from the findings and Q: And when your father woke up, were you still in the house?
conclusions of the trial court. Rachel’s testimony was delivered in a firm,
candid, and straightforward manner. There is no showing that Rachel A: Yes, ma’am.
wavered from the basic facts of her testimony, even when she was
subjected to a rigorous examination.
Q: Also inside the house?

Rachel was only ten (10) years old when she witnessed the murder of the
A: Yes, ma’am.
victim. She testified in open court two (2) years later. Thus, she cannot be
expected to give an error-free narration of the events that happened two
years earlier. The alleged inconsistencies between her sworn statement Q: When your father woke up, what did he do?
and testimony referred to by appellants do not affect her credibility. What
is important is that in all her narrations she consistently and clearly A: All of us ate rice, ma’am. ("Kumain po kaming lahat ng kanin.")
identified appellants as the perpetrators of the crime. Inconsistencies
between the sworn statement and the testimony in court do not militate
against witness’ credibility since sworn statements are generally Q: Can you tell us if that is already dark or still daytime?
considered inferior to the testimony in open court.6
A: It was still daytime, ma’am.
We find no error in the lower courts’ disposal of the issue.
xxxx
Well-entrenched in jurisprudence is that the trial court's evaluation of the
testimony of a witness is accorded the highest respect because of its direct Q: After eating rice, will you tell us what happened, if you still remember?
opportunity to observe the witnesses on the stand and to determine if they
are telling the truth or not.7 This opportunity enables the trial judge to
detect better that thin line between fact and prevarication that will A: My father was called by his compadre, ma’am.
determine the guilt or innocence of the accused. That line may not be
discernible from a mere reading of the impersonal record by the reviewing Q: And who was that compadre who called your father?
court. Thus, the trial judge's evaluation of the competence and credibility
of a witness will not be disturbed on review, unless it is clear from the
A: Freddie, ma’am.
records that his judgment is erroneous.8

Q: Do you know the full name of this Freddie?

We have scrutinized the testimony of lone eyewitness, Rachel. Throughout
her testimony, in her direct, cross and re-direct and re-cross examinations,
she candidly recounted the events surrounding the killing of her father as A: Freddie Nulla, ma’am.
follows:
Q: Why do you know Freddie Nulla?
PROS. LAGROSA:
A: He is a compadre of my father, ma’am.
Your Honor please, may we invoke the right of the child the provisions (sic)
under the child witness wherein we can ask leading questions and in Q: Did you often see him in your place?
Tagalog.

A: Yes, ma’am.
COURT:

Q: Is Freddie Nulla now here in court?

Anyway, the questions can be interpreted.

A: Yes, ma’am.
PROS. LAGROSA:

Q: Will you look around and point to him?

Only the leading questions, your Honor.

INTERPRETER:
Q: You said that your father came from sleeping in your house, did you
know what time of the day your father went to sleep?
Witness pointed to a detention prisoner (sic) when asked to identify
himself answered FREDDIE NULLA.Q: Now, you said that Freddie Nulla, the
compadre, called your father, do you still remember how he was called?
A: Yes, ma’am.
Q: How?
A: "Pare. Pare."
Q: And when your father was called, what did your father do?
A: My father followed Freddie at the back of the house of Kuya Edwin.
A: "Pinuluputan po sa mukha ng damit ni Kuya Edwin." (Kuya Edwin put
around a piece of cloth).
Q: You said that Kuya Edwin put around a piece of cloth on your papa, in
what part of your father’s body (sic) that cloth being put around by Kuya
Edwin?
A: He put it around all over the face and the head, ma’am.
PROS. LAGROSA:
The witness was demonstrating by making a circling movement or motion
of her hand all over the head and the face.

Q: And then what happened when Kuya Edwin put around that piece of
Q: At the time your father followed Freddie at the back of the house of
cloth all over the head and face of your papa?
your Kuya Edwin, where were you?

A: "Itinumba po siya."
A: I was under the house of Kuya Unyo, ma’am.

Q: You said "itinumba po siya," who caused your father to tumble down?
Q: Now, you mentioned that your father followed Freddie at the back of
the house of Kuya Edwin, who is this Kuya Edwin?
A: After Kuya Edwin had put around the piece of cloth on my father, he
tumbled him down.
INTERPRETER:

Q: And when your father tumbled down, what else happened?

Witness pointing to a detention prisoner who identified himself as EDWIN
IBAÑEZ.PROS. LAGROSA:
A: Kuya Freddie boxed him, ma’am.
Q: You said that at that time you were under the house of Kuya Unyo, what
is the full name of this Kuya Unyo, if you know? Q: Did you see in what part of your father’s body was he boxed by Kuya
Freddie?
A: I do not know, ma’am.
A: Yes, ma’am.
Q: What were you doing under the house of Kuya Unyo?
Q: What part of his body was boxed?
A: I was throwing stones, ma’am.
A: On the left portion of the shoulder blade, ma’am.
Q: And this house of Kuya Unyo, is that near or far from your house?
Q: And how about Kuya Dodong when Kuya Edwin put around a piece of
cloth and when Kuya Freddie boxed your father, where was Kuya Dodong
A: Just near our house, ma’am.
at that time?

Q: Can you point a place here where you are now sitted (sic) up to this
A: He was also there, ma’am.
courtroom to show the distance between your house and the house of
Kuya Unyo?
Q: And what was he doing, if he was doing anything at that time?
PROS. LAGROSA
A: "Binareta na po ‘yong papa ko sa ulo."
The witness pointed up to the wall.
COURT:
ATTY. MALLILLIN:
Q: What did he use noong" binareta"?
Can we estimate, your Honor.
A: It is a long iron bar used in digging soil?
A: Just near, ma’am, 3 to 4 meters.9
PROS. LAGROSA:
xxxx
Q: Now, what happened after Kuya Dodong " binareta" (sic) your father on
the head?
Q: Rachel, last time you testified that your father followed Freddie Nulla at
the back of the house of Kuya Unyo and at that time you were under the
house of Kuya Unyo, do you remember having stated that last time? A: "Nandoon pa po ako sa silong nila Kuya Unyo nakita ko nalang
ponandoon na po ang nanay ko pati po mga kapatid ko tsaka na poako
lumabas."10
A: Yes, ma’am.

Q: While you were at the house of Kuya Unyo, do you remember anything
unusual that happened at that time?
A: When my father was being killed, ma’am.
Q: You said that your father was being killed or "pinapatay na po si papa
ko," who killed your father?
A: Kuya Edwin, Kuya Freddie and Kuya Dodong, ma’am.
Q: You said that Kuya Freddie, Kuya Edwin and Kuya Dodong were killing
your father, how did Kuya Edwin, how was he killing your father as you
said?
As the lower courts have done, we accord full faith and credence to
Rachel’s testimony. She was young and unschooled, but her narration of
the incident was categorical, without wavering. It has no markings of a
concocted story, impressed upon her by other people.
The defense, accused-appellants herein, tried to further discredit Rachel’s
testimony by arguing that Rachel was a mere child who had studied only
until the first grade of elementary school and could barely read, and did not
know how to tell time.
We cannot take Rachel’s testimony lightly simply because she was a mere
child when she witnessed the incident and when she gave her testimony in
court. There is no showing that her mental maturity rendered her incapable
of testifying and of relating the incident truthfully.
With exceptions provided in the Rules of Court,11 all persons who can deceased must be supported by competent evidence like income tax
perceive, and perceiving, can make known their perception to others, may returns or receipts.18
be witnesses. That is even buttressed by the Rule on Examination of a Child
Witness which specifies that every child is presumed qualified to be a
In People v. Caraig,19 we have drawn two exceptions to the rule that
witness. To rebut this presumption, the burden of proof lies on the party
"documentary evidence should be presented to substantiate the claim for
challenging the child's competence. Only when substantial doubt exists
damages for loss of earning capacity," and have thus awarded damages
regarding the ability of the child to perceive, remember, communicate,
where there is testimony that the victim was either (1) self-employed
distinguish truth from falsehood, or appreciate the duty to tell the truth in
earning less than the minimum wage under current labor laws, and judicial
court will the court, motu proprio or on motion of a party, conduct a
notice may be taken of the fact that in the victim's line of work no
competency examination of a child.12 Thus, petitioners’ flimsy objections on
documentary evidence is available; or (2) employed as a daily-wage worker
Rachel’s lack of education and inability to read and tell time carry no
earning less than the minimum wage under current labor laws."
weight and cannot overcome the clear and convincing testimony of Rachel
as to who killed her father.
Although Wilfredo’s occupation as a doormat vendor may fall under the
first exception, the minimum wage for Region III, which includes the
We likewise note that the line of questioning of the defense during cross-
province of Bulacan, is below ₱400.00 as per the National Wages and
examination on the competency of Rachel to read and tell time did not
Productivity Commission Regional Daily Minimum Wage Rates as of August
distract her in recollecting how her father was attacked by accused-
2013.20 Regrettably, except for the bare assertion of Rowena, Wilfredo's
appellants. From her position underneath the house of her "Kuya Unyo,"
spouse, we have nothing to anchor the award for loss of earning capacity.
she saw her father, Wilfredo, attacked by accused-appellants. Although she
Thus, we delete the award for loss of earning capacity in the amount of
was astonished as the happening unfolded, her ability to perceive,
₱1,946,180.00.
remember, and make known her perception was not diminished.

WHEREFORE, the appeal is DISMISSED. The Decisions of the Court of

As regards Aniceta’s version of the events that Jesus was the sole
Appeals in CA-G.R. H.C. No. 04051 and the Regional Trial Court, Branch 18,
perpetrator of the crime who attacked Wilfredo only in self-defense, we
Malolos, Bulacan in Criminal Case No. 3517-M-2004 are AFFIRMED with
easily see the fatal flaw: Aniceta arrived after the supposed fight between
MODIFICATION. The award of exemplary damages is increased from
Wilfredo and Jesus, and what transpired was merely relayed to her by
₱25,000.00 to ₱30,000.00 and we delete the award for loss of earning
Jesus’ sister, Marilou.
capacity in the amount of ₱1,946, 180.00.

Quite apparent from Aniceta’s narration of events is that she has no

SO ORDERED.
personal knowledge of Wilfredo’s killing. Aniceta’s testimony is mainly
hearsay, specially on the purported fight between Wilfredo and Jesus that
ended in Wilfredo’s death. Aniceta’s testimony as such carries no probative
weight. At best, Aniceta’s testimony is an independent relevant statement:
offered only as to the fact of its declaration and the substance of what had
been relayed to Aniceta by Marilou, not as to the truth thereof.13

Section 36 of Rule 130 of the Rules of Court explicitly provides:

SEC. 36. Testimony generally confined to personal knowledge; hearsay

excluded. – A witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own perception,
except as otherwise provided in these rules.

We detect a clever, albeit transparent ploy, to pin Jesus who had already
fled and is temporarily out of reach of the law. Thus, with Jesus temporarily
shielded from punishment, accused-appellants freely accuse and point to
him as the sole perpetrator of the crime. This cannot trump the solid
testimony of Rachel on accused-appellants’ direct participation in killing
Wilfredo.

We likewise affirm the lower courts’ appreciation of the aggravating

circumstance of treachery:

The essence of treachery is the sudden and unexpected attack by an

aggressor without the slightest provocation on the part of the victim,
depriving the latter of any real chance to defend himself, thereby ensuring
its commission without risk to the aggressor. Treachery attended the killing
of the victim because he was unarmed and the attack on him was swift and
sudden. He had not means and there was no time for him to defend
himself. Indeed, nothing can be more sudden and unexpected than when
petitioners Edwin and Alfredo attacked the victim. The latter did not have
the slightest idea that he was going to be attacked because he was
urinating and his back was turned from his assailants. The prosecution was
able to establish that petitioners’ attack on the victim was without any
slightest provocation on the latter’s part and that it was sudden and
unexpected. This is a clear case of treachery.14

Finally, we affirm the lower court’s award of damages consistent with

jurisprudence:15 (1) ₱50,000.00 as civil indemnity; (2) ₱25,000.00 as
temperate damages; and (3) ₱50,000.00 as moral damages. Consistent with
current jurisprudence, we increase the award of exemplary damages from
₱25,000.00 to ₱30,000.00.16 However, we delete the award of
₱1,946,180.00 representing the unearned income of Wilfredo.

To obviate confusion on the award of loss of earning capacity, we reiterate

herein that compensation for lost income is in the nature of damages and
as such requires due proof of the damages suffered; there must be
unbiased proof of the deceased’s average income.17 In this case, we only
had he testimony of Wilfredo’s spouse, Rowena, who claimed that Wilfredo
earned ₱400.00 to ₱500.00 daily as a doormat vendor.

