G.R. No.

125016 May 28, 1999

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NOMER VELASCO Y PANGILINAN, accused-appellant.

BUENA, J.:

Accused-appellant Nomer Velasco y Pangilinan together with Reynaldo Endrina y Roa

and Ernesto Figueroa y Santos were charged with the crime of Murder in an Information
filed on March 2, 1994 (and docketed as Crim. Case No. I.S. Nos. 94-B-05391-93)
before Branch 12 of the Regional Trial Court, National Capital Judicial Region at Manila.
The Information reads as follows:

That on or about February 20, 1994, in the City of Manila, Philippines, the
said accused, conspiring and confederating together and helping one
another, did then and there willfully, unlawfully and feloniously with intent
to kill and with treachery and evident premeditation and with the use of
their superior strenght, attack, assault and use personal violence upon the
person of one DANILO VALENCIA y MANZANO by then and there
stabbing him twice with a bladed weapon at the back and left side of his
body thereby inflicting upon the latter serious mortal stab wounds, which
were the direct and immediate cause of his death thereafter.

Contrary to law1

Upon arraignment on March 16, 1994, all three accused duly assisted by their
counsel de parte pleaded not guilty to the offense charged in the
Information.2

The testimony of prosecution witness SPO2 Jose Bagkus was dispensed with as the
prosecution and defense agreed to stipulate on the following facts which said witness
will be testifying on, to wit:

(1) That SPO2 Jose Bagkus is an investigator assigned to

the Crimes against Persons Division, WPDC since 1991;

(2) That on February 21, 1994, he prepared an Advance

Information Report regarding the reported stabbing of a
victim who he later identified as one Danilo Valencia and
who was allegedly stabbed on Capulong Extension, Tondo,
Manila, on February 20, 1994 between 3:00 to 3:15 a.m.;
 (3) That in the course of his investigation, he also prepared
an Additional Information Report dated February 22, 1994;
and

(4) That if SPO2 Jose Bagkus will take the witness stand, he
will testify and affirm the correctness of the contends of the
Advance Information as well as the Additional Information
Report.3

There being no other facts proposed for further stipulation between the parties, trial on
the merits thereafter ensued.

Pieced together from the testimony of Leonardo Lucaban, the lone eyewitness to the
incident, is the following set of facts:

It appears that at around 3:30 o'clock in the morning of February 20, 1994, Leonardo
Lucaban, as he was walking along Capulong Highway, Tondo, Manila, saw a man
whom he recognized as Danilo Valencia.4 He saw Valencia grab a man.5 This person
was about 5'4" in height and of medium build6 and was able to free himself from
Valencia's hold.7

Danilo Valencia thereafter proceeded on his way. Two people approached him. 8 One of
the two was short but with a big build while the other was tall but of a medium
build.9 The smaller of the two asked Valencia why he did not shoot the person he
(Valencia) had eralier grabbed.10 Valencia replied, among other things, that he did not
have a gun.11He continued to walk away.

The lone eyewitness, Leonardo Lucaban afterwards saw the person who moments ago
had been questioning Valencia follow the latter and stab him at the back.12 Lucaban
was about six (6) armslength away from the victim.13The companion of the assailant
confronted Lucaban as he shouted "ilag" (duck).14 Lucaban immediately ran towards a
guardhouse.15 It was there where he heard two gunshots.16 He saw the assailant and
his companion running towards Happy Land, Tondo, Manila17 while the person whom
Valencia grabbed was running towards Herbosa St., Tondo, Manila.18

The prosecution presented four (4) witnesses, to wit: Carmencita Valencia, Dr. Florante
Baltazar, SPO2 Alejandro Yanquiling, Jr., and Leonardo Lucaban.

Camencita Valencia, the wife of the victim, testified that: Leonardo Lucaban went to her
house to inform her that he witnessed the incident; that he told her he will give a
statement to the police;19 that Lucaban did so on February 22, 1994;20 that her
statement was taken down in writing by the police; 21 that the reason why her husband
was stabbed was because he gave sanctuary and helped a certain Jude who had
snitched on the "akyat barko" gang;22 that attempts on the lives of this Jude and his wife
were made;23 that Nomer Velasco and Reynaldo Endrina were some of the people who
were trying to kill Jude and his wife:24 that she knows that it was the accused who
stabbed her husband because they have a grudge against him;25 that she did not
actually see that it was the accused who stabbed her husband; 26 that she was sleeping
when she heard her husband calling out to her;27 that he asked to be taken to the
hospital because he had a wound;28 that her husband was already dead when he
reached the hospital.29

Dr. Florante Baltazar, Medico Legal Officer, conducted the autopsy examination on the
cadaver of Danilo Valencia.30He confirmed the injuries sustained by the decedent,31 the
relative positions of the wound;32 the kind of instrument which could have caused the
stab wounds,33 and the cause of death of the victim.34

Leonardo Lucaban when he first testified on November 22, 1994 averred that "he
cannot remember his (referring to the person who stabbed Danilo Valencia) face
because it was dark"35 contrary to the positive identification he made of the three
accused which were given in his Supplemental Statement dated February 24,
1994.36 He likewise testified that "because of financial diffuculties he could not appear in
court"37 and was only able to go when he was apprehended by the police a day before
the hearing.38 At first he said that "he was not threatened by anybody"39 but later
admitted that he was being threatened by the family of the accused but he was not
bothered because he had not pointed to anyone yet. 40

The fourth prosecution witnes is SPO2 Alejandro Yanquiling, Jr. He was the follow-up
investigator in the stabbing incident of Danilo Valencia. In the course of his investigation
he took down the Supplemental Statement of Leonardo Lucaban; 41 that in a line-up of
six person three (3) persons were identified by Leonardo Lucaban as the assailants of
the victim;42 that the said persons were Nomer Velasco, Endrina, and Figueroa;43 that
Lucaban identified these persons in the line-up by touching their right shoulders;44 that
Lucaban was able to identify the accused without wavering.45

Leonardo Lucaban was thereafter recalled to the witness stand. He testified that he
pointed to only one suspect in the line-up not three as testified to by SPO2 Alejandro
Yanquiling, Jr.;46 that the suspect he pointed to as the assailant of the victim Danilo
Valencia is identified as Nomer Velasco; 47 that he saw the accused Nomer Velasco
stab the victim by the light coming from a passing jeepney and after that he screamed
'ilag' (duck) and he ran away;48 that he could not see very well the other persons
because of the darkness;49 that the reason why he denied having pointed to the
suspects in the last hearing was because of a threat he received and that a day before
he was apprehended, a person named Peter almost stabbed him because he was
"nagpapakabayani" (pretending to be a hero);50 that he personally knows Nomer
Velasco because he recruited him before to be one of his workers 51 in the cutting of
logs.52

The defense denied the accusation and raised the defense of alibi. Aside from accused-
appellant Nomer Velasco three (3) other witnesses were presented. The witnesses and
their testimonies consisted of the following:
(1) Reynaldo Endrina was one of the accused. He testified that he and the other two
accused were neighbors at Happy Land;53 that they have known each other for, more or
less, two years;54 that he knows Spouses Danilo Valencia and Camencita
Valencia;55 that Danilo Valencia is his "compadre" because the former is the godfather
of his son;56 that he was at home sleeping at 3:30 o'clock in the morning of February 20,
1994;57 that he did not go out of his house on or before 3:30 a.m. of February 20,
1994.58

(2) Ernesto Figueroa, the third accused in the case, testified, among other things, that
he does not know the Spouses Danilo and Carmencita Valencia; 59 that he was also at
home sleeping on that morning of February 20, 1994.60

(3) Nomer Velasco, the accused-appellant, likewise denied knowing the Spouses Danilo
and Carmencita Valencia61and Leonardo Lucaban.62 He testified that he was also at
home sleeping at 3:30 a.m. of February 20, 1994; 63 that he did not go out of his house
prior to or at 3:30 o'clock in the morning,64 that he and his co-accused were not friends
but only acquaintances,65 that he had last seen his co-accused in 1993;66 that he came
to know that Danilo Valencia was killed only after he and the other two accused were
apprehended;67 that it was a police officer who told them to admit that they killed Danilo
Valencia.68

(4) Rosemarie Velasco, the wife of Nomer Velasco, corroborated her husband's
testimony that he was sleeping at their house69 on the morning of February 20, 1994.
She testified, among others, that she had asked Leonardo Lucaban why he should point
to her husband as the assailant in the killing of Danilo Valencia and he told her that he
was being threatened by the police,70 that the scene of the crime (Capulong Highway)
and the residence of the accused at Happy Land are twenty (20) meters apart from
each other.71

After the presentation of evidence, the trial court in its decision promulgated on
February 19, 1996 found the accused-appellant guilty beyond reasonable doubt but
ordered the acquittal of Reynaldo Endrina and Ernesto Figueroa. The dispositive portion
thereof reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered

ACQUITTING accused Reynaldo Endrina y Roa, and accused Ernesto
Figueroa y Santos for lack of sufficient evidence to sustain their conviction
beyond reasonable doubt. Their immediate release from detention is
hereby ordered unless their continuous confinement is necessitated by
other lawful orders.

Accused Nomer Velasco y Pangilinan is hereby declared GUILTY beyond

reasonable doubt of the crime of MURDER and is hereby sentenced to
suffer the penalty of reclusion perpetua and the accessory penalties
provided by law. He is also condemned to pay the heirs of victim Danilo
Valencia the amount of P50,000.00 as actual damages and the sum of
 P50,000.00 as moral damages. With costs. His immediate transfer to the
New Bilibid Prisons, Muntinlupa is hereby ordered

SO ORDERED.72

Accused Nomer Velasco comes to this Court on appeal praying that the decision of the
trial court be reversed and set aside and that a new one be entered acquitting him of the
charge.

The accused-appellant assigns the following errors in his brief:

I. THE COURT A QUO SERIOUSLY ERRED IN NOT

HOLDING THAT ACCUSED NOMER VELASCO WAS NOT
POSITIVELY IDENTIFIED BY THE LONE EYEWITNESS,
LEONARDO LUCABAN.

II. THE COURT A QUO SERIOUSLY ERRED IN RELYING

UPON THE TESTIMONY OF LEONARDO LUCABAN,
CONSIDERING THAT THE SAME IS REPLETE WITH
INCONSISTENCIES.

III. THE COURT A QUO SERIOUSLY ERRED IN FAILING

TO FAVORABLY CONSIDER THE DEFENSE OF HEREIN
PETITIONER.

IV. THE COURT A QUO SERIOUSLY ERRED IN NOT

HOLDING THAT THE GUILT OF THE ACCUSED WAS
NOT PROVEN BEYOND REASONABLE DOUBT.

The contentions are without merit.

In assailing the questioned decision the accused-appellant attacks the credibility of the
lone eyewitness by pointing out that when Leonardo Lucaban first testified on
November 22, 1994 he failed to name the appellant as the assailant even though the
latter was in the courtroom at that time.73 But when he was recalled to the witness stand
three (3) days thereafter or on November 25, 1994, he was able to do so.74

This change of heart by the said witness is attributed by the appellant Nomer Velasco to
the former being thoroughly "prepared" by the police authorities when he was taken into
custody for five (5) days.75

Accused-appellant likewise imputes that the "physical, emotional and psychological

stress consequent to an apprehension of a prolonged and indefinite
detention"76 provoked the witness to testify "in the manner desired by the police or the
prosecution if only to win back his lift and freedom."77
The counsel for accused-appellant is trying to mislead us into thinking that the police
authorities had a hand in the change of the eyewitness' earlier testimony just because
he was placed under detention. Or that the arrest was made as a result of a whim.

We find that the deduction arrived at by the appellant is totally baseless. The police
apprehended the eyewitness in compliance with two lawful orders of the trial court. And
for the accused-appellant to impute otherwise is uncalled for, as is the implication that
while under their custody the witness was coached into pointing an accusing finger at
Nomer Velasco.

Quoted below in full are the orders of the court a quo dated October 12, 1994 and
November 22, 1994 explicitly stating why there was a need for the apprehension of the
said witness, to wit:

ORDER

Considering the importance of the prosecution's intended witness

Leonardo Lucaban, an eyewitness to the incident who refused to obey the
subpoena of this Court despite receipt thereof.

Order is hereby grven to the WPDC thru any police officer to arrest the
person of said Leonardo Lucaban of 410 Radial 10 cor. Capulong St.,
Tondo, Manila, so that this court can secure his appearance on the next
scheduled hearing, which is reset to November 22, 1994, at 8:30 o'clock in
the morning.

SO ORDERED.

Given in open court this 12th day of October 1994, at Manila,

Phillippines. 78

ORDER

For disregarding the subpoena sent to him for several times despite
receipt thereof, and if not for the warrant issued against him, his
attendance for today's hearing cannot be secured.

WHEREFORE, witness Leonardo Lucaban is declared guilty of indirect

contempt of court and shall be held in custody of SPO1 Pedro Justiniano
and PO2 Ismael Velasco, for the continuation of his testimony which is set
on Friday, November 25, 1994, at 8:30 a.m.

SO ORDERED.

Given in open court this 22nd day of November 1994, at Manila,

Philippines.79
It is not totally unheard of for a person who has witnessed a crime and recognized its
perpetrators to deny knowledge of the identity of these malefactors for fear of reprisals
against his life or that of his family.

We have held in a number of cases that it is not uncommon for a witness to a crime to
show some reluctance about getting involved in a criminal case, as in fact the natural
reticence of most people to get involved is of judicial
notice.80

Considering that it was the trial court which give the order to place Lucaban in the
custody of the police for the continuation of his testimony, mayhap the accused-
appellants also infers that the trial court likewise wanted Lucaban to point to the
accused-appellant as the assailant?

Accused-appellant casts aspersion on (1) the ability of the witness to recognize him but
failing to recognize his co-accused, namely Endrina and Figueroa, when all three of
them were at the scene of the crime, (2) the failure of the witness to shout for help from
vehicles passing by, and (3) the action of the witness in going to a remote tricyle spot to
summon a rescue.

The accused-appellant considers these instances to be lapses and deficiencies that do

not lend credence to the prosecution's lone eyewitness.

In the case of People vs. Dones81 we held that there is no standard form of human
behavioral response when one is confronted with a strange, startling or frightful
experience.

A person when faced with an out of the ordinary situation is not expected to act in a
manner similar to another. The conduct therefore of Lucaban should not be deemed
suspect if the only person he recognized at the scene of the crime was Nomer Velasco
or if he fails to enlist the help of the drivers or passengers of passing vehicles or for
going to a remote tricyle spot instead of, for example, knowing on the doors of the
houses in the neighborhood.

We do not deem the deficiencies of Lucaban in his testimonies so material as to put the
trustworthiness of said witness open to serious doubt. Minor inconsistencies do not
impair the essential integrity of the prosecution's evidence as a whole. 82 Moreover
discrepancies between sworn statements or affidavits and testimonies made at the
witness stand do not necessarily discredit the witnesses.83

This rule is well-settled that the trial court is in the best position to evaluate the
credibility of the witnesses presented before it for it had occasion to observe the
witnesses' deportment on the stand and the manner in which they gave their
testimonies. In fact, it has become a consistent and immutable rule, since more often
than not, the appeals relate to the credibility of witnesses, that we are bound by the
prevailing doctrine, founded on a host of jurisprudential rulings, to the effect that the
matter is best determined at the trial court level where testimonies are "first hand given,
received, assessed and evaluated. 84 Thus in the absence of a showing that serious and
substantial errors were committed by the lower court in the appraisal of the evidence
before it, factual findings, particularly, the trial judge's assessment of the credibility of
the testimony of the witnesses are accorded great weight and respect 85 and treats it
with finality.

We have perused the records of this case and we find, as the lower court did, that the
testimony of the lone eyewitness Leonardo Lucaban is clear, straightforward and worthy
of belief.

It is a well-settled rule that the defense of alibi, admittedly, the weakest defense, cannot
prevail over the positive identification of the accused by prosecution witnesses.86

Leonardo Lucaban testified that he personally knows Nomer Velasco.

Q Prior to that incident, you know personally this Nomer

Velasco?

A Yes, sir.

COURT

Why do you know him?

A Because once I have recruited him as one of my workers

COURT

What is your work?

A Cutting of log, Your Honor.

Q You are really sure that it was this Nomer Velasco whom
you saw stab the victim?

A It seems he was really the one. I saw his face.87

Accused-appellant contends that he was sleeping at his house at the time of the
incident. His wife corroborates this. However, in this instance, we have to take the word
of his wife with a grain of salt for witnesses who are either wives or mothers of the
accused, in almost all instances, would freely perjure themselves for the sake of their
loved ones.88
In the light of the positive identification made by an eyewitness who admittedly has no
grudge against the accused-appellant the defense of alibi put up by the latter does not
hold water.

It is the burden of the accused not only to prove that he was not at the scene of the
crime when it happened but also that it was impossible for him to be there at the time of
the commission of the offense.89

This test the accused-appellant failed. Rosemarie Velasco, the wife of the accused,
testified that the distance of their house from the scene of the crime is a mere twenty
meters. The distance between these two locations is not so great that it would have
been impossible for the accused-appellant to be present at the scene of the crime.

Accused-appellant avers that the recall of the witness had no basis and was made with
grave abuse of discretion.

We disagree. In the case of Arce, et al. vs. Arce, et al.,90 it was held that if, after hearing
all the evidence adduced by the parties, the trial Judge is not satisfied, he may, in the
exercise of his sound discretion, on his own motion and in furtherance of justice, call
additional witnesses or recall some of the same witnesses, for the purpose of
questioning them himself, in order to satisfy his mind with reference to particular facts or
issues involved in the case.

Treachery or alevosia qualified the killing of Danilo Valencia to murder committed by the
accused. There is alevosiawhen a person is unexpectedly attacked from behind,
depriving him of any opportunity to defend himself. 91

The following circumstances show that the accused-appellant indeed committed the
killing by treacherous means: He engaged the victim into a conversation, brief though it
may be. From that conversation he gleaned that the victim was not carrying a weapon.
Assured that the victim was unarmed the accused-appellant then followed the victim
and stabbed him at the back.

The assailant was known to the victim for he used to be under the latter's
employ.92 Unsuspecting of the assailant's evil plans the latter continued to walk away.
The attack was so sudden that it gave the victim no chance to defend himself or to
retaliate. Moreover the safety of the assailant from defensive or retaliatory attacks
coming from the victim was ensured because the latter was unarmed.1âwphi1.nêt

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the court a quo is

hereby AFFIRMED.

SO ORDERED.

Bellosillo, Puno, Mendoza and Quisumbing, JJ., concur.

G.R. No. L-38964 January 31, 1975

SAVORY LUNCHEONETTE, petitioner,

vs.
LAKAS NG MANGGAGAWANG PILIPINO, ELISEO GUZMAN, ROMEO RASCO,
LUCIA VIVERO, PEDRO BASILIO, CESAR MARTINEZ, RAFAEL IBANA, RICARDO
ELICO, CIRILO ENOLPE, VIRGINIA BACLOR, FEDERICO BALIBALOS, RODITO
DAVA, ALEXANDER GARCES, DRISENCIO RUBIO, HONORATO OLIVERIO,
ROGELIO CANUEL, PUBLIO JAPSON, SONIA BALDON, ANDY VELOSO,
ANTONIO DE LA ROSA, JULIET NALZARO, PEDRO ACAL, CELEDONIO PEREZ,
EDUARDO ESTRADA, ANTONIO COSTALES, BLANCAFLOR FLORES, PEDRITO
DE GUZMAN, SOFRONIO JARANILLA, ARMANDO MARARAC, DOMINADOR
QUINTO, GREGORIO BALBIN and COURT OF INDUSTRIAL
RELATIONS, respondents.

Felipe P. Fuentes, Jr. for petitioner.

Francisco M. de los Reyes for respondent Court.

MUNOZ PALMA, J.:

Involved in this Petition for Review on certiorari is an Order of the Court of Industrial
Relations dated May 3, 1974, issued in CIR Case No. 5843-ULP entitled: "Savory
Luncheonette, petitioner, vs. Lakas ng Manggagawang Pilipino, et al., respondents"
which directed that the testimony of Atty. Emiliano Morabe, a witness of petitioner
herein, be stricken off the record and that the witness of petitioner, Bienvenida Ting, be
recalled for further cross-examination by herein private respondents. *

It appears from the Petition that on September 27, 1972, the Savory Luncheonette
through a Court Prosecutor of the Court of Industrial Relations filed a complaint
charging the private respondents to whom We shall refer at times as LAKAS PILIPINO,
with unfair labor practice for having violated certain provisions of Republic Act 875
(Industrial Peace Act), to wit: declaring a strike in violation of a no-strike clause of an
existing collective bargaining agreement without prior resort to the grievance procedure
provided for therein and without having observed the 30-day cooling off period
prescribed by law; employing illegal and unlawful means in carrying out their strike; and
staging said strike to obtain recognition inspite of the fact that there was another labor
union duly certified by the Court of Industrial Relations (CIR for short) as the sole and
exclusive bargaining agent of the workers of the petitioner (Annex A, p. 24 rollo).

To sustain its charges, petitioner presented as its key witness, its legal counsel, Atty.
Emiliano Morabe. As legal counsel, Atty. Morabe had allegedly taken charge of the
labor-management problems of the petitioner and had thereby acquired first-hand
knowledge of the facts of the labor dispute.
Petitioner's counsel conducted the direct examination of Atty. Morabe and concluded
the same on March 2, 1973. Atty. Rodolfo Amante, counsel of LAKAS PILIPINO, was
called to cross-examine Atty. Morabe, but he moved for a postponement on the ground
that he was "not in a position to cross-examine the witness." Accordingly, the cross-
examination of Atty. Morabe was re-scheduled for March 7, 1973, but when such date
arrived, Atty. Amante did not appear and so the cross-examination was once more
transferred to March 17, 1973, with the warning from the court that "should the
respondents still fail to cross-examine Atty. Morabe, the right to cross-examine him will
be deemed waived."

Not heeding this warning, Atty. Amante, for the third time failed to cross-examine the
witness on March 17 for the reason that he was not prepared to do so. Accordingly, the
cross-examination was again re-set for March 27, 1973 with the statement that "in view
of the professed unpreparedness of the representative of the respondents, the Court will
give him one last chance to be ready at the next scheduled hearing."1 This warning
notwithstanding Atty. Amante again failed and to conduct the cross-examination
invoking the excuse that he did not have a copy of the transcript of the direct testimony.
For the fifth time and again upon motion of LAKAS PILIPINO, the cross-examination
was postponed to April 2, 1973 with the reservation made by the witness, Atty. Morabe,
however, to challenge the ruling of the court granting another postponement of his
cross-examination.

Atty. Morabe succumbed to a heart attack on March 31, 1973. On April 12, LAKAS
PILIPINO filed a motion to strike out the direct testimony of Atty. Morabe from the
records on the ground that since cross-examination was no longer possible, such direct
testimony "Could no longer be rebutted." (Annex B, p. 29, ibid) Petitioner filed an
opposition to the said motion contending that by private respondents' repeated failure
and refusal to cross-examine despite all the time and opportunity granted by the court,
they are deemed to have the same (Annex C, p. 30, ibid)

On June 14, 1973, private respondents filed another motion seeking the recall of
petitioner's witness Bienvenida Ting for further cross-examination (Annex E, p. 41, ibid)
Mrs. Ting was presented as a witness to the petitioner on March 27, 1973 and cross-
examined by the private respondents on June 4, 1973. The petitioner also opposed this
motion on two counts: first, that the witness was already cross-examined on June 4,
1973 or more than two months after her direct testimony, thus giving private
respondents sufficient time to go over the said testimony, and second, that the motion
failed to state the points that were not taken up during the previous cross-examination
thus giving rise to the conclusion that the recall of the witness was manifestly for delay
and to harass and inconvenience the witness.

In an Order dated May 3, 1974, respondent court granted the to motion (Annex F, p.
43, ibid) Thereupon, petitioner filed a motion for reconsideration of the said order but the
same was denied in a resolution en banc dated July 5, 1974. (Annex G, p. 46, ibid) A
copy of the resolution denying the motion for reconsideration was received by the
petitioner on July 12, 1974 and on July 16,1974, it filed its notice of appeal. (Annex H, p.
17, ibid) After an extension of time was granted to petitioner by this Court, the present
Petition for Review was filed on August 6, 1974.

Petitioner now strongly asserts that respondent Court acted with grave abuse of
discretion when the latter ordered that the direct testimony of its principal witness, Atty.
Morabe, be stricken off the record for "(T)o strike out the testimony of Atty. Morabe after
the respondents had been given sufficient and repeated opportunities to cross-examine
him, and after they have practically waived their right to cross-examine him is unjust and
unfair. It is not warranted by our rules of procedure and would place a premium on
respondents' repeated failure and refusal to cross-examine the witness. Respondents
should not be allowed to profit and benefit from their own neglect and omission." (pp.
18-19, rollo)

Petitioner's cause merits relief.

The right of a party to confront and cross-examine opposing witnesses in a judicial

litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals
with quasi-judicial powers, is a fundamental right which is part of due
process.2 However, the right is a personal one which may be waived expressly or
impliedly by conduct amounting to a renunciation of the right of cross-
examination.3 Thus, where a Party has had the opportunity to cross-examine a witness
but failed to avail himself of it, he necessarily forfeits the rights to cross-examine and the
testimony given on direct examination of the witness will be received or allowed to
remain in the record.4

The conduct of a party which may be construed as an implied waiver of the right to
cross-examine may take various forms. But the common basic principle underlying the
application of the rule on implied waiver is that the party was given the opportunity to
confront and cross-examine an opposing witness but failed to take advantage of it for
reasons attributable to himself alone.

In People vs. De la Cruz, L-28110, March 27, 1974, 56 SCRA 84, 91, one of the issues
raised by appellant De la Cruz who was convicted of rape was that he was not accorded
the right to cross-examine the complainant. The Court discarded this contention of
appellant under the following circumstances: after the direct examination of the offended
party on February 22, 1966, she was cross-examined but the cross-examination was
not finished; two days later or on February 24, the cross-examination was resumed at
10:00 o'clock in the morning but after a few minutes the examination was suspended;
the case was then called at 10:35 that same morning for the resumption of the cross-
examination, however, the counsel for the accused asked for postponement and so the
hearing was transferred to March 1 reserving to the defendant the right to continue with
the cross-examination; no hearing was held, however, on March 1, after which other
hearings were scheduled with the offended girl duly subpoenaed to appear at those
hearings; after some cancellations or transfers, the trial was resumed on June 27, 1966;
on that date, June 27, counsel for the accused could have asked that he be allowed to
continue the cross-examination but did not do so, and did not object when the Fiscal
called his next witness, either because the counsel forgot or waived further cross-
examination of the offended party. Under the foregoing circumstances, this Court ruled
that:

it cannot be said the constitutional right of the accused to meet the

witnesses face to face or the right to confrontation (Sec. 1 [f], Rule 115,
Rules of Court; Sec. 1 [17] Art. III, Old Constitution) was impaired.

The fact that the cross-examination of the complainant was not formally
terminated is not an irregularity that would justify a new trial. The right to
confront the witnesses may be waived by the accused expressly or by
implication (U.S. vs. Anastacio, 6 Phil. 413; 4 Moran's Comments on the
Rules of Court, 1970 Ed., p. 201-2).

In State of Hawaii vs. Brooks, 352 P 2d 611, the facts were: defendant was convicted in
the Circuit Court, First Circuit, City and County of Honolulu, of robbery in the second
degree and when the case came up to the Supreme Court of Hawaii on a writ of error,
one of the issues raised by appellant was that the trial court erred in refusing to allow
him to cross-examine John Torres, a prosecution witness. The record showed,
however, that when the prosecution asked leave of the trial court to withdraw Torres as
witness after partial direct examination, counsel for the defendant made a reservation of
his right to cross-examine when the witness is recalled. The prosecution, however,
subsequently rested its case without recalling the witness. When defendant called the
court's attention to the fact that he had not had the opportunity to cross-examine, it was
brought out that at one instance, the Court asked counsel for the defendant if he wanted
to cross-examine the witness who was then in the corridors, to which question the said
counsel answered "YES!" The record does not show, however, that defendant pursued
this point any further. No motion, no objection, no ruling and no exception was made or
taken, nor did the defendant call the witness in question for cross-examination. In
overruling appellant's contention, the Supreme Court of Hawaii held that while the right
to cross-examine a witness is fundamental and accepted as a basic right in the State's
judicial system, however, when a party fails to avail himself of the opportunity to cross-
examine, he forfeits such right, and the fact of the case conclusively showed that
defendant was given an opportunity to cross-examine, and that appellant's failure to
proceed must be construed as an abandonment of his earlier desire or intention to
cross-examine the witness and he cannot now be heard to contend that the trial court
refused to permit said cross-examination.

The case of the herein petitioner, Savory Luncheonette, easily falls within the confines
of the jurisprudence given above. Private respondents through their counsel, Atty.
Amante, were given not only one but five opportunities to cross-examine the witness,
Atty. Morabe, but despite the warning and admonitions of respondent court for Atty.
Amante to conduct the cross-examination or else it will be deemed waived and despite
the readiness, willingness, and insistence or the witness that he be cross-examined,
said counsel by his repeated absence and/or unpreparedness failed to do so until death
sealed the witness's lips forever. By such repeated absence and lack of preparation on
the part of the counsel of private respondents, the latter lost their right to examine the
witness, Atty. Morabe, and they alone must stiffer the consequences. The mere fact that
the witness died after giving his testimony is no ground in itself for excluding his from
the record so long as the adverse party was afforded an adequate opportunity for cross-
examination but through fault of his own failed to cross-examine the witness. 4 *

The applicability of the rule is especially justified in proceedings before tribunals with
quasi-judicial powers such as the Court of Industrial Relations. Under Section 20,
Commonwealth Act No. 103, which created the Court of Industrial Relations,
respondent court is authorized to disengage itself from the rigidity of the technicalities
applicable to ordinary courts of justice; it is not narrowly constrained by technical rules
of procedure but is enjoined to act according to justice and equity.5

Thus, in National City Bank of New York vs. National City Bank Employees Union, 98
Phil., 301, invoked by petitioner herein, the National City Bank of New York sought to
declare illegal the strike of its employees held on June 11, 1952. After trial, the Court of
Industrial Relations rendered a decision on January 6, 1953, declaring the strike illegal
and ordering the dismissal of the leaders of the strike but allowing the return of 51
employees to their former positions. The Bank moved for a reconsideration of the order
on the ground that it was not granted an opportunity to present any evidence or confront
the witnesses; that motion was denied and a petition for certiorari was filed with this
Court. Dismissing the petition, the Court held that the failure to grant petitioner bank an
opportunity to cross-examine the persons from whom inquiries were made by an agent
of the Court of Industrial Relations as to the reasons why said 51 employees failed to
return back to work, is not a sufficient ground for the reversal of the order of the court
and its findings because: (1) the Court of Industrial Relations is not bound by strict rules
of evidence in the determination of facts under Section 20, Commonwealth Act 103; and
(2) there is no showing that petitioner bank ever claimed that the evidence gathered by
the representative of the court was false or that it had in its possession material
evidence to disprove said findings. The Court said further: "In the absence of an
express allegation that a new hearing will change facts found, the new trial or cross-
examination demanded would be idle ceremony; it would not serve the ends of justice at
all especially so in a quasi-administrative body like the Court of Industrial
Relations where the rules of confrontation and cross-examination have not been
expressly granted as in a trial against an accused in a criminal case." (ibid, p. 305,
Emphasis Ours)

The second motion of the order of respondent court of May 3, 1974, which is assailed
by petitioner directs the recall of Bienvenida Ting for further cross-examination. We
believe that this order is unwarranted. As claimed by petitioner, the motion to recall the
witness is intended merely to delay the proceedings and to harass and inconvenience
the witness sought to he recalled. We particularly note that the direct examination of the
witness was completed on March 27, 1973, and that her cross-examination was
conducted on June 4, 1973, or after more than two months since the direct examination.
That interval of time was long enough for private respondents' counsel to scrutinize and
dissect the direct testimony of the witness and prepare himself for cross-examination.
That the counsel had all the time to himself when he conducted his cross-examination
on June 4, 1973, and that he concluded such cross-examination when more time was
alloted for it, showed that he had asked all the questions he could possibly ask. Had the
witness been cross-examined right after she gave her direct testimony, there might be
reason to believe the claim that counsel unintentionally forgot to ask some material
questions. But that was not so. Under those circumstances, where it was shown that a
witness had been previously cross-examined extensively, it was more in consonance
with justice and equity for respondent court to have denied the recall of the witness
concerned.6 More so, when the motion to recall failed to mention the matters sought to
be established in the additional cross-examination.

One point raised by respondent court in its Comment to this Petition is that certiorari
does not lie from the orders complained of for the reason that they are interlocutory in
nature. (p. 57, rollo) Suffice it for Us to re-state what this Court said in Manila Electric
Co., et al. vs. Enriquez, et al., 110 Phil. 499:

While the Supreme Court would not entertain a petition for a writ
of certiorari questioning the legality and validity of an interlocutory order,
when a grave abuse of discretion is very patently committed, it devolves
upon said court to exercise its supervisory authority to correct the error
committed. (emphasis supplied)

The instant Petition presents a clear case of grave abuse of discretion which justifies
the Court's intervention at this stage of the proceedings in the court below.

PREMISES CONSIDERED, the writ of certiorari prayed for is granted and the Orders of
respondent Court of May 3, 1974, and July 5, 1974, under review are hereby set aside.
With costs against private respondents.

So Ordered.

Castro (Chairman), Teehankee, Makasiar, and Esguerra, JJ., concur.

G.R. No. L-47411 January 18, 1982

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUFEMIO CAPARAS y PAEZ and PATRICIO DIAMSAY y GREGORIO, defendants-
appellants.

RESOLUTION

DE CASTRO, J.:

Before Us are two separate motions for reconsideration of Our decision dated February
20, 1980 convicting the two abovenamed appellants, one filed by their counsel of record
in behalf of both of them; the other, filed by a new counsel of Caparas only in his behalf.

The motion for reconsideration, filed by appellants' counsel of record, seeks the re-
examination of the decision insofar as it rejects the plea of self-defense of appellant
Diamsay. As in the appellants' brief, appellant Diamsay in his present motion for
reconsideration failed to prove the justifying circumstance with clear and convincing
evidence. As he had himself admitted to be the actual killer, the burden of proof is
shifted to him to establish all the facts necessary to prove his plea of self defense. The
motion for reconsideration, insofar as Diamsay is concerned, has nothing new with
which to discharge this burden, and must consequently be denied.

As regards appellant Caparas, the motions for reconsideration seek the review of the
testimonies of the two principal witnesses, Laureano Salvador and Lydia Posadas, upon
which said appellant was convicted, on ground of conspiracy between him and
Diamsay. Caparas points out some facts and circumstances which are alleged to impair
the credibility of the aforesaid witnesses and thereby leaves the fact of conspiracy
unproven beyond reasonable doubt as it should be.

Thus, Caparas points out that Laureano's testimony was extracted through leading
questions, and he quotes:

Q Do you know the purpose of Carlos Gregorio in coming to

your house?

A Yes, sir.

Q What was his purpose?

A Regarding the landholding I was farming and his help I

requested.
Q Did you go to any place with Carlos Gregorio after that?

A Yes, sir.

Q Where?

A To his house.

Q You are referring to the house of Carlos Gregorio?

A Yes, sir.

xxx xxx xxx

Q When you arrived at the house of Carlos Gregorio, who

were with you?

A Carlos Gregorio, sir.

Q Who were the persons, ff any, that you have seen at the
house of Carlos Gregorio?

A Eufemio Caparas and Diamsay, sir.

xxx xxx xxx

Q Now, when you arrived in that house, what happened?

A We talked regarding the landholding, sir.

Q You said, 'we' to whom are you referring?

A Eufemio Caparas, sir.

Q What did you talk about that landholding?

A Regarding the landholding which he said would be given

to me. He said there is already one.

Q And what did you answer when this was said to you by
Eufemio Caparas?

A I said, 'if there is, I give thanks', but he said that the land
he was giving me had some trouble.

Q And what did you say?

 A I said' that seems hard',but he said,'that is easy'.

Q What else transpired?

A I asked him what he meant by easy and he said 'it is easy

under this condition', and I asked him what condition, and he
said you kill him.

Q During all that time, who were present inside that house?

A Tisio Diamsay.

Q Who else?

A Eufemio Caparas, sir.

Q Anybody else?

A Carting Gregorio, sir.

Q And you?

A I was present.

xxx xxx xxx

Q Now, in the vernacular, in Tagalog Language that you

have been testifying, you said, 'Patayin n'yo, means plural,
do you know to whom this word 'n'yo' referred to?

A He was ordering me, Carling, and Tisio Diamsay,sir.

Q Ordering to what?

A To kill.

Q To kill Simeon Paez?

A Yes, sir.

We are constrained to agree that the testimony of Laureano on the supposed

conspiracy was elicited by means of leading questions, the probative value of which,
according to accepted legal authorities, is thus diminished or lessened.