On more than one occasion, we have held that the bare testimony of a
deceased’s mother or spouse as to the income or earning capacity of the
G.R. No. 195244 June 22, 2015
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALVIN ESUGON y AVILA, Accused-Appellant.
DECISION
BERSAMIN, J.:
Every child is presumed qualified to be a witness. The party challenging the
child's competency as a witness has the burden of substantiating his
challenge.
Under review is the decision promulgated on July 23, 2010,1 whereby the
Court of Appeals (CA) affirmed with modification the conviction of the
appellant for the composite crime of robbery with homicide handed down
by the Regional Trial Court (RTC), Branch 211, in Mandaluyong City through
its judgment rendered on January 27, 2006.2
Antecedents
The information charged the appellant with robbery with homicide,
alleging as follows:
That on or about the 22nd day of October 2003, in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, with intent to gain, with the use of a
bladed weapon, by means of force and violence, did, then and there,
willfully, unlawfully and feloniously take, steal and carry away cash money
amounting to ₱13,000.00 belonging to JOSEPHINE CASTRO y BARRERA, to
the damage and prejudice of the latter; that by reason or on occasion of
said robbery, accused did, then and there willfully, unlawfully and
feloniously attack, assault and stab with the said bladed weapon said
JOSEPHINE CASTRO y BARRERA, thereby inflicting upon her physical injuries
which directly caused her death.
CONTRARY TO LAW.3
The CA adopted the RTC’s summation of the evidence of the Prosecution,
to wit:
Carl or Muymoy, 5-year old son of the victim, testified that on the night of
the incident, he, his younger sister Cheche, and his mother and father, were
sleeping on the ground floor of their house. He saw appellant, whom he
calls "Nonoy," enter their house and stab her mother with a knife, while he
(Carl) peeped through a chair. Although there was no light at the ground
floor, there was light upstairs. After his mother got stabbed, his father
chased the appellant. Carl saw blood come out of his mother’s lower chest.
His father then brought her to the hospital. Carl positively identified the
appellant, a neighbor who often goes to their house, as the one who
stabbed his mother. On cross-examination, he related that the assailant
took money from his father’s pocket. He likewise admitted that he did not
see very well the perpetra tor because there was no light (TSN, February
24, 2004, pp. 3, 11-23, 28, 30-32).
Upon being asked by the trial court, Carl stated that although there was no
light when his mother was stabbed, he was sure of what he saw since there
was light at their second floor, which illumined the ground floor through
the stairway (TSN, February 24, 2004, pp. 33-34).
Insp. Marquez, who autopsied the body, related that the cause of the
victim’s death was hemorrhagic shock due to stab wound. The wound was
located at the epigastric region, measuring 2.8 x 0.5 cm, 4 cm from left of
the anterior midline, 13 cm deep, directed posterior and upward, piercing
the right ventricle of the hear t, thoracic aorta and lower lobe of the left
lung (TSN, April 21, 2004, pp. 1, 6; Exh. "I," Records, p. 103).
Next to testify was Dennis, husband of the victim. He narrated that he and
the victim were married for nine years before the incident and that they
have four children: Monica, 11 years old; Mary Joy, 9 years old; Carl, 5
years old; and Cherry Ann, 7 months old. At about 9 p.m. on October 21,
2003, he and his wife were sleeping downstairs in their sala, with their
baby, while their other children slept upstairs. Their sala measures 3 by 3
meters. At around 2 a.m., his son Carl woke up crying and went downstairs
to sleep with them. Fifteen to thirty minutes later, he heard someone shout
"magnanakaw!" [H]e turned on the light and saw that their door was open.
He got their bolo and ran outside. When he did not see anybody, he
returned and heard his wife moaning. He embraced and carried her and
saw blood on her back. He shouted for help and his brother-in law helped
him bring the victim to the hospital where she eventually died. He spent
₱23,000.00 for the funeral and ₱44,500.00 for the wake and burial. On
cross-examination, he admitted that he has no personal knowledge as to
who stabbed his wife since he did not actually see the perpetrator and that
it was his son who saw the appellant (TSN, August 25, 2004, pp. 3 12;
October 6, 2004, pp. 5-6; November 17, 2004, pp. 3-4).
Sharon, sister-in-law of the victim, testified that she and her husband were
sleeping upstairs when they were roused from their sleep at around 2 a.m.
of October 22, 2003 by Dennis’ cry for help. She saw that there was blood
on the victim’s chest. After the victim was brought to the hospital, she
noticed that the victim’s children were trembling in fear and were crying.
They got outside and went to the billiard hall in front of their house. She
took Carl and had him sit on her lap. Then Carl said, "Tita, sya pasok bahay
namin" pointing to someone but she did not see who it was since there
were many people passing by. Later, the police asked Carl whether he saw
somebody enter their house and he answered yes and demonstrated how
his mother was stabbed. Carl also said that the person who stabbed his
mother was present in the vicinity. He then pointed to appellant and said "
siya po yung pumaso k sa bahay namin." As a resident there, appellant
often goes to the billiard hall and sometimes watches the television at the
house of the victim (TSN, February 9, 2005, pp. 3-14).
PO1 Fabela also testified that after it was reported to him that there was a
stabbing incident, he went to the hospital then to the crime scene and
interviewed the persons thereat. Later, Carl pinpointed and positively
identified the appellant as the one who stabbed his mother and robbed
them of their money. Appellant was arrested and brought to the police
station (TSN, March 16, 2005, pp. 2, 5-6).
PO2 Sazon meanwhile testified that while he was questioning people in the
area, Carl pointed to them the suspect who was one of the bystanders.
They were asking Carl questions when he suddenly blurted out that it was
appellant who entered their house and stabbed his mother. They invited
the appellant to the police station but the latter denied having committed
the crime. On cross-examination, the witness admitted that their basis in
arresting appellant was the information relayed by Carl (TSN, April 27,
2005, pp. 2, 12-17; June 15, 2005, p. 5).4
In turn, the appellant denied the accusation. According to him, he had
frequented the victim’s billiard hall, which was situated only four houses
away from where he lived, and, on the evening in question, he had been
the last to leave the billiard hall at 11 o’ clock p.m. and had then gone
home. He recalled that he had been roused from slumber by screams for
help around two o’clock a.m., prompting him to ask his mother for the key
to the door; that he had then gone outside where he learned of the killing
of the victim; that police officers had later on approached him to inquire
what he knew about the killing because they told him that Carl, the young
son of the victim, had pointed to him as the perpetrator, making him the
primary suspect; that he had replied that he had had nothing to do with the
crime; and that he had assured the police officers that he had never been
involved in any wrongdoing in his years of living in the neighborhood.
The appellant’s mother corroborated his version.5
Judgment of the RTC
As mentioned, the RTC pronounced the appellant guilty of the crime
charged under its judgment rendered on January 27, 2006,6 disposing:
WHEREFORE, premises considered, finding the accused ALVIN ESUGON y
AVILA @ "NONOY" GUILTY beyond reasonable doubt of the crime of
ROBBERY WITH HOMICIDE under Article 293 and punished under Article
294 (1) of the Revised Penal Code, the court hereby sentences him to
Reclusion Perpetua and to indemnify the heirs of JOSEPHINE CASTRO y
BARRERA as follows:
1) ₱50,000.00 civil indemnity;
2) ₱57,500.00 as actual damages;
3) ₱50,000.00 as moral damages.
SO ORDERED.7
Decision of the CA
On appeal, the appellant argued that the RTC erred in finding him guilty
beyond reasonable doubt of the composite crime of robbery with homicide
based solely on the testimony of Carl, a 5-year old witness whose
recollections could only be the product of his imagination.8
On July 23, 2010, however, the CA, giving credence to the child witness, and
opining that his inconsistencies did not discredit his testimony, affirmed the
conviction of the appellant,9 ruling thusly:
WHEREFORE, the appeal is DENIED for lack of merit. The Decision dated
January 27, 2006 of the Regional Trial Court, Branch 211 of Mandaluyong
City in Crim. Case No. MC03-7597, is hereby AFFIRMED with the
MODIFICATION in that the award of ₱57,500.00 as actual damages should
be DELETED and in lieu thereof, temperate damages in the amount of
₱25,000.00 should be AWARDED the heirs of Josephine Castro y Barrera.
SO ORDERED.10
Issues
In this appeal, the appellant posits that the adverse testimony of the 5-year
old Carl, being filled with inconsistencies, was not credible, but doubtful;
that unlike him, his sisters, who were then at the second floor of the house,
were not roused from sleep; that contrary to Carl’s recollection, the place
was not even dark when the stabbing attack on the victim occurred
because his father said that he had turned the light on upon hearing
somebody shouting " Magnanakaw!;" and that his father had then gotten
his bolo, and gone outside the house.11
Moreover, the appellant maintains that the Prosecution did not prove that
violence or intimidation was employed in the course of the robbery. He
argues that he could not be held liable for robbery by using force upon
things considering that the culprit had neither broken any wall, roof, floor,
door or window to gain entry in the house nor entered the house through
an opening not intended for entrance. If at all, he could be liable only for
the separate crimes of theft and homicide, not of the composite crime of
robbery with homicide.12
The Office of the Solicitor General (OSG) counters that the evidence
showed that the appellant’s principal intent had been to rob the victim’s
house, with the homicide being perpetrated as a mere incident of the
robbery; and that Carl positively identified the appellant as the person who
had stabbed the victim, his identification bearing "all the earmarks of
credibility especially when he has no motive for lying about the identity of
the accused."13
Ruling of the Court
The appeal is bereft of merit.
The most important task of the St ate in the successful prosecution of the
accused is his credible and competent identification as the perpetrator of
the crime. Hence, this appeal turns on whether or not the identification of
the appellant as the perpetrator of the robbery with homicide was credible
and competent considering that the identifying witness was Carl, a 5-year
old lad, whose sole testimony positively pointed to and incriminated the
appellant as the person who had entered their home, robbed the family,
and killed his mother.
The qualification of a person to testify rests on the ability to relate to
others the acts and events witnessed. Towards that end, Rule 130 of the
Rules of Court makes clear who may and may not be witnesses in judicial
proceedings, to wit:
Section 20. Witnesses; their qualifications. - Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwis e provided by law, shall not be a
ground for disqualification. (l8 a)
Section 21. Disqualification by reason of mental incapacity or immaturity. -
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others;
(b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating
them truthfully. (19a)
As the rules show, anyone who is sensible and aware of a relevant event or
incident, and can communicate such awareness, experience, or observation
to others can be a witness. Age, religion, ethnicity, gender, educational
attainment, or social stat us are not necessary to qualify a person to be a
witness, so long as he does not possess any of the disqualifications as listed
the rules. The generosity with which the Rules of Court allows people to
testify is apparent, for religious beliefs, interest in the outcome of a case,
and conviction of a crime unless otherwise provided by law are not grounds
for disqualification.14
That the witness is a child cannot be the sole reason for disqualification.
The dismissiveness with which the testimonies of child witnesses were
treated in the past has long been erased. Under the Rule on Examination of
a Child Witness (A.M. No. 004-07-SC 15 December 2000), every child is now
presumed qualified to be a witness. To rebut this presumption, the burden
of proof lies on the party challenging the child’s competency. Only when
substantial doubt exists regarding the ability of the child to perceive
,remember, communicate, distinguish truth from falsehood, or appreciate
the duty to tell the truth in court will the court, motu proprio or on motion
of a party, conduct a competency examination of a child.15
The assessment of the credibility of witnesses is within the province of the
trial court.16 All questions bearing on the credibility of witnesses are best
addressed by the trial court by virtue of its unique position to observe the
crucial and often incommunicable evidence of the witnesses’ deportment
while testifying, something which is denied to the appellate court because
of the nature and function of its office. The trial judge has the unique
advantage of actually examining the real and testimonial evidence,
particularly the demeanor of the witnesses. Hence, the trial judge’s
assessment of the witnesses’ testimonies and findings of fact are accorded
great respect on appeal. In the absence of any substantial reason to justify
the reversal of the trial court’s assessment and conclusion, like when no
significant facts and circumstances are shown to have been overlooked or
disregarded, the reviewing court is generally bound by the former’s
findings. The rule is even more stringently applied if the appellate court has
concurred with the trial court.17
The appellant did not object to Carl’s competency as a witness. He did not
attempt to adduce evidence to challenge such competency by showing that
the child was incapable of perceiving events and of communicating his
perceptions, or that he did not possess the basic qualifications of a
competent witness. After the Prosecution terminated its direct
examination of Carl, the appellant extensively tested his direct testimony
on cross-examination. All that the Defense did was to attempt to discredit
the testimony of Carl, but not for once did the Defense challenge his
capacity to distinguish right from wrong, or to perceive, or to communicate
his perception to the trial court. Consequently, the trial judge favorably
determined the competency of Carl to testify against the appellant.
The appellant points to inconsistencies supposedly incurred by Carl. That is
apparently not disputed. However, it seems clear that whatever
inconsistencies the child incurred in his testimony did not concern the
principal occurrence or the elements of the composite crime charged but
related only to minor and peripheral matters. As such, their effect on his
testimony was negligible, if not nil, because the inconsistencies did not
negate the positive identification of the appellant as the perpetrator. Also,
that Carl did not shout to seek help upon witnessing how the appellant had
stabbed his mother to death did not destroy his credibility. For sure, he
could not be expected to act and to react to what happened like an adult.
Although children have different levels of intelligence and different degrees
of perception, the determination of their capacity to perceive and of their
ability to communicate their perception to the courts still pertained to the
trial court, because it concerned a factual issue and should not be disturbed
on appeal in the absence of a strong showing of mistake or misappreciation
on the part of the trial court.18
It is true that an appeal in a criminal case like this one opens the record of
the trial bare and open. Even so, the finding of facts by the trial court are
still entitled to great respect especially when affirmed on appeal by the
CA.19This great respect for such findings rests mainly on the trial court’s
direct and personal access to the witnesses while they testify in its
presence, giving them the unique opportunity to observe their manner and
decorum during intensive grilling by the counsel for the accused, and to see
if the witnesses were fidgeting and prevaricating, or sincere and
trustworthy. With both the RTC and the CA sharing the conviction on Carl’s
credibility, his capacity to perceive and his ability to communicate his
perception, we cannot depart from their common conclusion. Moreover,
according credence to Carl’s testimony despite his tender age would not be
unprecedented. In People v. Mendiola,20the Court considered a 6-y ear-old
victim competent, and regarded her testimony against the accused
credible. In Dulla v. Court of Appeals,21 the testimony of the three-year-old
victim was deemed acceptable. As such, Carl’s testimony was entitled to
full probative weight.
Carl positively identified the appellant as the culprit during the
investigation and during the trial. Worthy to note is that the child could not
have been mistaken about his identification of him in view of his obvious
familiarity with the appellant as a daily presence in the billiard room
maintained by the child’s family. Verily, the evidence on record party to an award of exemplary damages within the unbridled meaning of
overwhelmingly showed that the appellant, and no other, had robbed and Article 2230 of the Civil Code.27
stabbed the victim.
In line with current jurisprudence,28 we increase the civil indemnity to
The appellant contends that robbery was not proved beyond reasonable
doubt; that to sustain a conviction for robbery with homicide, the robbery
₱75,000.00, and the moral damages to ₱75,000.00.
itself must be proven as conclusively as the other essential element of the
crime; and that it was not established that the taking of personal property
was achieved by means of violence against or intimidation of any person or In addition to the damages awarded by the CA, the appellant should be
by using force upon things. liable to pay the heirs of the victim interest at the legal rate of 6% per
annum on all the monetary awards for damages from the date of the
finality of this decision until the awards are fully paid.
The contention lacks persuasion.

WHEREFORE, the Court AFFIRMS the decision promulgated on July 23, 2010
To sustain a conviction for robbery with homicide, the Prosecution must
subject to the MODIFICATIONS that then accused-appellant ALVIN ESUGON
prove the concurrence of the following elements, namely: (1) the taking of
y AVILA shall pay to the heirs of the late Josephine Castro y Barrera civil
personal property belonging to another; (2) with intent to gain; (3) with the
indemnity of ₱75,000.00; moral damages of ₱75,000.00; exemplary
use of violence or intimidation against a person; and (4) the crime of
damages of ₱30,000.00; temperate damages of ₱25,000.00; and interest at
homicide, as used in the generic sense, was committed on the occasion or
the legal rate of 6% per annum on all monetary awards for damages
by reason of the robbery.22 A conviction requires certitude that the robbery
reckoned from the date of the finality of this decision until the awards are
is the main objective of the malefactor, and the killing is merely incidental
fully paid, plus the costs of suit.
to the robbery.23

The accused-appellant is ORDERED to pay the costs of suit.

The CA has indicated that the appellant carried a long-bladed weapon. The
fact that the appellant was armed with the long-bladed weapon, which was
undoubtedly a deadly weapon, competently proved the presence of SO ORDERED.
violence or intimidation against persons that qualified the offense as
robbery instead of theft. For sure, too, the patent intent of the appellant
was originally to commit robbery, with the homicide being committed only
in the course or on the occasion of the perpetration of the robbery. As the
records show, Dennis was awakened by someone shouting "
Magnanakaw!" The shout was most probably made by the victim, whom
the appellant then stabbed in order to facilitate his escape. Considering
that the original criminal design to rob had been consummated with the
taking of the money amounting to ₱13,000.00, the killing of the victim
under the circumstances rendered the appellant guilty beyond reasonable
doubt of robbery with homicide.

Robbery with homicide is a composite crime, also known as a special

complex crime. It is composed of two or more crimes but is treated by law
as a single indivisible and unique offense for being the product of one
criminal impulse. It is a specific crime with a specific penalty provided by
law, and is to be distinguished from a compound or complex crime under
Article 48 of the Revised Penal Code.24 A composite crime is truly distinct
and different from a complex or compound crime. In a composite crime,
the composition of the offenses is fixed by law, but in a complex or
compound crime, the combination of the offenses is not specified but
generalized, that is, grave and/or less grave, or one offense being the
necessary means to commit the other. In a composite crime, the penalty for
the specified combination of crimes is specific, but in a complex or
compound crime the penalty is that corresponding to the most serious
offense, to be imposed in the maximum period. A light felony that
accompanies the commission of a complex or compound crime may be
made the subject of a separate information, but a light felony that
accompanies a composite crime is absorbed.