The probative value of a witness' testimony is very much lessened where

it is obtained by leading questions which are so put that the witness
 merely assents to or dissents from a statement or assertion of an
examining consul put with such vocal inflection as to be question. 1

Appellant Caparas also points out several inconsistencies and improbabilities in the
testimonies of the two witnesses. While this Court has constantly adhered to the rule
that conclusions of the trial court on the matter of evaluations of the truth of declarations
of witnesses and their credibility carry great weight and command favorable
considerations, 2 the instant case cannot come under this rule for, as pointed out in the
motion for reconsideration, the judge who rendered the decision was not the judge who
heard the testimonies and observed the de or of witnesses Laureano Salvador and
Lydia Posadas. 3 This being the case, and considering the gravity of the crime charged,
their testimonies must be subjected to a strict scrutiny to leave no room for doubt as to
the guilt of Caparas whose complicity was based only on conspiracy which, according to
settled doctrine, must be shown to exist as clearly and convincingly as the commission
of the offense itself. 4

After a careful and conscientious review of the evidence, We are now convinced that
the testimonies of the two aforementioned petitioned witnesses were accorded more
than what they deserve by way of credence and veracity. Doubts as to the truth of their
testimonies assail the mind of the Court, occasioned by many improbabilities in their
testimonies, and in the case of Lydia, by direct contradiction by his own sister, Priscilla
Posadas.

To begin with Laureano Salvador, it is not without significance that he was not listed in
the information to be among the prosecution witnesses. Only during the trial on June 2,
1973, and after more than two years after the commission of the crime, that he surfaced
and testified on what he allegedly knew about the crime. From his testimony, it would
appear that he did not inform the authorities nor his relatives what he knew about the
crime, and that it was only to Pablo Paez that he told his story about the crime, but only
after almost two years after its commission. This fact in itself is contrary to human
experience because the natural reaction of one who has knowledge of the crime is to
reveal it to the authorities, except only if he is the author thereof. Indeed, as held
in People vs. Basuel, 5 the silence of the witnesses for about two years detracts from
their trustworthiness.

This witness, of course, explained that his silence was due to his fear for his life, for
which reason he went into hiding in Dupax Nueva Viscaya, where he allegedly worked
at Diplong Sawmill. We cannot, however, give credence to this explanation, since
counsel for appellant was not given the opportunity to cross examine Salvador
Laureano on this matter. It appears that this witness testified that while hiding in Dupax
he worked in "Diplong Sawmill." But upon investigation by counsel for appellant, it was
found out that there is no Diplong Sawmill and because of this, counsel for appellant
moved to cross examine further the witness. But said witness failed to appear in the
hearing despite summons, until the court, after a third failure to appear, issued an order
for his arrest. When the said witness finally appeared, counsel for appellant requested
to postpone the cross examination on a very valid ground that he had another case
which was earlier scheduled on the same date. The trial court, however, refused to
postpone the cross examination. This, in Our opinion, is a prejudicial error on the part of
the trial court, which should have granted the postponement. As it is, his testimony
cannot but create some doubts in Our mind, specially as on his own admission, he
never went to the Office of the Provincial Fiscal to inform the government prosecutors
that he would be a witness in this case.

In the case of People vs. Maisug, 6 this Court held that the conduct such as shown by
the witness is unnatural and contrary to ordinary experience. Lawyers do not usually
present witnesses without informing themselves regarding the facts that they would
prove by the testimonies they would present in court.

The other witness, Lydia Posadas, a sister-in-law of the deceased had to wait for four
(4) days after the shooting, and about two (2) weeks after she allegedly overheard the
supposed conspiracy, to execute a joint statement with her sister, Priscilla, before the
Provincial Fiscal. It defies one's credulity that both of them, especially Lydia, who is a
sister-in-law of the deceased would not immediately expose Caparas as the man behind
the perpetration of the crime. This stultified silence casts grave doubts as to their
veracity. 7 These doubts deepen when she testified that she did not reveal even to her
husband the plot to kill his brother. The reason given by the lower court is that her
father-in-law to whom she told of Caparas' plan to liquidate the deceased advised her
not to inform anybody, as Atty. Pedro Paez would arrive on February 6, 1971 to settle
the conflict. The explanation is not persuasive. No wife who heard of a plot to kill her
brother-in-law would not tell her husband of such a dreadful plan. Her explanation why
she did not tell her husband is simply preposterous. Upon being told of the plot, anyone,
especially a father, would not let even a day pass before taking measures to avert the
plot against his son's life. Lydia Posadas testified that she heard the plot on January 27,
1971. To wait until February 6, 1971 to reveal it to the authorities would be taking so
much risk, not dictated by the gravity of the events that cried for instant action to prevent
its occurrence.

Aside from the inherent incredibility, as shown above, of Lydia's testimony, it was
directly contradicted by her sister, Priscilla, who denied having gone to the haystack
with her sister, Lydia, on January 27, 1971. Priscilla declared that she executed the
sworn statement which tended to implicate Caparas because she and her sister were
instructed to do so by Pedro Paez who from all indications exerted moral ascendancy
over them as they were staying with the family of Pedro Paez. And being then only 17
years old, she did not realize the serious implications of what she had done.

In Our decision subject of the present motion for reconsideration, We brushed aside
Priscilla Posadas' testimony, stating:

... Lydia Posadas declared in Court on July 14, 1973 while Priscilla
Posadas took the stand on March 27, 1974. Between these dates, as the
cliche goes, much water has gone under the bridge. There is every
possibility for overtures to have taken place by way of saving appellant
 Caparas at least, who is after all, closely related to the victim and the
Paezes, from complicity. For if the two sisters were made to jointly
execute a false affidavit by Pedro Paez, Priscilla could at least have been
prevailed upon not to take the stand just so her sister Lydia would not be
unmasked as a liar. If she took the stand as a defense witness, it must
have been because the Paezes, realizing what a terrible fate would befall
a close relative, appellant Caparas, who could have soothed their
aggrieved feelings with more than just an empty supplication for pity, were
induced to save Caparas from the grave punishment that he would suffer
for the serious offense with which he was charged.

We realize the foregoing ratiocination goes more into the realm of conjecture than
reality, upon consideration of the fact that as the records show, the prosecution through
a private prosecutor, presented rebuttal evidence to disprove the evidence given by
Priscilla Posadas, thus negating what this Court surmised was the reason for Priscilla's
testimony so favorable to appellant Caparas. It may be because the Solicitor General
made no attempt to explain the damaging testimony of Priscilia, from the prosecution
standpoint, that the Court was pushed to doing it, and regrettably so, for as just stated it
did so with no better than mere speculation and surmise.

Why Pedro Paez involved the two sisters at the time the joint affidavit was executed
was probably because Laureano was still in hiding and Pedro Paez thought that
conviction of Caparas would be more sure if two witnesses could corroborate each
other.

Moreover, Pedro Paez's letter dated June 23, 1980 addressed to the President of the
Philippines and forwarded to this Court by his office requesting for early resolution of
this case and another letter dated June 17, 1981 praying for execution of the decision of
this Court in this case show no pity on Pedro Paez's part Lo want appellant Caparas
saved from punishment, contrary to this Court's mere surmise.

The trial court also inferred conspiracy from its finding that appellant Caparas, in
ordering the killing of the deceased, was motivated by resentment against the deceased
as a result of a conflict between them over proprietary rights involving a portion of
agricultural land: and that the gun used in killing the deceased was owned by Caparas.

While conspiracy may be established by circumstantial evidence provided that it is

competent and convincing, in the instant case, the evidence with which to link Caparas
in a conspiracy with Diamsay to kill the deceased does not rest on solid ground. The
records do not show that Caparas harbors intense resentment against the Paezes as to
go to the extent of liquidating them. On the contrary, it was the Paezes who had all the
reason to be angry with Caparas who, according to them, was defrauding them of their
rightful rights. In the case of Diamsay , he apparently acted on his own. Diamsay hated
the Paezes because of the latter's "insulting attitude" toward him, as may be gleaned
from the decision of the trial court when it states:
 When Simeon Paez ,was about to have the same land planted, Diamsay
stopped the planters. This angered the former causing him to utter
slanderous remarks against Diamsay. Pedro Paez also resented the
actuations of Diamsay in (sic) stopping of the land.

As regards the finding that the gun used by Diamsay in killing Simeon Paez was owned
by Caparas, this is easily explained by the fact that as overseer of Caparas, Diamsay
was authorized to carry the gun. Pedro Paez himself admitted that when he was still the
overseer of Caparas, he also used to carry a gun given him by Caparas.

In the light of the foregoing discussion, We cannot but entertain doubts as to the
veracity of the testimonies of the two witnesses which alone provided the basis for the
finding of ,conspiracy against Caparas. These doubts now disturb the mind of the Court
as to his culpability, and must accordingly be resolved in favor of appellant Caparas it
being preferably to acquit a guilty person rather than convict all; innocent one. 8

WHEREFORE, the decision of February 20, 1980 is hereby affirmed with respect to
appellant Diamsay, but reversed with respect to appellant Caparas who is hereby
acquitted, on ground of reasonable doubt, of the crime charged. With costs de oficio as
to appellant Caparas.

SO ORDERED.

Concepcion, Jr., Abad Santos, Ericta and Escolin, JJ., concur.

Barredo (Chairman), J., I vote to give the movant the benefit of doubt.

Aquino, J.,see dissent below.

Separate Opinions

AQUINO, J.:, dissenting:

I dissent. Eufemio Caparas is a co-principal by inducement. As shown in the opinion

penned by Justice De Castro, he was the mastermind behind the killing of Simeon
Paez. He had the motivation for killing Simeon Patricio Diamsay- was merely a tool of
Caparas. His only motive for killing Simeon was to comply with the order of his
employer, Caparas. There is no justification for acquitting Caparas and changing the
judgment of conviction against him. (People vs. Caparas, 102 SCRA 781, February
20,1981).
Decision affirmed with respect to appellant Diamsay, but reversed with respect to
appellant Caparas.

Separate Opinions

AQUINO, J.:, dissenting:

I dissent. Eufemio Caparas is a co-principal by inducement. As shown in the opinion

penned by Justice De Castro, he was the mastermind behind the killing of Simeon
Paez. He had the motivation for killing Simeon Patricio Diamsay- was merely a tool of
Caparas. His only motive for killing Simeon was to comply with the order of his
employer, Caparas. There is no justification for acquitting Caparas and changing the
judgment of conviction against him. (People vs. Caparas, 102 SCRA 781, February
20,1981).

Decision affirmed with respect to appellant Diamsay, but reversed with respect to
appellant Caparas.
G.R. No. 135022 July 11, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO DELA CRUZ, accused-appellant.

DAVIDE, JR., C.J.:

A man descends into the depths of human debasement when he inflicts his lechery
upon a minor, and all the more when he imposes such lasciviousness upon a woman
whose capacity to give consent to a sexual union is diminished, if not totally lacking.
Such is the case of Jonalyn Yumang (hereafter JONALYN).

Upon a complaint1 dated 5 July 1996 signed by JONALYN with the assistance of her
aunt Carmelita Borja, two informations were filed by the Office of the Provincial
Prosecutor before the Regional Trial Court of Malolos, Bulacan, charging Bienvenido
Dela Cruz (hereafter BIENVENIDO) with rape allegedly committed on 3 and 4 July
1996. The informations were docketed as Criminal Cases Nos. 1274-M-96 and 1275-M-
96. The accusatory portion of the information docketed as Criminal Case No. 1275-M-
96, which is the subject of this appellate review, reads:

That on or about the 3rd day of July 1996, in the Municipality of Calumpit,
Province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused [Bienvenido dela Cruz @ Jun] did then and
there wilfully, unlawfully and feloniously with lewd design have carnal knowledge
of one Jonalyn Yumang y Banag, a mentally deficient female person, against her
will and without her consent.

Contrary to law.2

Upon arraignment on 14 October 1996, BIENVENIDO entered a plea of not guilty. 3 The
cases were consolidated, and joint trial on the merits ensued thereafter.

When JONALYN was presented as its first witness, the prosecution sought to obtain
from the trial court an order for the conduct of a psychiatric examination on her person
to determine her mental and psychological capability to testify in court. The purpose
was that should her mental capacity be found to be below normal, the prosecution could
propound leading questions to JONALYN. The defense, through Atty. Jesus M.
Pamintuan, vigorously opposed the prosecution's manifestation. Nonetheless, the trial
court allowed the prosecutor to conduct direct examination on JONALYN so that if in its
perception she would appear to be suffering from mental deficiency, the prosecutor
could be permitted to ask leading questions. JONALYN was then made to identify her
signature in her sworn statement and to identify the accused, and was asked about her
personal circumstances. Thereafter, noticing that JONALYN had difficulty in expressing
herself, the trial court decided to suspend the proceedings to give the prosecution
sufficient time to confer with her.4
At the next hearing, the trial court allowed the prosecution to put on the witness stand
Dr. Cecilia Tuazon, Medical Officer III of the National Center for Mental Health,
Mandaluyong City. Dr. Tuazon testified that she conducted a psychiatric examination on
JONALYN on 12 July 1996. She found that JONALYN was suffering from a moderate
level of mental retardation and that although chronologically the latter was already 20
years of age (at the time of the examination), she had the mental age of an 8½-year-old
child under the Wechsler Adult Intelligence Scale. Dr. Tuazon also found that JONALYN
could have attained a higher degree of intelligence if not for the fact that she was
unschooled and no proper motivation was employed on her, and that she had the
capacity to make her perception known to others. She, however, observed that she had
to "prompt" JONALYN most of the time to elicit information on the sexual harassment
incident. She then narrated that JONALYN was able to relate to her that she
(JONALYN) was approached by a tall man named Jun-Jun who led her to a house that
supposedly belonged to her cousin, and that Jun-Jun disrobed JONALYN and raped her
twice.5

After said testimony or on 11 March 1997, the trial court issued an order6 allowing
leading questions to be propounded to JONALYN in accordance with Section 10(c),
Rule 132 of the Rules on Evidence.7 Thus, JONALYN took the witness stand. She again
identified her signature and that of her aunt on her Sinumpaang Salaysay. She also
identified BIENVENIDO as the person against whom she filed a complaint for rape. She
declared in open court that BIENVENIDO raped her twice inside the house of a certain
Mhel located at Barangay Gatbuca, Calumpit, Bulacan. She stated that BIENVENIDO
placed himself on top of her and inserted his private part into her womanhood.8

Dr. Edgardo Gueco, Chief and Medico-Legal Officer of the Philippine National Police
Crime Laboratory, Camp Olivas, Pampanga, testified that he examined JONALYN on 8
July 1996, and the results of the examination were indicated in his Medico-Legal
Report.9 He found that she was in "a non-virgin state physically," as her hymen bore
deep fresh and healing lacerations at 3, 8 and 11 o'clock positions. He then opined that
the hymenal lacerations were sustained a week before the examination and, therefore,
compatible with the time the rapes were allegedly committed.10

Carmelita Borja, aunt of JONALYN, testified that on 5 July 1996, she accompanied
JONALYN to the Philippine National Police (PNP) Office in Calumpit, Bulacan, to lodge
a complaint against BIENVENIDO. With them were JONALYN's mother Conchita Yuson
and Barangay Councilman Roberto Dungo. Carmelita testified that in instituting this
case, their family incurred expenses amounting to P30,000.11

After the prosecution rested its case and formally offered its exhibits, the defense filed a
motion for leave of court to file a demurrer to evidence, which was granted. Thus, the
defense filed on 5 December 1997 a Demurrer to Evidence12 on the following grounds:

(a) That the court had no jurisdiction to take cognizance of the cases; and
 (b) The presumption of accused's innocence had not even [sic] been overcome
by the prosecution due to the insufficiency of its evidence.

Expounding its theory, the defense first admitted that it could have moved to quash the
information but it did not because the complaint on which the information was based
was on its face valid, it having been signed by JONALYN as the offended party.
However, the undeniable truth is that JONALYN had no capacity to sign the same
considering her mental deficiency or abnormality. The assistance extended to
JONALYN by her aunt Carmelita Borja did not cure the defect, as the enumeration in
Article 344 of the Revised Penal Code of the persons who could file a complaint for rape
is exclusive and successive and the mother of JONALYN was still very much alive.

The defense also insisted on assailing the competency of JONALYN as a witness. It

claimed that JONALYN's testimony, considering her mental state, was coached and
rehearsed. Worse, she was not only asked leading questions but was fed legal and
factual conclusions which she was made to admit as her own when they were in fact
those of the prosecution.

In its Order of 26 January 1998,13 the trial court denied the Demurrer to Evidence and
set the dates for the presentation of the evidence for the defense. However,
BIENVENIDO filed a Motion for Judgment, stating in part as follows:

[A]fter going over the Records … and carefully analyzing the proceedings … as
well as meticulously evaluating the evidence presented and offered [by] the
private complainant, in consultation with his parents, and assisted by
undersigned counsel, [he] had decided to submit … the …cases for judgment
without the need of presenting any evidence to explain his terse PLEA OF NOT
GUILTY to the charges upon his arraignment.14

Noting this new development, the trial court, in its Order of 17 February 1998,
considered the case submitted for decision.15

In its Joint Decision of 3 April 1998,16 the trial court convicted BIENVENIDO of the crime
of rape in Criminal Case No. 1275-M-96, but acquitted him in Criminal Case No. 1274-
M-96 for insufficiency of evidence. While conceding that JONALYN's narration of how
she was sexually abused by BIENVENIDO was not "detailed," the trial court,
nonetheless, concluded that it was candidly related by one who had the mental age of
an 8-year-old child. The trial court was convinced that JONALYN was able to show in
her "own peculiar way" that she was indeed raped by BIENVENIDO on 3 July 1996.
Finally, the trial court ruled that BIENVENIDO's culpability was further bolstered by his
choice not to offer any evidence for his defense despite ample opportunity to do so.
Accordingly, it sentenced him to suffer the penalty of reclusion perpetua and to pay
JONALYN the amount of P60,000 by way of civil indemnity.

In his Appellant's Brief,17 BIENVENIDO asserts that the trial court committed the
following errors:
 1. ... in having taken the fatally defective criminal complaint for a valid conferment
upon it of jurisdiction to try and dispose of said two (2) charges of rape.

2. ... in having accepted as competent the mentally deficient private complainant

even without first requiring any evidence of her capacity as such a witness.

3. ... in having considered the narration read to the complaining witness from
prepared statements and asked of her simply to confirm as true, as her own.

4. ... in having given full credence and weight to complainant's conclusions of

facts merely put to her mouth by leading questions of the prosecutor.

5. ... in having convicted the accused-appellant in Criminal Case No. 1275-M-96,

but acquitting in Criminal Case No. 1274-M-96, on the basis of private
complainant's purported sworn versions supposedly given in both charges.

BIENVENIDO reiterates the issues he raised in his Demurrer to Evidence. He assails

the competency of JONALYN as signatory to the complaint she filed. He adds that the
defect in the complaint was not cured by his failure to interpose a motion to quash nor
by the assistance lent by JONALYN's aunt, which contravened Article 344 of the
Revised Penal Code. Consequently, BIENVENIDO asserts that the trial court had no
jurisdiction to try the case.

BIENVENIDO also stresses the incompetency of JONALYN as a trial witness for the
reason that the prosecution failed to prove her competency. Further, JONALYN was
merely asked to affirm the legal and factual conclusions of the prosecution which
evinced quite clearly the girl's lack of comprehension of the court proceedings and the
nature of her oath. Besides, her statements concerning the alleged sexual penetration
were elicited a month after her initial offer as a witness, which reinforces the rehearsed
and coached nature of her testimony.

Finally, he wonders why he was convicted in Criminal Case No. 1275-M-96 but
acquitted in Criminal Case No. 1274-M-96 when it was a joint trial and the evidence was
the same. He insists that he should also be acquitted in the case at bar.

In the Appellee's Brief,18 the Office of the Solicitor General (OSG) counters that the trial
court had jurisdiction over the case, since the complaint and information filed were valid.
JONALYN's mental retardation does not render her incompetent for initiating the
prosecution of the crime committed against her and for testifying in court. If minors are
allowed not only to initiate the prosecution of offenses under Article 344 of the Revised
Penal Code and Section 5, Rule 110 of the 1985 Rules of Criminal Procedure, but also
to testify under the Rules on Evidence, JONALYN, who had the mentality of an 8-year-
old child, was competent to sign the criminal complaint and to be a witness in court.
JONALYN's competency as a court witness was aptly proved when she was able to
answer the leading questions asked of her as allowed by Section 10(c), Rule 132 of the
Rules on Evidence. Moreover, the OSG asseverates that JONALYN's testimony on the
fact of rape is corroborated by medical and physical evidence. As to BIENVENIDO's
quandary that he should be acquitted also in this case, it is convinced that he should
have been convicted for two counts of rape, as JONALYN expressly testified that she
was raped twice by BIENVENIDO. Finally, the OSG seeks an award of moral damages
in the amount of P50,000 for JONALYN, as well as a reduction of the award of civil
indemnity to P50,000 in conformity with current jurisprudence.

We shall discuss the issues in seriatim.

I. Validity of the Complaint for Rape

We agree with the disputation of the OSG that the trial court validly took cognizance of
the complaint filed by JONALYN. The pertinent laws existing at the time the crimes were
committed were Article 344 of the Revised Penal Code (prior to its amendment by R.A.
No. 835319 otherwise known as "The Anti-Rape Law of 1997," which took effect on 22
October 199720) and Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure.
Article 344 of the Revised Penal Code provides:

Article 344. Prosecution of the crimes of adultery, concubinage, seduction,

abduction, rape and acts of lasciviousness. -- …

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be

prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be.

Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure states:

Section 5. Who must prosecute criminal actions.—All criminal actions either

commenced by complaint or by information shall be prosecuted under the
direction and control of the fiscal. However, in Municipal Trial Courts or Municipal
Circuit Trial Courts when there is no fiscal available, the offended party, any
peace officer or public officer charged with the enforcement of the law violated
may prosecute the case. This authority ceases upon actual intervention of the
fiscal or upon elevation of the case to the Regional Trial Court.

The offenses of seduction, abduction, rape or acts of lasciviousness shall not be

prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be. In case the
offended party dies or becomes incapacitated before she could file the complaint
 and has no known parents, grandparents, or guardian, the State shall initiate the
criminal action in her behalf.

The offended party, even if she were a minor, has the right to initiate the
prosecution for the above offenses, independently of her parents, grandparents
or guardian, unless she is incompetent or incapable of doing so upon grounds
other than her minority. Where the offended party who is a minor fails to file the
complaint, her parents, grandparents or guardian may file the same. The right to
file the action granted to the parents, grandparents or guardians shall be
exclusive of all other persons and shall be exercised successively in the order
herein provided, except as stated in the immediately preceding paragraph.

A complaint of the offended party or her relatives is required in crimes against chastity
out of consideration for the offended woman and her family, who might prefer to suffer
the outrage in silence rather than go through with the scandal of a public trial. The law
deems it the wiser policy to let the aggrieved woman and her family decide whether to
expose to public view or to heated controversies in court the vices, fault, and disgraceful
acts occurring in the family.21

It has been held that "[w]hen it is said that the requirement in Article 344 (that there shall
be a complaint of the offended party or her relatives) is jurisdictional, what is meant is
that it is the complaint that starts the prosecutory proceeding. It is not the complaint
which confers jurisdiction on the court to try the case. The court's jurisdiction is vested in
it by the Judiciary Law."22

The complaint in the instant case has complied with the requirement under the Revised
Penal Code and the Rules of Criminal Procedure, which vest upon JONALYN, as the
offended party, the right to institute the criminal action. As signed by JONALYN, the
complaint started the prosecutory proceeding. The assistance of JONALYN's aunt, or
even of her mother, was a superfluity. JONALYN's signature alone suffices to validate
the complaint.

We agree with the OSG that if a minor under the Rules of Court can file a complaint for
rape independently of her parents, JONALYN, then 20 years of age who was found to
have the mentality of an 8-year-old girl, could likewise file the complaint independently
of her relatives. Her complaint can be rightfully considered filed by a minor.

The overriding intention of BIENVENIDO is to challenge the validity of the complaint by

assailing the competency of JONALYN to file the complaint. But even he admits in his
Demurrer to Evidence that the complaint is proper and valid on its face for which reason
he did not move to quash the information. Thus, even he admits and recognizes the
futility of his argument.

II. Competence of JONALYN to Testify

The determination of the competence of witnesses to testify rests primarily with the trial
judge who sees them in the witness stand and observes their behavior or their
possession or lack of intelligence, as well as their understanding of the obligation of an
oath.23

The prosecution has proved JONALYN's competency by the testimony of Dr. Tuazon.
The finding of the trial court, as supported by the testimony of Dr. Tuazon that
JONALYN had the understanding of an 8-year-old child, does not obviate the fact of her
competency. Its only effect was to consider her testimony from the point of view of an 8-
year-old minor. Even a mental retardate is not, per se, disqualified from being a
witness.24 JONALYN, who may be considered as a mental retardate but with the ability
to make her perceptions known to others, is a competent witness under Section 20 of
Rule 130 of the Rules on Evidence.25

JONALYN's competency is also better established in the answers she gave under direct
examination relative to the harrowing defilement she suffered in the hands of
BIENVENIDO, thus:

Q And the nature of your complaint was that you were abused or you were
raped by the herein accused Bienvenido de la Cruz y Santiago, is that correct?

A Yes, sir.

...

Q And do you know in what place where you raped by the accused,
Bienvenido dela Cruz y Santiago?

A Inside the house, sir.

Q Whose house?

A In the house of Mhel, sir.26

Q How many times were you raped by the herein accused Bienvenido dela
Cruz y Santiago alias Jun Jun?

A Twice, sir.

Court: Where?

Fiscal: Where?

Witness: On top of the wooden bed, sir.27

Q You said you were raped twice by the herein accused, Bienvenido dela
Cruz alias Jun-Jun on a "papag" inside the house of Mhel at Barangay Gatbuca,
Calumpit, Bulacan, how did Jun Jun the herein accused rape[] you?

Court: On the first time?

A He layed [sic] me to bed, sir.

Q After you were layed [sic] on the bed what happened next?

A He went on top of me, sir.28

Q Last time, you stated that the herein accused whom you called "Jun" laid
you on top of a bed and after that, he went on top of you. My question is, when
he went on top of you, what did he do to you, if any?

A: Pumaloob sa akin.29

Q Now, when the accused, which you called "Jun", pumaloob sa iyo, what
did you feel at that time?

A I felt a hard object, sir.

Q Now since you said it [was] a hard object, you could now tell the Court,
what that hard object [was]?

A I cannot remember.30

Public Prosecutor:

Q When you said the last time around, you were asked about, what you
mean by "pumaloob siya sa akin" and then you said that there was a hard object
inserted and after that, the follow-up question was asked on you, you said you
cannot remember, what is that hard object, what do you mean when you say " I
cannot remember? "

Atty. Pamintuan:
 Leading.

Court:

Witness may answer, subject to your objection.

Witness:

His private part was inserted in my private part, sir.31

Court: But there was an answer a while ago. Witness may answer.

Witness:

A Yes, sir.

Public Pros.:

Q And, when you say he did the same to you, he inserted his penis to your
vagina?

A Yes, sir.

Public Pros.:

No further question, Your Honor.32

III. Credibility of JONALYN as a Witness

The foregoing narrative has established not only JONALYN's competency but also her
credibility. Moreover, considering her feeble mind, she could not have fabricated or
concocted her charge against BIENVENIDO. This conclusion is strengthened by the
fact that no improper motive was shown by the defense as to why JONALYN would file
a case or falsely testify against BIENVENIDO. A rape victim's testimony as to who
abused her is credible where she has absolutely no motive to incriminate and testify
against the accused.33 It has been held that no woman, especially one of tender age,
would concoct a story of defloration, allow an examination of her private parts, and
thereafter permit herself to be subjected to a public trial if she is not motivated solely by
the desire to have the culprit apprehended and punished.34

We, therefore, affirm the trial court's decision to lend full credence to the testimony of
JONALYN on the circumstances of the rape, thus:
 In so few a word, complainant has made herself clear about the sexual
molestation she suffered in the hands of the accused. Plain and simple her
testimony may have been, unembellished, as it is, with details, yet, it is in its
simplicity that its credence is enhanced. Certainly, we cannot expect
complainant, in her present state of mind, to come out with a full account of her
misfortune with all its lurid details. That, to this Court, is simply beyond the reach
of her enfeebled mind. She came to talk on her sad plight from the viewpoint of
an 8-year-old child, and she must, by all means, be understood in that light. 35

Absent any cogent reason warranting a disturbance of the findings of the trial court on
the credibility and competency of JONALYN, this Court has to give these findings
utmost respect, if not complete affirmation. Settled is the rule that the trial court's
evaluation of the testimonies of witnesses is accorded the highest respect, for it has an
untrammeled opportunity to observe directly the demeanor of witnesses on the stand
and, thus, to determine whether they are telling the truth.36

IV. Propriety of Propounding Leading Questions to JONALYN

We likewise agree with the trial court's conclusion that JONALYN's testimony should be
taken and understood from the point of view of an 8-year-old child. JONALYN's
testimony is consistent with the straightforward and innocent testimony of a child. Thus,
the prosecution's persistent, repetitious and painstaking effort in asking leading
questions was necessary and indispensable in the interest of justice to draw out from
JONALYN's lips the basic details of the grave crime committed against her by
BIENVENIDO.

The trial court did not err in allowing leading questions to be propounded to JONALYN.
It is usual and proper for the court to permit leading questions in conducting the
examination of a witness who is immature; aged and infirm; in bad physical condition;
uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced;
unsophisticated; feeble-minded; of sluggish mental equipment; confused and agitated;
terrified; timid or embarrassed while on the stand; lacking in comprehension of
questions asked or slow to understand; deaf and dumb; or unable to speak or
understand the English language or only imperfectly familiar therewith.37

The leading questions were neither conclusions of facts merely put into the mouth of
JONALYN nor prepared statements which she merely confirmed as true. The questions
were indeed carefully phrased and sometimes based on her Sinumpaang Salaysay to
make JONALYN understand the import of the questions. In the same vein, the
prosecution's referral to JONALYN's Sinumpaang Salaysay to refresh her memory was
also reasonable. The purpose of refreshing the recollection of a witness is to enable
both the witness and her present testimony to be put fairly and in their proper light
before the court.38

Thus, JONALYN's behavior merely conformed to Dr. Tuazon's clinical and expert
observation that JONALYN had to be "continuously and repetitiously prompted" so that
she could answer and recount a terrible experience. JONALYN's constant eyeball
fixature towards her aunt and mother does not by itself indicate coaching, in the face of
a dearth of other evidentiary bases that the latter did coach her. There was nothing in
the behavior of JONALYN which was indicative of her failure to understand the import of
the trial proceedings. Her identification of BIENVENIDO as her assailant is quite telling
on how simple, yet unassuming, her grasp of the situation was. Thus:

Stenographer:

Reading back the question.

Q Because you understand that this was explained to you, I would like to
read to you particularly question number 3.

Tanong: Sino naman ang ibig mong idemanda?

Answer: Si Bienvenido dela Cruz y Santiago alias Jun Jun po.

Was this explain[ed] to you?

Atty. Pamintuan:

I stand correct[sic].

Witness:

Yes, sir.

Fiscal:
(to the witness)

Q Now, this Bienvenido dela Cruz y Santiago alias Jun Jun, which was the
person whom you are filing the complaint of [sic], will you kindly look around to
this Court and tell us whether or not he is inside.

A Yes, sir.

Q Would you mind to point him?

Interpreter:

Witness pointing to a man wearing orange T-shirt and when asked his
name answered Bienvenido dela Cruz.39

V. Sufficiency of Prosecution's Evidence

It is, therefore, beyond doubt that JONALYN's lone testimony, which was found to be
credible by the trial court, is enough to sustain a conviction.40 At any rate, medical and
physical evidence adequately corroborated JONALYN's testimony. Time and again we
have held that the laceration of the hymen is a telling, irrefutable and best physical
evidence of forcible defloration.41

On the basis of the foregoing, we agree with the trial court's conviction of BIENVENIDO
under Criminal Case No. 1275-M-96. His acquittal under Criminal Case No. 1274-M-96
is, at this point, beyond the review powers of this Court.

Since the information charges BIENVENIDO with simple rape only and no other
modifying circumstances has been proved, the penalty of reclusion perpetua, which is
the lesser of the penalties prescribed by Article 335 of the Revised Penal Code, as
amended by R.A. No. 7659, was correctly imposed by the trial court.

We rectify the error of the trial court in granting JONALYN the amount of P60,000 as
civil indemnity. In conformity with current jurisprudence, we hereby reduce it
to P50,000.42 An award of moral damages in the amount of P50,000 is also just under
the circumstances.43

WHEREFORE, the decision of the Regional Trial Court, Branch 11, Malolos, Bulacan, in
Criminal Case No. 1275-M-96 finding accused-appellant BIENVENIDO DELA CRUZ
guilty of the crime of rape and sentencing him to suffer the penalty of reclusion
perpetua is hereby AFFIRMED, with the modification that accused-appellant is ordered
to pay the victim JONALYN YUMANG civil indemnity in the reduced amount of P50,000
and moral damages in the amount of P50,000.

Costs de oficio.

SO ORDERED.
G.R. No. L-10642 May 30, 1958

In the matter of the petition of ALFREDO ONG to be admitted as a citizen of the

Philippines. ALFREDO ONG,petitioner-appellee,
vs.
THE REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

Borromeo, Yap and Borromeo for appellee.

First Assistant Solicitor General Guillermo E. Torres and Assistant Solicitor General
Antonio A. Torres for appellant.

CONCEPCION, J.:

This is an appeal, taken by the Office of the Solicitor General from a decision of the
Court of First Instance of Cebu, granting the petition for naturalization of appellee
Alfredo Ong.

The only questions raised in this appeal are: (a) the sufficiency of the affidavits attached
to appellee's petition; and (b) whether the alleged deficiencies therein have been cured
by the evidence introduced in the lower court.

Said affidavits were signed by Primo Alvez and Miguel Relampagos. The former, said:

1. That I am a citizen of the Philippines;

2. That I had been a member of the Police Force of the City of Cebu before the
war and at present, an attorney at law;

3. That I have known Alfredo Ong since he first came to live in this province; and
during the entire period that I have known him, if always know him to be a
hardworking, law-abiding and highly respected person, who can be considered a
credit of the community in which he lives.

Relampagos stated:

1. That I am a citizen of the Philippines, residing in the above mentioned

address.

2. That I am an Accountant by profession.

3. That I personally know Alfredo Ong for many years. He is a man of good moral
character, honest, and law-abiding person.

Section 7, of Commonwealth Act No. 473 provides that every petition for naturalization:
(a) "must be . . . supported by the affidavit of at least two (2) credible persons", (b)
"stating that they are citizens of the Philippines" and (c) "personally know the petitioner
to be a resident of the Philippines for the period of time required by this Act" and (d) "a
person of good repute" and (e) "morally irreproachable", and (f) "that said petitioner has
in their opinion all the qualifications necessary to become a citizen of the Philippines"
and (g) "is not in any way disqualified under the provisions of this Act."

A perusal of the above-quoted affidavits readily reveals that the same fail to live up to
the requirements of said section 7, in that the affidavits do not state: (1) that the affiants
personally know the petitioner to be a resident of the Philippines for the period of time
required by the Naturalization Law; (2) that petitioner and appellee is morally
irreproachable; (3) that he has all the qualifications necessary to become a citizen of the
Philippines; (4) that he is not in any way disqualified under the provisions of our
Naturalization Law; and (5) that Relampagos personally knows petitioner to be a person
of good repute.

Petitioner alleges that said section 7 has been substantially complied with, because
Relampagos stated in his affidavit that he had known petitioner for "many years," and
Alvez asserted in his sworn statement that he had known petitioner since "he first came
to live in this province" of Cebu; because the statement of Alvez to the effect that he had
always known petitioner "to be a hardworking, law abiding and highly respected person,
who can be considered a credit to the community in which he lives", and the averment
of Relampagos to the effect that petitioner "is a man of good moral character, honest
and law abiding" imply that he possesses all the qualifications and none of the
disqualifications to become a citizen of the Philippines; because said affidavits do not
show that petitioner is disqualified; because, "at any rate . . . it is the court that
determines whether or not an applicant for Filipino citizenship is duly qualified"; and
because the affidavits "contain sufficient facts to show that petitioner is a person of good
moral character."

There is no merit in this pretense. Knowing a person for "many years" or "since he first
came to live in this province" is not the same as knowing him to be a resident of the
Philippines" for the requisite period of time. So too, while the assertion of Alvez that
petitioner is a "highly respected person", might amount to saying that he is "a person of
good repute", the affidavit of Relampagos is absolutely silent on the opinion of the
community about petitioner. Similarly, the affiants must attest that petitioner is
"morally irreproachable," not merely good. Moreover, the affidavits must
show affirmatively that petitioner has all the requisite qualifications and is "not in anyway
disqualified" to become a naturalized citizen. Failure to disclose the existence of any
disqualification is not enough. If it were, then the affidavits could be totally dispensed
with. Our Naturalization Law demands, not only a showing, in the petition, that the
applicant has all the necessary qualifications and none of the aforesaid disqualifications,
but, also, that the petition and its aforementioned allegations be backed up by two (2)
"credible" citizens of the Philippines, who affirmatively indorse said petition and warrant
the truth of its allegations, as well as the worthiness of the applicant to be an, integral
part of our body politic. Such indorsement and warranty are a condition precedent to the
consideration of the petition. They are entirely distinct and different, and, in a
way, independent, from the question whether, after due notice and hearing, the should
render judgment granting the petition, in the light of the evidence of record. Said
condition refers to the pleadings or procedure. The judgment deals with the merits of the
case, and affects the substantive rights of the petitioner.

It is urged, however, that the deficiencies in the affidavits of Primo B. Alvez and Miguel
Relampagos have been "cured" by the evidence on record. Without passing upon the
question whether said deficiencies affect the petition to the extent of invalidating the
same or, at least, of rendering the petition unworthy of consideration, it is proper to
reflect upon the purpose of the law in requiring that the affidavits of at least two (2)
"credible persons" be attached to the petition.

As already adverted to, the petitioner must be sponsored by "credible" citizens, who are
willing to warrant his fitness. Indeed, one who can not find two (2) such persons to back
him up, must be "unwelcome" to our citizenry, and should not be admitted as a regular
or full member of our democratic society, governed as it is by the majority rule.

Then, also, it is necessary that the names of those who will testify for the petitioner be
known. Why? So that the Government could, before the hearing, investigate them or
find out what they know about the petitioner, and, also, in order that those who are
acquainted with said witnesses could tip the Government about matters relevant to
them and/or the petitioner. Hence, a petition for naturalization cannot be heard
until after six (6) months from the last publication of the notice of said hearing, which
notice shall state among other things, "the names of the witnesses , whom petitioner
proposes to introduce in support of his petition." (Commonwealth Act No. 473, section 9,
as amended by R. A. No. 530.).

Needless to say, the legal provision requiring that the sworn statements of at least two
(2) credible persons be attached to the petition, necessarily implies that those two (2)
credible persons be attached to the petition, nesessarily stand, the contents of their
aforementioned affidavits. Accordingly, in the absence of good reasons therefor — such
as death or unexpected absence of the affiants — we have held that they must
testify for the petitioner, and cannot be substituted by other witnesses (Cu vs. Republic,
89 Phil., 473; Yu Chiong Tian vs. Republic, 94 Phil., 742; Awad vs. Republic, 97 Phil.,
569; Karam Singh vs. Republic,1 51 Off. Gaz., 5172; Cabrales Cu vs. Republic,2 51 Off.
Gaz., 6525; Raymundo Pe, et al. vs. Republic, 52 Off. Gaz., 5855,3 Lui vs. Republic, 53
Off. Gaz., 379;4 Chan Pong vs. Republic, G.R. No. L-9153, May 17, 1957; and Dy Suat
Hong vs. Republic, 101 Phil., 635.).

Similarly, when the law ordains that certain specified statements be made in said
affidavits, it follows, as an inevitable corrollary, that those statements must be
established, on the witness stand, by the testimony of the affiants themselves. In other
words, petitioner must prove by the testimony of, at least, two (2) credible persons,
whose affidavits are attached to the petition:

1. That they are citizens of the Philippines;

2. That they are "credible persons";

3. That they personally know the petitioner;

4. That they personally know him to be a resident of the Philippines for the period of
time required by law;

5. That they personally know him to be a person of good repute;

6. That they personally know him to be morally irreproachable;

7. That he has, in their opinion, all the qualifications necessary to become a citizen of
the Philippines; and

8. That he "is not any way disqualified under the provisions" of the Naturalization Law.

In effect, therefore, the latter establishes a two-witness-rule, analogous to that obtaining

in treason cases, with the particularity that, in naturalization cases, the two (2)
witnesses must be those whose affidavits are attached to the petition, and do not
include the petitioner. As a consequence, with respect to the question whether the
deficiencies in the affidavits of Primo B. Alvez and Miguel Relampagos have been
cured, our task is to ascertain whether the eight (8) points referred to in the preceding
paragraph have been established by their testimony.

It is not disputed that Alvez and Relampagos are Filipinos. However, we are not
prepared to say — without the slightest intent to cast any aspersion upon them — that
they have been proven to be "credible persons". Within the purview of the Naturalization
Law, a "credible person is, to our mind, not only an individual who has not been
previously convicted of a crime; who is not a police character and has no police record;
who has not perjured in the past; or whose "affidavit" or testimony is not incredible.
What must be credible" is not the declaration made, but theperson making it. This
implies that such person mast have a good standing in the community; that he is known
to be honest and upright; that he is reputed to be trustworthy and reliable; and that his
word may be taken on its face value, as a good warranty of the worthiness of the
petitioner. Thus, in Cu vs. Republic, 89 Phil., 473 (decided on July 18, 1951), we
declared that said affiants "are in a way insurers of the character of the candidate
concerned." Indeed, by their affidavits, they do not merely make the statements therein
contained. They also vouch for the applicant, attest to the merits of his petition and sort
of underwrite the same.

Assuming, without granting that, as a former member of the police force of Cebu and a
present member of the Bar, Alvez may be regarded as a "credible" person, we are not
satisfied that Relampagos belongs to such class, according to the evidence of record.
Besides, being a P40-a-month employee of petitioner, Relampagos is
his subordinate and was not free, either economically or morally, to act as he pleased in
relation to the case at bar. This accounts, at least, partly, for the hard time he had trying
to explain why his testimony on the length of time he had allegedly known petitioner
herein does not tally with a previous declaration, on the same subject, made by him to
the local police.

Independently, of the foregoing, none of them has testified, expressly or by implication,

that petitioner is "morally irreproachable." They did not go beyond stating, in reply to
leading questions, that he is a person of "good" moral character — which is not enough.
The law requires a moral character of the highest order — an excellent character. Under
similarly leading questions, they testified, also, that he has some of the qualifications to
become a citizen of the Philippines — such as evincing a sincere desire to become a
Filipino, mingling with Filipinos, and adopting our customs and traditions — and that he
does not have some of the disqualifications provided in the naturalization law — such as
the practice of polygamy, mental alienation and incurable contagious disease. As above
pointed out, the character witnesses are required to attest that "petitioner has in their
opinion all the qualifications necessary to become a citizen of the Philippines and is not
in any way disqualified," under the law. Alvez expressed the belief that petitioner "has
none of the disqualifications of becoming a Filipino citizen", but he did not give the facts
upon which this conclusion was predicated. He did not know where petitioner was born
or how many children he had. He (Alvez) was not sure whether they are enrolled in
public schools. Neither was he sure about the name of his (petitioner's) wife. In short, it
would seem that he is not sufficiently acquainted with the petitioner to being a position
to vouch for him and be his "insurer".

Wherefore, the decision appealed from is hereby reversed, and another one shall be
entered dismissing the petition, with costs against the petitioner. It is so ordered.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Reyes, J.B.L.,
Endencia and Felix, JJ., concur.
G.R. No. 75880 September 27, 1988

BERNARDO M. CORDIAL, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and INTERMEDIATE APPELLATE COURT (now
Court of Appeals), respondents.

Free Legal Assistance Group for petitioner.

The Office of the Solicitor General for respondents.

FERNAN, C.J.:

This is a petition for review on certiorari of the decision of the Court of

Appeals 1 affirming the decision of the Regional Trial Court, BRANCH XXV at Naga
City 2finding herein petitioner guilty beyond reasonable doubt of homicide and imposing
on him the indeterminate sentence of eight (8) years and one (1) day prison mayor as
minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal as maximum. The appellate court modified the lower court's decision by
increasing the indemnity payable to the victim's heirs to P30,000.

The prosecution version of the crime on which the courts below based their decisions
are as follows: At around 10:00 o'clock in the morning of August 23, 1981, C2C
Emmanuel Romero of the 244th Company of the Philippines Constabulary (PC) and
Nicanor Lanuza, a member of the Constabulary Home Defense Force (CHDF), were
riding on a passenger jeep from the PC headquarters at Concepcion Grande, Naga City
to the patrol base at Antipolo, Minalabac Camarines Sur. Romero and Lanuza, who
were both carrying armalite rifles were then seated opposite each other at the rear of
the jeep nearest its running board with Romero seated on the left side. 3

The jeep, which contained around ten passengers stopped near the house of the
barangay captain at Grejalvo (Grijalvo), San Fernando, Camarines Sur, to unload some
passengers. From where he was seated, Lanuza saw petitioner Bernardo M. Cordial
with nine other persons. 4 Then, Cordial, armed with an "improvised knife" 5 entered the
jeep and stabbed Romero on the left side of the body. Lanuza fired his armalite rifle but
the persons with Cordial got his and Romero's armalite rifles and stabbed him
seventeen times. Lanuza failed to see what happened later to Romero as he became
unconscious. 6

Romero died on the spot. The autopsy conducted immediately thereafter by the
municipal health officer of San Fernando, Camarines Sur, revealed that Romero, who
was then 22 years old, sustained a bullet wound described as "swinging" which
penetrated his left arm, another 0.8 centimeter contused wound after a bullet entered
his left nipple and exited at the scapular region, still another lacerated wound 2 inches in
diameter caused by another bullet on the left side of the back at the mid-scapular
region, and a stabbed wound on the right hypochondriac region. Romero also had
abrasions on both legs. His death was attributed to "irreversible shock secondary to
severe external and internal hemorrhage due to multiple gunshot wounds. 7

Eight months later or on April 26, 1982, Cordial was arrested by the police near the
Tabuco bridge in Naga City while he was waiting for a ride to Beberon, San
Fernando 8 From the city jail, he was brought to the PC headquarters allegedly by
Lanuza. 9 The following day, he was investigated by patrolman Eduardo Ginoo of the
Investigation Section, 244th Constabulary Company/Police District III at Naga City. The
investigation was conducted in the Bicol dialect but Cordial refused to sign his
typewritten statement. 10 In his uncorroborated testimony Cordial stated that the
answers to the questions propounded in the investigation "did not come from (him) but
from Lanuza." 11

The police filed a complaint for murder against Cordial and three John Does in the
municipal circuit court of San Fernando-Pamplona, Camarines Sur. After the preliminary
investigation, the second stage of which was waived by the accused, the provincial
fiscal filed an information for murder against Cordial in the Court of First Instance of
Camarines Sur.

On arraignment, Cordial pleaded not guilty to the offense charged. He interposed alibi
as his defense. In his testimony, Cordial stated that he could not remember where he
was on August 23, 1981 "because it was already a long time ago; 12 that from June to
November, 1981 he was employed as a truck laborer by Pepito Morano who owned a
tobacco factory at the Naga City Subdivision and the Hotel Moraville at Dinaga Naga
City; that his duty was to load gravel, sand and boulders in Ligao or Pawili for delivery to
the construction site of Morano that he worked from five to seven days a week because
there were times when the truck would be out of order and he would help in its repair,
and that he worked from seven in the morning to seven in the evening even on Sundays
when they disposed of tobacco waste from the Naga City Subdivision to Balatas Naga
City. 13

Cordial swore that Lanuza testified in court that he was one of those who killed Romero
and assaulted Lanuza because the latter told lies and "disreputed" persons like
himself. 14 He came to know Lanuza because he used to go to San Fernando to help his
parents prepare their land for planting. He could not remember if he went to San
Fernando from June to November because "it was already so long a time" and his work
and Romero were dead, they got their guns and armalite magazines and escaped
towards Beberon where they went their separate ways to hide with Morano was
continuous. 15

The defense presented two other witnesses. Femando Bicaldo, Jr. testified that he was
a co-laborer of Cordial in the gravel and sand business of Morano for five months from
June, 1981; that he and Cordial would work from seven in the morning to seven in the
evening delivering gravel and sand from Pawili or Ligao to Moraville, and that they
would work from five to six days a week.

Catalino Noora, the barangay captain of Beberon, testified that he had known Cordial
since 1978; that Cordial was a resident of Naga City and he would go to Beberon only
during the planting season to help his parents; that he knew Lanuza to be a CHDF
member who would come to Beberon if he had someone to arrest; that Lanuza picked
up Dominador Penaflor, one Bandola and Mamerto Peflaflor; that Lanuza brought these
three persons to the PC Detachment at the boundary of Lupi, San Fernando and
Antipolo and to the PC detachment in Tanmo and later they were brought back to Lupi;
that when the three were back in Lupi, he heard gunshots and "there were spray of
bullets" which he believed to have come from an armalite or machinegun because they
were successive; and that after he heard the gunshots, the three were loaded in a jeep
and brought to the municipal hall already dead.

Finding that the qualifying circumstances of treachery and evident premeditation were
not proved, the lower court ruled that the crime committed was homicide and not murder
as charged. Mitigating or aggravating circumstances being absent, the court imposed
the aforementioned penalty. The sum of P12,000 it had imposed on the accused "for the
fact of death" and the amount of P10,000 as reimbursement for the interment expenses
were later increased by the appellate court to the total amount of P30,000.

His motion for reconsideration having been denied, Cordial appealed to the
Intermediate Appellate Court. On April 2, 1986, the later court affirmed the lower court's
decision.

The instant petition for review on certiorari is centered on petitioner's challenge to the
credibility of the prosecution's sole eyewitnesses, Nicanor Lanuza, and his testimony.

In assailing the credibility of Lanuza as a witness, Cordial relies on the testimony of

Catalino Noora specifically the following:

Q. Do you know whether Nicanor Lanuza as a member of

the CHDF came to Beberon on any occasion?

A. Yes sir.

Q. On what occasion?

A. Lanuza goes to Beberon if he has a person to be a tested.

Q. Do you know who (were) these persons arrested by

Nicanor Lanuza?

A. Yes sir.
 Q. Who are they?

A. Dominador Penaflor and one Bandola and Mamerto

Penaflor.

Q. Do you know why these persons were arrested by

Lanuza?

A. I don't know because they were just picked up.

Q. Where were they brought?

A. They were brought to the PC Detachment located at the

boundary of Lupi and Antipolo and at the PC Detachment at
Tamno and then returned to Lupi.

Q. Where is this barangay Lupi located?

A. San Fernando, Camarines Sur.

Q. Do you know what happened to these persons after they

were brought to Lupi?

A. Yes, sir.

Q. What happened to them?

A. When they were brought back to Lupi, we heard gunshots

.and there were spray of bullets and I believe those bullets
comes (sic) from an armalite or machinegun because they
were successive.

xxx xxx xxx

Q. After you heard the gunshots, what happened next?

A. What I knew, they were loaded on a jeep and were

brought to the Municipal Hall already dead. (Emphasis
supplied.) 16

Through this testimony, petitioner attempts to convince the Court that Lanuza is not a
credible witness because of moral turpitude.17 Ranged against this contention are the
trial court's finding that no proofs were adduced regarding Lanuza's participation in the
operations which resulted in the "salvaging" of three youths, and its conclusion that
these alleged "facts" were merely stated by defense witness Noora whose knowledge of
said killings was based on rumors without any solid first hand evidence to back them
up. 18

We are not persuaded that the defense's testimonial evidence on Lanuza's alleged
moral depravity is sufficient to discredit him as a witness. Moral turpitude or depravity as
a reason for exclusion of a witness is legally frowned upon mainly for the reason that
any attempt to establish such an incapacity is met by two objections. One is that in
rational experience, no class of persons can safely be asserted to be so thoroughly
lacking in a sense of moral responsibility or so callous to the ordinary motives or
veracity as not to tell the truth (as they see it) in a large or larger proportion of instances.
The second objection is that, even if such a defect existed and were ascertainable, its
operation is so uncertain and elusive that any general rule of exclusion would be as
likely in a given instance to exclude the truth as to exclude falsities. 19

Moreover, impeachment of a witness must be confined to an r attack on his general

character or reputation and on his character or reputation for truth and veracity. Such
impeachment cannot be directed to any particular trait or character, or r particular facts
of particular wrongful or immoral acts. 20 Hence, the defense may not validly attack
Lanuza's credibility through Noora's uncorroborated account of Lanuza's alleged
participation in a rub-out, more so because Noora himself did not see it happen. In the
same vein is Cordial's unsolicited information which has no factual basis that Lanuza
usually speaks ill of other persons.

We need not belabor the point that findings of the trial court on the credibility of
witnesses is entitled to great weight. 21 Suffice it to state that under Section 18, Rule
130 of the Rules of Court, even convicted criminals are not excluded from testifying in
court so long as, having organs of sense, they "can perceive, and perceiving, can make
known their perceptions to others."

Petitioner considers Lanuza's testimony as "not only contrary to common experience

and observation of man" but also "inherently improbable. 22 He zeroes in on Lanuza's
testimony that there was a lapse of "more or less five minutes" from the time he saw
Cordial's group and the actual attack on Romero 23 and that Lanuza had known Cordial
for the past twenty years. 24

Petitioner contends that the 5-minute lapse of time provided Lanuza with enough time
"to prepare himself 'and "to forwarn the Victim 25 and hence, the lower court erred in
finding that the attack was sudden. Petitioner also avers that Lanuza could not have
known Cordial for twenty years because the latter was only 23 years old at the time of
the testimony.

We consider Lanuza's apparently erroneous reckoning or mis-estimation of time as too

trivial and immaterial to discredit his testimony. 26 On cross-examination, Lanuza
testified that although upon seeing Cordial with a knife, he knew that he and Romero
would be attacked, the assault was so sudden that he had no time to prepare himself or
to forwarn Romero. Repeated questioning by both the defense counsel and the court
failed to unflinch Lanuza to depart from his testimony on the suddenness of the attack
which left him and Romero helpless. 27

Lanuza's claim that he had known Cordial for twenty years is too insignificant to affect
his testimony. What is material is the proven fact that being residents of the same
province who frequently took the same passenger jeep in San Fernando, Lanuza could
have familiarized himself with Cordial's physical features to recognize him as one of the
assailants. In fact, Cordial himself admitted that he came to know Lanuza because his
parents had a piece of land in San Fernando and he usually went there during the
planting and harvesting seasons. 28

Petitioner also labels as inherently improbable the appellate court's finding that he sat
first inside the jeep, stood up and stabbed Romero. On this matter, the appellate court
said:

The appellant alleges that while Lanuza said the appellant was seated
when he stabbed the victim, thereafter Lanuza said he was not sitting
beside the victim but he was standing. There is no inconsistency here.
What Lanuza must have meant was at the beginning appellant was seated
but thereafter he stood up and stabbed the victim.

The appellant then asked how could it be possible that he would have
entered the crowded jeepney to stab the victim when he could have
stabbed the victim from outside. The evidence reveal that the appellant
was with several companions and that it was the appellant who went
inside and stabbed the victim while his other- companions stabbed Lanuza
from outside. 29

This finding of the appellate court is based on the following testimony of Lanuza:

Q. Where was Bernardo Cordial when he stabbed

Emmanuel Romero?

A. He was inside the jeep.

xxx xxx xxx

Q. How far was Bernardo Cordial when he stabbed

Emmanuel Romero?

A. He was able to come nearer the victim.

Q. How near?

A. More than one arm length also. 30

 COURT:

Q. At the time that Romero was stabbed by Cordial, was

Cordial seated?

A. Yes, your honor, Cordial was seated.

Q Where was Cordial seated?

A. Bernardo Cordial, your Honor, was inside the jeep.

Q. Was he seated beside Romero?

A. No, your honor, he was not sitting beside Romero.

Q. So he was standing when he stabbed Romero?

A. Yes, he was standing, your honor.

Q. Inside the jeep?

A. Yes, your honor. 31

Lanuza's ostensible confusion is explained by his earlier testimony that there was a
"rumble" during the assault. 32However, such confusion and seeming inconsistency in
his testimony cannot be considered earmarks of prevarication. On the contrary, they
indicate that the witness was unrehearsed. 33

A witness is credible despite minor variances in his testimony where the testimony is
consistent and natural on substantial matters and is corroborated by physical
evidence. 34 Shorn of the portions objectionable to petitioner, Lanuza's testimony is
sufficient to pinpoint culpability on Cordial. That he was the sole eyewitness of the
prosecution is of no moment. There is no law which required that the testimony of a
single witness in a murder or homicide case has to be corroborated. The testimony of
only one witness, if credible and positive, is sufficient to convict. 35

The defense of alibi interposed by Cordial is unavailing in view of his positive

Identification by Lanuza who had no proven motive to falsely accuse Cordial of a grave
offense. 36 Furthermore, the defense failed to prove that it was physically impossible for
Cordial to be at the scene of the crime. 37 August 23, 1981 was a Sunday and by
Cordial's admission, Sunday was a rest day for him except when there was tobacco
waste to be disposed of 38 Also, as Cordial himself testified, Grijalvo is adjacent to
Beberon where his parents resided. 39 It was, therefore, not indubitably proven that he
could not have been in Grijalvo on August 23, 1981 when a group of men ambushed
Romero and Lanuza.
In the absence of qualifying circumstances, the courts below correctly ruled that the
killing was a homicide punishable under Article 249 of the Revised Penal Code and not
murder as charged. There being no aggravating and mitigating circumstances, the
appellate court correctly imposed the aforementioned indeterminate penalty and the
indemnity of P30,000.

WHEREFORE, the decision of the Intermediate Appellate Court (now Court of Appeals)
is hereby affirmed. Costs against the petitioner.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.

Gutierrez, J., is on leave.

G.R. No. 88324 July 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANGELO ARCEO y MALI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Godofredo C. de Guzman for accused-appellant.

REGALADO, J.:

This appeal seeks to overturn the judgment of conviction rendered in Criminal Case No.
86-45584 of the Regional Trial Court of Manila on February 17, 1989, 1with the following
dispositive portion:

WHEREFORE, the Court finds the two (2) accused, ANGELO ARCEO Y
MALI and RAMIL CECILIO Y MARIANO, guilty beyond reasonable doubt
of the crime of robbery with homicide; and hereby sentences them to
suffer the penalty of reclusion perpetua with the accessory penalties
provided for by law, less preventive period of their imprisonment; and
adjudging them to pay jointly and severally the heirs of the deceased.
Delfin Manalese, the amount of P30,000.00 for his death, without
subsidiary imprisonment in case of insolvency and with costs against
them.

SO ORDERED.

Accused-appellant Angelo Arceo, together with his co-accused Ramil Cecilio, were
charged before the Regional Trial Court of Manila, Branch XI, with the crime of robbery
with homicide, in an information which reads as follows:

That on or about the 22nd day of May, 1986, in the City of Manila,
Philippines, the said accused, conspiring and confederating together and
mutually helping each other, did then and there wilfully, unlawfully and
feloniously, with intent of gain and by means of force, violence and
intimidation to wit: by suddenly grabbing and forcibly snatching from the
wrist of one Delfin Manalese y Astor, take, steal and carry away one (1)
wrist watch valued at P1,500.00 belonging to said Delfin Manalese y Astor
against his will, to the damage and prejudice of said owner in the
aforesaid sum of P1,500.00, Philippine Currency; that by reason of and on
the occasion of the commission of the said crime of robbery, the said
accused, did then and there wilfully, unlawfully and feloniously, with intent
to kill, attack, assault and use personal violence upon the person of said
 Delfin Manalese y Astor, by then and there stabbing him on the chest with
a bladed weapon, thereby inflicting upon the latter mortal wound which
was the direct and immediate cause of his death thereafter.

CONTRARY TO LAW. 2

Upon arraignment, both accused, assisted by counsel de oficio, pleaded not guilty to the
crime charged. After trial on the meats, the court a quo rendered the aforesaid judgment
finding both accused guilty beyond reasonable doubt of the crime of robbery with
homicide. Only accused Angelo Arceo appealed from the judgment of conviction.

The trial court synthesized the evidence for the prosecution in this wise:

1. ROLANDO CALADIAO, testified that he was a market porter and a

resident of 346 P. Rada Street, Tondo, Manila; that on May 22, 1986, at
around 8:00 o'clock in the evening he was on his way to the market in
order to report for work at the corner of Padre Rada and Camba
Extension, Manila; while he was at the comer of Padre Rada Street and
Camba Extension; he saw Delfin Manalese standing as if he is resting,
two (2) persons approached Delfin. After approaching, the smaller one
placed his arm on the shoulder of Delfin, who turned out to be Angelo
Arceo. Thereafter, the two (2) persons forced (sic) to get the watch of
Delfin. Delfin tried to free himself from the hold of the two persons in order
to run away. Angelo at that time had a companion who turned out to be
Ramil Cecilio. Angelo stabbed Delfin with a "balisong" while Ramil was
holding him (t.s.n., pp. 3, 4, 6, 7 & 8, hearing, October 23, 1986).
Continuing, he declared that Angelo was able to get the watch of Delfin
when Angelo stabbed (Delfin (t.s.n., pp. 8-9, hearing, Oct. 23, 1986).i•t•c-
aüsl At the time the accused approached the victim, he was then three (3)
armlenght (sic). He brought the lifeless victim to Mary Johnston Hospital.

Likewise, he asseverated that he recognized both accused Angelo and

Ramil as he used to see them loitering at Maria Payo Street whenever he
visited his friend Rodrigo Capwa who lived at P. Herrera Street. At the
time of the incident he observed that Ramil and Angelo were under the
influence of drugs as they were loitering in their place and that they were
"pasuray-suray" from side to side (t.s.n., p. 10, hearing, Nov. 26, 1986).

2. MARCIAL CENIDO, testified that he was a medico-legal-officer of

Western Police District; that he examined the cadaver of Delfin and the
cause of his death. He recounted that on May 23, 1986 he autopsied the
body of Delfin and conducted postmortem examination, his findings of
which are reflected in Exh. "E";

3. PFC. AMADOR REGALADO of the Homicide Section of WPD declared

that on May 22, 1986, a stabbing incident was reported to their office.
 Upon receiving that report, he inquired as to the identities of the alleged
suspects and was told of the aliases of the two (2) suspects. Thereafter,
he went to the house of the alleged suspects and invited them to the
police headquarters to shed light on the reported stabbing incident.
Likewise, persons who allegedly witnessed the incident were also invited
for investigation.

He testified that he was present at the time both the accused gave their
statements before Pat. Trinidad;

4. REYNALDO LIMPIN testified that in the evening of May 22, 1986, at

around 8:00 o'clock he heard people shouting "magnanakaw". At this
juncture, he moved towards the direction where the shouting came from
and noticed two persons running in a hurry, one of them was holding a
bladed weapon with traces of blood. He confronted them and asked them
"Ano iyong sumisigaw na magnanakaw?" and to which they answered
"Hindi sila" (t.s.n. p. 9, hearing of April 9, 1987).

Testifying further, he identified his sworn statement (Exh. "C") as part of

his testimony. In addition, he asseverated that he was five (5) armlenght
(sic) away from the victim. After the testimonies of the aforementioned
witnesses, the prosecution offered Exhibits "A" to "E-1" and rested its
case. 3

The evidence for the defense was summarized as follows:

1. ANGELO ARCEO Y MALI testified in his behalf and declared that he

was a resident of 21 Marikina Maypajo, Caloocan City and asseverated
that on May 22, 1986 at around 7:00 o'clock in the evening he was at
Maypajo, he was then with his friends, Chito, Joseph, Robert, Pogi and
Aling Felisa, singing. They started singing at 9:00 p.m. and finished at
10:00 o'clock in the evening. He further added that from 7:00 o'clock to
9:00 o'clock p.m. he was in Maypajo, conversing with his friend (t.s.n. p. 4,
Hearing of Oct. 13, 1987).i•t•c-aüsl

On cross-examination, Angelo testified that it would take him ten (10)

minutes if he rides a jeep to reach Padre Rada, Manila, from Caloocan.
He admitted that if he will take a taxi it will take the same number of
minutes from Padre Rada, Manila. If he walks from Padre Rada, Manila to
Caloocan, it will take him 1/2 hour to reach Caloocan (t.s.n. p. 5, hearing,
Dec. 15, 1987).

2. FELISA HERRERA, testified that she is 64 years old and residing at 21

Marikina, Maypajo, Caloocan City; that Angelo is her neighbor for three (3)
years. On May 22, 1986, at around 6:00 o'clock in the evening, she was in
 their house together with Angelo, Bong, Chito, Joseph, Mando and Pogi,
who were then singing.

3 FORTUNATO ARCEO, likewise testified that in the evening of May 22,

1986 between 11:00 to 12:00 midnight, Pat. Regalado and his co-
policemen went to his house and inquired about the whereabouts of Ramil
as the latter was implicated in a killing incident. He told them that he has
no son by the name of Ramil.

The following morning, the policemen arrived and arrested his son,
Fortunate Arceo, Jr. He admitted that he knew Ramil Cecilio who was
living in the 6th house from their house.

4. RAMIL CECILIO testified likewise in his behalf and declared that he is

28 years old, jobless and a resident of 415 Zabala Street, corner Balagtas,
Tondo, Manila. He admitted that a certain policeman picked him up in his
wife's house located at Sandico, corner P. Soriano, Tondo, Manila, on
May 22, 1986 at around 8:00 o'clock in the evening (t.s.n. pp. 3 & 4,
hearing, January 14, 1988).

On cross-examination he testified that Sandico Street is eight (8) meters

away from Camba Extension and to Padre Rada, if one is to walk from
Sandico to Camba and Padre Rada streets, it will take ten (10) minutes to
reach the place (t.s.n., p. 7, hearing, January 14, 1988).

5. ANGELINA BUENSUCESO, testified that at about 7:30 in I the evening

of May 22, 1986, Ramil went to her house located at 1164 Asuncion
Extension, Tondo, Manila, to attend to her mother's birthday. She further
admitted that Ramil slept in their house and left at 12:00 o'clock noon the
following day. After the testimony of Angelina Buensuceso, the defense
rested its case without any documentary evidence. 4

On rebuttal, the prosecution presented Danilo Manalese, brother of the victim. He

recounted that on May 22, 1986, at about 8:00 o'clock in the evening while he was in his
house at 989 Camba Extension, Tondo, Manila, he heard the victim shout twice "Nay,
sinaksak po ako." He proceeded to the place where his brother was and the latter
pointed to both accused as the ones responsible for the stabbing. He recognized both
accused as the place was well lighted. 5

The main thrust of the appeal is centered on credibility of the witnesses for the
prosecution, appellant faulting them as follows:

1. Caladiao allegedly neither helped the victim nor could he have identified the
perpetrators since he was in a state of shock; that because the place was crowded it
was impossible to identify appellant as one of the perpetrators; that Caladiao was a
neighbor of the victim; and that Caladiao, instead of using the fastest means of
transportation, used a pushcart to bring the patient to the hospital.

2. Limpin supposedly contradicted Caladiao because the latter never testified that
shouts of "magnanakaw" were heard; that he could not have inquired from appellant on
what was happening since Limpin was not a person in authority or an agent thereof, and
that Limpin was implicated in another stabbing incident thereby casting doubt on his
credibility.

3. Pfc. Regalado, appellant claims, was likewise inconsistent in his testimony that he
investigated the appellant in the morning and also in the afternoon.

4. Lastly, Delfin Manalese's testimony was allegedly inconsistent with that of Caladiao.
Delfin Manalese stated that he heard his brother cry "Nay sinaksak po ako" twice, while
Caladiao testified that he heard the victim cry the same words once. Appellant further
argues that Delfin could not have possibly heard his brother since his house was thirty
meters away from the corner of Padre Rada St. 6

It is an elementary rule that inconsistencies and contradictions referring to minor details

do not destroy the credibility of witnesses. 7 Inconsistencies in the principal eyewitness'
testimony which are details that do not impair the identification of the accused are not
fatal. Witnesses who are in a state of surprise and fright cannot be expected to recall
with accuracy or uniformity matters connected with the main overt act. Rather than
discredit the testimony of the witnesses, such discrepancies or minor details serve to
add credence and veracity to their categorical, straightforward and spontaneous
testimony. 8

From an analysis of the testimony of the witnesses for the prosecution, it becomes
readily apparent that the supposed errors involve minor matters which have no material
bearing on the commission of the criminal act itself. Variances can be attributed to the
fact that different persons have diverse impressions and perceptions of a startling event.
On the other hand, the testimonies of two or more witnesses would be under a serious
cloud of doubt if their declarations tallied in their minutest details, for then, that would
not be natural. That would indicate that the testimonies were rehearsed. 9

Furthermore, the trial court categorically observed that "(t)he testimony of subject
witness is clear direct, spontaneous and therefore deserves credence. The witnesses
testified in a straight-forward manner, sincere and candid in answering questions
propounded during the direct examination as well as in
the cross-examination. They have no motive to testify falsely against the accused." 10

We, therefore, find no reason to depart from the cardinal principle that the findings of
the trial court on the matter of credibility should not be disturbed on appeal due to its
superior advantage in observing the conduct and demeanor of the witnesses while
testifying, unless some facts or circumstances may have been overlooked that may
affect the result of the case. 11 The findings of the trial court carry great weight because
they have the privilege of examining the deportment and demeanor of witnesses, and,
therefore, can discern if such witnesses are telling the truth or not. 12

Furthermore, we are convicted beyond reasonable doubt, on the basis alone of the
testimony of eyewitness Rolando Caladiao, that both accused actually committed the
crime charged. Caladiao's lone but credible testimony is, to our mind, sufficient to
support a conviction. Hence, even in the absence of corroborating testimony, the
accused can validly be convicted on the basis of the positive identification by Caladiao.

Appellant tries to impeach Limpin by adverting to the latter's being one of the
respondents in a case for frustrated murder in I.S. No. 85-13602 of the Office of the City
Fiscal of Manila. It should be noted, however, that in order to affect the credibility of a
witness by the mere fact that he was charged with an offense, previous conviction by
final judgment is required, 13 and the existence of a pending information may not be
shown to impeach the witness. 14With more reason, therefore, should Limpin not be
discredited merely on the basis of a complaint filed with the city fiscal, there being no
showing that an information has been filed in court and that judgment has been
rendered convicting him of the offense.

The defense of appellant hinges primarily on alibi which, as we have repeatedly

declared, is one of the weakest defenses that may be invoked by an accused. We rule
once again that for this defense to prosper, it is not enough to prove that the accused
was somewhere when the crime was committed but that he must also demonstrate that
it was physically impossible for him to have been at the scene of the crime. It cannot
prevail over the positive identification of the prosecution witnesses. It is an issue of fact
that hinges on the credibility of the witnesses who seek to establish it. 15 It has been
held that no physical impossibility exists where the distance between the scene of the
crime and the place where the accused allegedly was at that time would take only
fifteen to twenty minutes to negotiate by jeep, 16 or where it can be traversed by walking
in one and a half hours, 17 or where the places involved are only two hundred meters
apart. 18

That it could not have been physically impossible for accused Arceo to be at the scene
of the crime is evident from his own testimony to the effect that it would take him ten
minutes if he rides a jeep to reach Padre Rada, Manila, from Caloocan; that it would
take him the same number of minutes if he takes a taxi; and that if he walks from Padre
Rada, it would take him half an hour to reach Caloocan.

Alibi, we have consistently held, cannot prevail over the positive identification of the
accused. Even if, admittedly, the eyewitness had seen the malefactors for the first time
at the time of the killing, it does not necessarily follow that he could not have recognized
their faces. Persons observing a startling occurrence would strive to know the ones
involved, especially in a case where the victim is known to the eyewitness. 19 Perforce,
there is no merit in the allegation of appellant that he could not have been identified by
Caladiao who, at that time, was supposedly in a state of shock.
There is no reason to doubt the testimony of Caladiao who has positively identified the
perpetrators of the crime, it appearing that the place of the incident was well lighted and
the witness was at a distance of about three arm's length. These facts are sufficient to
exclude any doubt in the identification of the accused. Furthermore, the witness actually
saw appellant stab the victim on the chest. That the victim sustained a stab wound on
the chest was confirmed by the medico-legal officer, Dr. Marcial Cenido, who conducted
an autopsy on the body of the victim. It was also shown that this single stab wound was
fatal, thereby causing the immediate death of the victim.

The proven circumstances attendant to the crime indubitably establish that accused
Arceo and Cecilio conspired to commit the crime as shown by their coordinated acts
directed to ensure the accomplishment of their evil designs. The act of one accused in
holding the victim from behind when the latter was stabbed by his co-accused is a
positive act towards the realization of a common criminal intent, although the intent can
be classified as instantaneous. It can be safely assumed that had not the first accused
held both arms of the victim from behind, the latter could have parried the thrust or even
run away from his assailant. By immobilizing the two hands of the victim from behind,
and although there was no anterior conspiracy, the two accused showed unity of
criminal purpose and intent immediately before the actual stabbing. 20

WHEREFORE, the judgment appealed from is hereby AFFIRMED in toto.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.

G.R. No. 115689 June 30, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LINO ARTIAGA, accused-appellant.

MENDOZA, J.:

This is an appeal from a decision of the Regional Trial Court, Branch 2 of Tagum,
Davao, convicting accused-appellant Lino Artiaga of murder and sentencing him
to reclusion perpetua. The information filed against him read:

The undersigned accuses LINO ARTIAGA of the crime of Murder under

Article 248 of the Revised Penal Code, committed as follows:

That on or about July 9, 1991, in the Municipality of Pantukan, Province of

Davao, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with treachery and evident premeditation, with
intent to kill, armed with a kitchen knife, did then and there wilfully,
unlawfully and feloniously attack, assault and stab one Benjamin
Serquiña, thereby inflicting upon him a wound which caused his death,
and further causing actual, moral and compensatory damages to the heirs
of the victim.

Contrary to law.

Tagum, Davao, Philippines, August 30, 1991.

During the trial, the prosecution presented Ernesto Ductama who testified that on the
night of July 9, 1991 he went to attend a meeting of the Gumayan de Mano Mining
Association. As the meeting scheduled at eight o'clock that night was not held, he
decided to go home. He walked along a trail together with the victim Benjamin Serquiña,
Pedencio Amante (who was carrying an improvised lamp) and Albert Gonzales. He saw
accused-appellant Artiaga approaching. Accused-appellant came from the creek.
According to the witness, as soon as accused-appellant got near Serquiña, accused-
appellant placed his right arm over the shoulder of the victim, thrust a knife on the left
breast of the latter and then ran away. Serquiña cried that he had been stabbed.
Ductama and his companions went to the aid of the victim. Ductama removed the knife
from the victim's breast and, with the help of Amante and Gonzales, carried the victim to
the side of the road. He and Gonzales went after Artiaga, leaving Serquiña to the care
of Amante. Fifteen minutes later, they were told by Amante that Serquiña had died. The
three took the body of the deceased to his house thirty meters away and later continued
the search for the accused until one o'clock in the morning. It was not until the next day,
however, when accused-appellant was found panning gold in the creek along the
mountain and apprehended.