The aggravating circumstances of dwelling and nighttime are not

appreciated to raise the penalty to be imposed because the information did
not specifically allege them. But they should be appreciated in order to
justify the grant of exemplary damages to the heirs of the victim in the
amount of ₱30,000.00 in accordance with relevant jurisprudence.25 Under
Article 2230 of the Civil Code, exemplary damages may be granted if at
least one aggravating circumstance attended the commission of the crime.
The aggravating circumstance for this purpose need not be specifically
alleged in the information, and can be either a qualifying or attendant
circumstance. As expounded in People v. Catubig:26

The term "aggravating circumstances" used by the Civil Code, the law not
having specified otherwise, is to be understood in its broad or generic
sense.1âwphi1 The commission of an offense has a two-pronged effect,
one on the public as it breaches the social order and the other upon the
private victim as it causes personal sufferings, each of which is addressed
by, respectively, the prescription of heavier punishment for the accused
and by an award of additional damages to the victim. The increase of the
penalty or a shift to a graver felony underscores the exacerbation of the
offense by the attendance of aggravating circumstances, whether ordinary
or qualifying, in its commission. Unlike the criminal liability which is
basically a State concern, the award of damages, however, is likewise, if not
primarily, intended for the offended party who suffers thereby. It would
make little sense for an award of exemplary damages to be due the private
offended party when the aggravating circumstance is ordinary but to be
withheld when it is qualifying. Withal, the ordinary or qualifying nature of
an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the
offender. In fine, relative to the civil aspect of the case, an aggravating
circumstance, whether ordinary or qualifying, should entitle the offended
G.R. No. 123137 October 17, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PO2 ALBERT ABRIOL, MACARIO ASTELLERO, and JANUARIO
DOSDOS, accused-appellants.
QUISUMBING, J.:
On appeal is the decision dated May 17, 1995, of the Regional Trial Court of
Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 for murder and
CBU-33664 for illegal possession of firearms, finding appellants Albert
Abriol, Macario Astellero, and Januario Dosdos guilty beyond reasonable
doubt of murder and violation of Presidential Decree No. 1866 on Illegal
Possession of Firearms. Its decretal portion reads:
WHEREFORE, judgment is hereby rendered:
In Criminal Case No. CBU-30350 for Murder, the Court finds accused Albert
Abriol, Macario Astellero and Januario Dosdos, GUILTY of murder beyond
reasonable doubt and each is hereby sentenced to reclusion perpetua, with
the accessory penalties provided by law; to indemnify the heirs of deceased
Alejandro Flores the sum of P50,000.00; actual damages of P30,000.00,
representing a reasonable amount for the embalming, vigil, wake, and
burial expenses; P30,000.00 for attorney's fees; and to pay the costs.
For insufficiency of evidence, accused Gaudioso Navales is hereby
ACQUITTED with costs de officio.
In Criminal Case No. CBU-33664 for Illegal Possession of Firearms, accused
Albert Abriol, Macario Astellero and Januario Dosdos, are hereby
sentenced to suffer an indeterminate penalty of 14 years, 8 months and 1
day to 17 years and 4 months and to pay the costs.
The .38 caliber revolver, SN P08445 and the two .45 caliber pistols with SN
PGO 13506 and SN 52469, are hereby confiscated and forfeited in favor of
the Government and accordingly, the Clerk of Court of this Branch is
directed to turn over the said firearms to the Chief of Police, Cebu City, or
to the Firearms and Explosives Office (FEO) of the PNP Region 7, upon
proper receipt.
The Cebu City Chief of Police is directed to release immediately upon
receipt hereof, the person of Gaudioso Navales, unless there be any other
valid reason for his continued detention.
SO ORDERED.1
This judgment was the culmination of proceedings beginning with the
Amended Information dated September 6, 1993, docketed as Criminal Case
No. CBU-30350, wherein appellants PO2 Albert Abriol of the Philippine
National Police (PNP), Macario Astellero, Januario Dosdos, and PNP P/Chief
Inspector Gaudioso Navales were charged with murder allegedly
committed as follows:
That on or about the 5th day of June, 1993, at about 11:50 P.M., in the City
of Cebu, Philippines and within the jurisdiction of this Honorable Court, the
said accused, armed with handguns, conniving and confederating together
and mutually helping one another, with treachery and evident
premeditation, with deliberate intent, with intent to kill, did then and there
shot one Alejandro Flores alias Alex with the said handguns, hitting him on
the different parts of his body, thereby inflicting upon him the following
physical injuries:
CARDIO RESPIRATORY ARREST DUE TO SHOCK AND HEMORRHAGE
SECONDARY TO MULTIPLE GUNSHOT WOUNDS TO THE TRUNK AND THE
HEAD
as a consequence of which the said Alejandro Flores alias Alex died later.
CONTRARY TO LAW.2
At the time of the incident, appellant Abriol, a policeman previously
detailed as a jailguard at the Bagong Buhay Rehabilitation Center (BBRC) in
Cebu City, was himself a detention prisoner in BBRC. He was charged with
murder, a non-bailable offense, in Criminal Case No. CBU-28843 before the
RTC of Cebu City, Branch 14.3
Appellant Astellero was a former prisoner at BBRC, who had served time
for grave threats.4 The warden then, Chief Inspector Navales,5 employed
him as his personal driver and general factotum.6 Navales was found guilty
of grave misconduct in Administrative Case No. 01-93 for allowing Abriol
and Dosdos out of BBRC on the day of the murder and was summarily
dismissed from the police force.
Dosdos had been convicted by the RTC of Cebu City, Branch 10, of highway
robbery in Criminal Case No. CBU-18152 but Navales failed to act on the
mittimus ordering Dosdos' transfer to the national penitentiary, and he
remained in BBRC.7 Abriol and Dosdos enjoyed special privileges at BBRC as
the warden's errand boys8 or "trustees."
The victim, Alejandro Flores alias "Alex," was a former policeman. He was
dismissed from the PNP in August 1992 after testing positive for prohibited
drugs.9
Abriol, Astellero, and Dosdos were also indicted for illegal possession of
firearms in Criminal Case No. CBU-33664. The charge sheet reads:
That on or about the 5th day of June 1993 at about 11:48 P.M. in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, conniving and confederating together and mutually helping
one another, with deliberate intent, did then and there keep under their
control and possession the following:
1. one (1) .38 cal. revolver (Armscor) with SN P08445 with six empty shells;
2. one (1) .45 cal. pistol (Colt) with SN P6013506 with 9 live ammunitions
(sic);
3. one (1) .45 cal. Pistol (Colt) with SN 52469 with five live ammunition.
without first obtaining a permit or license therefor from competent
authority.
CONTRARY TO LAW.10
When arraigned, all the accused pleaded not guilty to both charges. Since
the indictments arose from the same incident, the cases were jointly tried.
The facts of the case are as follows:
At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a radio news
reporter then aboard his jeep, had just reached the ABS-CBN compound in
P. del Rosario Street, Cebu City, when he heard a couple of gunshots. He
looked around and saw a man running unsteadily towards the intersection
of P. del Rosario Street and Jones Avenue (Osmeña Boulevard). The man
was shouting "Tabang, tabang!" ("Help! Help!"). Sta. Cruz, Jr., saw a red
"Jiffy" make a U-turn near the gate of the city central school that nearly ran
over the man shouting for help. The man turned back and staggered
towards the direction of Bacalso Avenue and Urgello Private Road, but
after a few meters on wobbly legs, he stopped and collapsed.
Meanwhile, the "Jiffy" followed. It stopped beside the fallen figure and a
tall, thin man alighted. The man fired several shots at the prostrate figure.
He boarded the "Jiffy" which sped away towards Leon Kilat Street. Romeo
Sta. Cruz, Jr., moved his jeep and focused its headlights on the victim.
In the meantime, PO3 Alexander Rustela was at a vulcanizing shop near the
intersection of Bacalso Avenue and Leon Kilat Street, when he heard
gunshots coming from the north. He ran towards where the gunshots came
and saw people scampering. All of a sudden, the "Jiffy" with three persons
on board sped past him and made an abrupt left turn at Leon Kilat Street.
Rustela immediately radioed for assistance. Minutes later, patrol car No.
201 with PO2 Herbert Ramos on board arrived. Rustela boarded the car and
they followed the "Jiffy," while broadcasting an alarm to police
headquarters and other mobile patrol cars.
On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo Abellana
were cruising aboard patrol car No. 208, when they heard a radio message
that the suspects in the shooting incident were aboard a "Jiffy." As they
turned left at Leon Kilat Street, they saw the "Jiffy" heading towards
Carbon Market. They pursued the "Jiffy" which stopped in front of the Don
Bosco Building near BBRC, when police car No. 205, with PO Eugenio
Badrinas and PO2 Gerald Cue aboard, blocked the "Jiffy's" path. Cue fired a
warning shot and three persons alighted. The driver was appellant
Astellero, whom Cue had recognized and seen before at the BBRC. Abrigana
and Cue approached the trio who stood a meter away from the "Jiffy."
SPO1 Abrigana frisked Abriol and seized from his waist a .38 caliber
revolver with serial number PO8485 with six (6) empty shells in its
cylinder.11 Under Abriol's seat, the police also found a .45 caliber pistol
bearing serial number PGO 13506 with nine (9) live rounds in its magazine
and another .45 caliber pistol with serial number 52469 loaded with five (5)
unfired bullets.12
While the patrol cars were chasing the "Jiffy," another police team
proceeded to the crime scene in response to the alarm. This team from
Police Station No. 3 in San Nicolas, Cebu City rushed the victim to the Cebu
City Medical Center, where he was pronounced dead on arrival.
Meanwhile, PO3 Celso Seville, Jr., a homicide investigator of Police Station
No. 3 found four (4) .45 caliber shells some four (4) feet away from the
victim's body, and two (2) deformed slugs where the victim had lain, and
submitted them to the Region 7 PNP Crime Laboratory for ballistics
testing.13
it was returned to him for repair by Armscor, and upon repair he handed it
over to the BBRC armory. The armorer returned it to him since there was
no place to keep it. He said that although he was a detention prisoner, he
had yet to be discharged from the service. He was assigned guard and
escort duties by the warden.19 Abriol said that on the day of the incident he
was, as a BBRC jailguard, authorized to carry his service firearm. 20 He
presented a Memorandum Receipt21 authorizing him to carry the
government-issued .38 revolver.22
On the witness stand, Astellero and Dosdos narrated a similar version of
the incident as did Abriol. Both vehemently denied having any knowledge
of the two .45 caliber pistols found by PO3 Cue in the "Jiffy."23

Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime Laboratory
autopsied the victim's body. He found that the cause of the victim's death
was "cardiorespiratory arrest due to shock and hemorrhage secondary to
multiple gunshot wounds to the trunk and head.''14 Dr. Diola recovered a
.38 caliber slug from the corpse, which he later submitted for ballistics
examination.
SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory, reported the
following:
1. Fired cartridge cases marked "JA-1" to "JA-3" possesses similar individual
characteristics markings with the test cartridge cases fired from cal .45 with
SN: PGO13506;
2. Fired cartridge cases marked "JA-4" and "E-69-6" possesses similar
individual characteristics markings with the test cartridge cases fired from
cal .45 pistol with SN: 52469;
The defense also presented Dr. Jesus P. Cerna, medico-legal officer of the
Cebu City PNP Command, to testify on the caliber of the firearms which
might have caused the gunshot wounds of the victim. Relying on the
Necropsy Report prepared by Dr. Diola, Dr. Cerna declared that wound nos.
1 and 2, which each measured 0.6 cm. by 0.6 cm., may have been caused by
a .38 caliber firearm. As to wound nos. 3 and 4, which each measured 0.5
cm. by 0.5 cm., it was possible that a .38 handgun was used, or one with a
smaller bore. Dr. Cerna opined that a .45 pistol could not have inflicted all
the foregoing wounds, as the entry points were too small for a .45 caliber
bullet. With respect to the grazing wounds found on the victim's body, Dr.
Cerna testified that it was impossible to determine the caliber of the
firearm used.24
The trial court found appellants' version of the incident neither convincing
and credible and, as earlier stated, it believed the prosecution's version.
Petitioners' were convicted of the offenses charged.
Hence, this appeal, with appellants assigning the following errors:

3. Fired bullet metal jacket marked "JA-5" possesses similar individual

I
characteristics markings with test bullets fired from cal .45 pistol with SN:
PGO13506;
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF
THE CRIMES OF MURDER AND ILLEGAL POSSESSION OF FIREARMS DESPITE
4. Fired cartridge cases marked "E-45-1 " to "E-45-6" possesses similar
THE FLIMSY AND UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION.
individual characteristics markings with the test cartridge cases fired from
cal .38 Rev. SN: P8445;
II
5. Fired bullets marked as "JA-6" and "LD" possesses similar individual
characteristic markings with the test bullets fired from cal .38 Rev. SN: THE LOWER COURT ERRED IN FINDING THE GUILT OF THE ACCUSED-
P8445.15 APPELLANTS OF THE CRIME OF MURDER AND ILLEGAL POSSESSION OF
FIREARMS BEYOND REASONABLE DOUBT.
The following day, appellants underwent a paraffin test. The hands of
appellants were found positive for gunpowder residues. A chemistry test At issue is whether the prosecution's evidence, which is mainly
on the firearms showed that the three handguns were also positive. circumstantial, suffices to convict appellants for murder and violation of
Inspector Myrna Areola, Chief of the Chemistry Section of the PNP Region 7 Presidential Decree No. 1866, beyond reasonable doubt.
Crime Laboratory, stated in her testimony that the firearms had been
fired,16 and that appellants had fired the guns within a period of seventy-
A. Criminal Case No. CBU-30350
two (72) hours prior to the examination.