The prosecution also presented Dr. Evangeline D. Hornido, Medical Officer IV of the
Pantukan District Hospital at Davao. She testified that on July 10, 1991, she examined
the dead body of Benjamin Serquiña and found a wound on his chest which penetrated
his heart, causing his instantaneous death. She also affirmed a death certificate she
had earlier given.

After the prosecution had rested its case, the defense presented as witness Emeterio
Geonzon, a gold panner, who claimed he was panning gold with the accused-appellant
when the stabbing incident took place. Geonzon testified that at around six o'clock in the
evening of July 9, 1991, he passed by the store of Edita Bacalso at Sitio Tae, Gumayan,
Pantukan, Davao. Inside the store drinking were accused-appellant Lino Artiaga and
several companions, while outside the store, also drinking, were deceased Benjamin
Serquiña together with Yoyoy (Pedencio Amante) and Albert Gonzales. At about eleven
o'clock, he and Artiaga went to the nearby creek to pan gold. Later on, Benjamin
Serquiña, Yoyoy and Albert arrived. According to Geonzon, when Serquiña saw Artiaga,
Serquiña pointed him to his companions, remarking, "Bay, here is the one we are
looking for." Then, addressing Artiaga, Serquiña said, "Make haste with your work
because I will use the gold." But Artiaga replied, "This might be through by tomorrow yet
because it is only now that I have placed it here." 1 This angered Benjamin Serquiña
who yelled and ordered him, "You hurry up because I will use the money because I will
be remitting it tomorrow." 2 After uttering these words, the victim allegedly picked up a
stone and tried to hit Artiaga with it. But, according to Geonzon, Artiaga was able to
duck the blow. As Serquiña picked up another stone, Artiaga, having nowhere to retreat
to, stabbed Serquiña on the chest. After this, the witness testified, he and the accused-
appellant fled.

The witness Geonzon claimed that the prosecution witness Ductama was not present
during the actual stabbing. 3

Accused-appellant Lino Artiaga testified next. He gave substantially the same version of
the incident as his witness Emeterio Geonzon. His testimony is different from that of
Geonzon, however, with regard to the time when they panned gold in the canal.
According to the accused-appellant, they stopped their drinking and went to the
canal before it started to rain between seven o'clock and eight o'clock. 4 Geonzon, on
the other hand, testified that he and accused-appellant went to pan gold after the rain
had stopped and that was after eleven o'clock. 5

On April 23, 1986, the trial court rendered a decision, the dispositive portion of which
states:

WHEREFORE, this Court finds accused Lino Artiaga guilty beyond

reasonable doubt of Murder under Article 248 of the Revised Penal Code
and after appreciating the generic aggravating circumstance of nighttime
 against him, he is hereby sentenced to suffer the penalty of Reclusion
Perpetua, to suffer the accessory penalties provided for by law [and] to
pay the costs.

The accused is further ordered to indemnify the heirs of Benjamin

Serquiña in the amount of FIFTY THOUSAND (P50,000.00) PESOS.

Given this 10th day of December 1992 at Tagum, Davao, Philippines.

Hence, this appeal.

As already stated, accused-appellant's claim is self defense and, in his appeal, he

contends that the trial court erred in not acquitting him on this ground. Accordingly, the
burden is on him to show the elements of self defense, to wit:

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel it; and

3. Lack of sufficient provocation on the part of the person defending

himself.

First. The defense claims that there was unlawful aggression because Serquiña tried to
hit accused-appellant with stones. However, the evidence of the defense is inconsistent
and very doubtful. During his cross examination, defense witness Emeterio Geonzon
testified that he did not see accused-appellant but only heard him and his companions
talking while they were drinking inside the store of Edita Bacalso, because he
(Geonzon) was just passing by, on his way to pan gold at the creek. It was accused-
appellant who saw this witness and went with him to the panning area.

This testimony is inconsistent with the affidavit executed by Geonzon before the Public
Attorney's Office on August 28, 1991, wherein he stated that he was with Lino Artiaga in
the store of Edita Bacalso, drinking tuba with six other friends. 6 His excuse that he had
forgotten what he had stated in his affidavit because it had been a year ago only shows
that his testimony was false, because had he known he had said he was with the group
he would not have said he was not with them in his testimony in this case. If he was
telling the truth, he could not have forgotten whether or not he was with the accused-
appellant when the latter and others were in the store drinking. A witness who makes
two sworn statements (an affidavit and testimony before the court) which are
contradictory impeaches his own credit.

Geonzon also testified that Artiaga did not die instantly but was able to run some
distance. 7 However, his succeeding statements contradicted this because he said that
after the stabbing, ". . . I don't know what happened anymore because the light was put
off and I also ran away." 8
As we have noted earlier, although the testimony of the accused recounted the same
version of the incident as that narrated by Geonzon, there was also an inconsistency
between these two testimonies regarding the time when Artiaga and Geonzon allegedly
went to the creek to pan gold, whether it was before or after it had rained on July 9,
1991.

Considering the inconsistencies in their testimonies, the trial court was right in observing
that the testimonies of accused-appellant and his witness Emeterio Geonzon "do not
deserve belief even on minor matters." 9 There is thus no evidence to show that the
deceased was guilty of aggression to justify accused-appellant's aggression in repelling
it.

Second. Granting arguendo, that the victim really tried to hit accused-appellant with a
stone, the use of a knife to stab the victim, who was unarmed, cannot be deemed a
reasonable means of repelling the aggression.

Accused-appellant claims that he was forced to use his knife because there was no
place to which he could retreat. But the protagonists were supposed to be near the
creek. Accused-appellant does not explain why he could not have retreated or why his
back was against the wall and he had to stand his ground. Indeed, it is even more
difficult to imagine why he found it more expedient to use his knife to repel the
aggression if, as he claims, his victim was hurling a stone at him because this means
that he was not fighting his alleged assailant at close quarters.

Citing People v. Encomienda, 10 accused-appellant contends that he stabbed the victim

on the chest as an instinctive response of a person in an emergency situation. The
reasonableness of the means is nevertheless a requirement even if the person merely
acted in obedience to the instinct of self-preservation as a response to an attack against
his person. "[W]hen no necessity existed for killing the deceased because less violent
means could have been resorted to, the plea of self-defense must fail." 11 Thus in the
early case of United States v. De Castro, 12it was held that although the deceased was
guilty of an unlawful aggression, the accused could only be given the benefit of
incomplete self defense because he "exceeded the limits of the necessity of the defense
in using the dagger he carried, and with it inflicting a mortal wound upon the deceased"
who was armed with a cane.

Third. Self defense also requires that the person defending himself is not himself guilty
of provocation. But in this case, that the accused-appellant was actually the aggressor
is shown by the fact that he was armed. Had it been his purpose to pan gold in the
creek at that time, it would have been reasonable to expect him to have a lamp
especially because it was then raining and it was impossible that the moon was shining
as he claimed. 13 In fact, the victim and his three companions had a lamp to light their
way home. That the accused-appellant was near the creek when it was dark and that he
was armed with a knife can only indicate that his purpose in being there was to waylay
Serquiña. As the trial court observed, it was unusual that accused-appellant had a knife
when to pan gold one needed coconut shells. He said he had a knife because he was
going to the place alone. But the fact is that he had no less than three companions that
night, including his witness Emeterio Geonzon who allegedly went with him to pan gold.

The trial court then correctly gave no weight to the version of the defense. Aside from
being replete with inconsistencies, the evidence for the defense is incredible and cannot
pass the test of simple logic. As the trial court reasoned —

Who can believe that the victim who was holding a stone, instead of using
it to repel the attack, just waited for the accused to approach him thereby
giving him the opportunity of inflicting the fatal wound in his left chest?
Who in his right mind can believe that the victim merely dropped the stone
behind him when he was stabbed when he could have dropped it more
conveniently in front of him hitting the accused and the fight would have,
at least, been even?

Indeed, having admitted killing the deceased, the burden of proof was on him to
establish all the elements of self defense. 14 "[O]ne who admits the infliction of injuries
which caused the death of another has the burden of proving self-defense with sufficient
and convincing evidence. If such evidence is of doubtful veracity, and it is not clear and
convincing, the defense must necessarily fail." 15 We are, therefore, constrained to
affirm the trial court in convicting the accused of the crime of murder. However, we find
the evidence on record insufficient to prove evident premeditation. This circumstance
qualifies killing to murder if the following elements are proven: (1) the time when the
offender determined to kill his victim; (2) an act of the offender manifestly indicating that
he clung to his determination to kill his victim; and (3) a sufficient lapse of time between
the determination and the execution of the killing. In this case, the testimonies
presented do not sufficiently support the allegation that the accused killed the deceased
pursuant to a preconceived plan. The fact, however, that the attack was sudden and
made by the accused-appellant in the dark when his victim, who was unarmed, did not
expect it, makes the crime murder qualified by treachery. Nighttime is absorbed in
treachery and cannot be appreciated as a generic aggravating circumstance as did the
trial court. 16

The crime in this case was committed before the effectivity of R.A.
No. 7659 reimposing the death penalty. As such it is governed by People v. Munoz, 17 in
which this Court clarified that §19(1), Art. III of the Constitution did not abolish the death
penalty but merely suspended its imposition. Therefore, conformably to People
v. Muñoz 18 and subsequent cases, 19 where the crime of murder is committed without
any aggravating or mitigating circumstance, the imposable penalty is reclusion
perpetua, which is the medium period of the penalty prescribed by Art. 248 of the
Revised Penal Code.

WHEREFORE, the decision appealed from is MODIFIED and accused-appellant Lino

Artiaga is hereby found GUILTY beyond reasonable doubt of murder qualified by
treachery, without any generic aggravating or mitigating circumstance, and is
SENTENCED to suffer the penalty of reclusion perpetua, together with the accessory
penalty provided by law, and to PAY the costs.

The accused-appellant is further ORDERED to INDEMNIFY the heirs of Benjamin

Serquiña in the amount of P50,000.00.

SO ORDERED.

Regalado and Romero, JJ., concur.

Puno and Torres, Jr., JJ., are on leave.

 [A.M. No. P-02-1555. April 16, 2004]

OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. ATTY. EDGAR ALLAN

C. MORANTE, Clerk of Court, Regional Trial Court, Las Pias City, Branch
275, respondent.

DECISION
PER CURIAM:

This case stemmed from an anonymous letter dated September 10, 2001 addressed
to the Chief Justice from CONCERNED LAW PRACTITIONERS.[1] The letter brought to
his attention the alleged corrupt acts/practices of respondent Edgar Allan Morante,
Branch Clerk of Court of the Regional Trial Court, Las Pias City, Branch 275. Attached to
the letter was a news clipping that appeared in the September 10, 2001 issue of The
Metro Daily Tribune, entitled NBI Agents Nab Las Pias Clerk of Court for Extort. [2] The
news item reported that the respondent was caught by government agents in the act of
receiving some P.2 million to fix a court decision.[3]
In a First Indorsement dated September 24, 2001, the matter was referred to the
Office of the Court Administrator (OCA) for appropriate action.[4]
The OCA requested National Bureau of Investigation (NBI) Director Reynaldo G.
Wycoco, through Special Action Unit Head Atty. Vicente de Guzman, for a copy of its
investigation report and its annexes on the Morante extortion case, and to inform the said
office whether the filing of administrative/criminal cases against the subject was
recommended.[5] On January 28, 2002, Deputy Court Administrator Christopher Lock
submitted his memorandum on the matter to the Court.
The Court thereafter issued a Resolution dated February 19, 2002, re-docketing the
instant case as A.M. No. P-02-1555,[6] suspending the respondent effective immediately
pending the investigation of the case, and referring the administrative matter to Justice
Narciso Atienza, Consultant, Office of the Court Administrator, for investigation, report
and recommendation.[7]
Pursuant to the Courts resolution, Justice Atienza conducted a formal investigation
of the case.[8] In due course, the Investigating Justice submitted his report to the Court
on January 15, 2003, finding the respondent guilty of grave and serious misconduct and
recommending that the respondent be dismissed from the service with forfeiture of all
benefits, with prejudice to his appointment in any branch of the government or its agencies
or instrumentalities.

The Case for the Complainant[9]

Tetsuo Momma, a Japanese citizen, was the president of the Montec International
Corporation with principal offices at Lot 2, Block 21, Phase III, Cavite Export Processing
Zone Authority, Rosario, Cavite. He employed Jose Joey Olavere as his executive
secretary, who also acted as his personal interpreter.
Luz Amper filed a criminal complaint against Momma, her former employer, for libel
with the Las Pias City Prosecutor. After the requisite preliminary investigation, an
information for libel was filed against Momma on January 28, 2000 with
the Regional Trial Courtof Las Pias City, docketed as Criminal Case No. 00-0117. The
case was raffled to Branch 255 of the court, presided by Judge Ambrosio Alumbres whose
pairing judge was Judge Bonifacio Sanz Maceda, the Presiding Judge of Branch 275 of
the court. Momma posted a cash bail bond of P80,000. On March 29, 2000, the court
issued a hold departure order against him.
In the meantime, Momma filed a petition for review of the resolution of the Las Pias
City Prosecutor finding probable cause for libel against him. On November 7, 2000, the
Secretary of Justice issued a resolution granting Mommas petition for review, reversing
the resolution of the City Prosecutor, and directed the latter to file a motion to withdraw
the information, and to inform the Secretary of Justice of his action thereon within ten
days from notice. Private complainant Luz Amper, through counsel, filed a motion for the
reconsideration of the resolution of the Secretary of Justice, but the latter issued a
Resolution on January 12, 2001 denying the said motion. She forthwith filed a petition
for certiorari with the Court of Appeals (CA), entitled Luz Amper v. Secretary of
Justice[10] for the nullification of the said resolution. However, the CA did not issue any
temporary restraining order against the respondents and thereafter dismissed the petition.
On December 1, 2000, Momma filed a letter-complaint with the Court against Judge
Ambrosio Alumbres, alleging, inter alia, that the Judge pressured him into settling the libel
case for P7,000,000. According to Momma, the Judge would even call his representative
to his chambers in an effort to convince him to settle the case. When he refused, the
Judge agreed to reduce the offer to P3,000,000.00. He also complained that the Judge
was eager to issue warrants for his arrest although there were no valid reasons
therefor. He asked the Court to help him have an impartial judge to decide the libel
case.[11]
On December 2, 2000, Olavere, in behalf of Momma, filed a motion with the RTC
Branch 255, for the inhibition of the presiding judge.[12] Acting on the complaint of
Momma, the OCA wrote him on February 5, 2001, requesting that his complaint be
executed under oath within ten days. Momma complied with the request.
On March 12, 2001, the State Prosecutor filed a motion with the trial court in Criminal
Case No. 00-0117 for the withdrawal of the information, conformably with the resolution
of the Secretary of Justice, and the lifting of the hold departure order. Momma, through
his counsel Atty. Roberto Garay, filed a motion on April 17, 2001 for the release of his
cash bail bond in the amount of P80,000. Because the private complainant was not
notified of the hearing of the public prosecutors motion on May 2, 2001, the court reset
the hearing to May 16, 2001, and then reset it anew to June 25, 2001.
On June 3, 2001, Judge Ambrosio Alumbres, Presiding Judge of Branch 255, retired
from office. Executive Judge Manuel Fernandez designated Judge Bonifacio Sanz
Maceda, the pairing Judge of Branch 255, as Acting Presiding Judge thereof.
 Judge Maceda at times required Ms. Joselita P. Macaldo, Officer-In-Charge (OIC) of
the Office of the Deputy Clerk of Court of Branch 255, to make a case summary or a
preliminary statement of pending incidents thereon before resolving the same. She also
prepared drafts of orders for Judge Macedas approval and signature, and the latter would
either approve the draft and sign the same, or revise it, in which case, the order would be
typewritten in Branch 255. Macaldo would then affix her initials below the typewritten
name of Judge Maceda before the latter signed the Order.
On June 25, 2001, Momma filed a motion for the lifting of the hold departure
order. The said motion was set for hearing on July 2, 2001. Conchita Blanza,
Stenographer, Branch 255, RTC, Las Pinas, recorded the proceedings of the hearing.
Judge Maceda issued an Order stating that the pending incidents had been submitted for
the resolution of the court. On July 3, 2001 OIC Macaldo transmitted the records of
Criminal Case No. 00-0117 to respondent Atty. Edgar Allan C. Morante, who was the
Deputy Clerk of Court of Branch 255, for the resolution by Judge Maceda of the pending
incidents.
Olavere and Mommas counsel, Atty. Garay, followed up the case with the respondent
several times for the early resolution of the pending incidents therein. According to
Olavere and Momma, the ninety-day period for the resolution thereof had long since
elapsed.
On August 20, 2001, Atty. Garay arrived in the house of Olavere, and informed the
latter that the respondent had a message: if Olavere wanted a favorable decision in the
libel case against Momma, he, Olavere, would have to talk with the respondent to make
arrangements with the Judge. Olavere forthwith saw the respondent in the latters office
at the Justice Hall in Las Pias City. The respondent told Olavere that he, the respondent,
could have the case against Momma dismissed by Judge Maceda if Momma was willing
to come across with P250,000.
When Olavere relayed the respondents message to Momma, the latter replied that
he would have to see the order of dismissal first. Olavere, in turn, relayed Mommas
message to the respondent, and the latter told Olavere that Momma would have to
pay P50,000 in exchange for an unsigned copy of the order of dismissal of the court. The
balance of P200,000 would then be paid to the respondent upon delivery to Olavere of
the order of dismissal bearing the signature of Judge Maceda. Olavere informed Momma
of the respondents message. The two agreed to report the matter to the NBI, so that the
respondent could be apprehended in flagrante delicto.
On August 27, 2001, Momma arrived at the NBI where he executed a complaint-
affidavit against the respondent for robbery/extortion. The said affidavit was subscribed
and sworn to before Atty. Timoteo Pineda, Jr., the Executive Officer of the Special Action
Unit of the NBI. In the said complaint-affidavit, Momma alleged, inter alia, that the
respondent had requested him to produce P250,000 in exchange for the courts favorable
decision in the libel case.[13] It was also alleged that Momma and Olavere agreed to
give P50,000 in consideration for the unsigned order dismissing Criminal Case No. 00-
0117.
 At about 11:00 a.m. on August 28, 2001, Olavere saw the respondent in his office at
the second floor of the Justice Hall in Las Pias City. The other court personnel were then
having lunch. Olavere gave the P50,000 to the respondent who then gave Olavere an
unsigned copy[14] of the Order dated July 19, 2001 granting the motion to withdraw
information filed by the State Prosecutor, Mommas motion for the release of his cash
bond, as well as the lifting of the hold departure order. The respondent told Olavere that
he would call him as soon as the order had already been signed by Judge Maceda. In the
afternoon of the same day, Olavere proceeded to the Special Action Unit of the NBI and
gave a sworn statement to Senior Agent Nelson Pacada, alleging, inter alia, that the
respondent had demanded P250,000 in exchange for the order of dismissal of the libel
case against Momma, and that he, Olavere, had already given P50,000 to the respondent
earlier that morning in exchange for an unsigned order of the dismissal of the libel case,
the balance payable to the respondent upon delivery by him of the order of dismissal duly
signed by Judge Maceda.[15] Olavere gave the NBI the unsigned Order he earlier received
from the respondent.[16]
Momma and NBI Agent Pineda decided to conduct an entrapment operation against
the respondent at his office. Momma gave four P500 bills to Pineda bearing Serial
Numbers RU582077, RU582078, SW730103 and TX016250 for the operation. [17] Pineda
requested NBI Forensic Chemist, Felicisima Francisco, to subject the four bills contained
in the white envelope to fluorescent powder markings.[18] Francisco also dusted the white
envelope with fluorescent powder. She then returned the bills and the white envelope to
Pineda. The latter, in turn, placed the four P500 bills on top of other peso bills amounting
to P198,000. Since the bills were so bulky, Pineda placed the P200,000 in a brown
envelope and sealed the same. The forensic chemist, however, did not dust the envelope
with fluorescent powder.
In the meantime, Olavere was able to talk with the respondent over the telephone a
couple of times. They agreed that Olavere would deliver the balance of P200,000 to the
respondent at his office in the morning of August 31, 2001. In exchange, the respondent
would give Olavere the order dismissing the case bearing the signature of Judge Maceda.
On August 29, 2001, Judge Maceda signed an Order granting the Motion to Withdraw
Information, the State Prosecutors Motion to Lift Hold Departure Order, as well as
Mommas motion for the release of his cash bond of P80,000. The respondent affixed his
initials on the order below the typewritten name of Judge Maceda. [19] Instead of returning
the records of Criminal Case No. 00-0117 to Branch 255 of the RTC for the release of the
said order, the respondent kept the said records, including the order of Judge Maceda,
and waited Olavere to return with the P200,000.
When Olavere informed Pineda that the respondent had agreed to a meeting in the
morning on August 31, 2001 for the payoff, Pineda called the other NBI agents to a pre-
entrapment conference and agreed on the mechanics of the operation. Olavere and
Pineda agreed that they would proceed to the office of the respondent; Olavere would
carry the brown envelope containing the P200,000, while the NBI agents would position
themselves strategically nearby. Immediately after delivering the envelope with the
money to the respondent, Olavere will give the pre-arranged signal. The NBI agents
would then enter the office of the respondent, take him into custody and confiscate from
him the P200,000.
Shortly before noon of August 31, 2001, Olavere and NBI Agents Timoteo Pineda, Jr.
Marlon Toleda, Joel Toresa, and Dante Sonbar arrived at the second floor of the Justice
Hall in La Pias City. Judge Maceda was absent because he was ill. The agents
strategically positioned themselves outside the office of the respondent, while Olavere,
with the brown envelope containing P200,000, proceeded to the latters office. The
respondent met Olavere outside the office and brought him inside. The respondent then
gave Olavere a copy of the Order in the libel case signed by Judge Maceda, dated August
29, 2001.[20] Olavere handed over to the respondent the brown envelope containing
the P200,000 and gave the pre-arranged signal to the NBI agents who were waiting
outside.Instead of opening the envelope and counting the money contained therein, the
respondent placed the envelope on top of his table.
When the NBI agents heard Olaveres pre-arranged signal, they entered the office of
the respondent. They saw the brown envelope containing the P200,000 on the
respondents table. They took custody of the respondent and the brown envelope,
including the money inside. The NBI agents informed the respondent of his constitutional
rights and brought him to the NBI headquarters in Taft Avenue, Manila, where he was
placed under arrest.[21] The chemist was unable to examine the brown envelope which
contained the bribe money because the NBI agents failed to deliver the same to her.
Olavere gave a sworn statement to NBI Agent Toledo.[22] The NBI agents executed
their joint affidavit of the respondents arrest.[23] On the same date, the NBI Director
transmitted to Inquest Prosecutor Roberto D. Lao of the Department of Justice the
complaint of Momma and Olavere charging the respondent of violating Section 3(b) in
relation to paragraph (c) of Republic Act No. 3019.[24] The respondent submitted his
counter-affidavit[25] and rejoinder[26] during the preliminary investigation. The respondent
was later charged of violating Rep. Act No. 3019 in an Information filed with the RTC of
Las Pias City, docketed as Criminal Case No. 02-0317.

The Case for the Respondent[27]

The respondent vehemently denied the charges hurled against him. He adopted the
counter-affidavit he submitted to the Inquest Prosecutor as his testimony on direct
examination before the Investigating Justice. His version of the incident is as follows:
When Judge Bonifacio Sanz Maceda of RTC, Branch 275 took over the numerous
cases pending before the sala of Judge Alumbres after the latter retired as Presiding
Judge of RTC, Branch 255, an inventory of cases revealed that there were 143 cases
with pending incidents; 91 cases submitted for decision which were already beyond the
reglementary period for issuing an order, resolution or decision, and 891 other pending
cases. The office was deluged by calls from party litigants, their representatives, as well
as their respective counsels, who were eager to follow up the status of their respective
cases and seek the speedy resolution thereof. One case being followed up with unusual
persistence was the criminal case for libel against Momma. The respondent met Atty.
Roberto Garay during the third or fourth week of June 2001 when the latter followed up
the resolution of the pending incidents. He met Jose Joey Olavere, who introduced
himself as an employee of Momma and followed-up the resolution of the motion to lift hold
departure order, the motion to withdraw information filed by the State Prosecutor and
Mommas motion for the refund of the cash bond then pending before Branch 255 of the
RTC.
Olavere began telling stories that his employer had already spent almost P1,000,000
to settle or dispose of the said libel case, particularly the hold departure order issued by
the court. Olavere showed to him a list containing the names of the recipients and the
amounts received by each: Judge, P300,000; Clerk of Court, P100,000; sheriff, P20,000;
fiscal, P50,000. Olavere even admitted that he was being paid a bonus for the
arrangements that he had facilitated with the said officials. He also revealed that Momma
wanted to go back to Japan to visit his father who was seriously ill.[28]
Because of his employers apparently precarious situation, Olavere requested the
respondent to intercede for his employer so that the criminal case against the latter could
be resolved in the soonest possible time. The respondent replied that Judge Maceda was
a very strict presiding judge, and that it was impossible to influence him in the resolution
of cases. He also told Olavere that he was going to do his best to help, but emphasized
that he was not promising anything.
After this first visit, Olavere came to his office several more times. Olavere and Atty.
Garay also started calling the said office frequently. It got to a point where the respondent
evaded their calls.[29]
The respondent denied that he received the sum of P50,000 from Olavere in
exchange for an unsigned Order dated July 19, 2001. He denied ever preparing and
giving the said unsigned order to Olavere. He alleged that although Judge Maceda often
asked him to prepare a preliminary study of the facts and legal issues in pending cases,
the Judge did not ask him to prepare any order in Criminal Case No. 00-0117. He claimed
that the records of Criminal Case No. 00-0117 were inside the chambers of Judge
Maceda from July to August 2001.
At around 9:00 a.m. of August 28, 2001, Olavere arrived in his office and asked the
respondent if there was already an order lifting the hold departure order issued against
his employer duly signed by Judge Maceda. He replied in the negative. He was in a hurry
at the time because he had an appointment with the City Legal Officer, Atty. Zardi Melito
Abellera. Before he left the office, he advised Olavere to check the matter out with Branch
Sheriff Josefino Ortiz.[30] Sheriff Ortiz heard him say, Theres no resolution yet. Better
follow up with Branch 255.[31] Olavere then told him that he would be back on Friday to
find out if an order had already been issued. There was no talk about money.[32] The
respondent was accompanied by Branch Sheriff Josefino Ortiz, and they arrived in Atty.
Abelleras office at about 9:15 a.m. Ortiz stood by the door to the office of Atty. Abellera
during the meeting. The meeting, where they talked about the budget for the offices and
the newly appointed judges, lasted until about 11:30 a.m.[33] Thereafter, the respondent
and Ortiz had lunch together.[34]
 In the morning of August 29, 2001, the respondent arrived in his office and saw a
draft of an order for Judge Macedas review bearing his corrections. The said order was
appended to the records. The respondent corrected the draft and gave the records to the
stenographic reporter for the typing of the final draft. The next day, August 30, 2001, he
saw the Order dated August 29, 2001, already signed by Judge Maceda. However, the
respondent did not transmit the records to the Branch Clerk of Court, Branch 255 for the
release of the Order.
On or about 11:20 a.m. on August 31, 2001, Olavere again came to his office to follow
up the libel case. He stood up and went inside Judge Macedas chambers to get a copy
of the order, which he knew had already been signed the day before. [35] At
around 11:30,[36] he summoned RTC Sheriff Roberto Galing of Branch 255 to have the
order certified by OIC Joselita R. Macaldo of Branch 255. Sheriff Galing had the copy of
the order certified by Macaldo, and handed the same to him. The respondent, in turn,
gave a copy of the Order to Olavere. The respondent also made the latter acknowledge
the receipt of the said copy in the original copy of the order retained for the court
file.[37] Olavere read the order, then placed it inside his bag as he stood in front of the
respondents desk. The respondent noticed that Olavere was pulling out a bulky brown
envelope, about 8x11 inches in size. Olavere placed the envelope on top of the
respondents desk. The latter immediately said, Ano yan?[38]
Court Process Server Leon Matienzo of RTC, Branch 255, had entered the office to
inform the respondent that he was able to get a schedule for the civil service examination
and stood in front of the copy machine located beside the respondents table. Matienzo
heard the respondent say, Ano yan? as the latter pointed to a thick brown envelope on
his table.[39] Matienzo told him, Boss, excuse me po, ipapa-alam ko lang na nakapag pa-
schedule na kami para sa civil service exam, to which the latter replied, Okay. Matienzo
then left the room to have his lunch.[40]
The respondent turned his attention back to Olavere and repeated his query about
the envelope, Ano yan? Bakit may letterhead pa yan ng Garay Law Office? Olavere
replied, Eh galing kay Garay yan, e![41] Suddenly, a group of about eight persons barged
into the office, approached his desk and introduced themselves as agents of the
NBI. They surrounded the desk and one of them took hold of the brown envelope. The
seal was removed and the envelope was opened in front of the respondent. The latter
saw that the envelope contained bundles of money.[42] Realizing that the respondent had
not picked up the envelope, much less touched the money contained therein, one of the
NBI agents positioned to grab his right hand and tried to place it inside the envelope, in
an apparent attempt to mark it with the fluorescent powder with which the money was
previously dusted.[43] The apparent attempt to mark the respondents right hand was foiled
by the timely entry of Leticia B. Agbayani, the Branch Stenographer, who immediately
shouted, Whats happening here? Anong nangyayari dito? to which the respondent
replied, Entrapment daw![44] Agbayani asked, Anong inilagay? Hinawakan mo ba? to
which the respondent replied, Hindi, hindi ko hinawakan. She then told the NBI agents,
You mean to say that you can entrap anybody when somebody (sic) put an envelope on
top of your table? When she inquired where the envelope was, a certain Atty. Pineda
replied, It was already secured.[45]
 People began to gather in the office. One of them, Branch Sheriff Josefino Ortiz,
pointed to the NBI agents for setting him up, and asked to accompany the latter to the
NBI Headquarters in Manila. At this point, Olavere informed the respondent that he was
also a confidential agent of the NBI and showed his identification card. [46] The group left
the office at around 12:00 noon. They boarded a pick-up truck together with Atty. Pineda
and a certain Atty. Bonoan. They arrived at around 1:30 in the afternoon. The respondent
underwent interrogation and testing for fluorescent powder marks.[47] While he was being
questioned at the NBI office, he noticed a foreign-looking individual who was freely going
in and out of the office of NBI Division Chief Atty. De Guzman. He later came to know that
the man was in fact Tetsuo Momma.[48] Momma was apparently a very influential
individual at the NBI as he was also seen conversing and laughing with Olavere and Atty.
De Guzman.[49]
According to the respondent, the case against him was weakened by Olaveres
execution of an affidavit retracting his sworn statement and supplemental statement to
the NBI, the latters testimony, and by the affidavit of desistance executed by Momma
dated March 5, 2001.

The Issues

The issues for resolution in this case are the following: (a) whether or not the
complainant adduced substantial evidence to prove that the respondent gave the
unsigned Order dated July 19, 2001 to Olavere on August 28, 2001 after
receiving P50,000 from the latter; (b) whether or not the respondent promised and agreed
to give to Olavere on August 31, 2001 a certified copy of the August 28, 2001 Order
signed by Judge Bonifacio Maceda and in consideration of P200,000; (c) whether or not
the respondent received the brown envelope containing P200,000 from Olavere on
August 31, 2001 after giving to Olavere the certified copy of the August 28, 2001 Order
signed by Judge Maceda; and, (d) whether the respondent is guilty of grave and serious
misconduct in office.

The Ruling of the Court

On the first issue, the respondent asserts that in administrative cases, where the acts
subject of the complaint are criminal in nature such as bribery or violation of Rep. Act No.
3019, the quantum of proof required is proof beyond reasonable doubt. The respondent
asserts that the complainant failed to adduce evidence to prove beyond reasonable doubt
that he demanded P50,000 in consideration for the delivery of an unsigned order granting
the motion of the State Prosecutor for the withdrawal of the Information and for the
granting of the motion for the lifting of the hold departure order, and that he actually gave
to Olavere on August 28, 2001 an unsigned order after receiving P50,000 from him. The
respondent contends that the affidavit-complaint of Momma was hearsay because the
latter failed to testify. He also asserts that Olaveres claim, as contained in his affidavit,
that he had an agreement with the respondent to give P50,000 in consideration of an
unsigned order, is belied by Olaveres testimony during the investigation, that the
agreement was for the delivery of a signed copy of the Order to
Olavere. Furthermore, Toledos allegation that Olavere arrived in the NBI on August 27,
2001 is belied by the latters testimony that it was only on August 28, 2001 when he made
a report to the NBI. The respondent concludes that Olavere could not have given
him P50,000 on August 28, 2001 because Olavere admitted that it was entirely possible
that he did not give the P50,000 to the respondent but pocketed the money himself.
The contention of the respondent does not persuade.
In Office of the Court Administrator v. Judge Bautista,[50] this Court, citing its ruling
in Mamba v. Garcia,[51] held that in administrative proceedings only substantial evidence,
or that amount of relevant evidence which a reasonable mind might accept as adequate
to support a conviction, is required. Evidence to support a conviction in a criminal case is
not necessary, as the standard of integrity demanded of members of the Bench is not
satisfied which merely allows one to escape the penalties of criminal law. The dismissal
of any criminal case against the respondent in an administrative case, for the
prosecutions failure to prove his guilt beyond reasonable doubt, is not a ground for the
dismissal of the administrative case. The affidavit-complaint[52] of Momma was admitted
by the Investigating Justice as part of the testimony of Toledo and Olavere and, more
specifically, Momma submitted the said affidavit-complaint against the respondent to the
NBI and subscribed and swore to the truth of its contents before Toledo.[53]
The complainant adduced substantial evidence that the respondent himself gave to
Olavere the unsigned order[54] after receiving P50,000 from the latter. As gleaned from
Olaveres affidavit, the respondent gave the unsigned order to him in the morning
of August 28, 2001 after he had given P50,000 to the respondent.
T: Papaano naman aayusin ni ATTY. MORANTE ang kaso?
S: Sinabi niya sa akin na mapapadismiss niya ang kaso ng boss ko bastat
magproduce lang ako ng P250,000. Sinabi ko ito sa boss ko pero ang sabi
niya, gusto niyang makita ang papeles.
T: Ano ang nangyari pagkatapos?
S: Ang sabi ni ATTY. MORANTE magbigay ako ng P50,000 kapalit ang walang
pirmang papeles at pagkatapos yong balanseng P200,000 ay itatawag niya
sa akin.
T: Pumayag ba naman ang boss mo?
S: Opo, sa katunayan ay binigay ko na kaninang umaga ang P50,000 at
itatawag ni ATTY. MORANTE sa akin kapag pirmado na ang desisyon para
maibigay ko ang balanseng P200,000.
T: Mayroon ibinigay bang papeles si ATTY. MORANTE?
S: Opo, ito pong walang pirmang Order ni Judge MACEDA. (Affiant submits an
unsigned six-page Order dated July 19, 2001 under Judge BONIFACIO
SANZ MACEDA, RTC, Branch 255, Las Pinas City marked as Annexes A
to A-5).[55]
 We reject respondents contention that Olavere was impeached as a witness, and that
the entirety of his sworn statement and supplemental statement to the NBI and his
testimony during the investigation was weakened, merely because in answer to one of
the questions of respondents counsel on cross examination, Olavere stated that he went
to the office of the respondent on August 28, 2001 with the intention of getting a signed
copy of the Order of Judge Maceda,[56] contrary to his earlier declaration in his sworn
statement that he was at the office of the respondent on the said date, with the intention
of getting an unsigned order. We find no basis for the respondents assertion that since
the case against him is based principally on Olaveres testimony and sworn statement,
the complaint against him must be dismissed.
It is true that in response to one of the questions of the respondents counsel on cross
examination on whether Olavere had intended to secure an unsigned order from the
respondent on August 28, 2001, Olavere declared that he was expecting a signed
orderfrom the respondent. Indeed, the answer of Olavere contradicts his sworn statement
to the NBI in which he stated that he went to the office of the respondent on August 28,
2001 to get an unsigned order. It bears stressing, however, that in answer to the
subsequent questions on cross examination, Olavere testified that he intended to secure
an unsigned decision from the respondent on August 28, 2001, thereby corroborating his
sworn statement.[57]
To determine the credibility and probative weight of the testimony of a witness, such
testimony must be considered in its entirety and not in truncated parts. To determine
which contradicting statements of a witness is to prevail as the truth, the other evidence
received must be considered. In People v. Ubia,[58] the Court held that contradicting
testimony given subsequently does not necessarily discredit the previous testimony if the
contradiction is satisfactorily explained. There is no rule which states that a previous
testimony is presumed to be false merely because a witness now says that the same is
not true. A testimony solemnly given in court should not be lightly set aside. Before this
can be done, both the previous testimony and the subsequent one should be carefully
scrutinized in other words, all the expedients devised by man to determine the credibility
of witnesses should be utilized to determine which of the two contradicting testimonies
represents the truth.
Also, under Rule 132, Section 13 of the Revised Rules of Court, a witness may be
impeached by showing that such two contradicting statements are under oath. However,
in order to impeach Olaveres testimony to be inconsistent with the sworn statement, the
sworn statement alleged to be inconsistent with the subsequent one should have been
shown and read to him and, thereafter, he should have been asked to explain the
apparent inconsistency. This was not done in this case, and the respondent cannot derive
any benefit from the supposed contradiction in Olaveres testimony.[59] We reiterate our
own ruling in People v. De Guzman:[60]

In People vs. Resabal, this Court explicitly ruled that the mere presentation of the prior
declarations of a witness without the same having been read to the witness while he
was testifying in court is insufficient for the desired impeachment of his testimony. As
explained therein, the apparent contradiction between the declarations of the witness
before the former justice of the peace court and those before the then court of first
instance was insufficient to discredit him since he was not given ample opportunity, by
reading to him his declarations before the lower court, to explain the supposed
discrepancy.