On their conviction for murder, appellants argue that the prosecution's

The widow and relatives of the victim testified on the possible motive
circumstantial evidence against them is weak, ambiguous, and
behind the killing. They claimed the victim, a confessed drug user, may
inconclusive. Specifically, appellants contend that they should be acquitted
have been "rubbed out" on the orders of Navales for failure to remit
because:
P31,000 as proceeds from pushing prohibited drugs. After failing to deliver
the drug money to Navales, for whom he was repeatedly pushing drugs,
the victim went into hiding, but later returned to Cebu City because he First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as
missed his family.17 the culprits. At no point in his testimony did eyewitness Sta. Cruz, Jr.,
positively identify any of the appellants or appellant Abriol as the gunman.
Sta. Cruz, Jr. only gave a general description of the assailants, despite
Appellants deny the accusations. Abriol averred that he and Dosdos were
attempts to make him give a categorical identification. He admitted he
among the several "trustees" at BBRC assigned to work in the kitchen.
found out the name of Abriol from television and news reports and could
Appellant Astellero, who was the warden's driver, was also in charge of
not identify Abriol as the one whom he saw shot the victim. The transcript
marketing for the prisoners' food. On the day of the incident, Astellero
of his testimony is revealing.
realized that there was no money for the next day's marketing so he asked
Abriol to accompany him to the house of Navales, but since he was not in,
they returned to BBRC and saw Navales an hour later. After they received Q: Then after the Jiffy stopped in front of the fallen victim, what
the money from Navales' niece on their way back to BBRC, Dosdos heard happened next?
gunshots. Abriol ordered Astellero, who was driving, to turn back. Then
Abriol claimed he saw a tall, slim man alight from a "Jiffy" and shoot at a A: I saw that there was a man who disembarked from the Jiffy. He was
prone figure on the ground. Seconds later, the gunman returned to the a tall, thin fellow who disembarked from the Jiffy and at the same time, he
"Jiffy," which sped off. Abriol said he ordered Astellero to chase that "Jiffy" shot the fallen victim.
but it had too much of a headstart and they lost sight of it. Abriol ordered
Astellero to proceed to BBRC. At Colon Street, they heard gunshots behind
them and the blaring siren of a police car. They explained that since they Q: How many times did he shoot the victim?
were detention prisoners, they had to evade meeting the police. They
heard more gun shots. Upon reaching BBRC, the gates were closed, so they A: I cannot count attorney but I saw him shooting the victim.
drove to the old airport. On their way back to BBRC several police cars
blocked them and arrested them. SPO4 Eleazar Abrigana frisked him and
took the .38 service revolver from his waist.18 Q: In your affidavit, you said that the person who disembarked from
the Jiffy, whose name you know later on as PO2 Albert Abriol, PNP, shot
the victim in the different parts of his body. If Albert Abriol is now in the
Abriol also testified that he surrendered his service firearm to the BBRC courtroom, will you please point to him?
Administrative Officer when he was served a warrant of arrest for murder
in Criminal Case No. CBU-28843. However, the handgun was defective and
A: I will know him attorney because of the TV shows and newspapers.
COURT: (TO WITNESS)
Q: You are referring to the name of that man who disembarked from
the Jiffy and fired several shots at the fallen victim?
A: Yes, I know his name Your Honor on (sic) the news cast.
COURT: (TO WITNESS)
Q: Alright, forget the news. The man you saw when he alighted from
the Jiffy and poured (sic) several bullets on the fallen man, look around if
he is in the courtroom?
A: I cannot identify Your Honor.
COURT:
Q: You cannot?
A: But [because] what I saw is a man who is tall and thin because it
was dark.
xxx xxx xxx
Q: How many persons fired a shot at the fallen man?
A: I only saw that man Your Honor who alighted from the Jiffy.
Q: Did you see his physical features?
A: Only (t)his, I can only tell his height, he was tall and his body build is
thin. Tall and thin. (Emphasis supplied)25
Since the sole eyewitness could not identify the gunman and his
companions, the prosecution relied on circumstantial evidence from which
the trial court could draw its findings and conclusion of
culpability.26Circumstantial evidence may be relied upon, as in this case,
when to insist on direct testimony would result in setting felons free.
Second, appellants assert that the paraffin tests are judicially recognized as
unreliable and inconclusive. A paraffin test could establish the presence or
absence of nitrates on the hand. However, it cannot establish that the
source of the nitrates was the discharge of firearms. Nitrates are also found
in substances other than gunpowder. A person who tests positive may have
handled one or more substances with the same positive reaction for
nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco,
and leguminous plants. Hence, the presence of nitrates should only be
taken as an indication of a possibility that a person has fired a
gun.27 However, it must be borne in mind that appellants were not
convicted on the sole basis of the paraffin test.
Third, appellants claim that the autopsy report of prosecution witness Dr.
Ladislao Diola revealed serious ambiguities.28 Dr. Jesus P. Cerna, using the
same autopsy report, said that the gunshot wounds measuring 0.6 x 0.6
centimeters could not have been caused by a .45 caliber pistol because an
entrance wound of that size was too small for a .45 caliber bullet. 29 Dr.
Cerna claimed that a wound inflicted by a .45 pistol would have an entry
point of anywhere from 1.1 to 1.3 centimeters. He declared that it was with
more reason that an entrance wound measuring .5 x .5 centimeters could
not be caused by a caliber .45 bullet.30 Since no firearm smaller than a .38
caliber pistol was seized from appellants, they claim the observation of Dr.
Cerna only shows that they could not have shot the victim.
We note, however, that during cross-examination, Dr. Diola carefully
explained that a firearm's caliber is not the only basis for determining the
cause of the gunshot wound. He said:
ATTY. REMOTIQUE:
Q: So, normally the size of .5 cm x .5 cm which is the point of entry of
gunshot wound No. 3 this may have been caused by a firearm of lesser
caliber than caliber .38?
A: Not necessarily. There is a very small difference in the size and this
does not preclude that gunshot wound No. 3 may have also been caused by
the same firearm which caused gunshot wounds Nos. 1 and 2. There are
factors which often affect the size of the wounds at the time of the
examination, perhaps a recission (sic) of the skin in the area where gunshot
Wound No. 3 was inflicted so that gunshot wound becomes smaller.
Q: Did you not say that normally the point of entry of the gunshot
wounds vary with the caliber of the firearm which caused it, so that the
point of entry caused by one firearm of a particular caliber may be bigger
than the point of entry of a gunshot wound caused by another firearm of
lesser caliber?
A: I told you of other factors that often affect the size of the entry of
the bullet although the caliber is one basis of the size of the wounds.
xxx xxx xxx
Q: Will you explain further on that because my understanding is that .5
cm wound must perforce be caused by a firearm of lesser caliber than that
which caused the .6 cm wound?
A: As I said there are ranges in the size of the wounds. The variance in
the size of the wound when it is minimal does not exclude the possibility
that a wound with a .5 cm size and .6 cm size could have been caused by
the same caliber. (Emphasis supplied).31
The Office of the Solicitor General points out that Dr. Diola's testimony is
supported by Dr. Pedro P. Solis, a medical expert, in his book entitled Legal
Medicine. The factors which could make the wound of entrance bigger than
the caliber include: (1) shooting in contact or near fire; (2) deformity of the
bullet which entered; (3) a bullet which might have entered the skin
sidewise; and (4) an acute angular approach of the bullet. However, where
the wound of entrance is smaller than the firearm's caliber, the same may
be attributed to the fragmentation of the bullet before entering the skin or
to a contraction of the elastic tissues of the skin (stress supplied).32 Dr. Diola
testified that a .45 caliber pistol could have caused the grazing wounds on
the victim's head and extremities.33 Dr. Cerna corroborated Dr. Diola's
findings in this regard.34 Such expert opinions disprove appellants' theory
that the .45 caliber handguns confiscated from them could not have been
used in killing the victim.
Fourth, appellants allege that the testimony of P/Inspector Lemuel Caser,
the prosecution's ballistics expert, clearly shows that: (1) He is ignorant
about such ballistics instruments such as the micrometer, goniometer, and
pressure barrel.35 (2) He is not conversant with "the required references
concerning ballistics," particularly books on the subject by foreign
authorities.36 (3) He could not "scientifically determine the caliber of a
bullet."37 Since P/Inspector Caser lacked adequate training and expertise in
ballistics, they claim that his opinion that the test bullets and cartridges
matched the slugs and cartridges recovered from the scene of the crime
was not reliable. Appellants also assail Caser's failure to take the necessary
photographs to support his findings.
An expert witness is "one who belongs to the profession or calling to which
the subject matter of the inquiry relates and who possesses special
knowledge on questions on which he proposes to express an
opinion."38 There is no definite standard of determining the degree of skill
or knowledge that a witness must possess in order to testify as an expert. It
is sufficient that the following factors be present: (1) training and
education; (2) particular, first-hand familiarity with the facts of the case;
and (3) presentation of authorities or standards upon which his opinion is
based.39 The question of whether a witness is properly qualified to give an
expert opinion on ballistics rests with the discretion of the trial court.40
In giving credence to Caser's expert testimony, the trial court explained:
The defense downgraded the capability of Caser in forensics ballistics and
identifying firearms. Much stress is given to the absence of photographs of
his examination. Nonetheless, the Court is satisfied (with) Caser's
examination, findings and conclusions with the use of a microscope. Caser's
conclusion based on his examination deserves credit. He found the
impressions on the primer of the fired cartridges that were test-fired to
have the same characteristics with those recovered at the scene of the
crime. Whenever a triggerman pumps a bullet (into) the body of his victim,
he releases a chunk of concrete evidence that binds him inseparably to his
act. Every gun barrel deeply imprints on every bullet its characteristic
marking peculiar to that gun and that gun alone. These marking might be
microscopic but they are terribly vocal in announcing their origin. And they
are as infallible for purposes of identification, as the print left by the
human finger.41
We agree with the trial court that P/Inspector Caser qualifies as a ballistics
expert. He is a licensed criminologist, trained at the Ballistics Command and
Laboratory Center in Fort Bonifacio, in the PNP Crime Laboratory in Camp
Crame, and in the National Bureau of Investigation. He had previously
testified as an expert witness in at least twenty-seven (27) murder and
homicide cases all over the country.42 An expert witness need not present
comparative microphotographs of test bullets and cartridges to support his
findings.43 Examination under a comparison microscope showing that the
test bullet and the evidence bullet both came from the same gun is
sufficient.44 Moreover, the ballistician conclusively found similar
characteristic markings in the evidence, test cartridges and slugs.
Fifth, appellants aver that the prosecution failed to show any plausible
motive for appellants to kill the victim. The prosecution tried to prove that
their co-accused Navales instigated them to kill the victim because Navales
had a grudge against him. However, as Navales was acquitted, appellants
insist that Navales' acquittal should redound to their benefit since no
motive was imputed on their part.
Motive is not an essential element of a crime,45 particularly of murder.46 It
becomes relevant only where there is no positive evidence of an accused's
direct participation in the commission of a crime.47 Stated otherwise, proof
of motive becomes essential to a conviction only where the evidence of an
accused's participation in an offense is circumstantial.48 A careful perusal of
the State's evidence reveals that the prosecution had established sufficient
motive why appellants killed the victim, independent of any grudge which
Navales may have had against the latter. At the time of the incident,
appellants Abriol and Dosdos were both BBRC detention prisoners during
Navales' term as warden. Abriol and Dosdos were treated as highly favored
"trustees" of Navales and were never locked up. Abriol and Dosdos were
even allowed to go out of BBRC to do the marketing for the prison's
kitchen. Appellant Astellero, a former detention prisoner, was also a
recipient of Navales' favors. Navales hired Astellero as his personal driver
after the latter served his sentence. Navales and the victim, a former BBRC
jailguard, were associates in dealing with prohibited drugs, until they had a
falling out allegedly after the victim failed to remit to Navales proceeds
from the sale of illegal drugs amounting to P31,000. Appellants apparently
killed the victim to return the "special favors" Navales had showered them.
Lack of a motive does not necessarily preclude conviction. Persons have
been killed or assaulted for no reason at all, and friendship or even
relationship is no deterrent to the commission of a crime.49
Sixth, in the present case, appellants contend that the PNP cannot be
presumed to have done their work since it committed errors and blunders
in transferring possession and custody of the physical evidence. They allege
there was a possibility that the evidence was tainted, planted, or
manufactured. Besides, appellants point out that the presumption of
regularity cannot prevail over the constitutional presumption of innocence
of the accused.
The record shows that the police officers did not issue acknowledgment
receipts in some instances. However, minor lapses do not mean that the
State had failed to show an unbroken chain of custody of the subject
firearms and ammunition, nor that said firearms and ammunition were
tampered. The slugs and spent shells recovered from the scene of the crime
and the victim's corpse were plainly identified in open court by the PNP
investigators. The ballistician testified that the bullets and cartridges
recovered from the crime scene had been fired from the subject handguns.
Under these circumstances, we must respect the presumption of the
regularity in the performance of duties.
Seventh, appellants insist that the prosecution failed to show that the red
"Jiffy" used by them and seized by the police officers was the same vehicle
used by the gunmen who killed Alejandro Flores. Appellants point out that
PO3 Rustela, who was aboard police car No. 201, testified that they lost
sight of the red "Jiffy" while chasing it along Leon Kilat Street. Appellants
argue that the "Jiffy" which was chased by patrol car No. 208 until it was
cornered near BBRC by the other pursuing patrol cars was not the same
vehicle originally sighted and tailed by patrol car No. 201.
In rejecting this theory, the trial court stated that:
. . . PO3 Rustela who was nearby, immediately ran to the scene of the crime
and met the red jiffy with three persons on board, that speedily passed by
him proceeding towards Leon Kilat Street. Car 208 readily picked up the
trail and pursued the red jiffy from Leon Kilat, then making abrupt turns on
downtown streets until other patrol cars joined the chase and captured
them in Lahug, near the BBRC. The identity of the red jiffy was never
interrupted. Members of the Mobile Patrol Cars identified in court without
batting an eyelash, the red jiffy which was the object of the shooting alarm.
There was no interruption, no let-up in the chase, right after Alejandro
Flores was shot and there was no other red jiffy that the crews of the
(pursuing) patrol cars noticed.
The Court rejects their claim of innocence, for their very acts belied the
same.
Astellero could have stopped the jeep upon noticing that patrol cars were
already running after them with sirens, blinkers and warning shots fired.
From Leon Kilat Street to Lahug airport, there were several police stations
that they could have sought shelter and police assistance. Guilt has many
ways of surfacing. Instead of stopping, Abriol ordered Astellero to
accelerate their speed. Their obvious purpose was to elude the patrol cars.
Flight is indicative of guilt.50
But, in this case, is the totality of the circumstantial evidence relied upon by
the trial court sufficient to support a conviction?
Circumstantial evidence is that which indirectly proves a fact in issue. For
circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the
theory that the accused is guilty of the offense charged, and at the same
time inconsistent with the hypothesis that he is innocent and with every
other possible, rational hypothesis, except that of guilt.51 An accused can be
convicted on the basis of circumstantial evidence where all the
circumstances constitute an unbroken chain leading to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all
others, as the culprit.52
In our assessment, the prosecution's evidence constitutes an unbroken
chain of events leading to the inevitable conclusion of guilt on the part of
appellants. First, the fatal shooting of Alejandro Flores occurred at around
11:50 P.M. of June 5, 1993 in front of the ABS-CBN compound in Cebu City.
The gunman, who was tall and thin, alighted from a red "Jiffy," pumped
several bullets into the prone victim, and got back aboard the "Jiffy" which
then sped towards Leon Kilat Street. Second, eyewitness Romeo Sta. Cruz,
Jr.'s description of the gunman as "tall and thin" perfectly matches the
physique of appellant Abriol. Third, PO3 Alexander Rustela, who was close
to the crime scene, heard the gunshots and ran towards the place where
the sound of gunshots emanated. A red "Jiffy" with three persons aboard
whizzed by him and abruptly turned at Leon Kilat Street. After Sta. Cruz, Jr.
informed him that the gunmen were aboard a red "Jiffy," Rustela boarded
patrol car No. 201, radioed an alarm, and commenced a pursuit of the
fleeing vehicle. Police car no. 208 received the alarm, and on turning into
Leon Kilat Street, encountered the speeding red "Jiffy." They immediately
chased the "Jiffy" but failed to catch it. Police cars Nos. 208 and 205
cornered the vehicle in front of the Don Bosco building near BBRC. PO2
Gerald Cue, on patrol car no. 205 fired a warning shot at the vehicle and
directed all those aboard to disembark. Three men got out, with their
hands raised. SPO1 Abrigana, on patrol car no. 208 and PO2 Cue
approached the trio. Abrigana frisked the man who was seated in the front
passenger seat, who turned out to be appellant Abriol, and recovered from
his waist a .38 caliber revolver with six empty shells. Cue searched the red
"Jiffy" and found two loaded .45 caliber pistols under the front seat where
Abriol had sat. Other police officers immediately went to the crime scene
where they found the victim barely alive. PO3 Seville retrieved four .45
caliber slugs and two deformed slugs at the spot where the victim was shot.
The autopsy of the victim's remains showed that he died of cardio
respiratory arrest due to shock and hemorrhage secondary to gunshot
wounds. A deformed metal jacket of a .38 caliber slug was recovered from
the corpse. Ballistics tests showed that the bullets and cartridges had
identical individual characteristics with those of the test bullets and
cartridges. Paraffin tests conducted on each of the appellants, one day after
the incident, revealed that all were positive for gunpowder residues. The
subject firearms were also chemically examined and found positive for
gunpowder residue. Before the shooting incident, appellants were seen at
Navales' house until around 7:30 P.M., when they left aboard Navales' red
"Jiffy" with Astellero driving, Abriol in the front passenger seat, and Dosdos
in the back seat.53 Appellants' seating arrangements were exactly the same,
several hours later, after they were pursued and cornered by police cars
near BBRC. Appellants admitted that they dropped by the Navales
residence at around 7:00 P.M. and 11:00 P.M.
These unbroken chain of events prove not only appellants' identities but
also their participation and collective responsibility in the murder of
Alejandro Flores. They reveal a unity of purpose and concerted action
evidencing their conspiracy to kill him. Against this matrix of facts and
circumstances, appellants' bare denials cannot stand. Their story of chasing
a red "Jiffy" is merely a disingenuous diversion of no evidentiary value for
the defense.
Finally, the information for murder alleged treachery and evident
premeditation. We note, though, that the trial court did not state which
circumstance qualified the killing into murder.
A review of the record would reveal that there was no evident
premeditation. There is evident premeditation when the following are
shown: (a) the time when the accused determined to commit the crime; (b)
an act or acts manifestly indicating that the accused has clung to his
determination; and (c) a lapse of time between the determination to
commit the crime and the execution thereof sufficient to allow him to
reflect upon the consequences of his act.54 Evident premeditation indicates
deliberate planning and preparation. Nowhere in the record is it shown
when and how appellants planned and prepared to kill the victim.
Concerning treachery, however, it was shown that: (1) the means of
execution employed gave the person attacked no opportunity to defend
himself or retaliate; and (2) the means of execution was deliberately or
consciously adopted.55 These twin requisites were adequately proved.
Appellants had superiority in numbers and weapons. The victim was
without any means to defend himself as no weapon was found or even
intimated to be in his possession. The victim was running away from the
"Jiffy" prior to the killing. That he was warned or threatened earlier is of no
moment. Even when the victim is warned of danger to his person, if the
execution of the attack made it impossible for the victim to defend himself
or to retaliate, treachery can still be appreciated.56 The victim was lying
prostrate on the ground when he was deliberately and mercilessly riddled
with bullets. The weapons used, the number of assailants, the swift and
planned manner of the attack, and the multiple number of wounds inflicted
upon the victim all demonstrate a determined assault with intent to kill the
victim. No doubt there was treachery.
B. Criminal Case No. CBU-33664
On their conviction for illegal possession of firearms, appellants contend
that the handguns and ammunition allegedly taken from them by the
police officers were illegally seized. They assert that the police had no
warrant to effect a search and seizure, such that these illegally seized
firearms were inadmissible as evidence, and it was error for the trial court
to admit them.
There are eight (8) instances where a warrantless search and seizure is
valid. They are: (1) consented searches;57(2) as an incident to a lawful
arrest;58 (3) searches of vessels and aircraft for violation of immigration,
customs, and drug laws;59 (4) searches of moving vehicles;60 (5) searches of
automobiles at borders or constructive borders; (6) where the prohibited
articles are in "plain view;"61 (7) searches of buildings and premises to
enforce fire, sanitary, and building regulations; and (8) "stop and frisk"
operations.62
In this case, the warrantless search and seizure of the subject handguns and
ammunition is valid for two reasons. It was a search incidental to a lawful
arrest. It was made after a fatal shooting, and pursuit of a fast-moving
vehicle seeking to elude pursuing police officers, and a more than
reasonable belief on the part of the police officers that the fleeing suspects
aboard said vehicle had just engaged in criminal activity. The urgent need
of the police to take immediate action in the light of the foregoing
exigencies clearly satisfies the requirements for warrantless arrests under
the Rules of Court.63 Moreover, when caught in flagrante delicto with
firearms and ammunition which they were not authorized to carry,
appellants were actually violating P.D. No. 1866, another ground for valid
arrest under the Rules.64
Appellants further contend that the trial court erred in convicting
appellants Astellero and Dosdos of illegal possession of firearms. They
point out that the .38 caliber revolver was recovered from appellant Abriol,
who as a policeman was authorized to carry and possess said firearm, as
evidenced by his Memorandum Receipt (MR), which had "not been
recalled, cancelled or revoked until the time of the trial of these cases."
Appellants claim that the two .45 caliber pistols could have been left in the
vehicle by PNP personnel assigned at BBRC, considering that the red "Jiffy"
was generally used as a service vehicle by BBRC personnel. They also argue
that the prosecution failed to prove appellants' ownership, control, and
possession of the .45 caliber pistols, considering that appellants were six
meters away from the "Jiffy" when said handguns were allegedly found.
To sustain a conviction for violation of P.D. No. 1866, the prosecution must
prove two elements of the offense: (1) the existence of the subject firearm;
(2) the fact that the accused who owned or possessed the firearm does not
have the corresponding license or permit to possess it. 65 These the
prosecution did. It presented a .38 caliber revolver with serial number
PO8445, a .45 caliber pistol with serial number PGO 13506 Para Ordinance,
and a .45 caliber pistol with serial number 52469. The .38 caliber handgun
was recovered from appellant Abriol, while the two .45 caliber automatics
were found and seized from under the front passenger seat of appellants'
vehicle. SPO4 Aquilles Famoso of the Cebu City PNP Metropolitan District
Command's Firearms and Explosive Unit testified that appellants were not
listed as licensed firearm owners in Cebu City.66 The prosecution also
presented a certification from P/Senior Inspector Edwin Roque of the
Firearms and Explosives Division of PNP Headquarters at Camp Crame,
Quezon City that appellant Abriol is not licensed to hold any firearm; that
the .45 caliber pistols were unlicensed; and that a certification from the
PNP Firearms and Explosives Office attesting that a person is not a licensee
of any firearm, proves beyond reasonable doubt the second element of
illegal possession of firearm.67
Abriol insists that he had a valid MR authorizing him to carry the .38
revolver. We agree with the observation of the trial court that:
The claim of Abriol that .38 caliber was issued to him, as evidenced by the
corresponding receipt (MR), is of no moment. While an MR is an authority
of Abriol to possess the government firearm that was issued to him, when
he was charged and detained at BBRC for an earlier case of murder, other
than the case at bar, he was already then at that moment a detained
prisoner and therefore, (un)authorized to carry a firearm. A military man or
a member of the PNP who commits a crime, is immediately disarmed upon
his arrest and stripped of all the rights and privileges that go with the
function of his office, and this includes, in the case of Abriol, his MR. Thus,
when he shot Alejandro Flores with his .38 caliber revolver, this firearm
was already unauthorized and its use and possession illegal.68
Even if Abriol's MR was valid, said authorization was limited only to the .38
caliber revolver and not the two .45 caliber automatic pistols found under
the front passenger seat of the "Jiffy." Appellants were still in the unlawful
possession of the .45 caliber pistols. Under P.D. No. 1866, possession is not
limited to actual possession.69 In this case, appellants had control over the
pistols. They were all liable since conspiracy was established and the act of
one is the act of all.70
Appellants claim that they were six meters away from the "Jiffy" when it
was searched and the two .45 caliber pistols were seized. They suggest that
the policemen who searched the vehicle could have planted said firearms.
The trial court found that they were in fact only one meter away from the
vehicle. Findings of fact of the trial court, when supported by the evidence
on record, are binding and conclusive upon appellate courts.71
All told, on the charge of illegal possession of firearms, no reversible error
was committed by the trial court when it found appellants guilty beyond
reasonable doubt.
The Office of the Solicitor General recommends that although appellants
were charged with and convicted of two separate offenses of murder and
violation of P.D. No. 1866, R.A. No. 8294, which amended said decree,
should be applied to appellants retroactively, citing People v. Molina, 292
SCRA 742, 779 (1998) interpreting R.A. No. 8294.
We agree. We ruled in Molina that with the passage of R.A. No. 8294 on
June 6, 1997, the use of an unlicensed firearm in murder or homicide is not
a separate crime, but merely a special aggravating circumstance. This was
recently reiterated in People v. Castillo, G.R. Nos. 131592-93, February 15,
2000.72 Appellants are thus guilty only of murder with the special
aggravating circumstance of use of unlicensed firearms. The imposition of
the penalty of reclusion perpetua cannot however be modified since the
murder took place before the effectivity of R.A. No. 7659.
A final word on the damages. In addition to the award of P50,000 as
indemnity ex delicto, the trial court awarded P30,000 in actual damages,
"representing a reasonable amount for the embalming, vigil, wake and
burial expenses," and P30,000 as attorney's fees. To be entitled to actual
damages, it is necessary to prove the actual amount of loss with a
reasonable degree of certainty, premised upon competent proof, and on
the best evidence obtainable by the injured party.73 No such evidence was
offered. The award of actual damages must, therefore, be deleted.
However, temperate damages may be awarded since the family of the
victim has demonstrably spent for the wake, funeral and burial
arrangements. The amount of P20,000 should suffice as temperate
damages. In addition, we find an award of exemplary damages in order,
pursuant to Article 2230 of the Civil Code.74 The killing was attended by the
special aggravating circumstance of use of unlicensed firearms. Moreover,
the public good demands that detained prisoners should not abuse their
status as "trustees." Had the police been unsuccessful in their pursuit of
appellants, the latter would have used the BBRC as shelter and as an alibi
that they could not have committed the crime since they were then in
detention. Thus, we find an award of P10,000 as exemplary damages in
order. Accordingly, the award of attorney's fees is sustained.75
WHEREFORE, the assailed Decision of the Regional Trial Court of Cebu City,
Branch 10, in Criminal Cases Nos. CBU-30350 and CBU-33664 is hereby
MODIFIED. Appellants Albert Abriol, Macario Astellero, and Januario
Dosdos are hereby found GUILTY of murder, qualified by treachery, with
the special aggravating circumstance of use of unlicensed firearms and are
hereby sentenced to suffer the penalty of reclusion perpetua with the
accessory penalties provided for by law. Appellants Abriol, Astellero, and
Dosdos are also ordered to pay, jointly and severally, the heirs of Alejandro
Flores the sum of P50,000 as death indemnity, P20,000 as temperate
damages, P10,000 as exemplary damages, and P30,000 as attorney's fees,
as well as the costs.
SO ORDERED.
G.R. No. 158015 August 11, 2004
LAURA and ERIBERTO BAUTISTA, petitioner,
vs.
HON. COURT OF APPEALS and FERNANDO MORELOS, respondents.
DECISION
YNARES-SANTIAGO, J.:
On appeal by Petition for Review on Certiorari under Rule 45 of the 1997
Rules on Civil Procedure is a Decision of the Court of Appeals in CA-G.R. CV
No. 45549,1 reversing and setting aside the judgment of the Regional Trial
Court of Manila, Branch VII in Civil Case No. 83-179002 and entering a new
one declaring the April 5, 1982 Deed of Absolute Sale between the late
Cesar Morelos and Laura Bautista null and void.
The dispute involves a parcel of land situated along Maceda (formerly
Washington) Street, Sampaloc, Manila, containing an area of approximately
105 square meters. This parcel of land was previously owned and
registered in the name of the late Cesar Morelos under Transfer Certificate
of Title No. 27604. Cesar is the uncle of petitioner Laura Morelos Bautista,
being the brother of her mother, Rosario Morelos.3
Cesar, who was married to Rosario Duran, did not have any children.
Rosario died in 1972. Cesar died of cardiac arrest on April 15, 1982. During
his lifetime, Cesar sold and conveyed the above-mentioned parcel of land in
favor of petitioner Laura Morelos Bautista, as evidenced by a "Deed of
Absolute Sale" notarized by Luis M. de Guzman. Accordingly, Transfer
Certificate of Title No. 254843 was issued in the name of petitioner Laura
Bautista.4
Respondent Fernando Morelos, claiming to be the illegitimate child of
Cesar Morelos with Angelina Lim-Gue, instituted a complaint for the
declaration of nullity of sale and title with damages, docketed as Civil Case
No. 83-17900, before the Regional Trial Court of Manila, Branch VII. At the
trial, he presented testimonies of expert witnesses who claimed that the
signature of Cesar Morelos on the Deed of Absolute Sale and the
fingerprint appearing on his Residence Certificate were not his.5
Petitioners countered that the Deed of Absolute Sale was valid. The witness
to the Deed, Carmelita Marcelino, testified that she saw Cesar Morelos and
petitioner Laura Bautista sign the same.6
After hearing, the court a quo rendered judgment declaring the Deed of
Sale dated April 5, 1982 executed between the late Cesar Morelos in favor
of Laura Bautista valid, and dismissed for insufficient evidence the claims
and counterclaims for damages of the parties.7
Respondent appealed to the Court of Appeals, which reversed and set aside
the judgment of the trial court. The dispositive portion of the CA decision
reads:
WHEREFORE, premises considered, the appealed decision is hereby
REVERSED AND SET ASIDE. In lieu thereof, another one is entered declaring
AS NULL AND VOID the Deed of Absolute Sale, dated April 5, 1982,
executed between the late Cesar G. Morelos and defendant-appellee Laura
R. Bautista. The Register of Deeds of Manila is DIRECTED to cause the
cancellation of Transfer Certificate of Title No. 154043 in the name of
defendant-appellee LAURA R. BAUTISTA and to issue another one in the
name of the ESTATE OF CESAR G. MORELOS. Defendants-appellees are also
directed to surrender possession of the disputed property to plaintiff-
appellant.
SO ORDERED.8
Petitioners' motion for reconsideration was denied.
Hence, this petition for review on certiorari raising the following issues:
I.
WHETHER OR NOT THE TESTIMONIES OF EXPERT WITNESSES ARE
CONCLUSIVE TO BE A STRONG BASIS TO NULLIFY A DULY EXECUTED AND
NOTARIZED DEED OF ABSOLUTE SALE.
II.
WHETHER OR NOT THE DEED OF ABSOLUTE SALE (ANNEX "3") IS VALID.
III.
WHETHER OR NOT PRIVATE RESPONDENT HAS THE LEGAL PERSONALITY TO
SEEK THE ANNULMENT OF THE DEED OF ABSOLUTE SALE.9
Petitioner asserts the validity of the Deed of Absolute Sale and invoke the
testimony of Carmelita Marcelino, the instrumental witness to the signing
of the document, who confirmed that it was the decedent Cesar Morelos
who affixed his signature to the document.
On the other hand, respondent contends that the decedent's signature on
the Deed was forged. He presented the testimony of Francisco Cruz, Jr.,
Chief Examiner of the PC-INP Crime Laboratory Service, that the signature
of decedent on the questioned instrument, when compared to other
documents bearing the authentic signature of Cesar Morelos, did not match
and appeared to have been authored by a different person. Cruz, Jr.
declared that the latest document bearing the genuine signature of the
decedent is dated March 31, 1982, while the alleged forged signature was
made on April 5, 1982, or a mere lapse of five days. According to him, it is
not possible to have significant variation between the two signatures,
considering the proximity of time when the signatures where affixed.10
Another witness, Major Braulio Monge, Chief of the Fingerprint Division of
the PC-INP, testified that the thumbmark of Cesar Morelos appearing on
the residence certificate indicated in the Deed of Absolute Sale, when
compared to those affixed on previous residence certificates issued to the
decedent, did not match and appears to be the thumbmark of another
person.
Under Rule 132, Section 22 of the Rules of Court, the genuineness of
handwriting may be proved in the following manner: (1) by any witness
who believes it to be the handwriting of such person because he has seen
the person write; or he has seen writing purporting to be his upon which
the witness has acted or been charged; (2) by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the
party, against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge.
It is well-settled that a duly notarized contract enjoys the prima
facie presumption of authenticity and due execution as well as the full faith
and credence attached to a public instrument.11 To overturn this legal
presumption, evidence must be clear, convincing and more than merely
preponderant to establish that there was forgery that gave rise to a
spurious contract.
As a general rule, forgery cannot be presumed and must be proved by clear,
positive and convincing evidence. The burden of proof lies on the party
alleging forgery. In Heirs of Severa P. Gregorio v. Court of Appeals,12 we
held that due to the technicality of the procedure involved in the
examination of the forged documents, the expertise of questioned
document examiners is usually helpful; however, resort to questioned
document examiners is not mandatory and while probably useful, they are
not indispensable in examining or comparing handwriting.
Hence, a finding of forgery does not depend entirely on the testimony of
handwriting experts. Although such testimony may be useful, the judge still
exercises independent judgment on the issue of authenticity of the
signatures under scrutiny; he cannot rely on the mere testimony of the
handwriting expert.13
The authenticity of signatures is not a highly technical issue in the same
sense that questions concerning, e.g., quantum physics or topology or
molecular biology, would constitute matters of a highly technical nature.
The opinion of a handwriting expert on the genuineness of a questioned
signature is certainly much less compelling upon a judge than an opinion
rendered by a specialist on a highly technical issue.14
In the case at bar, the presumption of validity and regularity prevails over
allegations of forgery and fraud. As against direct evidence consisting of the
testimony of a witness who was physically present at the signing of the
contract and who had personal knowledge thereof, the testimony of an
expert witness constitutes indirect or circumstantial evidence at best.
Carmelita Marcelino, the witness to the Deed of Absolute Sale, confirmed
the genuineness, authenticity and due execution thereof.15 Having been
physically present to see the decedent Cesar Morelos and petitioner Laura
Bautista affix their signatures on the document, the weight of evidence
preponderates in favor of petitioners.
Witness Francisco Cruz, Jr. failed to establish the fact that the signature on
the Deed of Absolute Sale was not that of Cesar Morelos. He merely
concluded that the document was a forgery without citing any factual basis
for arriving at that conclusion. Cruz did not point out distinguishing marks,
characteristics and discrepancies in and between genuine and false
specimens of writing, which would ordinarily escape detection by an
ordinary lay person.16

When the trial court and the appellate court arrived at divergent factual
assessments in their respective decisions and the bases therefor refer to
documents made available to the scrutiny of both courts, the well-settled
rule that factual findings of trial courts deserve respect and even finality
will not apply.17 In the case at bar, the varying factual assessments
pertained to the authenticity of the signature of the late Cesar Morelos on
the questioned Deed of Absolute Sale conveying the 105-square meter
property in favor of his niece, Laura Bautista.

In Jimenez v. Commission on Ecumenical Mission and Relations of the

United Presbyterian Church in the United States of America,18 we held that
the authenticity of a questioned signature cannot be determined solely
upon its general characteristics, similarities or dissimilarities with the
genuine signature. Dissimilarities as regards spontaneity, rhythm, pressure
of the pen, loops in the strokes, signs of stops, shades, that may be found
between the questioned signature and the genuine one are not decisive on
the question of the former's authenticity. The result of examinations of
questioned handwriting, even with the benefit of aid of experts and
scientific instruments, is, at best, inconclusive. There are other factors that
must be taken into consideration, such as the position of the writer, the
condition of the surface on which the paper where the questioned
signature is written, his state of mind, feelings and nerves, and the kind of
pen and paper used. These play an important role on the general
appearance of the signature. Unless, therefore, there is, in a given case,
absolute absence, or manifest dearth, of direct or circumstantial competent
evidence on the character of a questioned handwriting, much weight
should not be given to characteristic similarities, or dissimilarities, between
a questioned handwriting and an authentic one.

Besides, a notarial document is evidence of the facts in the clear

unequivocal manner therein expressed and has in its favor the presumption
of regularity.19 The authenticity and due execution of the Deed of Absolute
Sale must therefore be upheld.

As to the alleged insufficient consideration of the sale of the property, the

mere inadequacy of the price does not affect its validity when both parties
are in a position to form an independent judgment concerning the
transaction,20unless fraud, mistake or undue influence indicative of a defect
in consent is present.21 A contract may consequently be annulled on the
ground of vitiated consent and not due to the inadequacy of the price. In
the case at bar, however, no evidence to prove fraud, mistake or undue
influence indicative of vitiated consent was presented other than the
respondent's self-serving allegations.

WHEREFORE, in view of the foregoing, the Petition is GRANTED. The

Decision of the Court of Appeals in CA-G.R. CV No. 45549 is REVERSED and
SET ASIDE. The judgment of the Regional Trial Court of Makati, Branch VII in
Civil Case No. 83-17900, declaring the Deed of Absolute Sale between
petitioner Laura Morelos Bautista and Cesar Morelos over the subject
parcel of land covered by Transfer Certificate of Title No. 2760 as valid is
REINSTATED. No costs.