The rule which requires a sufficient foundation to be first laid before introducing
evidence of inconsistent statements of a witness is founded upon common sense and is
essential to protect the character of a witness. His memory is refreshed by the
necessary inquiries, which enables him to explain the statements referred to, and to
show that they were made under a mistake, or that there was no discrepancy between
them and his testimony.

It would be unjust to complainant at this stage to be declared an incredible witness as a

result of the unauthorized procedure adopted by appellant. It is evidentiarily proscribed
to discredit a witness on the bases of purportedly prior inconsistent statements which
were not called to the attention of that witness during the trial, although the same are
supposedly contained in a document which was merely offered and admitted in its
entirety without the requisite specifications.

Through such a somewhat underhanded recourse, a party can expediently offer in

evidence at the trial the whole document containing allegedly variant statements and
then point out much later on appeal the supposed contradictory statements which were
not specified, intentionally or otherwise, in the same trial. That sub silentio gambit would
necessarily deprive a witness of the chance to explain the seeming divergencies, which
is the paramount consideration of the rule mandating the laying of the proper predicate.

Complainant is undoubtedly the person best suited and mandated by the rule to explain
the supposed differences in her statements. Without such explanation before us,
whether plausible or not, we are left with no basis to evaluate and assess her credibility
on the rationale that it is only when no reasonable explanation is given by a witness in
reconciling his conflicting declarations that he should be deemed impeached. As things
stand before us and the court a quo, therefore, complainants credibility remains
unimpeached.

On the foregoing considerations, we confirm the validity of the doctrine articulated by

the Court of Appeals in Villaruel vs. Bascon that, unless the proper predicate is laid
during the trial by calling the attention of a witness to his alleged inconsistent
statements given outside of his testimony in court and asking him to explain the
contradiction, the supposed inconsistencies cannot be pointed out on appeal for the
purpose of destroying the credibility of the witness. This pronouncement was actually
based upon and in line with the holdings of this Court in Escosura and People vs. Lim
Quingsy.

We have calibrated, in light of the other evidence on record, the entirety of Olaveres
testimony on cross-examination and have arrived at the conclusion that, indeed, Olavere
intended to receive an unsigned Order of Judge Maceda from the respondent on August
28, 2001. The evidence on record shows that when Olavere arrived at the respondents
office on August 28, 2001, he received the unsigned order from the respondent after the
latter had received the P50,000. We, therefore, rule that Olavere was not impeached as
a witness and his sworn statement rendered of no probative weight merely because of
his erroneous answer to one of the questions of respondents counsel on cross-
examination. We also note that the Investigating Justice gave credence and full probative
weight to the sworn statement of Olavere, that he received the unsigned order[61] from the
respondent on August 28, 2001.
The probative weight of the sworn statement of Olavere that the respondent gave him
the unsigned Order on August 28, 2001 cannot be overcome by the latters bare denials.
This Court is convinced, as the Investigating Justice was, that the respondent himself
prepared the unsigned order. The evidence on record shows that the respondent, as the
Deputy Clerk of Court of Branch 275, received from Macaldo, the Branch Clerk of Court
of Branch 255, the records of Crim. Case No. 00-0117 on July 3, 2001, as Judge Maceda
was to resolve the pending incidents, including the Motion to Resolve Ex-Parte Omnibus
Motion to Quash, Lift Hold Departure Order and to Recall Warrant of Arrest and Release
Bond filed by the State Prosecutor. After receiving the records of the case from Macaldo,
the respondent kept the same in his custody. The respondent failed to adduce credible
evidence that he parted with the records from July 3, 2001 to August 28, 2001and turned
over the same to Judge Maceda.
Even a cursory reading of the unsigned Order will show that it contained facts culled
from the records of Criminal Case No. 00-0117. As the records were in the custody of the
respondent, only he could have prepared the said order. Moreover, on the last page, on
the left bottom side of the order, contain the initials of the stenographic reporter who typed
the said order, followed by the initials of the respondent himself: EACM corresponding to
his full name, Edgar Allan C. Morante. We agree with the perceptive disquisitions of the
Investigating Justice in his Report to this Court on the utter untenability of the respondents
bare denial, thus:

The denial of the respondent, and even a thousand more, cannot alter the fact that his
initial eacm which stands for Edgar Allan Ching Morante and the initial of one of the
stenographers of Branch 275 which reads, cgl appeared at the left bottom portion of the
last page of the unsigned order (Exhibit B-5, p. 131, Rollo). The stenographer
with cgl initial appeared to be the favorite stenographer of Judge Maceda as shown by
the fact that all the orders that the judge issued which were marked as Exhibits H to H-
23, only Exhibit H-22 did not bear said initial. The initial of the respondent eacm that
appeared in the unsigned order is a mute but a very persuasive and convincing witness
that, indeed, the unsigned order was prepared by him (respondent) and, he was the one
who gave it to Olavere in exchange of the Fifty Thousand (P50,000.00)
Pesos. Moreover, the signed order except for two or three significant paragraphs was
bodily lifted from the unsigned order. The signed order also bore the initial (cgl) of the
same stenographer at the bottom of the last page and of the respondent below the
typewritten name, BONIFACIO SANZ MACEDA (TSN, p. 6, Nov. 8, 2002).[62]

The respondent foisted on the Court a tattle-tale when he claimed that the records of
Criminal Case No. 00-0117 had been in the chambers of Judge Maceda from July to
August 2001 and, as such, it was physically impossible for him to have prepared the
unsigned order and later gave it to Olavere. The respondent failed to adduce any
documentary evidence to prove that Judge Maceda received the records of said case
from Macaldo or from the respondent before August 28, 2001. The respondent should
have adduced in evidence the record book of Branch 275 showing when the records were
transmitted to Judge Maceda. It behooved the respondent to have presented Judge
Maceda as a witness to corroborate his claim that the records were in the chambers of
the Judge from July 3, 2001 up to August 28, 2001. The respondent could have elicited
from Judge Maceda that he kept the records of said criminal case in his chambers during
the said period. Judge Maceda could have identified the person who prepared the draft
of the signed order which he corrected before he signed the same on August 28,
2001. The respondent failed to do so. The respondents culpability became more evident
when he was confronted by the Investigating Justice with the unsigned order. The
Investigating Justice noticed that the respondent blushed and started to stammer when
the latter answered clarificatory questions.[63]
A reading of both the unsigned order[64] and the signed order[65] reveals that there can
be no other conclusion than that the two orders were prepared by one and the same
person using the same typewriter, and the records of Criminal Case No. 00-0117. As
gleaned from the encompassing Report of the Investigating Justice:

When respondent was confronted with the two (2) orders unsigned and signed with his
initials in both and, asked whether he noticed that the 2 nd par. of page 2 of the signed
order was verbatimly copied from the 3rd par., p. 1 of the unsigned order,
respondent blushed and started to stammer in answering further questions.

A careful examination of the two (2) orders would show that par. 2, p. 1 of the unsigned
order is the same as par. 1, p. 3 of the signed order; par. 1, p. 3 of the unsigned order is
the same as par. 2, p. 3 of the signed order except that the cited authority in the
unsigned order reads Luspo vs. Mogue, while in the signed order the authority cited
reads, Crespo vs. Mogul, 151 SCRA 462. The cited authority which reads Luspo vs.
Mogue can be concocted only by a devious mind. Par. 2, p. 3 to p. 4, of the unsigned
order is similar to par. 1, p. 2 of the signed order; and, the last paragraphs of both the
unsigned and signed orders are the same.

The respondent resorted to twisting the testimony of Olavere to prove his claim that
the latter pocketed the P50,000 intended for the respondent.
When asked by counsel for the respondent if it was possible that he, Olavere, did not
give the P50,000, Olavere testified it was possible, but insisted that he gave the same to
the respondent:
ATTY. MORALES-PADUA:
Q: And then you reported to Mr. Momma that the amount of P50,000.00 was
received by Mr. Morante?
A: Of course.
Q: He takes (sic) your word for it?
A: Yes.
Q: It is possible that you did not give it to Mr. Morante? You just told Mr.
Momma that you gave it to Mr. Morante. Is that not possible?
A: It is possible, but I gave it to Mr. Morante.
Q: And it is also possible that you pocketed the money?
A: That is impossible, I will not do that.
Q: It is possible.
A: I will not do that to my boss.
Q: When you alleged you gave the money to Atty. Morante, you did notify the
NBI?
A: After I gave the money, I went directly to the NBI and reported what
happened during the exchange of unsigned decision.
Q: We are talking about the P50,000.00?
A: Yes.
Q: You did not go to the NBI before you gave the money to entrap Atty.
Morante?
COURT:
Before you gave the money, you did not go to the NBI?
That is the question.
Q: The P50,000.00?
A: I am coordinating my every move with the Chief of SAU. That includes
the P50,000.00 we were supposed to give in exchange for the unsigned
decision.
COURT:
When you say SAU. What do you mean by that?
WITNESS:
Special Action Unit.
COURT:
Of what?
WITNESS:
Of the NBI.
 Q: So before you allegedly gave the P50,000.00 to Atty. Morante, you informed
the NBI?
A: Yes, they knew of my every move.[66]
When Olavere saw the NBI agents on August 27, 2001 as claimed by Toledo about
the denial of the respondent for P250,000 in consideration of an unsigned order is not of
such importance. Olavere went to the NBI on said date and executed an affidavit-
complaint against the respondent and filed the same to the NBI. Olavere closely
coordinated all their moves with the NBI, including the giving of P50,000 for the unsigned
order:
Q When you alleged you gave the money to Atty. Morante, you did notify the
NBI?
A After I gave the money, I went directly to the NBI and reported what
happened during the exchange of unsigned decision.
Q We are talking about the P50,000.00?
A Yes.
Q You did not go to the NBI before you gave the money to entrap Atty.
Morante?
COURT:
Before you gave the money, you did not go to the NBI?
That is the question.
Q The P50,000.00?
A I am coordinating my every move with the Chief of SAU. That includes
the P50,000.00 we were supposed to give in exchange for the unsigned
decision.
Q When you say SAU, what do you mean by that?
A Special Action Unit.
Q Of what?
A Of the NBI.
Q So before you allegedly gave the P50,000.00 to Atty. Morante, you informed
the NBI?
A Yes, they knew of my every move.[67]
Indeed, immediately after receiving the unsigned order from the respondent
on August 28, 2001, Olavere gave the unsigned order to the NBI as evidence against the
respondent. The culpability of the respondent is, likewise, evidenced by his failure to
follow procedure when he made arrangements with Olavere to release the order signed
by Judge Maceda himself. As ruled by the Investigating Justice:
Respondent violated procedure when he personally released the signed order to
Olavere. According to Ms. Macaldo, the release of the order should have been made by
the court where it was filed. Since the Momma case was filed with Branch 255 and the
pending incidents were resolved by Judge Maceda only as a pair judge, the order
should be released by the staff of Branch 255. This procedure was followed in all cases
with pending incidents from Branch 255 that were resolved by Judge Maceda, except
the Momma case.[68]

Anent the second and third issues, we agree with the findings of the Investigating
Justice in his Report that the complainant was able to adduce substantial evidence to
prove that the respondent promised to Olavere and agreed to give and did give and
actually gave to the latter on August 31, 2001 a certified copy of the August 28, 2001
Order already signed by Judge Maceda after receiving the brown envelope containing
the P200,000 from Olavere. In his affidavit-sworn statement on August 31, 2001 Olavere
declared, thus:
T Pagkatapos na maibigay mo ang P50,000 noong August 28, 2001 kapalit ang
walang pirmang desisyon, anong nangyari?
S Nakipagset ng schedule si ATTY. MORANTE na ibibigay niya ang pirmadong
desisyon kapalit ng P200,000 sa biyernes, August 31, 2001.
T Ano ang sumunod na pangyayari?
S Ngayon araw na ito, August 31, 2001, bandang alas-onse y medya ng umaga
(11:30 AM) ay nagpunta ako sa opisina ni ATTY. MORANTE.
T Ano naman ang ginawa mo sa opisina ni ATTY. MORANTE?
S Ayon sa usapan ay kinuha ko ang pirmadong desisyon ni Judge BONIFACIO
SANZ MACEDA kapalit ng P200,000. Tinanggap niya ang pera na nasa
loob ng envelop at ipinatong sa ibabaw ng kanyang mesa. (Affiant submits
Order of Judge BONIFACIO SANZ MACEDA dated August 29,
2001 marked as Annexes A to A-3)
T Ano ang sumunod dito?
S Dumating na ang mga taga-NBI at hinuli si ATTY. MORANTE.
T May ipapakita ako sa iyong tao, kilala mo ba siya?
S Opo, siya po si ATTY. ALLAN MORANTE ang Branch Clerk of Court ng
Branch 275, RTC, Las Pias City, na tumanggap ng P200,000 nasa loob ng
envelope.
T Pansamantala ay wala na muna akong nais na itanong pa sa inyo, mayroon
ba kayong nais na idagdag o ibawas dito sa inyong salaysay?
S Wala po.[69]
To the clarificatory questions of the Investigating Justice, Olavere replied, viz:
Q When you went inside the room, there is (sic) a door?
 COURT
Door to the office?
Q Door to the office of Atty. Morante from the outside? There must be a door.
A Yes, of course.
Q The door was not locked.
A Presumably it was not locked.
Q You did not lock it when you enter (sic)?
A No.
Q Then you went to the office of Mr. Morante?
A Yes, he led me inside.
Q Then according to you, you got the signed copy of the decision given to you
allegedly by Atty. Morante?
A After the exchange of the money.
Q Then you got the money from your back contained in an envelope, and you
gave it to Atty. Morante?
A I handed it to him.
Q He got it and then placed it in (sic) the table. That is the statement that you
swore and I quote: Tinanggap niya ang pera na nasa loob ng envelope at
ipinatong sa ibabaw ng kanyang mesa. He did not hide it in his drawer. He
did not pocket it. And after receiving the money, he placed it there on top of
the table. And you swore to that statement?
A Yes.
Q When was the money given to you by the NBI? We are referring to
the P200,000.00. Who gave to (sic) you the money?
A Mr. Momma gave the money.
Q Did you give it to the NBI?
A I showed it to them and then they had it dusted for (sic) fluorescent
powder. All the proceedings were done with proper paper works. And I had
the money with me and I went to Las Pinas.
Q When you handed the money contained in an envelope, you know that it was
already dusted for (sic) fluorescent powder and everything in order to
show?
A Yes.[70]
Respondent belabored on the evidence on record that after the entrapment operation
in the office of the respondent, the dorsal and palmar aspects of his left and right hand
were subjected to ultraviolet light test and were found negative for fluorescent
powder.However, the result of the test does not enfeeble the case for the complainant. In
the first place, the absence of fluorescent powder on the dorsal and palmar aspects of
the respondents hands is not conclusive evidence that he did not hold the brown envelope
at all before the NBI agents arrived in his office. The evidence on record shows that the
NBI agents referred the white mailing envelope with the P1,000 bills to the NBI Forensic
Chemist Section for the application of fluorescent powder.[71] The said bills and the white
mailing envelope were dusted with fluorescent powder. However, the NBI agents
discovered that the white mailing envelope was too small to contain bundles of bills
amounting to P200,000, and placed the bundles of bills in a 6x8-inch size brown
envelope, which, however, was no longer dusted with fluorescent powder. After receiving
the envelope from Olavere, the respondent placed it on top of his table. Had the
respondent opened the envelope containing the four P1,000 bills dusted with fluorescent
powder, for sure, the palmar aspects of his hand would have tested positive for
fluorescent powder.
The respondent claimed that one of the NBI agents who barged into his room took
hold of the brown envelope, removed the seal and opened it in front of him, and that the
said agent grabbed his right hand and attempted to place it inside the envelope, but was
foiled when stenographer Leticia B. Agbayani entered the room and shouted, Whats
happening here? (Anong nangyayari dito?) to which the respondent replied, Entrapment
daw.[72] The claim of the respondent is belied by his testimony that before Agbayanis
arrival, an NBI agent had already taken the money from the brown envelope and placed
the bundles of money on top of his table. Thus, when Agbayani barged into the
respondents room, Agbayani must have seen the bundles of money on his table. In her
affidavit,[73] she stated that when she barged into the respondents room after the NBI had
gained entry, she asked the respondent, Alam mo ba kung anong laman niyan? to which
the respondent replied, Hindi, does not bolster the respondents defense, but on the
contrary, weakens the same. It is incredible that the respondent would respond that he
did not know what was contained in the envelope, when, according to his testimony,
Agbayani barged into the room and the bundles of P200,000 had already been taken out
of the envelope and were placed on his table. The respondent even failed to identify the
NBI agent who filed an administrative or criminal charge against him for attempting to
falsely implicate the respondent.
Apart from the presumption that the NBI agents performed their duties in accordance
with law, the bare statement of the respondent cannot prevail, especially since Leon
Matienzo, the principal witness, whose testimony the respondent principally relied on to
corroborate his, was found by the Investigating Justice incredible. We agree with the
following disquisition of the Investigating Justice in his Report to the Court:

To corroborate respondents defense that he did not received (sic) the money inside the
bulky brown envelope, another tutored and perjured witness in the person of Leon
Matienzo was presented.

Leon Matienzo admitted that his affidavit was prepared by Atty. Cayton, counsel for the
respondent. Witness was not sure whether his affidavit was prepared in August or
September 2001. When the witness finally decided that his affidavit was prepared
September 2001, on a Monday after talking to Atty. Morante, yet he cannot remember
the date. The witness was warned not to talk to anybody while still testifying (TSN, pp.
22-23, July 22, 2001). The witness was even ambivalent when asked as to the time his
affidavit was prepared (TSN, p. 24, Ibid.) which is a proof that he was tutored and was
just asked to sign it.

Witness Matienzo is the Process Server of Branch 254. He claimed that at about 11:30
oclock in the morning on August 31, 2001, he went inside the office of the respondent to
inform him that they were able to get a schedule for their civil service
examinations. Almost simultaneous with his arrival in said office, he heard Atty. Morante
asked (sic) the person he was talking to, ano yan? He asked to be excused and told the
respondent, boss ipapaalam ko lang na nakapagpa-schedule na kami para sa civil
service examination and, he (Morante) answered, Okay. And he asked permission to
leave.

The role assigned to Matienzo in the defense of respondent was just to say/testify that
he heard Atty. Morante asked (sic), ano yan? and, nothing more. The witness is the
Process Server of Branch 254 presided by Judge Fernandez, the Executive
Judge. According to him, he was already permitted by the Executive Judge and the
Branch Clerk of Court to take the civil service examination. Why then would he still go to
the office of Atty. Morante, who was not his superior, on the fateful day of August 31,
2001 just to inform him that he had a scheduled civil service examination?

Hereunder are portions of the testimony of the witness that would show the limited role
assigned to the witness in respondents defense:

Q What was the reaction of the person who was inside (the office) when Atty.
Morante say (sic), ano yan?
A Nakatingin po sa kanya, sir.
Q He did not react?
A Hindi ho kasi mabilis lang po ako doon, eh. Nang sabihin po nag-excuse na
po ako.
Q Why were you in a hurry to leave the place when at that point, Atty. Morante
was already asking, what was that?
A Dahil sa nag-excuse po ako, sir. Excuse me, sir, sabi ko sa kanya at sa
kanyang kausap, me sasabihin lang po ako (TSN, p. 32, July 22, 2002).
Q Now, are you sure that what you heard was, ano yan?
A Yes, sir.
Q Nothing else?
A Nothing else, sir. (TSN, p. 35, Ibid.)
The witness cannot even remember the date when the affidavit was prepared, the day
he signed it and, the date when it was subscribed before a person authorized to
administer oath. These only show that all the facts stated therein were supplied by
counsel to corroborate the testimony of the respondent.[74]

The case for the complainant is not enfeebled by the affidavit of Olavere dated
December 5, 2002 where he retracted his sworn statement, the supplemental sworn
statement to the NBI and his testimony before the Investigating Justice; and desisted from
being a witness against the respondent on his claim that the statements therein are not
only hearsay but were brought about by grave mistake and misapprehension of fact and
any lack of knowledge of court procedures;[75] nor by the affidavit of desistance executed
by Momma on his claim that:

3. However, the said statement was merely provided by my interpreter, which is turned
out and was later on discovered, was a result or was brought about by mistake and
grave misapprehension of facts and his lack of knowledge of court procedure, Atty.
Morante did not request nor received money directly from me to have the said case
dismissed and I have never met him in my life; [76]

First. In People v. Ballabare,[77] we held that a retraction of a witness does not

necessarily negate an original testimony. For this reason, the Court looks with disfavor
upon such retractions because testimonies can easily be obtained from witnesses
through intimidation or for monetary consideration. Moreover, any reconsideration must
be tested in a public trial, with sufficient opportunity given to the adverse party affected
by it to cross-examine the recanting witness. Hence, when confronted with a situation
where a witness recants his testimony, courts must not automatically exclude the original
testimony solely on the basis of recantation. They should determine which testimony
should be given credence through a comparison of the original testimony and the new
testimony, applying the general rules of evidence.[78] We have also held that it is absurd
to disregard a testimony that has undergone trial and scrutiny by the Court and the parties
simply because an affiant withdraws his testimony. Olavere and Momma executed their
affidavits only after the formal investigation had been concluded and the case submitted
for report and recommendation by the Investigating Justice.
Second. The respondent failed to file a motion for the reopening of the investigation
to enable him to present Olavere and Momma to testify on their affidavits to prevent the
Investigating Justice and the Court Administrator, which were not even furnished with
copies of said affidavits, from conducting examination of Olavere and Momma on their
affidavits.
Third. Olavere had personal knowledge of the facts contained in his sworn statement,
supplemental sworn statement and his testimony and, hence, the said statement and
testimony are not hearsay. Olavere dealt personally with the respondent, gave him the
total amount of P250,000 after receiving the unsigned and signed orders from the
respondent.
Fourth. Olavere and Momma did not explain their affidavits why it took them
until December 11, 2002 or after the lapse of more than a year from the entrapment of
the respondent on August 31, 2001 to execute the same. It is incredible that it took
Olavere more than one year to realize that the facts contained in his sworn statement and
as testified to by him were hearsay and of his lack of knowledge of procedure. Being a
mere secretary and a functionary of Momma, Olavere has not explained how he came to
the conclusion that his sworn statement and testimony are hearsay.
Fifth. The desistance of witnesses does not automatically result in the dismissal of an
administrative case. This Court, in fact, looks with disfavor at affidavits of desistance filed
by complainants, especially if done as an afterthought. Contrary to the submission of the
respondent, the withdrawal of the complaint on the recantation of Olavere does not have
the legal effect of exonerating him from any administrative disciplinary actions for
acts/omissions meriting disciplinary sanctions by the respondent. It does not operate to
divest this Court of jurisdiction to determine the truth behind the matter stated in the
complaint. The Courts disciplinary authority cannot be dependent on or frustrated by
private arrangements between parties. An administrative complaint against an official or
employee of the judiciary cannot simply be withdrawn by a complainant who suddenly
claims a change of mind.[79]
On the last issue, we agree with the Investigating Justice that the respondent, based
on the substantial evidence on record, is guilty of grave and serious misconduct: for
extorting P50,000 from Momma through Olavere for the unsigned order, and
another P200,000 for the order duly signed by Judge Maceda. Such abominable acts of
the respondent warrant his dismissal from the service and the imposition of accessory
penalties therefor.[80]
The Court condemns and would never countenance any conduct, act or omission on
the part of all those involved in the administration of justice which would violate the norm
of public accountability and diminish or even just tend to diminish the faith of the people
in the Judiciary.[81]
Time and again this Court has stressed that those involved in the administration of
justice must conduct themselves in a manner that is beyond reproach since their office is
circumscribed with a heavy burden of responsibility.[82] Public office is a public trust. No
position demands greater moral righteousness and uprightness from its occupant than
does the judicial office. Clerks of court, in particular, being the chief administrative officers
of their respective courts, must be individuals of competence, honesty and probity,
charged as they are with safeguarding the integrity of the court and its proceedings. [83] As
essential and ranking officers of our judicial system, they perform delicate administrative
functions vital to the prompt and proper administration of justice.[84] Clerks of court serve
as an exemplar for other court employees, whose duties and responsibilities must be
strictly performed. They play a key role in the complement of the court and cannot be
permitted to slacken on the job under one pretext or another.[85]
Furthermore, it must be stressed that a member of the Bar who assumes public office
does not shed his professional obligations. The Code of Professional Responsibility was
not meant to govern the conduct of private practitioners alone, but of all lawyers, including
those in government service.[86] Lawyers in government are public servants who owe
utmost fidelity to the public service. Thus, they should be more sensitive in the
performance of their professional obligations, as their conduct is subject to the ever-
constant scrutiny of the public.[87]
Under A.M. No. 02-9-02-SC[88] Re: Automatic Conversion of Some Administrative
Cases Against Justices of the Court of Appeals and the Sandiganbayan; Judges of
Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary
Proceedings Against Them Both as Such Officials and as Members of the Philippine
Bar,[89] which took effect on October 1, 2002, the respondent would have been required
to comment on the complaint and to show cause why he should not also be suspended,
disbarred or otherwise disciplinarily sanctioned as a member of the bar. However, the
complaint was filed before this Court on September 21, 2001, long before the said
resolution took effect. Thus, it cannot be applied in the instant case.90
WHEREFORE, in view of the foregoing, respondent Atty. Edgar Allan C. Morante,
Clerk of Court, Regional Trial Court, Las Pias City, Branch 275, having been
found GUILTY of grave and serious misconduct, is DISMISSED from the service effective
immediately, with forfeiture of all retirement benefits, except accrued leave credits, with
prejudice to his reemployment in any branch or instrumentality in the government,
including government-owned and controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga,
JJ., concur.
Corona, J., on leave.
G.R. No. L-31342 April 7, 1976

JUAN T. BORROMEO, petitioner,

vs.
COURT OF APPEALS, EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B.
AZNAR, respondent.

G.R. No. L-31740 April 7, 1976

EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, as Special

Administrator of the Estate of Matias H. Aznar, petitioners,
vs.
COURT OF APPEALS and JUAN T. BORROMEO, As Special Administrator of the
Estate of Simeon Rallos, respondents.

Vicente J. Francisco for Juan T. Borromeo.

Ciriaco Lopez, Jr. & Associates for Emmanuel B. Aznar, et al.

BARREDO, J.:

Cross-petitions for the review of the per curiam resolution of the Court of Appeals in CA-
G.R. No. 30092-R, Juan T. Borromeo etc. vs. Emmanuel B. Aznar, et al, dated
November 19, 1969 which review entirely its previous decision of January 30, 1968
thereby ultimately holding that the transactions in question are equitable mortgages
instead of absolute sales of real properties and granting the heirs of the deceased
Simeon Rallos a period of one year from the finality of the resolution within which to
effect a redemption of said properties, without prejudice to the right of the opposing
party to foreclose the declared mortgages if no such redemption takes place and the
amounts stated in the documents are not fully paid, arid ordering furthermore the
Aznars to pay said heirs P10,000 for and as attorney's fees and the costs. In G.R. No.
L-31342, petitioner Juan T. Borromeo, as administrator of the estate of the deceased
Simeon Rallos, prays for the modification of the per curiam resolution in order to include
an award of moral and exemplary damages of P200,000 and P50,000, respectively, and
to increase the award of attorney's fees to not less than P75,000, whereas in G.R. No.
L-31740, the Aznars are asking that said resolution be set aside and that the decision of
January 30, 1968 be reinstated and affirmed.

There are three preliminary questions We have to resolve. First, Borromeo contends
that this Court has no jurisdiction to entertain the petition of the Aznars in G.R. No. L-
31740 because the latter failed to file said petition within fifteen days from December
20, 1969, the date they were notified of the resolution now under review. Borromeo's
theory is that upon the filing of his own petition in G.R. No. L-31342 on December 20,
1969, by way of appeal from the aforesaid resolution in so far as it failed to grant him
the awards referred to in said petition, the Court of Appeals was divested of jurisdiction
to entertain the motion for reconsideration which the Aznars filed on the same date,
December 22, 1969, in the Court of Appeals praying for the reversal of the same
resolution, copy of which had been received by them only on December 20, 1969.
According to Borromeo, what the Aznars should have done upon being notified of the
filing of the petition in G.R. No. L-31342 should have been to file already their petition
for review with this Court instead of filing or continuing with their motion for
reconsideration in the Appellate Court, and that since the latter court had lost its
jurisdiction over the case by reason of his (Borromeo's appeal), citing in this respect the
resolution of this Court of September 3, 1965 in G.R. No. L-24762 (Manila Electric Co.
vs. Public Service Commission et al.), the Aznars' motion for reconsideration did not
suspend their period for appeal to this Court which they made only on February 27,
1970 (erroneously alleged as March 11, 1970 by Borromeo).

Obviously, Borromeo's. contention has absolutely no merit. To start with, when We

issued Our resolution of January 13, 1970, granting the Aznars an extension of fifteen
(15) days from the time they were to be notified of the resolution of the Court of Appeals
of its action on their motion for reconsideration then still pending therein. We already
knew that the petition of Borromeo against the same resolution of the Court of Appeals
had already been filed with Us. In other words, in that resolution, the Court already
recognized the right of the Aznars to file their own separate appeal from the resolution
of the Court of Appeals after the reconsideration thereof was to be denied by the Court
of Appeals notwithstanding Borromeo's appeal was already with Us. Besides, to sustain
Borromeo's theory would lead to the absurd proposition that one party may be deprived
of the right to appeal from the portion of a decision against him just because the other
party who had been notified of the decision ahead had already perfected his appeal in
so far as the said decision adversely affects him. Indeed, We have already virtually
ruled against such pose of Borromeo in Timoteo Simsim vs. The Hon. Judge Feliciano
Belmonte etc. et al., 34 SCRA 536 and People vs. Ursua, 60 Phil. 252. The Meralco
resolution invoked by Borromeo is not in point.

Borromeo secondly tries to make capital of the fact that while it is true that the brief of
the Aznars was filed on time, on August 31, 1970, the last day therefor, it did not contain
a digest of the arguments nor the text of the resolution sought to be reviewed, which are
required by the rules (Sections 1 and 6 of Rule 56 read together with Section 16 of Rule
46) and that these requirements were complied with only on September 19, 1970, for
which reason, he prays that their appeal should be dismissed pursuant to Section 1 (b)
of Rule 50. We are not impressed. The digest of arguments and the copy of the
appealed resolution are not in strict sense parts of the brief so as to justify the charge
that the Aznars filed their brief in two parts. No conceivsble prejudice could have been
caused to anyone concerned by their late filing nineteen days after the reglementary
period had expired, the brief itself, with the assignments of error and the arguments
supporting them, having been filed already within said period. Of course, it would be
Ideal if all the requirements of the rules were complied with on time, but there is nothing
in principle or in the precedents relied upon by Borromeo that makes it imperative for Us
to dismiss an appeal upon no more ground than such obviously unintentional and
harmless technicality as the omission of the requirements herein complained of.

The third preliminary issue raised by Borromeo is that the appeal of the Aznars in G.R.
No. L-31342 involves purely questions of fact. It is argued that the reversal by the Court
of Appeals of its original conclusion, upholding the trial court, that the transactions in
question were absolute sales, by holding in its per curiam resolution that they were
actually equitable mortgages, does not constitute an error of law but a mere reappraisal
or reweighing of the evidence which it has the power to do. Borromeo insists that a
ruling as to whether a transaction is a sale or a mortgage involves no more than
evaluation of the evidence and is consequently a factual matter beyond the Supreme
Court's authority to review except under peculiar circumstances that do not obtain here.

To be sure, this is not the first instance that a reversal by the Court of Appeals of its own
original decision has been brought to Our attention. And indeed, where the reversal was
the result exclusively of a reevaluation or reweighing of the evidence, this Court has
refrained from interfering. No doubt, it would be inimical to the interests of justice and
would not be conducive to the fair and just resolution of judicial controversies to deprive
a court of the power to reconsider possible errors committed by it in any of its
actuations. It is in fact one of the inherent powers of courts "to amend and control its
process and orders so as to make them conformable to law and justice." (Section 5 (g),
Rule 135) And the Court of Appeals is certainly included in the contemplation of such
rule. The only limitation to this power is that it cannot be exercised anymore after the
action or judgment concerned has already become final and executory by the expiration
of the corresponding reglementary period for the purpose, this as a matter of public
policy requiring that litigations should from the very nature of things have a definite
conclusion at a given time even at the risk of occasional errors or unintended injustice.

We perceive however that the instant case does not fall under the foregoing principles.
While the main impugned resolution does relate ultimately to factual conclusions of the
Court of Appeals, We see that in reversing its previous findings of fact, which it arrived
at after excluding on grounds of legal incompetency the corresponding evidence
presented by Borromeo, the Appellate Court first reversed those rulings on the
admissibility of said evidence and declared them competent, and then predicated its
new factual conclusions on these subsequently admitted evidence it had rejected in its
original decision. And so, it is safe to presume that had not the Appellate Court reversed
its legal rulings on the admissibility or competency of the evidence referred to, it would
not have reversed its actual conclusion as to the nature of the transactions in
controversy. Accordingly, and on the theory that if this Court should hold that the later
rulings of the Court of Appeals on the admissibility of evidence are erroneous in law, the
inevitable result would be that the factual conclusions of said court in its original
decision, which were favorable to the Aznars, would be revived, it is now the position of
the Aznars that their attack against said later rulings constitute legal issues over which
this Court has jurisdiction. After carefully studying all the points respectively raised by
the parties, We are convinced that this contention is well taken and We shall now
proceed to resolve the legal issues on admissibility of evidence which are extensively,
exhaustively and very well discussed by both counsel in their briefs and other papers
filed with the Court and for which they are both worthily deserving of commendation for
unusual diligence and expertise in the work of advocacy, thereby lightening
considerably the work of the Court. We refer equally to the late Senator Vicente J.
Francisco, counsel for Borromeo, and Atty. Ciriaco Lopez Jr., who is appearing for the
Aznars.

As already stated, the main controversy here centers on the true nature of the three
documents, Exhibits A, B and C, which on their faces are unquestionably deeds of
absolute sale of the real properties therein described executed by the deceased Simeon
Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and his sister,
Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as
administrator of the estate of Simeon Rallos, alleged that these documents were in fact
equitable mortgages to secure loans granted to Rallos by Matias Aznar, deceased
father of Emmanuel and Alma, and prayed for their reformation. The trial court
dismissed the said complaint and on appeal, said dismissal was affirmed by the Court of
Appeals in its original decision of January 30, 1968 penned by Justice Ramon
NOLASCO and concurred in by Presiding Justice Francisco B. Capistrano and Justice
Antonio Cañizares The pertinent portions of said decision read thus:

We have examined Exhibits A, B and C carefully, and we find them clear,

unambiguous and unequivocal. If the terms of a contract are clear and
leave no doubt upon the intention of the contracting parties, the literal
meaning of its stipulations shall control. (Article 1370, Civil Code.) The
intention of the parties is to be deduced from the language employed by
them, and the terms of the contract, where unambiguous, are conclusive,
in the absence of averment and proof of mistake, the question being, not
what intention existed in the minds of the parties, but what intention is
expressed by the language used. When a written contract is clear and
unequivocal, its meaning must be determined by its contents alone; and a
meaning' cannot be given it other than that expressed. (City of Manila vs.
Rizal Park C., 53 Phil. 515; 17 C.J.S. 700.).

According to the testimony of Crispina Rallos Alcantara, who claimed to

have been present when the transactions took place, her deceased father
merely borrowed money from the late Matias Aznar in the sums of
P6,000.00 and P35,000.00 and to secure the repayment thereof
mortgaged to the latter the properties described in Exhibits A, B and C.
She testified that the transactions were disguised as absolute sales and
Rallos was assured by Matias Aznar that he could exercise the right to
repurchase the lots and would deliver to him the corresponding options in
writing.

We find the testimony of Crispina Rallos Alcantara in this respect

unreliable and insufficient to justify the reformation of the instruments in
question. While it is true that relationship does not disqualify a witness, it
calls for a close scrutiny of his testimony. For obvious reasons, the
testimony of close relatives by affinity or consanguinity to corroborate a
claim is not given much credence. (People vs. Guzman, 70 Phil. 23.) As
correctly observed by the trial court, her testimony cannot be considered
as absolutely unbiased or impartial, as she was naturally interested in an
outcome of the case favorable to the plaintiff. More than this, however, the
record shows that Rallos was even cautioned by his daughter Crispina
and her husband before signing Exhibit A. The fact remains that Exhibits
A, B and C were signed by Rallos himself as a party thereto. His
successors-in-interest cannot now be heard to complain that the parties to
said exhibits intended the same to be loans with mortgages contrary to
what are clearly expressed therein. The natural presumption is that one
does not sign a document without first informing himself or its contents,
and that presumption acquires greater force where, as in the case at bar,
not only one but several documents, executed at different times, were
signed by Rallos. (Javier vs. Javier, 7 Phil. 261.) It is the duty of every
contracting party to learn and know the contents of a contract before he
signs and delivers it. He owes this duty to the other party to the contract,
because the latter may, and probably will pay his money and shape his
action in reliance upon the agreement. To permit a party, when sued on a
written contract, to admit that he signed it but to deny that it expresses the
agreement he made, or to allow him to admit that he signed it but did not
read it, or know its stipulations, would absolutely destroy the value of all
contracts. (Tan Tun Sia vs. Yu Bino Sentua, 56 Phil. 711; Moran, Idem pp.
123-124.).