SO ORDERED.
G.R. No. 181444 July 17, 2013
BOBBY "ABEL" AVELINO y BULAWAN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VILLARAMA, JR., J.:
On appeal are the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 02297 which affirmed petitioner's conviction for murder in Criminal
Case No. 01-189130,2 and the CA’s Resolution3 denying his motion for
reconsideration.
Petitioner Bobby "Abel" Avelino y Bulawan, together with Ricardo
Tolentino, Alias Sonny Muslim, Farouk Musa a.k.a. Boy Muslim, Alias Bubut
Tuwad, Alias Angkol, Alias Mon, Renato Meneses a.k.a. Nato, Benjamin
Elbona a.k.a. Toto Mata, and Dominic Apan a.k.a. Domeng Bakukang, was
charged with murder4 before the Regional Trial Court (RTC) of Manila with
the qualifying circumstances of treachery and evident premeditation.
Upon arraignment, petitioner and his co-accused Renato Meneses,
Benjamin Elbona, and Farouk Musa entered a plea of not guilty. The other
accused remain at-large.
At the trial, the prosecution presented eight witnesses: Delia Hispano, the
wife of the victim; Diana Espinosa; Alfredo Manalangsang (Manalangsang);
Mary Ann Cañada (Cañada); Renato Sosas; Dr. Romeo T. Salen; P/Insp.
Mario Prado; and National Bureau of Investigation (NBI) agent Rizaldi
Jaymalin.5
The facts, as culled from the CA Decision which cited the brief of the Office
of the Solicitor General, are as follows:
Around 2:00 o’clock in the afternoon of September 2000, Renato Sosas y
Verzosa, an employee of appellant Bobby Avelino y Bulawan in his wood
business, was directed by appellant to summon Toto Mata, Nato, Domeng
Bakukang, Bobot Tuwad, Boy Muslim, Angkol, Charlie, Sonny Muslim and
Mon (TSN, January 29, 2002, pp. 5-6). An hour later, the group called by
Renato Sosas met at appellant’s warehouse in Tagaytay, Baseco
Compound, Tondo, Manila. Renato Sosas, who was just a step away from
the group, was astounded when he heard appellant utter "Papatayin si
Chairman." Bobot Tuwad reacted by asking appellant "Sino pong
chairman?", to which appellant Avelino replied "Sino pa, Ninong Chairman
Gener." Terrified, Sosas kept mum about what he discovered (TSN, January
29, 2002, pp.10-12).
On October 5, 2000, around 9:00 o’clock in the evening, Alfredo
Manalangsang was riding on a tricycle going to Baseco Compound, Tondo,
Manila. Since Manalangsang was the last passenger to board the tricycle,
he sat behind the driver. Upon reaching a certain point between Muelle Del
Rio and 2nd Street, Port Area, Manila, the tricycle which Manalangsang was
riding on passed at the left lane instead of the right lane of the road to give
way to the owner-type (sic) jeep owned by the barangay and driven by its
Chairman, Generoso Hispano, herein victim (TSN, September 26, 2001, pp.
11-17, Exhs. "R-1" and "4").
While Chairman Hispano was entering the nearest route near the center
island, a man suddenly emerged and blocked Chairman Hispano’s vehicle.
Instantaneously, Manalangsang heard bursts of gunshot which prompted
him to jump from the tricycle. Manalangsang instinctively hid behind the
center island of the road (TSN, September 26, 2001, pp. 17-21).
At this juncture, Manalangsang peeped at the direction of Chairman
Hispano’s jeep and saw three (3) men wearing bonnets, two of whom were
strategically blocking the jeep of Chairman Hispano. The third man, who
was wearing a green jacket and positioned himself near the gutter, fired
successive shots at Chairman Hispano and thereafter approached the jeep
of Chairman Hispano. He pulled down from the jeep the almost lifeless
body of Chairman Hispano. Since Manalangsang was situated near the third
assailant, he failed to identify the other two assailants. However,
Manalangsang positively identified the third assailant as appellant Bobby
"Abel" Avelino, whom he saw stooping down at the Chairman’s body and
pulling the opening of his bonnet down to his chin to ascertain if the
Chairman was still alive. Sensing that it was safe for him to leave the scene,
Manalangsang boarded a tricycle again and went home (TSN, September
26, 2001, pp. 22-26).
Thereafter, appellant and the other assailants drove away using the owner-
type jeep of Chairman Hispano. However, on their way towards Divisoria,
the jeep was incidentally blocked by a tricycle and a white car which
prompted the companion of appellant to shout "tabi-tabi." At that
moment, Mary Ann Ca[ñ]ada saw appellant, who was wearing a green
jacket and a bonnet rolled up to his forehead, driving the owner-type (sic)
jeep of Chairman Hispano. Ca[ñ]ada readily recognized appellant as she
was familiar with the face of appellant having seen him driving the jeep of
the Chairman on several occasions before (TSN, November 19, 2001, pp. 17-
28).
When the police arrived at the crime scene, Chairman Hispano was already
dead. The owner-type (sic) jeep of Chairman Hispano was recovered in
front of house No. 440, Orbiztondo Street, Binondo, Manila, with several
pieces of empty shells of 9 mm caliber gun scattered on its floor (TSN, May
7, 2003, pp. 6-7) (Rollo, pages 120-123).6
Denying the accusation, the defense presented as evidence the testimonies
of petitioner, PO2 Anthony P. Galang, Adonis T. Bantiling and Scene of the
Crime Operative (SOCO) PSI Lito D. Cabamongan (Cabamongan).7
Petitioner advanced the defense of denial and alibi. He testified that on
October 5, 2000, he and his wife went to the Land Transportation Office in
Pasay City to renew his license as they planned to go to Baguio that day.
But as he was issued a temporary license late in the afternoon, instead of
going home, he and his wife checked in at the Pharaoh Hotel in Sta. Cruz,
Manila to spend the night. He parked his car along Dasmariñas Bridge and
slept. Later, he woke up to transfer his car but his car was gone. Thus, he
and his wife went to the police station in Sta. Cruz, Manila then to the
AntiCarnapping Unit along U.N. Avenue to report the incident. At the latter
location, they learned from a certain Tata Randy, an acquaintance and
former police officer, that the victim had been gunned down. Around 1:00
a.m., he and his wife returned to the hotel. On October 23, 2000, he was
arrested by agents of the NBI.8
After trial, the RTC, on April 28, 2006, found petitioner guilty beyond
reasonable doubt of the crime of murder qualified by treachery, and
imposed upon him the penalty of reclusion perpetua. The RTC likewise
ordered him to indemnify the heirs of the victim Generoso Hispano
(Hispano) the sum of ₱50,000 and to pay them an additional sum of
₱50,000 as moral damages, the sum of ₱158,471.75 as actual damages, and
costs.9
For failure of the prosecution to prove their guilt beyond reasonable doubt,
accused Farouk Musa, Benjamin Elbona, and Renato Meneses were
acquitted of the crime charged.10
As aforesaid, the CA, in its assailed decision, denied petitioner’s appeal and
upheld the RTC decision with modification by increasing the award of
actual damages to ₱171,128.75.11 Petitioner’s motion for reconsideration
was likewise denied by the appellate court on January 25, 2008.12
Aggrieved, petitioner now seeks to reverse his conviction, arguing that the
CA erred in relying on the testimonies of the prosecution witnesses
Manalangsang and Cañada and disregarding the inconsistencies between
the statements of Manalangsang and the findings of the medico-legal and
SOCO PSI Cabamongan as to the position of the gunman. He also reiterated
his defense of denial and alibi.
We have carefully studied the records of this case and find no cogent
reason to overturn the ruling of the CA which is in accord with law and
jurisprudence.
As for the defense of the petitioner which is grounded, firstly, upon denial
and alibi, basic is the rule that the defense of denial and alibi cannot prevail
over the witness’ positive identification of the accused-
appellants.13 Moreover, as oft-repeated in jurisprudence
For alibi to prosper, it is not enough to prove that appellant was
somewhere else when the crime was committed; he must also
demonstrate that it was physically impossible for him to have been at the
scene of the crime at the time of its commission. Unless substantiated by
clear and convincing proof, such defense is negative, self-serving, and
undeserving of any weight in law. Denial, like alibi, as an exonerating
justification, is inherently weak and if uncorroborated regresses to blatant
impotence. Like alibi, it also constitutes self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration
of credible witnesses who testify on affirmative matters.14
In this case, the defense failed to establish that it was physically impossible
for the petitioner to have been at the scene of the crime at the time of its
commission. Pharaoh Hotel, where petitioner claims to have stayed with
his wife at the time of the commission of the crime, is in Sta. Cruz,
Manila.15 The said hotel is not so far from the scene of the crime, which is in
Baseco Compound in Tondo, Manila, so as not to afford the petitioner an
opportunity to easily go to the place of the shooting at the time Hispano
was killed. Indeed, for the defense of alibi to prosper, the accused must
prove (a) that he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him
to be at the scene of the crime. These, the defense failed to do.
The defense of the petitioner is based, secondly, on his allegations that
prosecution witnesses Manalangsang and Cañada failed to positively
identify him as the gunman who mortally wounded Hispano, and that
Manalangsang’s testimony as to the locations and number of gunshot
wounds, as well as the position of the gunman, is inconsistent with the
physical evidence as provided by the medico-legal officer and the
testimony of SOCO PSI Cabamongan.
These allegations cannot exculpate the petitioner from criminal liability.
Manalangsang unequivocally identified the petitioner as the gunman.
Manalangsang was able to identify the petitioner because the latter
revealed his face when he pulled down the bonnet he was wearing, thereby
exposing his eyes, nose, mouth, and chin.16 Moreover, the certainty of
Manalangsang in identifying the petitioner as the one who shot Hispano is
bolstered by the fact that he and petitioner were neighbors for five years in
Baseco.17 The RTC cites the following statement by Manalangsang as an
added indication of his certainty – "Si Avelino, kahit ubod ng layo, kahit
naglalakad lang, kilala ko na. Dahil unang-una, matagal ko na siyang kilala,
dahil ako hindi niya ako gaanong kilala, pero sila kilala ko, kahit nakatagilid,
kilala ko siya."18 It cannot be denied that once a person gains familiarity of
another, identification becomes quite an easy task even from a
considerable distance.19
Even the theory of the defense that identification of the petitioner by
Manalangsang and Cañada is unlikely due allegedly to the lack of sufficient
illumination at the scene of the crime, has been overcome by the fact that
there are lampposts and signboards in the subject area which can provide
illumination despite the black of night. Indeed, even assuming arguendo
that the lampposts were not functioning at the time, the headlights of
passing vehicles provided sufficient illumination at the crime scene.20 "The
Court has previously held that the light from the stars or the moon, an
oven, or a wick lamp or gasera can give ample illumination to enable a
person to identify or recognize another."21Similarly, the headlights of
vehicles are sufficient to enable eyewitnesses to identify individuals at a
distance of four to ten meters,22 and it should be noted that the distance
between Manalangsang and the jeep where Hispano was felled was only 31
feet23 or a little over nine meters.24
The identification made by Manalangsang was likewise sufficiently
corroborated by the testimony of Cañada, that she saw the petitioner, with
whom she was familiar, drive away in Hispano’s owner-type jeep, wearing
a green jacket and black bonnet rolled up to his forehead.25
Further, as can be gleaned from the excerpt below, the petitioner’s defense
that Manalangsang’s testimony contradicts with the medical findings, and
should then be disregarded, must fail. Petitioner claims that
Manalangsang’s statements that Hispano was shot in a downward direction
conflict with the findings of the medico-legal that the trajectory of the
bullets is in an upward direction. The testimony of Dr. Salen is pertinent
and enlightening:
Q: The trajectory of the bullet is upward?
A: Yes, sir.
Q: So the gunman must be at a lower level from the decease[d]?
A: We can not [sic] say that, sir.
Q: But the trajectory of the bullet is upward?
A: It depends on the matter of the position of the head when the head was
hit. It could be when the trajectory is upward it [sic] could be lying down
with his back and the gunman and the barrel of the gun is here and if we
will put the normal position of the body it is still upward but the normal
position is like that so…
COURT: Make of record that the witness is demonstrating a slightly incline
position of the head and the body.
WITNESS:
A: So we can not [sic] determine the position of the gunman when it was
related [sic] the gunshot wound of the entry and the victim it will depend
on the position of the gunman but likewise the position of the victim during
the infliction [sic] of the gun.
ATTY. VARGAS:
Q: Mr. Witness, if the gunman is standing on an elevated floor of about
three feet do you think that the trajectory of a bullet is upward?
A: It is possible also.26
Clearly, the fact that the trajectory of the bullets is in an upward direction
does not negate the veracity of Manalangsang’s statement that Hispano
was shot by the gunman from an elevated plane.
The CA was also correct in not giving credence to the opinion of SOCO PSI
Cabamongan as regards the position of the gunman when the latter shot
Hispano. Cabamongan asserted that the gunman was on board the owner-
type jeep when Hispano was shot, which is opposed to Manalangsang’s
testimony. However, case records reveal that Cabamongan was presented
as an ordinary witness. Hence, his opinion regarding the location of the
gunman in relation to the place where the empty shells were found is
immaterial.
Expert evidence is admissible only if: (a) the matter to be testified to is one
that requires expertise, and (b) the witness has been qualified as an
expert.27 In this case, counsel for the petitioner failed to make the
necessary qualification upon presenting Cabamongan during trial.
Jurisprudence further provides that minor inconsistencies in immaterial
details do not destroy the probative value of the testimony of a witness
regarding the very act of the accused. The case of Madali v.
People28 elucidates thus:
Given the natural frailties of the human mind and its incapacity to
assimilate all material details of a given incident, slight inconsistencies and
variances in the declarations of a witness hardly weaken their probative
value. It is well settled that immaterial and insignificant details do not
discredit a testimony on the very material and significant point bearing on
the very act of accused-appellants. As long as the testimonies of the
witnesses corroborate one another on material points, minor
inconsistencies therein cannot destroy their credibility. Inconsistencies on
minor details do not undermine the integrity of a prosecution witness.
(Emphasis and underscoring supplied.)
Thus, the positive identification of the petitioner as the gunman by
Manalangsang, as corroborated by Cañada, must stand. Indeed, it has been
consistently held by this Court that in criminal cases the evaluation of the
credibility of witnesses is addressed to the sound discretion of the trial
judge, whose conclusion thereon deserves much weight and respect
because the judge has the direct opportunity to observe said witnesses on
the stand and ascertain if they are telling the truth or not. Absent any
showing that the lower courts overlooked substantial facts and
circumstances, which if considered, would change the result of the case,
this Court gives deference to the trial court’s appreciation of the facts and
of the credibility of witnesses, especially since Manalangsang and Cañada’s
testimony meets the test of credibility.29 The Court also notes that other
than his claim of denial, petitioner failed to show how the prosecution
failed to overcome the presumption of innocence.
The qualifying circumstance of treachery or alevosia was additionally
properly appreciated in this case.
The two elements that must be proven to establish treachery are: (a) the
employment of means of execution which would ensure the safety of the
offender from defensive and retaliatory acts of the victim, giving the victim
no opportunity to defend himself; and (b) the means, method and manner
of execution were deliberately and consciously adopted by the
offender.30 The two elements are present in this case.
These elements are established by the testimony of Manalangsang showing
the unexpected attack by the petitioner on the unsuspecting Hispano
whose vehicle was suddenly blocked by three men, at least one of whom
was armed with a firearm.31 The victim was then unarmed and had no
opportunity to defend himself.
Thus, considering all the above-mentioned facts, we uphold the conviction
of the petitioner for the crime of murder.
Regarding the award of damages, we affirm the trial court and CA in
ordering the petitioner to pay the heirs of Generoso Hispano the amount of
₱50,000 as moral damages. In cases of murder and homicide, the award of
moral damages is mandatory, without need of allegation and proof other
than the death of the victim.32 Similarly, the CA correctly awarded his heirs
the amount of ₱171,128.75 as actual damages, as said amount which was
spent for funeral and burial expenses was duly supported by receipts.
However, as regards the award of civil indemnity, the same should be
increased to ₱75,000 to conform with recent jurisprudence.33 Also, the
heirs of the victim are entitled to exemplary damages which recent
jurisprudence pegs at ₱30,00034 considering the presence of the
aggravating circumstance of treachery. Lastly, we impose on all the
monetary awards for damages interest at the legal rate of 6% per annum
from date of finality of this Decision until fully paid, consistent with current
policy.

WHEREFORE, the petition is DENIED. The October 22, 2007 Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 02297 is AFFIRMED. Petitioner
BOBBY "ABEL" AVELINO y BULAWAN is found GUILTY beyond reasonable
doubt of MURDER and is sentenced to suffer the penalty of reclusion
perpetua. He is further ordered to pay the heirs of Generoso Hispano the
amounts of ₱171,128.75 as actual damages, ₱75,000.00 as civil indemnity,
₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages. All
monetary awards for damages shall earn interest at the legal rate of 6% per
annum from date of finality of this Decision until fully paid.

With costs against the petitioner.

SO ORDERED.
G.R. No. 134074-75 January 16, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMILIANO DURANAN, a.k.a "Kalbo,", accused-appellant.
MENDOZA, J.:
This is an appeal from the decision1 of the Regional Trial Court, Branch 220,
Quezon City, finding accused-appellant Emiliano Duranan, a.k.a. "Kalbo,"
guilty beyond reasonable doubt of two counts of rape and sentencing him
to suffer the penalty of reclusion perpetua for each count of rape and to
indemnify private complainant Nympha Lozada y de Lara in the amount of
P50,000.00.1âwphi1.nêt
The information in Criminal Case No. Q-94-55711 alleged ---
That on or about the 8th of March 1994, in Quezon City, Philippines, said
accused with lewd designs and by means of force and intimidation, to wit,
by then and there, willfully, unlawfully and feloniously taking advantage of
undersigned complainant, Maria Nympha Lozada y de Lara's
feeblemindedness and thereafter have carnal knowledge with (sic) the
undersigned complainant against her will and without her consent.
Contrary to law2.
The information in Criminal Case No. Q-94-55712 averred ---
That on or about the 7th of March 1994, in Quezon City, Philippines, the said
accused with lewd designs and by means of force and intimidation, to wit,
did then and there, willfully, unlawfully and feloniously taking (sic)
advantage of the undersigned (sic) feeblemindedness, and thereafter have
carnal knowledge with (sic) the undersigned complainant against her will
and without her consent.
Contrary to law3.
Upon arraignment, accused-appellant pleaded not guilty to each charge of
rape against him, whereupon he was tried.
The prosecution presented three witnesses, namely, complainant Nympha
Lozada y de Lara, complainant's mother Virginia de Lara Lozada, and the
attending medico-legal officer at Camp Crame, Dr. Rosalina O. Cosidon.
Complainant Nympha Lozada, who was 25 years old at the time of the
incidents in question, is considered to be retarded and finished up to the
sixth grade only. She is unemployed and simply does household chores for
her family. Accused-appellant lived with the complainant's family in the
same apartment in K-6 No. 28 Kamuning St., Quezon City where he rented a
room that he shared with several other people.
The first rape took place in the afternoon of March 7, 1994.4 Nympha was
standing by the door of her grandfather's house when accused-appellant
suddenly placed his arm on her neck and dragged her inside the common
bathroom.5 Complainant said that accused-appellant kissed her and then
removed her shorts and underwear as he held her hands with his other
hand. She did not cry for help because accused-appellant threatened her
that he would get angry if she did.6 she claimed that accused-appellant was
able to rape her while standing up despite her resistance. 7 After the
incident, complainant was sent out of the bathroom and went directly
home8.
The second incident occurred in the early morning of March 8,
1994,9 according to complainant. She said she was cleaning the premises of
her family residence when accused-appellant pulled her from her house
and took her to his room. According to complainant, accused-appellant
asked his brother, who was then cooking, to leave the room. As soon as his
brother had left, accused-appellant laid her on the floor and raped
her.10 Complainant said she was forced to submit to accused-appellant's
lust because of his threats.11 After the incident, accused-appellant sent her
letters professing love her and telling her how beautiful she was.
Complainant said she tore up the letters after reading them.12
In another incident, on March 12, 1994, accused-appellant asked
complainant to let him use their bathroom. However, after being given
permission, he grabbed complainant by the hand, pulled her inside the
bathroom, and started kissing her on the lips and neck after closing the
door behind them. He only stopped molesting her when he heard
somebody coming.13
Virginia Lozada testified that she saw her daughter leave the bathroom,
quickly followed by accused-appellant. Virginia noticed that her daughter's
lower lip was bruised. When she confronted her daughter about it, the
latter revealed for the first time what had happened to her. Virginia went
to camp Karingal, together with complainant and her other children, Teresa
and Fernando, where they filed affidavits and two informations. They then
took complainant to Camp Crame for examination.14 Dr. Rosalina O.
Cosidon, who examined complainant, submitted a report which contained
the following findings:
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female subject. Breasts are
hemispherical with pale brown areola and nipples from which no secretions
could be pressed out. Abdomen is flat and soft. There is injury noted at the
head;
Conusion, mucosa of the lower lip, measuring 1.2 x 0.3 cm, and 1 cm left of
the anterior midline.
GENITAL
There is an abundant growth of public hair. Labia minora are full convex
and gaping with the pinkish brown and congested labia minor presenting in
between. On separating, the same is disclosed an abraded posterior
fourchette and an elastic, fleshy type hymen with shallow healing
laceration at 5 o'clock position. External vaginal orifice offers strong
resistance to the introduction of the examining index finger and the virgin-
sized vaginal speculum. Vaginal canal is narrow with prominent rugosities.
CONCLUSION
Cervix is normal in size, color and consistency.
Finding are compatible with recent loss of virginity.
Baring unforeseen complications, it is estimated that the above injury will
resolve in 7 to 9 days.
REMARKS
Vaginal and pre-urethral smears are negative for gram-negative diplococci
and for spermatozoa.15
Dr. Cosidon explained that the term "congested" used in reference to the
labia minora meant that there was some inflammation that could have
been caused by friction due to intercourse.16 Taken together with the
presence of a shallow hymenal laceration, this finding indicates the
possibility of intercourse that caused complainant's loss of virginity within
the last five days. 17
Accused-appellant filed a demurrer to the evidence, but the trial court
denied it in its November 17, 1995 order.18The defense thereafter
presented its witnesses, namely accused-appellant Emiliano Duranan,
accused-appellant's alleged roommates, Rico Bariquit and Carlito Catubig,
and his wife Carlita Duranan.
With respect to the first incident of rape, which allegedly took place in the
afternoon of March 7, 1994, it is contended that accused-appellant could
not have committed such, because his daily schedule was such that he was
not at home at that time. He said that because of his work, he used to leave
the house at 3 a.m. , arrive home at 1 p.m., and leave for work again at 3
p.m. and arrive home at 6:30 p.m.19 He also alleged that on March 7, 1994
he left and was with Rico Bariquit throughout the day.<20 as to the second
incident of rape, accused-appellant contends that it was impossible for him
to commit rape in his room because there were at least six other people
there at the time(i.e., morning of March 8, 1994) of the alleged rape. 21 He
charged that the complaints were filed against him because complainant's
family wanted to evict and his housemates from their house.22
Rico Bariquit and Carlito Catubig confirmed accused-appellant's
schedule.23 Bariquit claimed that he was always with accused-appellant and
knew where he was all the time. Both witnesses said rape could not have
been committed in aroom where at least five other people were sleeping. 24
Virginia Lozada and complainant denied seeing Rico Bariquit and Carlito
Catubig before the two testified in court.25
Based on the evidence of the parties, the trial court rendered a decision pn
April 22, 1998, finding the accused-appellant guilty of two counts of rape.
The dispositive portion of its decision reads:26
WHEREFORE, in view of all the foregoing, the Court finds the accused guilty
beyond reasonable doubt as principal two (2) counts of rape punishable
under Article 335 of the Revised Penal code, as amended by Section 11 of R.
A. 7659, and sentences him suffer the penalty of imprisonment of two (2)
counts of reclusion perpetua with all its accessory penalties and to
indemnify the private complainant the amount of FIFTY THOUSAND
PESOS(P50,000.00).
SO ORDERD.
Hence this appeal.
Accused-appellant assigns two errors as having been allegedly
Committed by the trail court:
I. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PRIVATE
OFFENDED PARTY IS "DEPRIVED OF REASON" DESPITE THE ABSENCE OF
TESTIMONY BY A COMPETENT MEDICAL EXPERT TO THAT EFFECT AND
DESPITE STRONG EVIDENCE ON THE RECORD TO THE CONTRARY.
II. THE TRIAL COURT GRAVELY ERRED IN ALTERNATIVELY HODING THAT THE
ACCUSED IS GUILTY OG RAPING THE PRIVATE OFFENDED WOMAN
THROUGH "FORCE AND INTIMIFATION".
First. Accused-appellant contends that he cannot be convicted of rape since
the victim's mental age was not proven. He argues that under Art. 335 (2)
of the Revised Penal Code, an essential element for the prosecution for
rape of a mental retardate is a psychiatric evaluation of the complainant's
mental age to determine if her mental age is under twelve. 27 He further
claims that only in cases where the retardation is apparent due to the
presence of physical deformities symptomatic of mental retardation can
the mental evaluation be waived.
The contention has no merit.
A: She still thinks like a child but from her narration or statement we
can see that her declaration are (sic) true or believable.
Q: You mean to say that she could be intelligent.
A: Yes, ma'am. She finished her elementary and I can say she is quite
intelligent.
Q: So she can somewhat understand what is happening around us?
A: Yes, she can understand things around as along as she would be
provided some basis and some reference inorder (sic) to establish time,
places and incident (sic)
Q: At your house do you still assigned (sic) household chores(?)
A: Yes, ma'am.
Q: Could she relied (sic) upon madam witness?
A: Yes ma'am.29
To rebut this, accused-appellant points to the mother's statement that
complainant is "quit intelligent." The statement that complainant is "quite
intelligent" must be read in the context of Virginia Lozada's previous
statement that complainant "thinks like a child but from her narration or
statement we can see that her declaration are (sic) true or believable."
Thus, what complainant's mother meant was that complainant, although
she thought like a child, nevertheless could tell others what happened to
her. Indeed, even the trial court admonished the defense counsel not to
use inculpatory questions because complainant might give inculpatory
answer.30 At another stage of the trial court reminded counsel. "The
witness [complainant] is not very intelligent. I think the witness cannot
even distinguish fates."31
Thus, the trial court itself found in dealing with complainant that she was
mentally deficient. The rule that findings of fact of the trial court should not
be disturbed since the trial court is in the best position to determine the
findings of facts32 cannot be more apt than in this case.
Accused-appellant cites the medico-legal report which describes
complainant as "coherent" and contends that this is an evaluation of the
mental state of complainant. This contention is totally without basis. The
medico-legal report categorically states that the purpose of the medical
examination is limited to determining whether the complainant had been
sexually abused.33 In order words, the purpose of the examination was to
determine her physical, not her mental, state.

Rule 130, $50 of the Revised Rules on Evidence provides:
Opinion of Ordinary witnesses. -- The opinion of a witness for which proper
basis is given may be received in evidence regarding ---
a. the identify of a person about whom he has adequate knowledge;
Second. On the alternative, accused-appellant argues that indeed,
complainant could not be a competent witness if she is a retardate. Under
Rule 130, $20, any person who can perceive and make known his/her
perception is qualified to be a witness. In this case, although complainant is
a retardate, she was nevertheless able to tell the court what accused-
appellant had done to her and to answer the questions of both the
prosecutor and the defense counsel. This is clear from her testimony, thus:

b. a handwriting with which he has sufficient familiarity; and

Q: Now, you said that you were raped by Emiliano Duranan.
A: In the bathroom of my Tiya Ineng.
c. the mental sanity of a person with whom he is sufficiently acquainted. Q: Where is this bathroom of your Tiay Ineng?
A: This bathroom is located at an alley, a "pasillo" towards our house.
Discussing this provision of the Rule on Evidence, Sen. Vicente J. Francisco Q: Where is your house, Miss witness?
writes in his treatise: A: Our house is located at No. 28, K-6, Kamuning, Quezon City.
Q: You said that you were raped inside the bathroom of your Tiya Ineng.
How were you able to get inside that bathroom of your Tiya Ineng?
The mother of an offended party in case of rate, though not a psychiatrist, A: I was able to get inside the bathroom of Tiya Ineng because Emiliano
if she knows the physical and mental condition of the party, how she was Duranan pulled me inside.
born, what she is suffering from, and what her attainments are, is Q: How did Emiliano Duranna pulled you? (sic)
competent to testify on the matter. A: He pulled me inside the bathroom by holding his arm against my
neck, pulling me towards the bathroom.
…. …
Q: When Emiliano Duranan pulled you inside the bathroom, what
happened after that?
It is competent for the ordinary witness to give his opinion as to the sanity A: He kissed me
or mental condition of a person, provided the witness has had sufficient (Witness is gesturing his (sic) hands towards her neck)
opportunity to observe the speech, manner, habits, and conduct of the And he had my panty removed.
person in question. Generally, it is required that the witness details the Q: Now, you said that when you were inside the bathroom of your Tiya
factors and reasons upon which he bases his opinion before he can testify Ineng, Emiliano Duranan kissed you in (sic) your lips?
as to what it is. As the Supreme Court of Vermont said: "A non-expert A: Yes, ma'am.
witness may give his opinion as to the sanity or insanity of another, when Q: Aside from kissing you, what did Emiliano do, if any?
based upon conversations or dealings which he has had with such person, A: Aside from kissing me on my lips and my neck, he removed my
or upon his appearance, or upon any fact bearing upon his mental underwear, my panty and he inserted his sex organ into my sex organ.
condition, with the witness' own knowledge and observation, he having Q: When "Kalbo" inserted his sex organ in your sex organ, what position
first testified to such conversations, dealings, appearance or other were you then?
observed facts, as the basis for his opinion.28 A: We were standing.
Q: Inside the bathroom?
In the case at bar, Virginia Lozada testified on the mental condition of her A: yes, ma'am.
daughter, thus: Q: Nympha, do you know how to tell the days of the week?
A: No, ma'am.
Q: How about the dates?
Q: How would you describe your daughter? (sic)
A: No, ma'am.
A: When she was still a child while walking she accidentally bumped her
Q: Do you know what day is today?
head and then on she acted quite not normal from then on we noticed
A: Wednesday.
changes because she acted like a child.
Q: How about yesterday, what date was that?
Q: How old is (sic) Nympha Lozada when this happened?
A: Tuesday.
A: 3 to 4 years old.
Q: Do you know what date is today?
Q: At the age of 25, how would you described? (sic)
COURT:
She knows that today is Wednesday but she doesn't know the exact date.34
….
Q: You also testified before that you were rape (sic) by Kalbo twice, is
that correct?
A: Yes, ma'am.
Q: When was the second time?
A: The second time at their house that was Tuesday.
Q: Is that next day? After the incident in the bathroom?
A: Yes, Ma'am.
….
Q: So you said that you were laid down by Kalbo on the floor and then
Kalbo kissed you, where did Kalbo kiss you?
A: From (sic) my lips.
Q: After that what did Kalbo do if any?
A: Proceeded to removed (sic) my panty and inserted his organ to
mine.35

At all events, any objection to the competency of complainant to testify

should have been raised by the defense at the outset. It cannot be raised
for the first in this appeal. It has been held:

A party may waive his objections to the competency of witness and permit
him to testify…[I]f, after such incompetency appears, there is failure to
make timely objection, by a party having knowledge of the incompetency,
the objection will be deemed waived, whether it is on the ground of want
of mental capacity or for some other reason. If the objection could have
been taken during the trial, a new trial will be refused and the objection
will not be available on writ of error.36

Third. Accused-appellant contends that the absence of injury sustained by

complainant negates the presence of any force and intimidation. This
contention is likewise without merit. The presence or absence of injuries is
not essential in proving rape. What is essential is proof that sexual
intercourse with woman was accomplished without her consent. In this
case, the absence of consent is shown by the fact that complainant is a
mental retardate vulnerable to intimidation by accused-appellant.

Indeed, the degree of force or intimidation required for the act to

constitute rape is relative, and must be viewed in the light of the
complainant's perception and judgement at the time of the commission of
the offense.37 What is vital is that such force or intimidation be sufficient to
consummate the purpose the accused-appellant had in mind.38 In this case,
due to the complainant's mental retardation, the force or intimidation
required is not very great since it does not take much to force a child into
submission. Indeed, complainant said she submitted to accused-appellant's
demands because she was afraid he would get angry at her if she refused
them. In People v. Rosare,39 it was held that, in the instances where the
victim is so weak in intellect that she is incapable of rational consent, the
applied may be constructive.