The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which, according
to Crispina Rallos Alcantara, were her notations allegedly representing the
deductions made by Matias Aznar for advance interest, attorney's fees
and miscellanous expenses are corroborative of her testimony that the
transactions in controversy were really loans with mortgages. We,
likewise, find the said exhibits weak and unsatisfactor as evidence of the
facts asserted. They are clearly self-serving, as they were admittedly
prepared by the declarant herself (2 Wharton's Criminal Evidence, Sec.
690; 2 Jones on Evidence, 2d., Ed., Sec. 895), who was a daughter of the
deceased Rallos and who cannot, therefore, be said to be disinterested
witness. With respect to Exhibit J, the option to repurchae Lots Nos. 462
and 7032, also relied upon by the appellant as allegedly corroborative of
the testimony of Crispina Rallos Alcantara that all the transactions in
question were loans secured by mortgages, it is to be noted that said
exhibit his to do with the two lots mentioned therein and none other.
Certainly, it is no proof that Rallos was similarly given a written option to
redeem any of the lots covered by Exhibits B and C, which, according to
Crispina Rallos Alcantara, was taken back by Matias Aznar but never
renewed. The evidence shows that the period fixed in Exhibit J expired
without the lots involved being redeemed.
To show, too, that Matias Aznar had agreed to the repurchase of the lots
in question by Rallos, the plaintiff presented at the trial of the case Exhibit
L, which appears to be a copy of a draft of deed of absolute sale. This
exhibit deserves but the scantest consideration, it being undated,
unsigned and unsubscribed by any purported party thereto. Besides, even
granting arguendo that the same was prepared by a lawyer of the Aznars,
as alleged by Crispina Rallos Alcantara, we fail to see its materiality to the
resolution of the main issue involved in this case of whether or not
reformation is proper or justified, as the draft appears to have been drawn
in favor of Crispina RalloE Alcantara who was not a party to the
instruments sought to be reformed, and there is nothing in said exhibit to
indicate that the contested transactions were really loans secure by
mortgages.

As to Exhibits Q, Q-1, Q-2 Q-3, R and R-1, which, according to the

appellant, were erroneously ignored by the court below, the same
invariably refer to an alleged indebtedness of Rallos to Matias Aznar and
not to the defendants, Emmanuel and Alma Aznar, to whom the properties
in question appear to have been sold (Exhibits A, B and C). The said
exhibits fail to show clearly and satisfactorily that the transactions
mentioned therein relate to the same transactions and the same parcels of
land involved in the case at bar.

The appellant further contends that the considerations paid for the lots in
dispute were very inadequate or unusually low which would justify
reformation under the provisions of Articles 1602, paragraph 1, and 1604,
of the Civil Code. This contention is untenable.

The evidence shows that Lot No. 7032 was sold to the defendant
Emmanuel for P6,000.00 (Exhibit A), which was higher than its assessed
value of P4,447.25 in 1954 when the transaction took place (Exhibit A-1).
The price paid for Lots Nos. 519-B, 519-C, 467 and 490 is P40,000.00
also in lump sum (Exhibit C). The total consideration for said six lots is
P45,000.00, which was more than one-half, or approximately 60%, of their
total assessed value of P74,647.00 at the time of transaction in 1954
(Exhibits B-1, B-2, C-1, C-2, C-3 and C4). It is to be noted that at the time
of the sale, there was a mortgage encumbrance of P5,000.00 on Lots
Nos. 2713 and 7728 in favor of the Go Chan & Sons Realty Corporation,
while Lots Nos. 519-B, 519-C, 467 and 490 had a mortgage encumbrance
of P20,000.00 in favor of the Philippine National Bank, which obligations
were assumed by the defendants-vendees (Exhibits 27, 28, 29, 30, 32, 33
and 34). In fact, when Exhibit C was executed, the indebtedness to the
bank was already due and demands for the payment thereof had been
made upon Rallos (Exhibits H and H-1).
On this question of the vsluation of the subject lots, the plaintiff presented
HIPOLITO S. Ricardo, at one time Deputy City Assessor in Cebu City,
who testified that the assessment of a real estate property was only about
40% of its fair market value, but the same was not the basis for
determining the fair market value of a real estate property; that the factors
considered by their office in appraising the fair market value of a real
estate property were the transactions of the parties and the prices
appearing in the deeds of sale of the adjacent or neighboring lots, but in
the absence thereof, the capitalization system was used, based upon the
investment in the property, its income, plus 6% interest annually after
deductions for taxes paid, insurance premiums, repairs, losses and other
miscellaneous expenses; and that in the assessment of real properties
their office had a schedule of values to be followed, and a partial revision
of the assessments was made yearly. According to him, however, their
scheal of was not applied in the assessment of Lots Nos. 2713 and 7728,
covered by tax declarations, Exhibits B-1 and B-2, and subject matter of
Exhibit B, and of Lots Nos. 519-C, 619-B, 46'7 and 490, covered by tax
declarations, Exhibits C-1, C-2, C-3 and C4 and subject matter of Exhibit
C. As to the assessment of Lot No. 7032, covered by tax declaration,
Exhibit A-1, and subject matter of Exhibit A, the said schedule was used.
At any rate, taking the assessment of the seven lots involved in this case
as a reasonable basis for determining their actual valuation at the time of
the transactions, and considering the encumbrances existing on six of the
lots and their purchase by the defendants, Emmanuel and Alma Aznar, at
one time and in lump sums, this Court is not prepared to conclude that
under the attendant circumstances, the considerations paid for the lots in
question were unusually inadequate or shockingly low to warrant the
application of the provisions of paragraph No. I of Article 1602 of the Civil
Code on equitable mortgage. (Manalo vs. Gueco, 42 Phil. 925; Cabigao
vs. Lim, 50 Phil. 844.)

The appellant points out that, according to the bank records, Exhibits T, T-
1, U U-1, V, V-1, W and W-1, the appraised values of the lots mortgaged
with the bank were considerably higher than the prices paid for them. The
fact remains, however, that the mortgage obligation of Rallos secured by
the same six lots was only P20,000.00, which was assumed by the
defendants-vendees. Besides, no bank appraiser or representative was
presented by the plaintiff at the trial to testify as to how the appraised
values appearing in said exhibits were arrive at.

On the other hand, the testimony of Vicente Kyamko also relied upon by
the appellant to prove the alleged fair market values of the subject lots,
deserves but scant consideration. The said witness admitted that he was
not a licensed appraiser, and that he did not know what the assessed
values of the lots in question were in 1954, although, according to him, the
assessed value of a real property was the basis for computing or
estimating its fair market value. However, even granting arguendo that
there were differences in value or some inadequacy of consideration here,
nevertheless; the same cannot be said to be controlling when viewed in
the light of the entire evidence Page 341 adduced in this case. A
difference in value is not always a decisive factor for determining whether
the contract is one of sale with right to repurchase or a mere loan with
guaranty. (Ocuma vs. Olandesca [CL] 47 O.G. 1902.) Mere inadequacy is
not a sufficient ground for the rescission or resolution of a contract when
both parties, as in the instant case, were in a position to form an
independent judgment concerning the transaction. (Askay vs. Coselan 46
Phil. 179.)

In its tenth assignment of error, the appellant assails the trial court's
finding that the defendant vendees were in possession of the lots in
question after the execution of the deeds of absolute sale, Exhibits A, B,
and C. It contends that the defendants never possessed the contested
lots. We see no merit in this contention.

The records show that after the execution of the documents in question,
the defendants, Emmanuel and Alma Aznar, transferred in their names the
tax declarations covering the properties sold to them, paid the taxes
thereon and caused the issuance of new certificates of title accordingly
(Exhibits 7, 8, 9, 10, 11, 12, 21, 22, 24, 25, 26, 35, 36, 37, 38, 39 and 40).
They demanded for the payment to them of the rentals due from the
tenants of the lots, and began to collect the rentals from them after the
maturity of the promissory note of Rallos for P1,800.00, Exhibit I, which,
according to the defendant, Emmanuel, represented the rentals for one
year collected in advance by Rallos from the lessees. Thereafter,
defendants Emmanuel and Alma Aznar filed detainer suits against those
occupants who failed to pay their rents to them (Exhibits D to D-21,
inclusive, 41, 41-A, 41-B, 41-C and 41-D). Certainly, those facts belie the
appellant's claim that the defendant vendees were never in possession of
the lots in dispute.

From the evidence adduced, we are satisfied that after the execution of
the deeds of absolute sale, Exhibits A, B and C, the defendants vendees
took possession of the subject lots, and they were in possession thereof
and collected the rentals due until the plaintiff's administrator was
authorized by the court a quo to collect the rents and deposit them in a
bank, subject to the court's disposition.

The appellant capitalizes, too, on the statement, Exhibit K, which allegedly

shows that Matias Aznar charged Rallos with the payment of the taxes
due on the contested lots. According to Crispina Rallos Alcantara, the said
exhibit was prepared by an employee of Matias Aznar upon the latter's
orders, when she went to see him concerning the repurchase of the lots.
 This, however, was denied by the defendant, Emmanuel Aznar, who
claimed that after the sale, neither Rallos nor his daughter Crispina went
to see any of the Aznars in their office for the redemption of the lots. The
exhibit in question, allegedly a statement of account of Rallos to Matias
Aznar involving the disputed transactions is neither dated nor signed.
much less by the party sought to be charged. The alleged writer thereof
was not presented at the trial of the case, and we have only the biased
testimony of Crispina as to its authenticity or preparation. Even if it were
true, however, that the writing was made, as alleged by Crispina, we
cannot consider the name as proof of what was said or transacted then.
The mere making of written -memorandum immediately after the interview
does not make the memorandum affirmative intrinsic proof of the things
said or transacted. (32 CJS 948.) Knowledge on the part of the person
who made the memorandum, at the time it was made, that the statements
or entries therein were correct must be shown (32 OJS 947), and this the
plaintiff failed to do. On the other hand, the record indubitably shows that
after the execution of the questioned instruments, the taxes on the lots
subject matter thereof were paid by the defendants vendees.
Consequently, we hold that Exhibit K has no evidentiary value, and the
lower court was correct in disregarding it ( Pp 82- 95, Record of L-31740.)

However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice
Capistrano who had by then been elevated to this Court was substituted by his
successor Presiding Justice Julio Villamor, this rather strong position taken by the
appellate court was completely reversed by itself as follows:

While it is true that in our decision rendered in this case, we held that the
notations or memoranda of Crispina Rallos Alcantara marked as Exhibits
A-2, A-3, B3 and C5 were self-serving and unsatisfactory as evidence of
the facts asserted (Decision, p. 24), the same, however, as now correctly
contended by the plaintiff-appellant in his motion for reconsideration, may
be considered as constituting part of the res gestae, and as such, are
admissible in evidence to show the nature of the contracts in question and
the relation of the parties involved.

Statements, acts or conduct accompanying or so nearly

connected with the main ion as to form a part of it, and which
illustrate, elucidate qualify, or the act, are admissible as part
of the res gestae. Accordingly, the attendant circumstances
and the statements then made by the pudes are admissible
as part of the res gestae to show the execution of a contract,
and, where relevant, matters said and done which are parts
of the res gestae of the negotiation and execution of a
contract are admissible to show the existence and nature of
the contract and the relation of the parties. Matters attendant
 upon a sale or conveyance may also be admissible m part of
the res gestae. (32 CJS 30-32.)

Coversations occurring during the negotiation of a loan or

other transaction, as well as the instrument given or
received, being part of the res gestae, are competent
evidence to show the Page 343 nature of the transaction and
the parties for whose benefit it was made, where that fact is
material. (National Bank vs Kennedy, 17 Wall. [U.S.] 19, 21
L. Ed. 554, cited in 20 Am. Jur. 57.)

... The character of the transaction is precisely what the

intention of the parties at the time made it. It will therefore be
discovered that the testimony of those who were present at
the time the instrument was made, and especially of those
who participated in the transaction, becomes most important.
(Cuyugan vs. Santos, 34 Phil. 100, 114-115.)

Thus, while the testimony of Crispina Rallos Alcantara may nor, be free
from bias, she being the daughter of the deceased, Simeon Rallos, the
same should not, however, be totally rejected on the ground of bias alone
(U.S. vs. Mante, 27 Phil. 124; People vs. Pagaduan 37 Phil. 90),
considering that it appears to be clearly and sufficiently supported by
memoranda which, as already stated, are admissible in evidence as part
of the res gestae (Exhibits A-2, A-3, B-3 and C-5) and by the ledgers of
the Philippine National 7 Bank .(Exhibits X and Y). Besides, mere
relationship of a witness to a party does not discredit his testimony in
court, (U.S. vs. Mante, supra.)

In this connection, the appellant has pointed out in his motion under
consideration that on of this Court's decision, there was an erroneous
citation of C.J.S., i.e., Vol. 32 pp. 947-948 thereof. The said citation,
however, appears and may be found in the 1964 edition of the Corpus
Juris Secundum, Vol. 32, pages 947-948.

In the case at bar, there is another factor why the transactions in question
should be considered as equitable mortgages. This factor consists of the
unusual inadequacy of the prices of the sale of the properties involved.
For purposes of comparison, the prices paid for the properties mentioned
in Exhibits A, B and C and the asses values thereof are hereunder
tabulated:

Lot Purchase Assessment

No. Price as per Tax
declaration
 7032 P6,000.00 P4.447.25
(Exh. A) (Exh. A-1)

2713) 4,679.00
(Exh. B-1)

7728) 5,000.00 9,308.00

(Exh, B, (Exh. B- 2)

519- 150.00
C) (Exh. C-1)

519- 31.300.00
B) (Exh. C-2)

467 ) 17,760.00
(Exh. C-3)

490 ) 40,000.00 11,440.00

(Exh. C) (Exh. C-4)

P51,000.00 P79,084.25

From the foregoing tabulation, it can be seen that the total amount paid to
Simeon Rallos for all the properties involved is only P51,000.00 as against
the total assessed values thereof which amounted to P79,084.25, or a
difference of P28,084.25. In short, the total sum paid as purchase price for
the subject lots represents only 64% of their total assessed valuation. To
our mind, this constitutes a strong indication that the transactions in
question were really loans with mortgages and not absolute sale.

Moreover, it appears that Lots Nos. 519-C, 519-B, 467 and 490 covered
by the deed of absolute sale (Exhibit C) were previously mortgaged with
the Philippine National Bank, which obligation was assumed by the
supposed vendee in the transaction under consideration. As appraised by
the Philippine National Bank and as shown in its inspection and appraisal
report, marked as Exhibits T, U and V in this case, the market values,
respectively, of said properties are as follows:

TCT No. 1096 - Lot No. 490

Market value - Land

572 sq. m. at P25/sq. m. ...................P14,300.00

TCT No. 10915 - Lot No. 467

Market value - land

888 sq. m. at P25/sq. m. ...................P22,200.00

TCT No. 10832 - Lots Nos.

519-B and 519-C

Market value - land

14,242 sq. m. at P10/sq. m. ................142,420.00

Total. . . . . . . . . . P178,920.00.

There is, therefore, a difference of P138,920.00 between the purchase

price of the same properties stated at P40,000.00 in the deed of absolute
sale (Exhibit C) and the total market value as appraised by the Philippine
National Bank amounting to P178,920.00.

Under Republic Act 357, otherwise known as the General Banking Act, a
bank may grant loans against a real estate security and improvements
thereon on the basis of the appraised value of the real estate made by the
bank itself. Section 78 of said Act provides that "loans against real estate
security shall not exceed 70% of the appraised value of the improvement."
Inasmuch as the appraisal of the mortgage values of the lots in question
were made by competent officers of the Philippine National Bank in the
performance of their assigned duties and who are presumed to have
regularly performed such duties, the same are not only admissible in
evidence but are prima facie evidence of the facts therein stated.

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. (Section
38, Rule 130, Rules of Court.)

If a prima facie, case exists, it sustains the quantum of evidence on the

point which it covers, shifting the burden of proof to the other party. It
relieves a party of the burden of proving the fact presumed. The same
result is effected by any substitute for evidence, such as statutory
regulations prescribing prima facie evidence of specified facts. (1 Jones
on, Evidence 2 Ed., Sec. 369.)

It results, therefore, as previously stated, that the appraisal of the lots in

question made by the officials of the Philippine National Bank in the
performance of a duty especially enjoined by law is not only admissible in
evidence, but is a prima facie evidence of the specified facts stated
therein. The defendants, however, presented no evidence to rebut the
same. We have here, therefore, a case where four of the seven lots
involved appear to have been sold for the total sum of P40,000.00 (Exhibit
C), which is equivalent to only 22% of their market values as appraised by
the Philippine National Bank. Certainly, this fact clearly bolsters the
plaintiff's claim that the transactions in controversy were really loans
secured by mortgages and not absolute sales, as there is gross unusual
inadequacy of the prices paid for the same. The fact that the properties
were mortgaged and a notice of lis pendens was annotated on the
corresponding certificate of title at the time of the sale does not lessen nor
affect the values of the lands.

It has been held that in determining the amount of

compensation, or the market value of the property taken, no
account should be given ... to the fact that the property is
mortgaged. (City of Detroit vs. Fidelity Realty Co., 182 N. W.
140, 213 Mich., cited in 29 C.J.S. 972-973.)

As regards the lis pendens annotation on the certificates of title of the

subject lots, the facts show that the same arose from the action for
support filed by Lourdes Rallos against her husband, Simeon Rallos. Such
annotation appears to be improper as an action for support is one in
personam and a notice of lis pendens is available only in real actions, that
is, actions affecting the title to or the right of possession of real property
and not in any other action. (Saavedra vs. Martinez, 58 Phil. 767;
Garchitorena vs. Register of Deeds, G.R. No. L-9731, May 11, 1957;
Somes vs. Government of the Phil., 62 Phil. 432; and Geronimo vs. Navs,
G.R. No. L-12111, January 31, 1969.)

On the question of possession of the properties in litigation, however,

which was likewise raised by the appellant in his motion under
consideration, we are not disposed to disturb our findings on this point. At
least, the records show that after the execution of the documents in
question (Exhibits A, B and C), the defendants exercise over the litigated
properties acts constitutive of dominion and possession for sometime prior
to the appointment of the plaintiff-appellant as the administrator thereof in
1957. The transferred in then names the tax declarations of the properties
described therein, cause the issuance of new certificates of title thereto
accordingly in July, August and November, 1954, and paid the
corresponding taxes therein (Exhibits 7 to 12, 21 to 26 and 36 to 40). Prior
to the institution of the present action, the defendants, too, appeared to
have demanded for the payment to them of the rentals due from the lands
in dispute, and in 1956, they filed detainer suits against the occupants
thereof who failed or refused to pay the rents to them (Exhibits D to D-21,
inclusive, and 41, 41-A to 41-D, inclusive).
 It appears, to that after the death of Simeon Rallos in 1956, the plaintiff
who was appointed special administrator of the decedents estate was
authorized by the court a quo to collect the rentals due from subject
premises in an order issued on August 8, 1957 and had since then been in
possession of the lots in question up to the present (printed Record on
Appeal, pp. 34-38). Thus, paragraph 2 of Article 1602 of the Civil Code is
not applicable in the present case.( Pp. 117-124. Id.)

Thus, as may be seen, in overturning its own previous conclusion that the deeds in
question are really absolute sales by subsequently finding that they are equitable
mortgages, the Court of Appeals did not do it by just committing a turnabout in its
appreciation or evaluation of the evidence. Rather, it reversed first its rulings on the
admissibility of the relevant evidence by admitting those it had rejected in its original
decision and then premised the reversal of its conclusions therein on these newly
admitted evidence. Indeed, it appears to Us from the above ratiocination of the Court of
Appeals in its per curiam resolution, considered together with the arguments adduced
by it relative to the same matters in its original decision, that had that court found no
reason to admit and take into account said evidence, it would not have reversed its
previous finding that the subject deeds are absolute sales. In the final analysis,
therefore, the specific question of law raised by the Aznars in this appeal is whether or
not the Court of Appeals committed a legal error in admitting the evidence it had
originally held to be incompetent. To reiterate, it is evidently their position that in the
affirmative, no alternative is left to Us except to grant the prayer of their petition.

The thrust of the per curiam resolution is that the plaintiff Borromeo was able to prove
that the defendants Aznars "retained part of the purchase price" stipulated in deeds in
question and that there was unusual inadequacy of said purchase price thereby
justifying the use in this case of the presumption created by Article 1602 of the Civil
Code whenever said circumstances are shown (Paragraphs 1 and 4 of said article).
According to the Court of Appeals, these circumstances were proven through, among
other evidence, the testimony of plaintiff Crispina Rallos, Alcantara, the daughter of the
deceased Simeon Rallos, who declared that she was present on all occasions when the
three transactions in dispute took place between her father and Matias Aznar and that
while thus listening to their conversations she took down notes of the various amounts
mentioned by them and the respective purposes thereof such as interest, attorney's
fees, other obligations to be paid out of the money being borrowed by her father, etc.,
which notes were Identified at the trial as Exhibits A-2, A-3, B-3 and C-5. More
specifically, the Court of Appeals held that because the testimony of the witness
Alcantara was corroborated by these notes, it should be believed, from which it can be
gathered that it was only because said notes were considered by it as inadmissible that
in its original decision, said testimony and notes were deemed to be without evidentiary
value for being self-serving. "While it is true," says the appealed resolution, "that in our
decision rendered in this case, we held that the notations or memoranda of Cristina
Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5. More specifically, the Court
of Appeals held that because the testimony and notes were deemed to be without
evidentiary value for being self-serving. "While it is true," says the appealed resolution,
"that in our decision rendered in this case, we held hat the notations or memoranda of
Cristina Rallos Alcantara marked as Exhibit A-2, A-3, B-3 and C-5 were self-serving and
unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however,
as nor correctly contended by plaintiff-appellant in his motion for reconsideration, may
be considered as constituting part of the res gestae, and as such are admissible in
evidence to show the nature of the contracts in question and the relation of the parties
involved." (p. 18, Annex C of the petition.) It is the ruling upholding the admissibility of
said notes and memoranda as parts of the res gestae that the Aznars contend to be a
legal error committed by the Court of Appeals.

We cannot see how the disputed notes and memoranda can be considered in any
sense as part of the res gestaeas this matter is known in the law of evidence. It must be
borne in mind, in this connection, that Crispina was not a party to the transaction in
question. Only Simeon Rallos, on the one hand, and Matias Aznar, if she is to be
believed, or Emmanuel and Alma Aznar, as the documents show, on the other, were the
parties thereto. The record does not reveal why Crispina was with her father and the
time, hence, there can be no basis for holding that she actually took part in the
transaction. That she allegedly took notes thereof while there present made her at best
only a witness not a party. It cannot be said, therefore, that her taking down of her
alleged notes, absent any showing that she was requested or directed by the parties to
do so or that the parties, more particularly the Aznars, who are being sought to be
bound by then, knew what she was doing, constitute part of the transaction, the res
gestae itself. If such alleged taking of notes by Crispina has to be given any legal
significance at all, the most that it can be is that it is one circumstance at all, the most
that it can be is that it is one circumstance relevant to the main fact in dispute. In other
words it could at the most be only circumstantial evidence.

The trouble however is that the admission of said notes and memoranda suffers from a
fatal defect. No witness other than Crispina has testified as to the veracity of her
testimony relative to her alleged notes and memoranda. Not even her husband who,
according to her, was present on one of the occasions in issue, was called to testify. It
cannot be denied that Crispina is interested in the outcome of this case. In the words of
the Court of Appeals itself in its original decision, "her testimony cannot be considered
as absolutely unbiased or impartial", hence, "unreliable and insufficient to justify the
reformation of the instruments in question." Such being the case, how can the notes and
memoranda in dispute add any weight to her testimony, when she herself created
them? Surely, they cannot have anymore credibility than her own declarations given
under oath in open court.

The extensive and repeated arguments of the parties relative to the issue of whether or
not self-serving statements may be admitted in evidence as parts of the res gestae are
very interesting and illuminating, but We fee they are rather very interesting and
illuminating, but We feel they are rather off tangent. The notes supposedly prepared by
witness Alcantara during the transaction between her father and the Aznars do not
partake at all of the nature of hearsay evidence. If anything, they constitute memoranda
contemplated in Section 10 or Rule 132 which provides:
 SEC. 10. When witness may refer to memorandum. — A witness may be
allowed to refresh his memory respecting a fact, by anything written by
himself or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh in his
memory and he knew that the same was correctly stated in the writing; but
in such case the writing must be produced and may be inspected by the
adverse party, who may, if he chooses, cross-examine the witness upon it,
and may read it in evidence. So, also, a witness may testify from such a
writing, though he retain no recollection of the particular facts, if he is able
to swear that the writing correctly stated the transaction when made; but
such evidence must be received with caution.

As may be observed, this provision applies only when it is shown beforehand that there
is need to refresh the memory of the witness, which is not the case here. Nowhere in
the record is there any indication that Alcantara needed during her testimony the aid of
any memorandum in respect to the matters contained in the notes in dispute. Besides,
under the above witness does not constitute evidence, and may not be admitted as
such, for the simple reason that the witness has just the same to testify on the basis of
refreshed memory. In other words, where the witness has testified independently of or
after his testimony has been refreshed by a memorandum of the events in dispute, such
memorandum is not admissible as corroborative evidence. It is self-evident that a
witness may not be corroborated by any written statement prepared wholly by him. He
cannot be more credible just because he support his open-court declaration with written
statements of the same facts even if he did prepare them during the occasion in
dispute, unless the proper predicate of his failing memory is priorly laid down. What is
more, even where this requirement has been satisfied, the express injunction of the rule
itself is that such evidence must be received with caution, if only because it is not very
difficult to conceive and fabricate evidence of this nature. This is doubly true when the
witness stands to gain materially or otherwise from the admission of such evidence,
which is exactly the case of Crispina Alcantara.

The other pieces of evidence rejected by the trial court as well as the Court of Appeals
in its original decision but which it subsequently admitted upon motion for
reconsideration of Borromeo, thereby causing the appellate court to reverse its own
affirmatory conclusion as to the nature of the transactions in dispute as absolute sales,
are the following:

1. Exhibit J, the document giving Simeon Rallos the option to "repurchase"

the lots sold under Exhibit A, which however expired without Rallos
excercising the same.

2. Exhibits X and Y, alleged ledgers of the Philippine National Bank

apparently showing the items in the current account of Southwestern
Colleges, Inc. purportedly corresponding to the checks allegedly issued by
Matias Aznar to Simeon Rallos in the course of the controversial
transactions herein invoked and which, it is contended, proves that the
 amounts actually received by Rallos were less than the stipulated prices,
because corresponding interests for the alleged loan had already been
deducted.

3. Exhibit K, supposedly a statement of the account of Rallos with Matias

Aznar allegedly by Crispina Alcantara to have been prepared by an
employee of Aznar who, however, was not called to testify.

4. Exhibits T, U and V, purported inspection and appraisal reports

allegedly submitted by investigators of the Philippine National Bank to
whom the property described in Exhibit C covering four lots, Nos. 467,
490, 519-B and 519-C had been mortgaged indicating therein the market
value thereof as appraised by said investigators and on the basis of which
Borromeo now maintains that there was inadequacy of the purchase price
in said deed of sale Exhibit C for the purposes of the presumption in
Article 1602 of the Civil Code that the disputed transactions are equitable
mortgages.

As regards Exhibit J, the contention of the Aznars is that in its per curiam resolution, the
Court of Appeals reversed itself as to the evidentiary value of this exhibit without giving
any reason at all. What is worse, whereas in its original decision, the Appellate Court
pointedly held that since Exhibit J was an option to repurchase that had expired without
being exercised, it could not alter the true nature of Exhibit A, the deed of absolute sale
of the properties to which said options refers, in its resolution, this exhibit was used as
basis for the further inference that there were also similar options relative to the other
two sales in question, Exhibits B and C, merely because Crispina Alcantara testified that
Aznar, hence the same could not be produced.

Again, We find the position of the Aznars to be well taken. True it is that the Court of
Appeals is the final arbiter of question of fact and as such has the inherent power to
reverse its findings. For it, however, to alter its factual findings without any adequate
basis borders on being whimsical and capricious. At the very least, to do is such a
departure from the accepted and usual course of judicial proceedings as to call for the
exercise of the Supreme Court's power of supervision. (Section 4 (b), Rule 45.) In this
case of Exhibit J here, nowhere in the appealed resolution is there any explanation for
the Court's turnabout. The casual reference in the said resolution of Exhibit J as being
corroborative of the testimony of Crispina Alcantara together with her notes, Exhibits A-
2, A-3, B-3 and C-5, is certainly an unwarranted conclusion, considering specially that
We have already ruled above that there was no legal basis for the Appellate Court's
reversal of its original position as to said notes themselves. In this connection, the same
notes constitute the main support of Crispina's testimony, hence the corroborative force
of Exhibit J must necessarily dissipate without them. Indeed, under the circumstances,
with the notes of Crispina being inadmissible, and absent any other pertinent document
to back up her work, the inference drawn by the Court of Appeals regarding options to
repurchase the properties covered by Exhibits B and C appear hollow and baseless.
The appealed resolution also reversed the Appellate Court's original pose anent the
admissibility of Exhibits X and Y by attributing to it corroborative evidentiary value of the
testimony of Crispina, although it did not even mention said exhibits in its earlier
decision. As in the case of the exhibits previously discussed, We are of the considered
opinion that it was legal error for the Court of Appeals to have thus ruled in favor of the
admission of these exhibits, X and Y merely by implication. It is true that their contents
were discussed in the resolution, but no reason is given therein why they have suddenly
become admissible.

These exhibits purport to be ledgers of the Philippine National Bank corresponding to

the current account of the Southwestern Colleges owned by the Aznars. Now, it is
undisputed that these exhibits were offered only in rebuttal and that no witness testified
on them, not even for purposes of Identification. How the Appellate Court came to take
them into account is surprising, considering that the appealed resolution does not
contain the slightest discussion relative to these exhibits. Obviously, such a procedure
cannot deserve Our sanction. We reject it as unjudicial.

The same observation may be made with respect to Exhibits T, U and V. No one
testified as to their controversial contents. Nobody even Identified them. They were just
marked and shoved in as part of the documentary evidence of Borromeo in rebuttal. In
an effort to give them a semblance of admissibility, counsel now contends that they are
public documents appearing to have been prepared by employees of the Philippine
National Bank. But although this bank is a government bank, it is not wholly owned by
the government, there being private persons owning shares thereof. This is a matter of
judicial notice. Officials and employees of the Philippine National Bank are not,
therefore, public officers within the contemplation of Section 38 of Rule 130. Moreover,
assuming otherwise or that these exhibits could have any standing as public or official
records, under Section 35 of Rule 132, they do not prove themselves, as certain
requisites must be complied with before they can be admitted, none of which appears to
have been established in connection with the exhibits in question. Worse, it is clear in
the record that these exhibits relate to only one of the three transactions herein
involved. Accordingly, We do not see any justification at all for their admission as
evidence to prove the true nature of the said transactions.

Very little needs be said of Exhibit K. In its original decision, the Appellate Court
rejected this exhibit holding: "The exhibit in question, allegedly a statement of account of
Rallos to Matias Aznar involving the disputed transaction is neither dated nor signed,
much less by the party sought to be charged. The alleged writer thereof was not
presented at the trial of the case, and we have only the biased testimony of Crispina as
to its authenticity or preparation. Even if it were true, however, that the writing was
made, as alleged by Crispina, we cannot consider the same as proof of what was said
or transacted then. The mere making of written memorandum immediately after the
interview does not make the memorandum affirmative intrinsic proof of the things said
or transacted. (32 C.J.S. 948.) Knowledge on the part of the person who made the
memorandum, at the time it was made, that the statements or entries therein were
correct must be shown (32 C.J.S. 947), and this the plaintiff failed to do. On the other
hand, the record indubitably shows that after the execution of the questioned
instruments, the taxes on the lots subject matter thereof were paid by the defendants
vendees. Consequently, we hold that Exhibit K has no evidentiary value, and the lower
court was correct in disregarding it." (Pages 94-95, Record of L-31740.) On the other
hand, in the impugned resolution, the only mention made of Exhibit K is but casual thus:
"Crispina Rallos Alcantara went to Matias Aznar to know the total indebtedness of her
father, which, according to Aznar had accumulated to P55,428.00 (Exhibit K)."

We are not prepared to give Our assent to such a mode of treating a factual issue. If
anything, the subsequent treatment thus given to the document in question reflects lack
of serious consideration of the material points in dispute. That is not the way to decide
judicial controversies. While courts do not have to so rationalize their decisions as to
meet all the arguments of counsel to the satisfaction of the latter, it is imperative for the
credibility of the judiciary and the maintenance of the people's faith therein that pivotal
contentions be not treated in cavalier fashion that leaves the motive or grounds for the
court's ruling to pure speculation and imagination. The attempt of counsel to classify this
exhibit as some kind of admission by Matias Aznar is without merit, if only because it
was not to Crispina, the witness, to whom the alleged admission was made and it is not
explained why the supposed employee of Aznar, a certain Baltazar, who imputedly
prepared it was not called to testify and be cross-examined.

In the final analysis, therefore, it is evident that the Court of Appeals has sought to
support its reversing per curiam resolution with props that are legally untenable. True it
is that the reversal involves factual findings, but as already explained earlier, a careful
review of the appealed resolution reveals unmistakably that the reversal was induced by
the reconsideration by the Court of its previous rulings on the admissibility of the
relevant evidence, such that its original conclusions of fact would not have been altered
had the Court not been convinced by the motion for reconsideration of Borromeo that
the exhibits it had rejected or refused to consider are admissible under the law. In these
premises, and it being Our considered view that the rulings in the appealed resolution
as to the admissibility of the exhibits concerned are legally erroneous, the irresistible
conclusion is hat the original decision of the Court of Appeals affirming that of the trial
court must stand. Indeed, We have gone over both decisions and We are satisfied that
they were studied and are in accord with law and justice.

We are not overlooking the point by counsel that some of the exhibits in question
(Exhibits X and Y and T, U and V) were not specifically objected to on the grounds We
have discussed above. The truth is that counsel's proposition is not entirely accurate.
These exhibits are supposed to be records of the Philippine National Bank, but nobody
testified to even Identify them as genuine. And they were introduced only in rebuttal.
True it is that the technical objections mentioned by Aznars' counsel when they were
offered were general — for being immaterial, irrelevant and impertinent, but the
explanation accompanying these general grounds included the point that defendants
were being deprived of the right to cross-examine the ones who prepared the exhibits.
In fact, the objecting counsel is quoted to have expressly argued that "It appears that
these exhibits are hearsay." (referring to Exhibits T U and V (Page 241, Brief for
Respondents.) Furthermore, inasmuch as the Court of Appeals failed to give any reason
for overturning its previous conclusions, without explaining why it considered these
evidence admissible, after ruling against them in the original decision, We deem it
superfluous to rule squarely on counsel's contention.

That somehow the Court of Appeals has been overly swayed by the masterly
presentation of Borromeo's case by his notably brilliant counsel is, of course,
understandable in the course of the administration of human justice but it is the ever
existing responsibility of judges to guard themselves against being awed by the
professional proficiency and fame of the lawyers appearing before them and to be
doubly careful in studying and resolving the issues they raise. And in this respect, there
is no substitute for well grounded preparation, up-to-dateness in the development of the
law and legal principles and an adequate sense of logic and proportion inspired solely
by probity of the highest order. The assertion made in some quarters about alleged
inherent inequality before the courts resulting from the disparity of the abilities of
respective counsels of the parties cannot have real ground for being, if only the judges
remain conscious of the inevitable fact that they are supposed to possess the levelling
factor their own knowledge pitted against those of the most learned advocates, to
augment the possible inadequacy of the opposing attorney, who in most cases are of
the poor who cannot afford the fees of better barristers.

IN VIEW OF ALL THE FOREGOING, the per curiam resolution of the Court of Appeals
appealed in G.R. No. L-31740 is hereby reversed and the original decision of that court
dated January 30, 1968 in CA-G.R. No. 30092-R is affirmed. In consequence,
obviously, the prayer of the petition in G.R. No. L-31342 being to augment the reliefs
granted by the appealed resolution to Borromeo cannot be granted, hence said petition
is hereby ordered dismissed. Costs against Borromeo, as administrator of the estate of
Simeon Rallos.

Antonio, Concepcion, Jr. and Martin, JJ., concur.

Aquino, J., concurs the result.

Fernando, J., is on leave.

Martin, J., was designated to sit in the Second Division.

G.R. No. L-38674 September 30, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFREDO REGULAR and ARTURO DE LARA, defendants-appellants.

GUERRERO, J.:

Before this Court for automatic review is the decision of the Circuit Criminal Court of the
Seventh Judicial District in Pasig, Rizal, which was promulgated in open court on April
22, 1974, sentencing the above-named accused Alfredo Regular and Arturo de Lara to
suffer the penalty of death for the killing of prisoner Felipe Ladoy and the penalty of
imprisonment from reclusion temporal minimum to reclusion temporal maximum for
seriously wounding prisoner Emilio Esparza.

Here is one of those unfortunate cases that have arisen due to, among other factors,
the wretched and deplorable condition of prison life and confinement which have
destroyed the sense and sanity of many of the inmates, goading them to violence, riots,
and even killing fellow prisoners. And thus, this Court had taken a considerate
understanding of their plight, their misery and despair in order that they may not be
"reduced to the level of animals and convert a prison term into prolonged torture and
slow death." (See People vs. De los Santos, 14 SCRA 702; also People vs. Alicia, 95
SCRA 227; People vs. Garcia, 96 SCRA 497; People vs. Abella, 93 SCRA 25; People
VS. Dahil 90 SCRA 553).