In sum, the mental retardation of the complainant is proven by the

testimony of her mother,40 the trial court's observations during the trial of
her demeanor, behavior, and her intelligence,41 while the fact of sexual
intercourse is proven by the medico-legal certificate.42 In addition, the
prosecution proved the presence of force and intimidation, and the court
appreciated such.43 The intimidation, in this case, is constituted by the
threats that accused-appellant made to the complainant,44 not to mention
the force employed by accused-appellant in placing his arm on the
complainant's neck45 and holding her hands while undressing her.46

However, the award of P50,000.00 as civil indemnity should be doubled

because there are two counts of rape. In addition, complainant should also
be awarded P50,000.00 as moral damages for each count of rape, or a total
of P100,000.00 in accordance with our rulings.47

WHEREFORE, the decision of the Regional Trial Court, Branch 220, Quezon
City, finding accused-appellant guilty beyond reasonable doubt of the crime
of rape is AFFIRMED, with the modification that the award of P50,000.00 as
civil indemnity is increased to P100,000.00 and, in addition, accused-
appellant is ordered to pay complaint Nympha Lozada y de Lara the further
sum of P100,000.00 as moral damages.1âwphi1.nêt

SO ORDERED.
G.R. No. 130601 December 4, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL DIOPITA y GUZMAN, accused-appellant.
DECISION
BELLOSILLO, J.:
RAFAEL DIOPITA y GUZMAN appeals from the Decision of the Regional Trial
Court of Davao City finding him guilty of Robbery with Rape, imposing upon
him the penalty of reclusion perpetua and ordering him to pay the victim,
Dominga Pikit-pikit, ₱8,500.00 for actual damages and ₱50,000.00 for
moral damages.1
Culled principally from the testimonies of Dominga Pikit-pikit and PO3
Steve dela Cruz, the inculpatory facts follow: At about 9:00 o'clock in the
evening of 16 April 1995 complaining witness Dominga Pikit-pikit, 24 years
old, was walking towards Emiville Subdivision, Diversion Road, Sasa, Davao
City, on her way home from work. Suddenly, a man appeared from behind,
looped his arm around her neck and warned her not to shout or else she
would die.2The man then dragged her through the banana plantation
towards the cornfields where the plants were a meter high and far
apart.3 When Dominga shouted for help, the man pushed her to the ground
and punched her on the stomach saying, "Leche ka, why are you shouting?
What do you want me to do, make you unconscious?"4
Dominga Pikit-pikit got a good look at the man, who turned out to be
accused-appellant Rafael Diopita y Guzman, as he sat on her thighs and
proceeded to divest her of her belongings - ladies watch, bracelet, ring with
russian diamonds, wedding ring and ₱1,000.00 cash. With the full moon
shining on his face, the victim clearly saw Diopita place the items on the
right pocket of his shorts.5
Thereafter, accused-appellant Diopita announced his desire to have carnal
knowledge of Dominga. Forthwith, he pulled up her t-shirt and unfastened
her brassiere. He also loosened her belt, unzipped her pants and struggled
to pull it down, nearly ripping her zipper. Annoyed at the tightness of her
pants, Diopita hit her and ordered her to help him pull them
down.6 Dominga, fearing for her life and thinking of Diopita’s punches,
obeyed. She pulled her pants to her hips. Then accused-appellant forcibly
pulled them down further and got irritated in fact when he was told that
she was wearing a girdle and panty. In frustration, he punched her
repeatedly and kept on muttering, "Why is this very tight? What kind of
panty is this?" Finally, he succeeded in pulling the girdle and panty down.7
Accused-appellant Diopita then took off his shorts. He kissed the victim,
lasciviously caressed her breasts, bit her nipples, and fornicated with her.
As he was sexually assaulting her, Dominga made desperate struggles and
frantic calls for help but her efforts proved futile until he finally satiated his
lust. He then warned Dominga not to tell anyone and that should he hear
that she told anybody about the incident he would shoot her to death.
Then he dressed up and left, walking casually to the opposite direction of
the subdivision before disappearing in the darkness.8
Exhausted, Dominga slowly stood up, put on her clothes and walked away
in the direction of her house. Finding it locked, she asked help from her
neighbors who called the police. Thereafter, Dominga was brought to
Precinct No. 4 of Sasa, Davao City, where SPO1 Stephen Batacan entered
her complaint in the police blotter. Later, she was examined by Dr.
Floranne Lam-Vergara at the Davao Medical Center who found her
"positive for spermatocytes."9
PO3 Steve dela Cruz, who was on duty at the Intelligence and Investigation
Section, made a follow-up on the case. He went to the victim’s house and
interviewed her between the hours of 1:00 o’clock and 3:00 o’clock in the
morning of the following day, 17 April 1995. Dominga gave a description of
the suspect and his possible whereabouts.10Acting on that information, PO3
dela Cruz went to the scene of the crime to investigate and there he
recovered a colored white/yellow, size ten (10) slipper. Since the victim
earlier disclosed that the suspect headed north after committing the crime,
he proceeded to that direction where he came upon four (4) houses about
fifteen (15) to fifty (50) meters away from the scene of the crime. A back-up
team was called and they rounded up all the residents therein. Afterwards,
four (4) men who fitted the description of the suspect were invited to the
police station for questioning. They were Placido Laput, William Silvano,
Vicente Silvano and accused-appellant Rafael Diopita y Guzman.11
At about 6:00 o’clock in the morning of 17 April 1995, the police invited
Dominga to identify the suspect at the police station. Thereat, Dominga
saw the four (4) men in a police line-up and readily pointed at accused-
appellant.12 The police then had him try on the recovered slipper; it easily
fitted him.13 Thus, Diopita was detained while the others were released.
The defense denied the charge and invoked alibi. Accused-appellant
claimed that between 8:30 to 12:00 o’clock in the evening of 16 April 1995
he was with his wife Flora, son Ryan and fellow Jehovah’s Witnesses Roger
Custorio and Ruben Suarez at the house of Eulalio Nisnisan for an informal
Bible session upon the invitation of Juan Nisnisan.14 Accused-appellant also
claimed that during those hours, he never left the place. Flora, Roger,
Ruben, Eulalio and Juan corroborated his alibi and testified on his good
moral character as a ministerial servant of their faith.
On 18 June 1997, the trial court formally rejected his defense of alibi and
convicted him of the crime charged; consequently, accused-appellant is
now before us on appeal. The trial court ruled -
Alibi is a weak defense because it can easily be fabricated that it is so easy
for witnesses to get confused as to dates and time. The precision with
which the witnesses for the defense, who are his co-members in the
Jehovah’s Witnesses, quoted the respective hours when the participants in
the Bible sharing session supposedly arrived is, at best, self-serving and
deserves scant consideration because of the facility with which it may be
concocted and fabricated.
On the other hand, private complainant Dominga Pikit-Pikit positively
identified Rafael Diopita as the person who robbed and raped her on April
16, 1995. She testified in a clear, straightforward and convincing manner
and no ill-motive on her part had been shown to have prompted her to
testify falsely. The failure of the defense to attribute any ill-motive on the
part of Pikit-Pikit to pin responsibility on Diopita adds more credence to
complainant’s testimony.
In a long line of cases, it has been held that the defense of alibi cannot
prevail over the positive identification of the accused by the victim. Pikit-
Pikit testified that she was able to see the face of her attacker because the
moon was shining brightly that evening. This Court takes judicial notice of
the fact that in the month of April 1995 the full moon came out on April 15,
1995, a day before the date of the crime.
We affirm his conviction; the guilt of accused-appellant has been
established by the evidence beyond reasonable doubt.
First. Complaining witness Dominga Pikit-pikit positively and categorically
identified accused-appellant as her assailant, first during the police line-up
where she singled him out from among the four (4) suspects and, later
during the trial where she pointed at accused-appellant as the one who
robbed and sexually molested her -
Q: Where did you go?
A: To the Police Station, there were four persons who lined up for
identification.
Q: And then?
A: First, when I arrived, I peeped behind the place where there were four
persons lining up. After that I went to the place where they were receiving
visitors and I saw the four persons who were there already and lined up.
Q: And then?
A: After that the police told me to identify the person who molested me,
and I pointed to that person there (witness pointing to the accused whom
she previously identified).15
From the circumstances of this case, it cannot be denied that complaining
witness Dominga Pikit-pikit had a good look at the face and physical
features of accused-appellant during the commission of the crime. While
the robbery was in progress, the moonlight sufficiently illumined his face
and clothes, thus making it possible for private complainant to identify
him.16 During the rape, private complainant was as close to accused-
appellant as was physically possible, for a man and a woman cannot be
more physically close to each other than during a sexual act. 17 Victims of
criminal violence naturally strive to know the identity of their assailants
and observe the manner the crime was perpetrated, creating a lasting
impression which may not be erased easily in their memory.18 There is
therefore no reason to doubt the accuracy of private complainant’s visual
perception of accused-appellant as the criminal. Nor is there any reason to
doubt her honesty of intention for there is no showing that she implicated
accused-appellant due to an evil or corrupt motive.
We do not subscribe to accused-appellant’s contentions that the
complaining witness hesitated to point at him during the police line-up, and
that she was just forced by the police to choose him from among the four
(4) suspects. The identification was made with such certainty by the
complaining witness that even accused-appellant had to comment on it -
Atty. Galicia: What made you say she was hesitant to point at you? x x x x
Rafael Diopita: Because during that time, sir, when we confronted each
other in the police station, she was looking at me when there were four of
us there. So, I asked why x x x x19
The foregoing testimony belied the allegation of hesitancy on the part of
Dominga Pikit-pikit to pinpoint accused-appellant during the line-up. His
very own words project his guilt as well. Only the guilty experiences
neurotic fear in the face of imminent discovery of his malefaction. His
paranoia colors his interpretation of the events during the line-up. Consider
accused-appellant’s assertion that Dominga Pikit-pikit was forced by the
police to point at him, and Prosecutor Esparagoza's objection thereto -
Sur-rebuttal of Atty. Galicia: Mr. Diopita, according to private complainant
Dominga Pikit-pikit during her rebuttal testimony that she was not forced
by the police to point at you when you were in the police station. What can
you say to that?
Rafael Diopita: That woman hesitated to point at me but the police said
you point at him.
Q: What made you say she was hesitant to point at you?
Prosecutor Esparagoza: The witness said "ITUDLO! ITUDLO!" (YOU POINT!
YOU POINT!). He did not say he was the one pointed to, your Honor.20
Gleaned from the aforequoted testimony was the absence of
suggestiveness in the identification process. There were four (4) men in the
line-up and the police did not specifically suggest to Dominga to point
particularly at accused-appellant. Not even the shodding of the slipper
recovered from the scene of the crime could provide any suggestiveness to
the line-up as it came after accused-appellant was already identified by
Dominga Pikit-pikit.
Second. In light of this positive and direct evidence of accused-appellant’s
culpability, the trial court correctly discarded his defense of alibi. It is an
elementary rule that alibi cannot prevail over the clear and positive
identification of the accused as the very person who committed the crime.
Moreover, in order to justify an acquittal based on this defense, the
accused must establish by clear and convincing evidence that (a) he was in
another place at the time of the commission of the offense; and, (b) it was
physically impossible for him to be at the scene of the crime at the time it
was committed.21 This, accused-appellant miserably failed to do.
Accused-appellant admitted that at the time in question he was with his
wife, son and fellow members of the Jehovah’s Witnesses at the house of
one Eulalio Nisnisan supposedly attending Bible studies, which is merely
fifteen (15) to fifty (50) meters away from the crime scene. Considering the
short and insignificant distance, it was not impossible for accused-appellant
to surreptitiously slip away from the house of Nisnisan, commit the crime
and then return without arousing the suspicion of his companions who
were then busy with their Bible session. This is obviously the situation in
this case and, taken together with the preceding considerations, we
likewise reject this poor and discredited defense as did the trial court.
Verily, even if the defense of alibi is corroborated by the testimony of the
friends of accused-appellant, it deserves the barest consideration and will
not be given weight if it would not preclude any doubt that he could have
been physically present at the locus criminis or its immediate vecino at the
time of its commission.22
Third. Perhaps aware of the crushing impact of complainant’s positive
identification of accused-appellant, the defense attacked the supposed
inconsistencies and discrepancies in her testimony in a vain attempt to
make it completely unreliable, claiming that: (a) the victim declared that
the culprit wore short pants with a zipper, and he had no short pants with
zipper; (b) the yellow slipper retrieved by the police did not belong to him
as his slippers were colored blue, with his initials inscribed thereon; and, (c)
the description given by complainant in the police blotter did not fit the
physical appearance of accused-appellant.
We are not persuaded. Suffice it to say that these are mere trifles which do
not detract from complainant’s straightforward and consistent
identification of accused-appellant as the one who robbed and raped her.
Trivial inconsistencies do not shake the pedestal upon which the
complainant’s credibility rests. On the contrary, they are taken as badges of
truth rather than as indicia of falsehood for they manifest spontaneity and
erase any suspicion of a rehearsed testimony.23 Furthermore, entries in
police blotters should not be given undue significance or probative value
for they are normally incomplete and inaccurate, sometimes from either
partial suggestion or want of suggestion or inquiry.24
Fourth. We now deal with the more substantial arguments raised by
accused-appellant in his brief. He tenaciously maintains that it was
impossible for him to have committed the crime charged since he is a
person of good moral character, holding as he does the position of
"Ministerial Servant" in the congregation of Jehovah’s Witnesses, and that
he is a godly man, a righteous person, a responsible family man and a good
Christian who preaches the word of God.
We are not impressed. The fact that accused-appellant is endowed with
such "sterling" qualities hardly justifies the conclusion that he is innocent
of the crime charged. Similarly, his having attained the position of
"Ministerial Servant" in his faith is no guarantee against any sexual
perversion and plunderous proclivity on his part. Indeed, religiosity is not
always an emblem of good conduct, and it is not the unreligious alone who
succumbs to the impulse to rob and rape. An accused is not entitled to an
acquittal simply because of his previous good moral character and
exemplary conduct. The affirmance or reversal of his conviction must be
resolved on the basic issue of whether the prosecution had discharged its
duty of proving his guilt beyond any peradventure of doubt. Since the
evidence of the crime in the instant case is more than sufficient to convict,
the evidence of good moral character of accused-appellant is unavailing.
Accused-appellant likewise bewails and assigns as reversible error the
failure of the trial court to give credence to the testimonies of the defense
witnesses. He argues that these are Jehovah’s Witnesses, and as such, they
are God-fearing people who would never lie as to his whereabouts at the
time in question. This argument is as puerile as the first. We quote once
more, and with approval, the pertinent portion of the trial court’s ruling on
this point -
x x x x it is so easy for witnesses to get confused as to dates and
time.1âwphi1 The precision with which the witnesses for the defense, who
are his co-members in the Jehovah’s Witnesses, quoted the respective
hours when the participants in the Bible sharing session supposedly arrived
is, at best, self-serving and deserves scant consideration because of the
facility with which it may be concocted and fabricated (underscoring
supplied).
The matter of assigning values to the declarations of witnesses is best and
most competently performed by the trial court who had the unmatched
opportunity to observe the demeanor of witnesses while testifying, and to
assess their credibility using various indicia available but not reflected in
the records.25 Hence, the court a quo's appraisal on the matter is entitled to
the highest respect, and will not be disturbed on appeal unless there is a
clear showing that it overlooked, misunderstood or misapplied some facts
or circumstances of weight and substance that would affect the result of
the case.26 There is no compelling reason in the present case to depart from
this rule.
In sum, we find that all the elements of robbery with rape are present in
this case. There was asportation of the jewelry and cash of the victim by
means of force and violence on her person, showing the initial animus
lucrandi of accused-appellant,27 and then his lecherous intent when he
raped his victim. Accordingly, we hold that the court below did not commit
any reversible error in ruling that the requisite quantum of evidence for a
finding of guilt has been sufficiently met by the prosecution as to call for
our affirmance of the judgment of the court a quo.28
However, in addition to the actual and moral damages awarded by the trial
court in the amounts of ₱8,500.00 and ₱50,000.00, respectively, another
amount of ₱50,000.00 should have also been awarded to the victim
Dominga Pikit-pikit for civil indemnity, as it is mandatory upon a conviction
of rape. Such indemnity is distinct from moral damages and based on
different jural foundations.29
WHEREFORE, the assailed Decision of the Regional Trial Court of Davao
City, convicting accused-appellant RAFAEL DIOPITA y GUZMAN of ROBBERY
WITH RAPE, sentencing him to reclusion perpetua, and ordering him to pay
DOMINGA PIKIT-PIKIT the sums of ₱8,500.00 for actual damages and
₱50,000.00 for moral damages, is AFFIRMED with the MODIFICATION that,
in addition, civil indemnity of another ₱50,000.00 is further awarded to
her. Costs against accused-appellant.
SO ORDERED.