The information dated August 5, 1972 filed against Alfredo Regular, Arturo de Lara and
Clemente Valeriano, charges said accused with murder and frustrated murder allegedly
committed as follows:

That on or about the 16th day of November, 1970 in the New Bilibid
Prison, Muntinlupa, Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused while then confined at the
said institution, conspiring, confederating and acting together, with
treachery and evident premeditation with intent to kill, did then and there,
wilfully, unlawfully and feloniously assaulted, attacked and stabbed with
improvised deadly weapons, Felipe Ladoy, No. 50600P and Emilio
Esparza, No. 50092P, both sentenced prisoners serving prison sentences
in the same institution, thereby inflicting upon Felipe Ladoy, multiple stab
wounds in the different parts of his body, which wounds necessarily
produced the latter's death and simultaneously inflicting upon Emilio
Esparza stab wounds on the different parts of the body thus performing all
the acts of execution which would have produced the crime of murder
nevertheless did not produce by reason of causes independent of their
 will, that is by the timely and able defense by Esparza which prevented the
consummation of the offense of murder.

Contrary to law.

One of the accused, prisoner Clemente Valeriano, bolted out of jail before he could be
arraigned. 1 During the arraignment of the two remaining accused, Alfredo Regular and
Arturo de Lara, held on August 7, 1972 and with the assistance of counsel de oficio,
Atty. Jose O. Galvan, the following transpired:

xxx xxx xxx

Atty. Galvan

Your Honor, I have conferred with the accused Arturo de

Lara and Alfredo Regular and after I have explained to them
the contents of the information and having advised them of
the consequence of their act they both manifested that they
are entering a plea of guilty.

Court

Arraign the accused.

Atty. Galvan

The accused Valeriano is not here, your Honor.

(At this juncture, the Court Interpreter, after having read the
information in tagalog (Pilipino) to the accused, they pleaded
guilty.) Court (Court addressing to accused de Lara)

Q Are you aware that the Court has no other alternative

except to impose capital punishment upon you? The only
thing that the Court has to do for you is to recommend you
from death to life?

A Yes, your Honor.

Q Since when did you sole-search (sic) about your pleading

guilty?

A For a long time already, your Honor.

Q When was that?

 A More than a year already, your Honor.

Q Are you a member of the Sigue-Sigue, Sputnik or any

other gang?

A Sputnik, Sir.

Q You are from what province?

A Pampanga, Guagua Court (Addressing to accused Alfredo

Regular)

Q Are you aware that by pleading guilty you will be punished

in accordance with the law and that is death?

A Yes, Your Honor.

Q That the only thing that the Court can do for you is to
recommend you from death to life?

A Yes, Your Honor.

Q Since when did you have a sole-search (sic) of your

pleading guilty?

A That was a long time ago, your Honor.

Immediately after the arraignment, the Court proceeded in open court to render
sentence on the two accused, thus —

WHEREFORE, in view of the spontaneous and voluntary confession of

guilt of the accused Alfredo Regular and Arturo de Lara, the Court finds
them guilty, beyond reasonable doubt, of the crime of Murder as defined in
Art. 248 of the Revised Penal Code, in relation to Art. 50 thereto, as
charged in the information and hereby sentences them to the penalty of
Death as far as the crime of murder is concerned and to suffer the penalty
of seventeen (1 7) years and one (1) day of Reclusion Temporal as
minimum to twenty (20) years of Reclusion Temporal as maximum for the
crime of frustrated murder, to indemnify the heirs of Felipe Ladoy the
amount of P12,000.00; to pay the amount of P12,000.00 as moral
damages and another P12,000.00 as exemplary damages; and to pay
their proportionate share of costs.

However, in view of the presence of the mitigating circumstance of

voluntary confession of guilt made by the accused as provided for, under
 paragraph 7, Art. 13 of the Revised Penal Code, the Court believes that
the imposition of the death penalty be commuted to reclusion perpetua.

Pursuant to the doctrine laid down by the Supreme Court in the case
of People vs. Flores, State Prosecutor Francisco M. Guerrero is hereby
ordered to present evidence to substantiate the charge of Murder and
Frustrated Murder in order to determine the degree of the culpability of the
accused.

In compliance with the directive of the Court "to substantiate the charge of Murder and
Frustrated Murder in order to determine the degree of the culpability of the accused, "
the prosecution presented four witnesses. Briefly, the prosecution evidence may be
related, thus:

At about 12:30 in the afternoon of November 16, 1970, prisoners Felipe Ladoy, member
of Batang Cebu Gang and Emilio Esparza, member of Batang Samar Gang, were
gathering camote tops at the back of Building 4 of the New Bilibid Prisons. While they
were thus preoccupied, the two accused, Alfredo Regular and Arturo de Lara, together
with Clemente Valeriano and Reynaldo Castro, all members of the rival Sigue-sigue
Sputnik Gang, suddenly stabbed Ladoy and Esparza, as a result of which Ladoy died
on the spot while Esparza, who was able to parry the thrust of his assailant, was
immediately brought to the New Bilibid Hospital for treatment of his injuries.

Upon investigation by the prison guards, it was learned that the assailants
surreptitiously went out from Dormitory 4-D after sawing the iron grills at the south end
of Building 4. The day before, members of the Sigue-sigue Sputnik Gang were the
targets of darts thrown by the Visayan group composed of Batang Cebu and Batang
Samar gangs. The alleged treacherous attack by the rival group rankled in the minds of
the Sigue-sigue members who planned immediate and swift reprisal to avenge the
injuries of their gangmates. Thus, armed with improvised bladed weapons, the
assailants pounced upon the unsuspecting victims Ladoy and Esparza) until the former
died and the latter was seriously wounded.

After the stabbing spree, the malefactors returned to their respective dormitories. Later,
prisoners Regular, de Lara and Castro gave up and admitted the killing. They executed
extrajudicial confessions acknowledging participation in the incident. In the meantime,
Esparza was treated by Dr. Argente Alejandro who found the following wounds in the
different regions of the body:

1. Lacerated wound left shoulder, 3 inches long.

2. lacerated wound anterior aspect, left upper arm, 2 inches long.

3. Lacerated wound, lateral aspect, left upper arm, 2-½ inches long.

4. Two lacerated wounds at left chest, size 1 inch each.

 5. Lacerated wound, medial aspect, upper arm, 1 inch long.

6. Lacerated wound, medial aspect, 1 inch long.

Ladoy's autopsy, conducted by Dr. Ibarrola proved that his death was caused by
massive loss of blood resulting from multiple stab wounds found in his body,

On the other hand, the evidence of the defense is as follows:

On the eve of November 15, 1970, while de Lara was in his brigade, he heard Rodulfo
Patuga say to his gangmates, Valeriano and Castro, "Babawi tayo. Abe Castro, Menting
ito hindi na malalaman ng mga kasama natin itong pangyayaring ito at hindi natin
ipaaalam sa ating mga kasamahan," 2

About past 12 o'clock noon, Noli Patuga saw Ladoy and Esparza gathering camote tops
at the back of Building 4. The group approached the victims stealthily. Valeriano
stabbed Ladoy first. Patuga and Castro followed suit. Accused de Lara thrust his
improvised weapon into the body of Ladoy only once, upon the command of Patuga, but
he did not know whether he hit the victim.

Accused Alfredo Regular testified that he did not know either Ladoy or Esparza. On
November 16, 1970, he alleged that he was inside his brigade the whole day. During
that day, according to this accused, no unusual incident happened inside the prison
walls. He stayed in his brigade up to the 18th of that month. He was called that day to
the investigation section of the New Bilibid Prison. He was investigated by one Ignacio
Ferrer. He was made to sign a piece of paper, the contents of which he had not read.
He denied any participation in the killing of Ladoy and the wounding of Esparza. He
claimed that he was maltreated by Ferrer so that he would sign a piece of paper. The
room in which he was brought was dark.He was boxed and was beaten with a rubber
stick and a big book.

On being confronted with the fact that de Lara mentioned him as one of those who killed
Ladoy and wounded Esparza, Regular alleged that de Lara implicated him because he
bore a grudge against him. Regular alleged that when they were still free, the girlfriend
of de Lara transferred her affection to him. This, according to Regular, made de Lara
angry vowing to revenge such outrage.

After several hearings of these cases, the trial court imposed the same principal penalty
it imposed during the arraignment. The Court found three aggravating circumstances
present in the commission of the crime, namely, treachery, evident premeditation, and
recidivism, necessitating the imposition of the appropriate penalties in the maximum
period.

In his appeal, appellant Arturo de Lara assigned two errors committed by the trial court,
to wit:
1. The lower court erred in holding that appellant Arturo de Lara employed treachery
and evident premeditation in killing the victim Felipe Ladoy and wounding prisoner
Emilio Esparza.

2. The lower court erred in finding defendant-appellant Arturo de Lara guilty of the crime
of murder and frustrated murder instead of completely exempting him from any criminal
liability on the ground of reasonable doubt.

Appellant Regular contends that the lower court erred in imposing the death penalty
based on the allegations of treachery, evident premeditation and recidivism, which were
not fully supported by evidence. The appellants further maintain that they were only
acting in defense of their gangmates, hence the penalties imposed in both cases are not
in accordance with law.

At the outset, it must be stated that the plea of guilty by the two accused were
improvidently laid. During the arraignment, the trial judge did not adhere strictly to the
doctrine laid down in People vs. Apduhan 3 where We postulated the guideline in cases
where there is a plea of guilty by the accused. In the instant case under review, We
observe that the trial judge failed to explain fully to the two accused the meaning and
the far-reaching effect of their plea. It was not explained to them the meaning of the
term "treachery," an aggravating circumstance which qualified the crime to murder and
frustrated murder respectively. Neither did the judge explain the terms "evident
premeditation" and "recidivism", both aggravating circumstances alleged in the
information which had legal significance and consequences not ordinarily
understandable to a layman.

The trial judge asked the appellants whether they were aware that the court had no
other alternative except to impose the capital punishment on them without explaining
why it had to be so. In People vs. Solacito. 4 We had the occasion to say that, "(j)udges
are duty-bound to be extra solicitous in seeing to it that when an accused pleads guilty,
he understands fully the meaning of his plea and the import of an inevitable conviction."

The trial judge immediately rendered sentence in open court after the arraignment. As
an afterthought or as a justification for the imposition of the capital punishment, the trial
judge conducted several hearings and called for presentation of evidence by the
prosecution.

The hearings subsequently held proved that the appellants' plea were not unconditional
admissions of guilt and they were not of such nature as to foreclose appellants' right to
defend themselves. Their plea of guilt became ambiguous and qualified in the light of
what transpired during the presentation of evidence that followed.

In their extrajudicial confessions, both accused admitted their participation in the killing
of Ladoy and the wounding of Esparza. 5
We have gone over thoroughly the extrajudicial confessions of the two accused. In
these extrajudicial confessions, nothing is said on how the crimes were committed. The
only thing that these extrajudicial confessions had brought out of the two accused is the
fact that they had participated in the stabbing spree. In open court, the accused de Lara
made explanatory statements on how he became involved in the case, while the
accused Regular completely repudiated his confession.

It is true, of course, that under the Rules and in the spirit of fair play, the whole of the
confession must be put in evidence. An extrajudicial confession may be accepted in its
entirety or only a part thereof. 6 To accept fragments of the confession which limits or
modifies the criminality of the accused and suppresses others which aggravates such
behavior is utterly inconsistent with justice.

Nevertheless, the aforecited rule admits of certain exceptions, for it is not absolute.
There are instances, occasions and circumstances which can make it justifiably
imperative to believe or accept only a part of the confession and reject the rest. One
such instance is when an accused, in his testimony, makes some explanatory
statements tending to mitigate his participation in the crimes committed and the
prosecution fails to rebut such testimony.

During the hearings that followed, the prosecution failed to prove that the two accused
committed the crime charged in the information with the attending aggravating
circumstances alleged therein.

De Lara's testimony, which was unrebutted, showed that he was only invited to join the
group, an invitation which he hesitantly accepted. Thus, he testified:

xxx xxx xxx

Q The next day, November 16, 1970, where have you been
throughout that day, rather, where were you during that day?

A Inside the brigade.

Q From what time did you stay there?

A Up to 1:00 o'clock. 7

Q Were you there when the incident happened?

A Yes, Sir.

Q Tell us what happened on that day?

A In the morning, Noli Patuga called up Clemente Valeriano,

Reynaldo Castro and then they went to the "buyong".
 Q Did they go to that "buyong" you are referring to?

A Yes, Sir.

Q Were you invited to join them?

A Yes, Sir. 8

There could be no treachery on the part of de Lara considering that he was only invited
to join the group immediately before the incident took place. He had no time to meditate,
calculate and reflect in resolving to commit the crime imputed to him. In order that
treachery or alevosia may be considered as a qualifying circumstance that would
change the nature of the crime or as an aggravating circumstance that would augment
the penalty, it must be shown that the treacherous acts were present and had preceded
the commencement of the attack which caused the injury complained of. 9 There is
treachery when the following requisites concur: (1) the culprit employed means,
methods or forms of execution which tends directly and specially to insure the offender's
safety from any defensive or retaliatory act on the part of the offended party which
means that no opportunity was given the latter to do so." 10(2) that such means, method
or manner of execution was deliberately or consciously chosen. 11

The mere fact that the attack was sudden and unexpected does not of itself suffice for a
binding of alevosia if the mode adopted by the accused does not positively tend to
prove that they thereby knowingly intended to insure the accomplishment of their
criminal purpose without any risk to themselves arising from the defense that might be
offered. 12

Neither can evident premeditation be appreciated against de Lara. While it is true that
he heard of the plan to kill some members of the rival gang the night before the incident
took place, he was not part of the group who made the plan. He was just an
eavesdropper. 13 He only knew that he was about to participate in the stabbing of Ladoy
and Esparza just immediately before it took place. Given such situation, it cannot be
said that de Lara had sufficient lapse of time between determination and execution to
allow him to reflect the consequences of his act. On this, de Lara testified:

xxx xxx xxx

Q Tell us what happened on that day?

A In the morning, Noli Patuga called up Clemente Valeriano,

Reynaldo Castro, and then, they went to the "buyong".

Q Did they go to the "buyong" you are referring to?

A Yes, Sir.
 Q What about you, did you go with them?

A I went near them and told them I heard what they were
talking about last night.

Q Were you invited to join them?

A Yes, Sir.

Q Did you accept their invitation?

A I was still thinking of it and Patuga told me not to think

about it anymore because I'm already an "aburido".

Q So at last you joined the group?

A Yes, Sir. 14

It is clear from the foregoing statements that de Lara had no inkling that he would be
joining the group before he was invited to do so. There is reason to believe that he
accepted the "invitation" with the knowledge that he had no other recourse but to join
them having eavesdropped the night before, knowing what his fellow prisoners and
gangmates might do in case he refused to join.

The illegal acts committed by others in the group could not be considered against de
Lara because conspiracy had not been clearly established. If there was any conspiracy
at all, it was limited to Patuga, Valeriano and de Castro. The plan to kill any member of
the rival gang was hatched by these three men.

With regards to this, de Lara testified as follows:

xxx xxx xxx

Q But the fact remains that you planned together with the
others to avenge the alleged wrong doing that was made to
your game.

A I was not included in the plan, your Honor. 15 (Emphasis

supplied)

xxx xxx xxx

Q What time was the plan made by this Clemente and his
companion?

A It was in the evening.

 Q Were you there?

A No, Sir, Noli Patuga called the two. (Emphasis supplied)

Q How did you know that there was a plan to kin somebody?

A Because our kubol is near them.

Q Did you tell somebody about the plan?

A No, Sir.

Q How did you come to know about the plan of this

Valeriano to kill somebody?

A I heard what they were talking about.

Q From whom did you hear?

A From Noli Patuga.

Q Will you tell us the exact words you hear as far as Noli
Patuga is concerned?

A I hear him, "Abe Castro, Clemente Valeriano and Menting

ito ay hindi na malalaman ng mga kasama natin itong
nangyayaring ito at hindi natin ipaalam sa ating mga
kasamahan.

Q What did you do upon hearing these words?

A I just kept quiet.

Q What time did you hear those words?

A Past twelve in the evening.

Q That was November 15, 1970?

A Yes, Sir. 16

The evidence to prove the elements of conspiracy must be positive and convincing.
Pursuant to this rule, it has been held in U.S. vs. Magcomot 17 and People vs.
Caballero 18 that neither joint nor simultaneous action per se is a sufficient indicium of
conspiracy; a common design must further be shown to have motivated such action.
From the testimonial evidence adduced above, it is clear that de Lara was not included
in the plan to retaliate against the injuries suffered by their gangmates in the hands of
their rival gang who caught them unaware that Sunday before Ladoy was slain.

While it cannot be said that de Lara was acting under the impulse of uncontrollable fear
of an equal or greater injury, it is reasonable to conclude that what happened was not
entirely his own will and volition for he was more or less forced by his gangmates to
participate in the stabbing spree.

We come now to the other accused, Alfredo regular. It appears that during the taking of
testimonial evidence, this accused evaded answering questions relating to his
participation in the killing of Ladoy and the wounding of Esparza. He claimed that on
November 18, 1970, a certain Ignacio Ferrer of the Investigation Section of the New
Bilibid Prison brought him into a room wherein he was investigated and was made to
answer some questions. He further alleged that he was boxed and beaten. The room
which he was brought was dark, according to him, despite the fact that he was there
from ten in the morning up to three in the afternoon. Then he was made to sign a piece
of paper without reading it so he does not know its contents. The paper he was referring
to turned out to be his confession. As to where he was on that fateful day, Regular
testified, to wit:

xxx xxx xxx

Q Will you tell us where were you on that fateful day?

A Inside the brigade.

Q Did you remain through the day on November 16, 1970?

A I was inside, Sir.

Q While you were inside the brigade, did you observe any
incident that happened?

A None, Sir. 19

In People vs. Catalino, 20 We held that, "(i)t would be unsound practice for the court to
disregard the confession of an accused simply because the accused repudiates it
during the trial." It cannot be believed that the confession was coerced from Regular
considering that the confession is replete with details which can only be given by the
person who had experienced the same or had taken part in the execution of the acts
narrated. 21

From the extrajudicial confession of both accused, it appears that Regular was not one
of the men who planned the killing incident. As mentioned earlier, the prisoners
Valeriano, Patuga and de Castro engineered the stabbing spree and since Regular was
not a co-conspirator, the acts done by the three named prisoners cannot and would not
prejudice the appellant.

The same aggravating circumstances, namely, treachery, evident premeditation and

recidivism were imputed against Regular. Treachery cannot be presumed. Like all other
circumstances which aggravate or qualify the commission of the crime, the existence of
treachery must be proven beyond reasonable doubt. It is incumbent upon the
prosecution to present evidence to prove such allegation.

In the case at bar, the prosecution failed miserably to prove that the killing of Ladoy and
the wounding of Esparza was attended with treachery. There were no witnesses who
saw how the stabbings were done. Nothing was mentioned in the extrajudicial
confessions of the accused as to the means, methods, or manner of execution of the
crimes. This being the case, it cannot be established by mere suppositions, drawn from
circumstances prior to the aggression, that the accused had employed means tending
to insure the success of their dastardly act without any danger to his person. The
circumstances specifying an offense or aggravating the penalty thereof must be proved
as conclusively as the act itself, mere presumptions being insufficient to establish their
presence according to law. No matter how truthful these suppositions or presumptions
may seem, they must not and they cannot produce the effect of aggravating the crimes
of the defendant. 22

The aggravating circumstances of evident premeditation cannot also be appreciated

against the accused Regular. It is a proven fact that Regular was not with the group of
Valeriano, Patuga and de Castro when the latter planned the retaliation for the dart-
attack made upon their gangmates.

The circumstances of deliberate premeditation exist only if it could be shown beyond

reasonable doubt that there intervened a period of time long enough in a judicial sense
to afford full opportunity for meditation and reflection thus enabling the conscience of
the accused to overcome the resolution of his will if he would only pay heed to its
warning. 23

There is no proof that Regular had known of the plan to kill and/or stab any member of
the rival gang. The records of the case are scanty with regards to circumstances prior to
the event. While it is true that de Lara, in his confession, alleged that Regular was one
of the men who sawed the iron grills in the window of their brigade, this part of his
confession was repudiated by him in open court. He testified that he implicated Regular
because he had a grudge against him for taking away his girlfriend while they were still
free." Regular's own confession do not narrate the events prior to the killing. While this
Court is convinced that Regular participated in the stabbing spree, It is not convinced
that he did it with treachery and evident premeditation simply because the prosecution
had failed to establish beyond reasonable doubt that indeed the commission of these
crimes were attended by the alleged aggravating circumstances. In the absence of
treachery and premeditation, the crimes committed by the two accused are homicide
and frustrated homicide.
Both accused are quasi-recidivists. De Lara was serving sentence for robbery 24 while
Regular was serving sentence for robbery and theft. 25 In accordance with Article 160 of
the Revised Penal Code, they shall be punished by the maximum period of the penalty
prescribed for the new felonies which are homicide and frustrated homicide. Although
they entered a voluntary plea of guilty, they are not entitled to the benefits of this
ordinary mitigating circumstance because the imposition of the maximum penalty under
Article 160, Revised Penal Code is mandatory. (People vs. Bautista, et al., 65 SCRA
460). The penalty for homicide is reclusion temporal (Art. 249, R.P.C.) and that for
frustrated homicide is one degree lower, (Art. 50, R.P.C.) although the courts, in view of
the facts of the case, may impose upon the accused a penalty lower by one degree than
that which should be imposed under the provisions of Art. 50. (Art. 250, R.P.C.).

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the lower court is

hereby MODIFIED. Both accused, Alfredo Regular and Arturo de Lara, are hereby
found guilty of homicide and frustrated homicide and each is hereby sentenced to suffer
the indeterminate penalty consisting of ten (10) years and one (1) day of prision mayor
as minimum to twenty (20) years of reclusion temporal as maximum for the killing of
Ladoy. Each is also sentenced to suffer the indeterminate penalty of four (4) years, two
(2) months and one (1) day of prision correctional as minimum to twelve (12) years of
prision mayor as maximum for the stabbing of Esparza. All awards for damages are
affirmed without modification Both accused must bear the proportionate share of the
costs.

SO ORDERED.

Fernando, C.J., Barredo, Makasiar, Concepcion, Jr., Fernandez, Abad Santos and De
Castro, JJ., concur.

Teehankee, J., is on leave.

Aquino, J., concur in the result.

Melencio-Herrera, J., took no part.

G.R. No. 34098 September 17, 1930

ORIENT INSURANCE COMPANY, petitioner,

vs.
E. P. REVILLA, Judge of First Instance of Manila, and TEAL MOTOR CO.,
INC., respondents.

Gibbs and McDonough for petitioner.

Guevara, Francisco and Recto for respondents.

STREET, J.:

This is an original petition for writs of certiorari and mandamus filed in this court by the
Orient Insurance Company against the respondent judge of the Court of First Instance
of Manila and the Teal Motor Co., Inc. The object of the petition is to obtain an order
requiring the respondent judge to permit the attorney for the petitioner to examine a
letter (Exhibits 49 and 49-Act) part of which has been read into the record in the course
of the examination of one of the witnesses testifying for the plaintiff in the case of Teal
Motor Co., Inc. vs. Orient Insurance Company, now pending in the Court of First
Instance of the City of Manila, civil case No. 35825, with which, for purposes of trial,
have been consolidated several other cases of similar character. The cause is now
before us for resolution upon the complaint and answer interposed by the two
respondents.

The respondent Teal Motor Co., Inc. is plaintiff in a civil action instituted in the Court of
First Instance of Manila (civil case No. 35825) for the purpose of recovering upon two
fire insurance policies issued by the Orient Insurance Company, aggregating P60,000,
upon a stock of merchandise alleged to be of the value of P414,513.56, which, with the
exception of salvage valued at about P50,000, was destroyed by a fire on or about
January 6, 1929. In one of the clauses of the policies sued upon is a stipulation to the
effect that all benefit under the policy would be forfeited if, in case of loss, the claim
should be rejected by the insurer and action or suit should not be commenced within
three months after such rejection. In the answer of the Orient Insurance Company,
interposed in the civil case mentioned, it is alleged, by way of defense, that the
company rejected the claim on April 15, 1929, that notice of such rejection was given to
the plaintiff by letter on the same day, and that suit was not instituted on the policy until
August 3, 1929, which was more than three months after the rejection of the claim.

In a replication to the answer of the defendant, containing the foregoing and other
defenses, the plaintiff admitted that the adjusters of the defendant company had, on
April 15, 1929, notified the plaintiff that the Orient Insurance Company would not pay
the claim, basing refusal upon alleged incendiarism and fraud on the part of the plaintiff;
and by way of avoidance, it was alleged in the replication that, after notification of denial
of liability by the insurance company, one E. E. Elser, as representative of the company,
expressly requested the plaintiff to defer judicial action until after the following July 31,
stating that three were great possibilities that an extrajudicial compromise might be
arranged in the matter; and it was further asserted, in the replication, that the plaintiff
had deferred action, relying upon this request.

It will thus be seen that the reason for the admitted delay in the institution of the action
is an important issue in the case, or case, now in course of trial.

It further appears that while case No. 35825 was in course of trial, as it still is, before the
respondent judge, in the Court of First Instance of Manila, the witness E. M. Bachrach,
president of the Teal Motor Co., Inc., while being examined in chief by the attorneys for
the plaintiff, and speaking of the circumstances surrounding the institution of the action,
said that he had reported certain conversations to plaintiff's attorneys, and he added: "I
waited for about a week longer and not having heard anything about it, in the meantime,
on the 13th of July, I received a letter from our attorneys, Guevara, Francisco & Recto,
urging me to file these cases." The attorney for the defendant, Orient Insurance
Company, thereupon interposed, saying: "I ask that the witness be required to produce
the letter referred to from Mr. Guevara, or else his answer be stricken out. (To the
witness) Have you got the letter there?" The witness replied that he had the letter with
him and that he had no objection to show that part of the letter in which Guevara urged
him to proceed with the cases. Upon being asked about the other part of the letter, the
witness said that the other part contained private matter, "between the attorney and
ourselves," meaning between the Teal Motor Co., Inc., and its attorneys. Thereupon the
attorney for the defendant, Orient Insurance Company, said he would like to see the
letter, inquiring as to its date. The witness replied that it bore date of July 13, 1929; and
upon the court inquiring whether the witness had any objection to the reading of the
letter by the attorney for the defendant, the witness replied that he wished to consult
with his attorney. Upon this the attorney for the adversary party, the Orient Insurance
Company, suggested that he would like to have the letter marked without his reading it,
and it was accordingly marked as Exhibit 49. The attorney then said: "In view of the
production of the letter, I withdraw the objection to the statement of the witness as to its
contents," and he added: "I now ask the permission of the court to read the letter for my
information." The court thereupon inquired of the attorney for the Teal Motor Co., Inc.,
whether he had any objection, and the attorney observed that he would have no
objection to the disclosing of that part of the letter which referred exactly to the point of
the urging of the filing of the complaints, and he added: "Unfortunately, the other part of
the letter being a communication between a client and attorney, I don't think, if your
Honor please, it can be disclosed without the consent of both."

In the course of the colloquy which thereupon unsued between the attorney for the
plaintiff and the attorney for the defendant, it was stated by the attorney for the plaintiff
that only a part of the letter had anything to do with the urging of the presentation of the
complaints in the cases to which the witness had testified, and that the other part of the
letter referred to the contract of fees, or retaining of the services of plaintiff's attorneys in
connection with said cases, a matter, so the attorney suggested, entirely distinct from
the urging of the presentation of the cases. The attorney for the defendant thereupon
insisted before the court that, inasmuch as all the letter refers to the case then in court,
the entire document should be exhibited, in conformity with the rule that when part of a
document is offered in evidence, the entire document must be presented.

Upon this the respondent judge ruled as follows: "Objection of the counsel for the
plaintiff and the witness, Mr. Barchrach, to the showing or reading of the whole letter in
the record is sustained, and it is ordered that only that part of the letter which has been
referred to by Mr. Bachrach in his testimony be read and transcribed into the record." To
this ruling the attorney for the defendant excepted and the respondent judge then said:
"Let that part of the letter pointed out by Mr. Bachrach be transcribed in the record;"
whereupon the following part of the letter was read out in court and incorporated in the
transcript.

July 13, 1929

DEAR SIR: As you know, your attorney Mr. Basilio Francisco has turned over to
us, prior to his departure, all the papers in connection with the insurance claim of
the Teal Motor Co., Inc., on destroyed or burned merchandise, and everything is
now ready for filing of the corresponding complaints in the Court of First Instance.

When the matter above quoted had been thus read into the record, the attorney for the
defendant made the following observation: "In view of the fact that counsel for the
plaintiff has just now read into the record and presented as evidence a part of the letter
of July 13, I now request that the entire letter be produced." This request was overruled
by the court, and the attorney for the defendant excepted. After further discussion, upon
the suggestion of the attorney for the defendant and by agreement of the counsel for
both parties, the second page of the letter was marked 49-A by the clerk court.

The incident was renewed when it came at turn of the attorney for the defendant to
cross-examine the same witness E. M. Bachrach, when the attorney for the defendant,
having ascertained from the witness that he still had the letter in his possession, and
that he had not answered it in writing, formally offered the letter in evidence. The
attorney for the plaintiff again objected, on the ground that the letter was of a privileged
nature and that it was the personal property of the witness. Thereupon the court,
receiving the letter in hand from the witness, observed that he had already ruled upon it,
and after further discussion, the court sustained the objection of the attorney for the
plaintiff and refused to admit in evidence so much of the letter as had not already been
read into the record. The attorney for the defendant again excepted.

At a later stage of the trial the attorney interposed a formal motion for reconsideration of
the ruling of the court in refusing to admit the letter in evidence, or the part of it not
already incorporated in the record. The court, however, adhered to its original ruling,
and the attorney for the defendant excepted. Another incident that might be noted,
though not alleged as a ground of relief in the petition before us, but set forth in the
answer of the respondents, is that the attorney for the defendant procured a
subpoena duces tecum to be issued by the clerk of court requiring the attorneys for the
plaintiff to produce in court certain papers including the letter which gave rise to the
present controversy. The court, on motion of the attorneys for the plaintiff, quashed said
subpoena.

The essential character of this incident, which we have perhaps narrated with
unnecessary prolixity, is readily discernible. A witness for the plaintiff made an oral
statement as to the substance of part of a letter which had been received by the plaintiff
from its attorney, and when the fact was revealed that the communication had been
made by letter, the attorney for the defendant requested that the witness be required to
produce the letter in court, and if not, that his answer should be stricken out. This in
legal effect was a demand for the production of "the best evidence," it being a well-
known rule of law that a witness cannot be permitted to give oral testimony as to the
contents of a paper writing which can be produced in court. In response to this request
that portion of the letter to which the witness had supposedly referred was read into the
record.

The respondent judge appears to have considered that the excerpt from the letter thus
incorporated in the record was either proof of the defendant, its production having been
demanded by defendant's counsel, or that at least the legal responsibility for the
incorporation of said excerpt into the record was attributable to the defendant. We are
unable to accept this view. The incorporation of this excerpt from the letter was a
necessary support of the oral statement which the witness had made, and if this basis
for such statement had not been laid by the incorporation of the excerpt into the record,
the oral statement of the witness concerning the tenor of the letter should properly have
been stricken out. But instead of withdrawing the oral statement of the witness
concerning the nature of the written communication, the witness produced the letter and
the part of it already quoted was read into the record. The excerpt in question must
therefore be considered as proof submitted by the plaintiff; and there can be no
question that, part of the letter having been introduced in behalf of the plaintiff, the
whole of the letter could properly be examined by the other party, in accordance with
the express provision of section 283 of the Code of Civil Procedure.

It was stated in the court by the attorney for the plaintiff, in opposing the introduction of
other portions of the letter in proof, that the other parts were privileged, because they
related to the terms of employment between attorney and client, or to the fee to be paid
to the attorney. With respect to this point it is difficult to see how a contract for fees
could be considered privileged. Irrelevant it might, under certain circumstances,
certainly be, but not privileged. Of course contracts between attorneys and clients are
inherently personal and private matters, but they are a constant subject of litigation, and
contracts relating to fees are essentially not of privileged nature. Privilege primarily
refers to communications from client to attorney, an idea which of course includes
communications from attorney to client relative to privileged matters.

But, even supposing that the matter contained in the letter and withheld from the
inspection of the adversary was originally of a privileged nature, the privilege was
waived by the introduction in evidence of part of the letter. The provision in section 283
of the Code of Civil Procedure making the whole of a declaration, conversation, or
writing admissible when part has been given in evidence by one party, makes no
exception as to privileged matter; and the jurisprudence on the subject does not
recognize any exception. Practically every feature of the question now under
consideration was involved in the case of Western Union Tel. Co. vs. Baltimore & Ohio
Tel. Co. (26 Fed., 55), which in 1885 came before Wallace, J., a distinguished jurist
presiding in the Federal Circuit Court of the Southern District of New York. The
substance of the case is well stated in the note to Kelly vs. Cummens (20 Am. & Eng.
Ann. Cases, 1283, 1287), from which we quote as follows:

In Western Union Tel. Co. vs. Baltimore, etc., Tel. Co. (26 Fed., 55), it appeared
that upon a motion in the cause, which was in equity for a preliminary injunction,
one of the questions involved was whether a reissued patent upon which the suit
was founded was obtained for the legitimate purpose of correcting mistake or
inadvertence in the specification and claims of the original, or whether it was
obtained merely for the purpose of expanding the claims of the original in order to
subordinate to the reissue certain improvements or inventions made by others
after the grant of the original patent and before the application for the reissue. To
fortify its theory of the true reasons for obtaining the reissue, the complainant
upon that motion embodied in affidavits extracts from communications made by a
patent expert and attorney in the office of the solicitor general of the complainant,
to the president and the vice-president of the complainant, when the subject of
applying for a reissue was under consideration by the officers of the complainant,
and while the proceedings for a reissue were pending. After the cause had
proceeded to the taking of proofs for final hearing the defendant sought to
introduce in evidence the original communications, extracts from which were
used by the complainant upon the motion for an injunction, on the ground that the
parts of the communication which were not disclosed had an important bearing
upon the history of the application for a reissue, and indicated that it was not
made for any legitimate purpose. The complainant resisted the efforts of the
defendant to have the original communications admitted, on the ground that they
were privileged as made to its officers by its attorney, but it was held that the
defendant was entitled to introduce them in evidence, the court saying: "The
question, then, is whether the complainant can shelter itself behind its privilege to
insist upon the privacy of the communications between its attorney and its other
officers as confidential communications, when it has itself produced fragmentary
part of them, and sought to use them as a weapon against the defendant to
obtain the stringent remedy of a preliminary injunction. Assuming that the
communications addressed to the president and vice-president of the
complainant by Mr. Buckingham were communications made to the complainant
by its attorney, and as such privileged at the option of the complainant, it was
competent for the complainant to waive its privilege. It would hardly be
contended that the complainant could introduce extracts from these
communications as evidence in its own behalf for the purpose of a final hearing,
and yet withhold the other parts if their production were required by the
defendant. A party cannot waive such a privilege partially. He cannot remove the
seal of secrecy from so much of the privileged communications as makes for his
 advantage, and insist that it shall not be removed as to so much as makes to the
advantage of his adversary, or may neutralize the effect of such as has been
introduced. Upon the principle it would seem that it cannot be material at what
stage of the proceedings in a suit a party waives his right to maintain the secrecy
of privileged communication. All the proceedings in the cause are constituent
parts of the controversy, and it is not obvious how any distinction can obtain as to
the effect of waiver when made by a party for the purpose of obtaining temporary
relief and when made by him to obtain final relief."

From the foregoing decision and other cases contained in the note referred to, we are
led to the conclusion that the attorney for the defendant in the court below was entitled
to examine the whole of the letter (Exhibit 49 and 49-A), with a view to the introduction
in evidence of such parts thereof as may be relevant to the case on trial, and the
respondent judge was in error in refusing to permit the inspection of the letter by said
attorney.

It is suggested in the argument for the respondents that the question of the admissibility
in evidence of the parts of the letter not already read into the record was prematurely
raised, and that the attorney for the defendant should have waited until it became his
turn to present evidence in chief, when, as is supposed, the question could have been
properly raised. We are of the opinion, however, that if the attorney for the defendant
had a right to examine the letter, it should have been produced when he asked for it on
the cross-examination of the witness who had the letter in his possession. Besides, in
the lengthy discussions between court and attorneys, occuring at different times, there
was not the slightest suggestion from the court that the parts of the letter which were
held inadmissible would be admitted at any time. Furthermore, the action of the court in
quashing the subpoena duces tecum for the production of the letter shows that the court
meant to rule that the letter could not be inspected at all by the attorney for the
defendant.

Objection is also here made by the attorney for the respondents to the use of the writ
of mandamus for the purpose of correcting the error which is supposed to have been
committed. The situation presented is, however, one where the herein petitioner has no
other remedy. The letter which the petitioner seeks to examine has been ruled
inadmissible, as to the parts not introduced in evidence by the defendant in the court
below, and the respondent judge had not permitted the document to become a part of
the record in such a way that the petitioner could take advantage of the error upon
appeal to this court. It is idle to discuss whether other remedy would be speedy or
adequate when there is no remedy at all. This court is loath, of course, to interfere in
course of the trial of a case in a Court of First Instance, as such interference might
frequently prolong unduly the litigation in that court. But this case has been pending
before the respondent judge for a considerable period of time, and undoubtedly the
probatory period will be necessarily extended much longer. Under these circumstances,
the action of this court in entertaining the present application will either be conductive to
the speedy determination of case, or at least will not appreciably extend the
proceedings.
It goes without saying that the subject matter of the contention is of a nature which
makes the use of the writ of mandamus appropriate, since the right from the exercise of
which the petitioner is excluded is one to which it is entitled under the law and the duty
to be performed is one pertaining to the respondent judge in his official capacity.

From what has been said it follows that the writ of mandamus prayed for will be granted,
and the respondent judge is directed to permit the attorney for the defendant (petitioner
here) to inspect the letter (Exhibit 49 and 49-A) with a view to the introduction in
evidence of such parts thereof as may be relevant to the issues made by the pleadings
in civil case No. 35825 and other cases which have been consolidated with it for trial.
So ordered, with costs against the respondent Teal Motor Co., Inc.

Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

VILLA-REAL, J., concurring:

I concur solely on the ground that the portion of the letter alleged to be privileged is not
so.
G.R. No. L-61464 May 28, 1988

BA FINANCE CORPORATION, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, AUGUSTO YULO, LILY YULO (doing
business under the name and style of A & L INDUSTRIES), respondents.

GUTIERREZ, JR., J.:

This is a petition for review seeking to set aside the decision of the Court of Appeals
which affirmed the decision of the then Court of First Instance of Manila, dismissing the
complaint instituted by the petitioner and ordering it to pay damages on the basis of the
private respondent's counterclaim.

On July 1, 1975, private respondent Augusto Yulo secured a loan from the petitioner in
the amount of P591,003.59 as evidenced by a promissory note he signed in his own
behalf and as representative of the A & L Industries. Respondent Yulo presented an
alleged special power of attorney executed by his wife, respondent Lily Yulo, who
manages A & L Industries and under whose name the said business is registered,
purportedly authorizing Augusto Yulo to procure the loan and sign the promissory note.
About two months prior to the loan, however, Augusto Yulo had already left Lily Yulo
and their children and had abandoned their conjugal home. When the obligation
became due and demandable, Augusto Yulo failed to pay the same.

On October 7, 1975, the petitioner filed its amended complaint against the spouses
Augusto and Lily Yulo on the basis of the promissory note. It also prayed for the
issuance of a writ of attatchment alleging that the said spouses were guilty of fraud in
contracting the debt upon which the action was brought and that the fraud consisted of
the spouses' inducing the petitioner to enter into a contract with them by executing a
Deed of Assignment in favor of the petitioner, assigning all their rights, titles and
interests over a construction contract executed by and between the spouses and A.
Soriano Corporation on June 19, 1974 for a consideration of P615,732.50 when, in
truth, the spouses did not have any intention of remitting the proceeds of the said
construction contract to the petitioner because despite the provisions in the Deed of
Assignment that the spouses shall, without compensation or costs, collect and receive
in trust for the petitioner all payments made upon the construction contract and shall
remit to the petitioner all collections therefrom, the said spouses failed and refuse to
remit the collections and instead, misappropriated the proceeds for their own use and
benefit, without the knowledge or consent of the petitioner.

The trial court issued the writ of attachment prayed for thereby enabling the petitioner to
attach the properties of A & L Industries. Apparently not contented with the order, the
petitioner filed another motion for the examination of attachment debtor, alleging that
the properties attached by the sheriff were not sufficient to secure the satisfaction of any
judgment that may be recovered by it in the case. This was likewise granted by the
court.

Private respondent Lily Yulo filed her answer with counterclaim, alleging that although
Augusta Yulo and she are husband and wife, the former had abandoned her and their
children five (5) months before the filing of the complaint; that they were already
separated when the promissory note was executed; that her signature in the special
power of attorney was forged because she had never authorized Augusto Yulo in any
capacity to transact any business for and in behalf of A & L Industries, which is owned
by her as a single proprietor, that she never got a single centavo from the proceeds of
the loan mentioned in the promissory note; and that as a result of the illegal attachment
of her properties, which constituted the assets of the A & L Industries, the latter closed
its business and was taken over by the new owner.

After hearing, the trial court rendered judgment dismissing the petitioner's complaint
against the private respondent Lily Yulo and A & L Industries and ordering the petitioner
to pay the respondent Lily Yulo P660,000.00 as actual damages; P500,000.00 as
unrealized profits; P300,000.00 as exemplary damages; P30,000.00 as and for
attorney's fees; and to pay the costs.

The petitioner appealed. The Court of Appeals affirmed the trial court's decision except
for the exemplary damages which it reduced from P300,000.00 to P150,000.00 and the
attorney's fees which were reduced from P30,000.00 to P20,000.00.

In resolving the question of whether or not the trial court erred in holding that the
signature of respondent Lily Yulo in the special power of attorney was forged, the Court
of Appeals said:

The crucial issue to be determined is whether or not the signatures of the

appellee Lily Yulo in Exhibits B and B-1 are forged. Atty. Crispin Ordoña,
the Notary Public, admitted in open court that the parties in the subject
documents did not sign their signatures in his presence. The same were
already signed by the supposed parties and their supposed witnesses at
the time they were brought to him for ratification. We quote from the
records the pertinent testimony of Atty. Ordoña, thus:

Q. This document marked as Exhibit B-1, when this was

presented to you by that common friend, June Enriquez, it
was already typewritten, it was already accomplished, all
typewritten.?

A. Yes, sir.

Q And the parties had already affixed their signatures in this

document?
 A. Yes, sir.

Q. In this document marked as Exhibit B although it appears

here that this is an acknowledgment, you have not stated
here that the principal actually acknowledged this document
to be her voluntary act and deed?

A This in one of those things that escaped my attention.

Actually I have not gone over the second page. I believed it
was in order I signed it. (TSN pp. 13-14, Hearing of Nov. 26,
1976).

The glaring admission by the Notary Public that he failed to state in the
acknowledgment portion of Exhibit B-1 that the appellee Lily Yulo
acknowledged the said document to be her own voluntary act and deed, is
a very strong and commanding circumstance to show that she did not
appear personally before the said Notary Public and did not sign the
document.

Additionally, the Notary Public admitted that, while June Enriquez is

admittedly a mutual friend of his and the defendant Augusta Yulo, and
who is also an instrumental witness in said Exhibit B-1., he could not
recognize or tell which of the two signatures appearing therein, was the
signature of this June Enriquez.

Furthermore, as the issue is one of credibility of a witness, the findings

and conclusions of the trial court before whom said witness, Atty. Crispin
Ordoña, the Notary Public before whom the questioned document was
supposedly ratified and acknowledged, deserve great respect and are
seldom disturbed on appeal by appellate tribunals, since it is in the best
and peculiar advantage of determining and observing the conduct,
demeanor and deportment of a particular witness while he is testifying in
court, an opportunity not enjoyed by the appellate courts who merely have
to rely on the recorded proceedings which transpired in the court below,
and the records are bare of any circumstance of weight, which the trial
court had overlooked and which if duly considered, may radically affect the
outcome of the case.

On the other hand, the appellee Lily Yulo, to back up her claim of forgery
of her signature in Exhibit B-1, presented in court a handwriting expert
witness in the person of Police Captain Yakal Giron of the Integrated
National Police Training Command, and who is also a Document
Examiner of the same Command's Crime Laboratory at Fort Bonifacio,
Metro Manila. His experience as an examiner of questioned and disputed
documents, in our mind, is quite impressive. To qualify him as a
handwriting expert, he declared that he underwent extensive and actual
 studies and examination of disputed or questioned document, both at the
National Bureau of Investigation Academy and National Bureau of
Investigation Questioned Document Laboratory, respectively, from July
1964, up to his appointment as Document Examiner in June, 1975, and, to
further his experience along this line, he attended the 297th Annual
Conference of the American Society of Questioned Docurnent Examiners
held at Seattle, Washington, in August 1971, as a representative of the
Philippines, and likewise conducted an observation of the present and
modern trends of crime laboratories in the West Coast, U.S.A., in 1971;
that he likewise had conducted actual tests and examination of about
100,000 documents, as requested by the different courts, administrative,
and governmental agencies of the Government, substantial portions of
which relate to actual court cases.

In concluding that the signatures of the appellee Lily Yulo, in the disputed
document in question (Exh. B-1), were all forgeries, and not her genuine
signature, the expert witness categorically recited and specified in open
court what he observed to be about twelve (12) glaring and material
significant differences, in his comparison of the signatures appearing in
the genuine specimen signatures of the said appellee and with those
appearing in the questioned document (Exhibit B-1). Indeed, we have
likewise seen the supposed notable differences, found in the standard or
genuine signatures of the appellee which were lifted and obtained in the
official files of the government, such as the Bureau of Internal Revenue on
her income tax returns, as compared to the pretended signature of the
appellee appearing in Exhibits B, B-1. It is also noteworthy to mention that
the appellant did not even bother to conduct a cross-examination of the
handwriting expert witness, Capt. Giron, neither did the appellant present
another handwriting expert, at least to counter-act or balance the
appellee's handwriting expert.

Prescinding from the foregoing facts, we subscribe fully to the lower

court's observations that the signatures of the appellee Lily Yulo in the
questioned document (Exh. B-1) were forged. Hence, we find no factual
basis to disagree. (pp. 28-30, Rollo)

As to the petitioner's contention that even if the signature of Lily Yulo was forged or
even if the attached properties were her exclusive property, the same can be made
answerable to the obligation because the said properties form part of the conjugal
partnership of the spouses Yulo, the appellate court held that these contentions are
without merit because there is strong preponderant evidence to show that A & L
Industries belongs exclusively to respondent Lily Yulo, namely: a) The Certificate of
Registration of A & L Industries, issued by the Bureau of Commerce, showing that said
business is a single proprietorship, and that the registered owner thereof is only Lily
Yulo; b) The Mayor's Permit issued in favor of A & L Industries, by the Caloocan City
Mayor's Office showing compliance by said single proprietorship company with the City
Ordinance governing business establishments; and c) The Special Power of Attorney
itself, assuming but without admitting its due execution, is tangible proof that Augusto
Yulo has no interest whatsoever in the A & L Industries, otherwise, there would have
been no necessity for the Special Power of Attorney if he is a part owner of said single
proprietorship.

With regard to the award of damages, the Court of Appeals affirmed the findings of the
trial court that there was bad faith on the part of the petitioner as to entitle the private
respondent to damages as shown not only by the fact that the petitioner did not present
the Deed of Assignment or the construction agreement or any evidence whatsoever to
support its claim of fraud on the part of the private respondent and to justify the
issuance of a preliminary attachment, but also by the following findings:

Continuing and elaborating further on the appellant's mala fide actuations

in securing the writ of attachment, the lower court stated as follows:

Plaintiff not satisfied with the instant case where an order for
attachment has already been issued and enforced, on the
strength of the same Promissory Note (Exhibit"A"), utilizing
the Deed of Chattel Mortgage (Exhibit "4"), filed a
foreclosure proceedings before the Office of the Sheriff of
Caloocan (Exhibit"6") foreclosing the remaining properties
found inside the premises formerly occupied by the A & L
Industries. A minute examination of Exhibit "4" will show that
the contracting parties thereto, as appearing in par. 1
thereof, are Augusto Yulo, doing business under the style of
A & L Industries (should be A & L Glass Industries
Corporation), as mortgagor and BA Finance Corporation as
mortgagee, thus the enforcement of the Chattel Mortgage
against the property of A & L Industries exclusively owned by
Lily T. Yulo appears to be without any factual or legal basis
whatsoever. The chattel mortgage, Exhibit "4" and the
Promissory Note, Exhibit A, are based on one and the same
obligation. Plaintiff tried to enforce as it did enforce its claim
into two different modes a single obligation.

Aware that defendant Lily Yulo, filed a Motion to Suspend

Proceedings by virtue of a complaint she filed with the Court
of First Instance of Caloocan, seeking annulment of the
Promissory Note, the very basis of the plaintiff in filing this
complaint, immediately after the day it filed a Motion for the
Issuance of an Alias Writ of Preliminary Attachment . . .Yet,
inspite of the knowledge and the filing of this Motion to
Suspend Proceedings, the Plaintiff still filed a Motion for the
Issuance of a Writ of Attachment dated February 6, 1976
before this court. To add insult to injury, plaintiff even filed a
 Motion for Examination of the Attachment Debtor, although
aware that Lily Yulo had already denied participation in the
execution of Exhibits "A" and "B". These incidents and
actions taken by plaintiff, to the thinking of the court, are
sufficient to prove and establish the element of bad faith and
malice on the part of plaintiff which may warrant the award of
damages in favor of defendant Lily Yulo. (Ibid., pp. 102-
103).<äre||anº•1àw>

Indeed, the existence of evident bad faith on the appellant's

part in proceeding against the appellee Lily Yulo in the
present case, may likewise be distressed on the fact that its
officer Mr. Abraham Co, did not even bother to demand the
production of at least the duplicate original of the Special
Power of Attorney (Exhibit B) and merely contended himself
with a mere xerox copy thereof, neither did he require a
more specific authority from the A & L Industries to contract
the loan in question, since from the very content and recitals
of the disputed document, no authority, express or implied,
has been delegated or granted to August Yulo to contract a
loan, especially with the appellant. (pp. 33-34, Rollo)

Concerning the actual damages, the appellate court ruled that the petitioner should
have presented evidence to disprove or rebut the private respondent's claim but it
remained quiet and chose not to disturb the testimony and the evidence presented by
the private respondent to prove her claim.

In this petition for certiorari, the petitioner raises three issues. The first issue deals with
the appellate court's affirmance of the trial court's findings that the signature of the
private respondent on the Special Power of Attorney was forged. According to the
petitioner, the Court of Appeals disregarded the direct mandate of Section 23, Rule 132
of the Rules of Court which states in part that evidence of handwriting by comparison
may be made "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," and
that there is no evidence on record which proves or tends to prove the genuineness of
the standards used.

There is no merit in this contention.

The records show that the signatures which were used as "standards" for comparison
with the alleged signature of the private respondent in the Special Power of Attorney
were those from the latter's residence certificates in the years 1973, 1974 and 1975, her
income tax returns for the years 1973 and 1975 and from a document on long bond
paper dated May 18, 1977. Not only were the signatures in the foregoing documents
admitted by the private respondent as hers but most of the said documents were used
by the private respondent in her transactions with the government. As was held in the
case of Plymouth Saving & Loan Assn. No. 2 v. Kassing (125 NE 488, 494):

We believe the true rule deduced from the authorities to be that the
genuineness of a "standard" writing may be established (1) by the
admission of the person sought to be charged with the disputed writing
made at or for the purposes of the trial or by his testimony; (2) by
witnesses who saw the standards written or to whom or in whose hearing
the person sought to be charged acknowledged the writing thereof; (3) by
evidence showing that the reputed writer of the standard has acquiesced
in or recognized the same, or that it has been adopted and acted upon by
him his business transactions or other concerns....

Furthermore, the judge found such signatures to be sufficient as standards. In the case
of Taylor-Wharton Iron & Steel Co. v. Earnshaw (156 N.E. 855, 856), it was held:

When a writing is offered as a standard of comparison it is for the

presiding judge to decide whether it is the handwriting of the party to be
charged. Unless his finding is founded upon error of law, or upon evidence
which is, as matter of law, insufficient to justify the finding, this court will
not revise it upon exceptions." (Costelo v. Crowell, 139 Mass. 588, 590, 2
N.E. 648; Nuñez v. Perry, 113 Mass, 274, 276.)

We cannot find any error on the part of the trial judge in using the above documents as
standards and also in giving credence to the expert witness presented by the private
respondent whose testimony the petitioner failed to rebut and whose credibility it
likewise failed to impeach. But more important is the fact that the unrebutted
handwriting expert's testimony noted twelve (12) glaring and material differences in the
alleged signature of the private respondent in the Special Power of Attorney as
compared with the specimen signatures, something which the appellate court also took
into account. In Cesar v. Sandiganbayan (134 SCRA 105, 132), we ruled:

Mr. Maniwang pointed to other significant divergences and distinctive

characteristics between the sample signatures and the signatures on the
questioned checks in his report which the court's Presiding Justice kept
mentioning during Maniwang's testimony.

In the course of his cross-examination, NBI expert Tabayoyong admitted

that he saw the differences between the exemplars used and the
questioned signatures but he dismissed the differences because he did
not consider them fundamental. We rule that significant differences are
more fundamental than a few similarities. A forger always strives to master
some similarities.

The second issue raised by the petitioner is that while it is true that A & L Industries is a
single proprietorship and the registered owner thereof is private respondent Lily Yulo,
the said proprietorship was established during the marriage and its assets were also
acquired during the same. Therefore, it is presumed that this property forms part of the
conjugal partnership of the spouses Augusto and Lily Yulo and thus, could be held liable
for the obligations contracted by Augusto Yulo, as administrator of the partnership.

There is no dispute that A & L Industries was established during the marriage of
Augusta and Lily Yulo and therefore the same is presumed conjugal and the fact that it
was registered in the name of only one of the spouses does not destroy its conjugal
nature (See Mendoza v. Reyes, 124 SCRA 161, 165). However, for the said property to
be held liable, the obligation contracted by the husband must have redounded to the
benefit of the conjugal partnership under Article 161 of the Civil Code. In the present
case, the obligation which the petitioner is seeking to enforce against the conjugal
property managed by the private respondent Lily Yulo was undoubtedly contracted by
Augusto Yulo for his own benefit because at the time he incurred the obligation he had
already abandoned his family and had left their conjugal home. Worse, he made it
appear that he was duly authorized by his wife in behalf of A & L Industries, to procure
such loan from the petitioner. Clearly, to make A & L Industries liable now for the said
loan would be unjust and contrary to the express provision of the Civil Code. As we
have ruled in Luzon Surety Co., Inc. v. De Gracia (30 SCRA 111, 115-117):

As explained in the decision now under review: "It is true that the husband
is the administrator of the conjugal property pursuant to the provisions of
Art. 163 of the new Civil Code. However, as such administrator the only
obligations incurred by the husband that are chargeable against the
conjugal property are those incurred in the legitimate pursuit of his career,
profession or business with the honest belief that he is doing right for the
benefit of the family. This is not true in the case at bar for we believe that
the husband in acting as guarantor or surety for another in an indemnity
agreement as that involved in this case did not act for the benefit of the
conjugal partnership. Such inference is more emphatic in this case, when
no proof is presented that Vicente Garcia in acting as surety or guarantor
received consideration therefore, which may redound to the benefit of the
conjugal partnership.(Ibid, pp. 46-47).

xxx xxx xxx

xxx xxx xxx

In the most categorical language, a conjugal partnership under that

provision is liable only for such "debts and obligations contracted by the
husband for the benefit of the conjugal partnership." There must be the
requisite showing then of some advantage which clearly accrued to the
welfare of the spouses. There is none in this case.

xxx xxx xxx

 Moreover, it would negate the plain object of the additional requirement in
the present Civil Code that a debt contracted by the husband to bind a
conjugal partnership must redound to its benefit. That is still another
provision indicative of the solicitude and tender regard that the law
manifests for the family as a unit. Its interest is paramount; its welfare
uppermost in the minds of the codifiers and legislators.

We, therefore, rule that the petitioner cannot enforce the obligation contracted by
Augusto Yulo against his conjugal properties with respondent Lily Yulo. Thus, it follows
that the writ of attachment cannot issue against the said properties.

Finally, the third issue assails the award of actual damages according to the petitioner,
both the lower court and the appellate court overlooked the fact that the properties
referred to are still subject to a levy on attachment. They are, therefore, still
under custodia legis and thus, the assailed decision should have included a declaration
as to who is entitled to the attached properties and that assuming arguendo that the
attachment was erroneous, the lower court should have ordered the sheriff to return to
the private respondent the attached properties instead of condemning the petitioner to
pay the value thereof by way of actual damages.

In the case of Lazatin v. Twaño (2 SCRA 842, 847), we ruled:

xxx xxx xxx

... It should be observed that Sec. 4 of Rule 59, does not prescribed the
remedies available to the attachment defendant in case of a wrongful
attachment, but merely provides an action for recovery upon the bond,
based on the undertaking therein made and not upon the liability arising
from a tortuous act, like the malicious suing out of an attachment. Under
the first, where malice is not essential, the attachment defendant, is
entitled to recover only the actual damages sustained by him by reason of
the attachment. Under the second, where the attachment is maliciously
sued out, the damages recoverable may include a compensation for every
injury to his credit, business or feed (Tyler v. Mahoney, 168 NC 237, 84
SE 362; Pittsburg etc. 5 Wakefield, etc., 135 NC 73, 47 SE 234). ...

The question before us, therefore, is whether the attachment of the properties of A & L
Industries was wrongful so as to entitle the petitioner to actual damages only or whether
the said attachment was made in bad faith and with malice to warrant the award of other
kinds of damages. Moreover, if the private respondent is entitled only to actual
damages, was the court justified in ordering the petitioner to pay for the value of the
attached properties instead of ordering the return of the said properties to the private
respondent Yulo ?

Both the trial and appellate courts found that there was bad faith on the part of the
petitioner in securing the writ of attachment. We do not think so. "An attachment may be
said to be wrongful when, for instance, the plaintiff has no cause of action, or that there
is no true ground therefore, or that the plaintiff has a sufficient security other than the
property attached, which is tantamout to saying that the plaintiff is not entitled to
attachment because the requirements of entitling him to the writ are wanting. (7 C.J.S.,
664)" (p. 48, Section 4, Rule 57, Francisco, Revised Rules of Court).

Although the petitioner failed to prove the ground relied upon for the issuance of the writ
of attachment, this failure cannot be equated with bad faith or malicious intent. The
steps which were taken by the petitioner to ensure the security of its claim were
premised, on the firm belief that the properties involved could be made answerable for
the unpaid obligation due it. There is no question that a loan in the amount of
P591,003.59 was borrowed from the bank.

We, thus, find that the petitioner is liable only for actual damages and not for exemplary
damages and attorney's fees. Respondent Lily Yulo has manifested before this Court
that she no longer desires the return of the attached properties since the said
attachment caused her to close down the business. From that time she has become a
mere employee of the new owner of the premises. She has grave doubts as to the
running condition of the attached machineries and equipments considering that the
attachment was effected way back in 1975. She states as a matter of fact that the
petitioner has already caused the sale of the machineries for fear that they might be
destroyed due to prolonged litigation. We, therefore, deem it just and equitable to allow
private respondent Lily Yulo to recover actual damages based on the value of the
attached properties as proven in the trial court, in the amount of P660,000.00. In turn, if
there are any remaining attached properties, they should be permanently released to
herein petitioner.

We cannot, however, sustain the award of P500,000.00 representing unrealized profits

because this amount was not proved or justified before the trial court. The basis of the
alleged unearned profits is too speculative and conjectural to show actual damages for
a future period. The private respondent failed to present reports on the average actual
profits earned by her business and other evidence of profitability which are necessary to
prove her claim for the said amount (See G. A. Machineries, Inc. v. Yaptinchay, 126
SCRA 78, 88).

The judgment is therefore set aside insofar as it holds the petitioner liable for
P500,000.00 actual damages representing unrealized profits, P150,000.00 for
exemplary damages and P20,000.00 for attorney's fees. As stated earlier, the attached
properties, should be released in favor of the petitioner.

WHEREFORE, the decision of the Court of Appeals is hereby SET ASIDE and the
petitioner is ordered to pay the private respondent Lily Yulo the amount of SIX
HUNDRED SIXTY THOUSAND PESOS (P660,000.00) as actual damages. The
remaining properties subject of the attachment are ordered released in favor of the
petitioner.
SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes JJ., concur.

 [G.R. No. 126696. January 21, 1999]

SECURITY BANK & TRUST COMPANY, petitioner, vs. TRIUMPH LUMBER AND
CONSTRUCTION CORPORATION, respondent.

DECISION
DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court the
petitioner asks this Court to reverse the decision[1] of 28 December 1995 and the
resolution[2] of 17 September 1996 of the Court of Appeals in CA-G.R. CV No. 33513.
The former set aside the decision[3] of 14 November 1990 of the Regional Trial Court
(RTC) of Makati in Civil Case No. 16882 and ordered the petitioner to reimburse the
private respondent the value of the alleged forged checks drawn against private
respondents account, plus interest and attorneys fees. The latter denied petitioners
motion for reconsideration.
Petitioner and private respondent were the defendant and plaintiff, respectively, in
Civil Case No. 16882.
The factual antecedents of this case were summarized by the trial court in its decision
in Civil Case No. 16882; thus:

Based on plaintiffs evidence, it appears that plaintiff is a depositor in good standing of

defendant banks branch at Sucat, Paraaque, under current checking account no. 210-
0053-60. Plaintiff claims that on March 23 and 24, 1987, three (3) checks all payable to
cash and all drawn against plaintiffs aforementioned current account were presented for
encashment at defendants Sucat Paraaque branch, to wit: Security Bank check nos.
466779 and 466777, both dated March 23, 1987 in the amount of P150,000.00
and P130,000.00, respectively; and Security Bank Check no. 466780 dated March 24,
1987 in the amount of P20,000.00. (Exhs. A, A-1 to A-3, B, B-1 to B-3, C, C-1 to C-3)
Plaintiff also claims that due to defendant banks gross negligence and inexcusable
negligence in exercising ordinary diligence in verifying from plaintiff the encashment of
plaintiffs checks whose amount exceed P10,000.00 and in determining the forgery of
drawers signatures, the aforesaid three (3) checks were encashed by unauthorized
persons to the damage and prejudice of the plaintiff corporation. (Exhs. D, D-1, D-2)
Plaintiff then requested the defendant to credit back and restore to its account the value
of the checks which were wrongfully encashed in the amount of P300,000.00 but
despite due demand the defendant failed to pay its liability. (Exhs. F, F-1, F-2) Finally,
plaintiff claims that per findings of the PC Crime Laboratory, the signatures of Co Yok
Teng and Yu Chun Kit, the authorized [signatories] of plaintiff were forged. (Exhs. E, E-1
to E-4, G, G-1, G-2, H, I, I-1, I-2)

Upon the other hand, the defendant bank claims that on June 19, 1985 the plaintiff
corporation opened savings account no. 3220-0529-79 and current account no. 3210-
0053-60 with defendant banks branch in Sucat, Paraaque, Metro Manila. In order to
make the said current and savings account operational, the plaintiff herein provided the
defendant with the requisite specimen signature cards which in efect authorized
defendant bank to honor withdrawals on the basis of any two of three signatures affixed
thereon, specifically those of Mr. Dee Kong, Mr. Co Yok Teng and Mr. Chun Yun Kit, the
president, treasurer and general manager, respectively, of plaintiff corporation. (Exhs. 3,
4) Subsequently, plaintiff executed an automatic transfer agreement authorizing
defendant bank to transfer cleared funds from plaintiffs savings account to its current
account at any time whenever funds in the current account are insufficient to meet
withdrawals therefrom or are below the stipulated minimum balance. (Exhs. 5, 6, 6-A)
Defendant also claims that the savings account pass book and the check booklets were
kept by the plaintiff in its filing cabinet but on March 23, 1987 the plaintiff herein
discovered that the door of his office was forced open including that of the filing cabinet
where the check booklets and other bank documents were being kept by the plaintiff.
(pp. 32-33, TSN of August 15, 1988) Defendant further claims that the incident was not
reported to the police authorities by the plaintiff nor was there any advise given to
defendant bank and that on the same day of the discovery by plaintiff of the burglary,
said plaintiff nevertheless made three separate deposits in a total amount
of P374,554.10. (Exhs. 1, 1-A, 1-B, 2-A, 2-B) Defendant also claims that immediately
after the said deposit of P374,554.10 has been made by the plaintiff, three checks
namely: check no. 466779 dated March 23, 1987 in the amount of P130,000.00; check
no. 466779 dated March 23, 1987 of P150,000.00 and check no. 466780 dated March
24, 1987 in the amount of P20,000.00 which [were] all payable to cash were
successively presented to defendant bank for encashment which was given due course
by the latter after said checks have passed through the standard bank procedure for
verification of the check signatures and the regularity of the material particulars of said
checks. (pp. 6, 19, 20, 39, TSN of February 1, 1989, p. 21, TSN of August 15, 1988)[4]

On the basis of such factual environment, the trial court found no preponderance of
evidence to support private respondents complaint. The private respondent failed to show
that the signatures on the subject checks were forged. It did not even present in court the
originals of the checks. Neither did it bother to explain its failure to do so. Thus, it could
be presumed that the original checks were wilfully suppressed and would be adverse to
private respondents case if produced. Moreover, the signatures on the checks were not
compared with the specimen signature appearing on the specimen signatures cards
provided by the private respondent upon opening its current account with petitioner. Thus,
the opinion of the expert witness is not worthy of credit. Besides, the private respondent
failed to present Mr. Co Yok Teng, one of the signatories of the checks in question, to
deny the genuineness of the signatures.
The trial court was convinced that the petitioner bank had exercised due care and
diligence in determining the authenticity of the checks in question before they were
encashed. It was rather the private respondent that had been negligent in the care and
custody of the corporate checks. After the incident in question occurred, the private
respondent should have reported the matter to the police authorities or to the bank in
order that the latter could undertake stringent measure to counteract any attempt to
forge the corporate checks. But private respondent did not. Hence, private respondent
should be the one to bear the loss.
In view of such findings, the trial court dismissed the complaint for lack of merit.
On appeal, the Court of Appeals reversed the decision of the trial court and ordered
the petitioner to reimburse the private respondent the sum of P300,000, plus interest at
the rate of 2 % per month from 24 March 1987 until full payment thereof, as well as
attorneys fees equivalent to 25 % of the principal obligation.
The Court of Appeals held that it was not necessary for the private respondent to
prove that the signatures on the three checks in question were forged because of the
following admissions set forth in petitioners answer:
14. Plaintiff was guilty of negligence substantially contributing to the unauthorized
signatures or forgery of the signatures on the checks mentioned in the
complaint.
15. The alleged forged signatures on the checks were sufficiently adroit as to
escape detection even under the officers scrutiny.
20.3 Anna P. Naval and Roberto N. Gabutao verbally admitted that the checks
were forged.
21. Anna Naval and Roberto Gabutao are now facing charges for estafa thru
Falsification of Commercial Documents under Criminal Case No. 30004
pending with the Regional Trial Court, National Capital Judicial Region, sitting
at Makati, Metro Manila.
According to the Court of Appeals, the expert witness, contrary to the trial courts
finding, was able to examine the signatures on the original checks and compared them
with the standard signatures of the signatories. The photographic enlargements of the
questioned checks, which she identified in court, were in fact taken from the original
checks. With the banks admission in its answer, as well as the unrebutted testimony of
the expert witness and of Chun Yun Kit, there could be no doubt that the signatures on
the questioned checks were forged.
The Court of Appeals likewise held that the petitioner must be the one to bear the
consequences of its failure to detect the forgery. Besides, petitioner was less than prudent
in the treatment of private respondents account. It did not observe its arrangement with
the private respondent that it would inform the latter whenever a check of more
than P10,000 would be presented for encashment. Neither did it ask the payee to present
an identification card or to bring someone who could attest to identity of the payee.
After its motion for reconsideration was denied[5] by the Court of Appeals, petitioner
filed this petition contending that the Court of Appeals erred in holding that
I
THE SIGNATURES ON THE CHECKS IN QUESTION WERE FORGED
II
 WHETHER THE SIGNATURES WERE FORGED IS NO LONGER AN ISSUE
IN THE CASE CONSIDERING THE AFFIRMATIVE DEFENSES SET FORTH
IN PETITIONERS ANSWER
III
THE PETITIONER ITSELF WAS NEGLIGENT AND THAT THE
RESPONDENT EXERCISED DUE CARE IN THE CUSTODY OF ITS
CHECKS AND OTHER RELATED DOCUMENTS
IV
RESPONDENT IS ENTITLED TO REIMBURSEMENT OF P300,000.00 PLUS
INTEREST THEREOF AS WELL AS ATTORNEYS FEES.
In the first assigned error, the petitioner alleges that the best evidence of the forgery
were the original checks bearing the alleged forged signatures of private respondents
officers. In spite of the timely objection made by the petitioner, the private respondent
introduced in evidence mere photocopies of the questioned checks. The failure to
produce the originals of the checks was a fatal omission inasmuch as there would be no
evidentiary basis for the court to declare that the instruments were forgeries. Likewise
such failure amounted to a willful suppression of evidence, which created a presumption
that its production would be unfavorable to respondents case.[6] It could also be presumed
that the checks in question [were] genuine checks regularly issued by the respondent in
the course of its business, bearing the genuine signatures of the officers whom it
authorized to sign in its behalf.[7] Also, an unfavorable inference could be drawn from the
unexplained failure of private respondent to call as its witness Mr. Co Yok Teng, whose
signature was among those allegedly forged.
Petitioner, further contends that the opinion of private respondents expert witness,
Crispina V. Tabo, Senior Document Examiner of the PC Crime Laboratory, has no weight
and deserves no consideration. Tabo did not use as basis of her analytical study the
standard signatures of Chun Yun Kit and Co Yok Teng on the specimen signature cards
provided by the respondent upon opening Current Account No. 3210-0523-60 with the
petitioner. It was to be against these standard signatures appearing on the specimen
cards that petitioner was to honor checks drawn against private respondents account.
What Tabo utilized for comparisons were signatures that were not even authenticated by
Chun Yun Kit and Co Yok Teng. Neither was it proved that the supposed standard
signatures had been written closely proximate to the date of the questioned checks.
Moreover, the requested signatures on the long bond paper written post litem
motam could not be accepted as standards of comparison because of the ease with which
they[could] be disguised to intentionally differentiate them from those being challenged. [8]
As to the second assigned error, petitioner maintains that its Answer contained a
specific denial of private respondents allegation of forgery. It could set in its answer
affirmative and negative defenses alternatively even if they were inconsistent with each
other.[9]
With respect to its third assigned error, petitioner asserts that it exercised due care
and diligence in the payment of private respondents checks by first verifying in
accordance with standard bank practices and procedures the genuineness of the
signatures and endorsements. Upon the other hand, the private respondent, in the
management of its business affairs, fell short of the diligence and the ordinary prudence
required under the circumstances. It should have advised petitioner of the alleged
burglary so that petitioner could have applied stricter rules in the processing of checks
drawn against private respondents account, but it did not bother to do so. Neither did it
reconcile its account, balances with the petitioner in order to forestall the happening of
the forgery.
In the last assigned error, the petitioner alleges that in view of the reasons it stated in
the first and third assigned errors the petitioner cannot be obliged to pay the amount
of P300,000 plus interest. On the contrary, petitioner is entitled to an award of attorneys
fees because private respondents complaint was insincere, baseless, and intended to
harass, annoy and defame [it].[10]
Upon the other hand, the respondent claims that petitioner should have filed a petition
for review by certiorari and not merely a petition for review. The determination of
negligence by the Court of Appeals is a question of fact that cannot be disturbed on
appeal. Even asuming that the instant case is an exception to the rule limiting the
appellate jurisdiction of the Supreme Court to reviewing errors of law nonetheless, the
issue of forgery was adequately proved by preponderance of evidence.
This appeal is meritorious.
Well settled is the rule that in the exercise of our power of review the findings of facts
of the Court of Appeals are conclusive and binding on this Court. However, there are
recognized exceptions, among which is when the factual findings of the trial court and the
appellate court are conflicting.[11] The disagreement between the trial court and the Court
of Appeals in the factual conclusion, especially with regard to the alleged forgery of the
signatures on the questioned checks and the negligence of the parties, has constrained
us to examine the evidence submitted by the parties.
On the issue of forgery, we are unable to agree with the finding of the Court of Appeals
that the petitioner admitted in its Answer[12] to the complaint the forgery of the signatures.
Far from admitting the forgery, petitioner categorically denied that the signatures on the
questioned checks were forgeries. However, by way of an alternative affirmative defense,
petitioner contended that it had exercised reasonable degree of diligence in
detecting whether there was forgery. Even assuming that the signatures on the checks
were forged, still petitioner could not be held liable for the value of the checks because
all the checks were complete and regular on their face. The alleged forged signatures
were sufficiently adroit as to escape detection even under the officers scrutiny.
The Court of Appeals also erred in holding that forgery was duly established. First,
Section 3, Rule 130 of the Rules of Court was not complied with by private respondent.
The Section explicitly provides that when the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself. This
is what is known as the best evidence rule. The exceptions are as follows:
1. When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;
3. When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time, and the fact sought to be
established from them is only the general result of the whole; and
4. When the original is a public record in the custody of a public officer or is recorded
in a public office.
In this case, the originals of the alleged forged checks had to be produced, since it
was never shown that any of these exceptions was present. What the private respondent
offered were mere photocopies of the checks in question marked as Exhibits A, B, and
C.[13] It never explained the reason why it could not produce the originals of the checks.
Its expert witness Crispina Tabo admitted though that the original checks were taken back
by the investigating policeman, Glenn Ticson; thus:
ATTY. NARAG:
Q Do you have a copy, Madam Witness of the checks which were submitted to you
under question?
A It was only a xerox copy, because the original was withdrawn by the investigating
policeman, which is in (sic) the name of Glenn Ticzon, sir.
Q Do you want to impress the court that the originals of these checks were submitted
to you?
A Yes, sir.
Q Do you have a copy of the originals of the checks under (sic) standards?
A Xerox copies only, because it was also withdrawn by the investigating policeman,
who is Mr. Glenn Ticzon.[14]
Yet, the said policeman was not presented to produce the original checks.
It is true that the photocopies of the questioned checks were all identified by private
respondents witness Yu Chun Kit during his direct testimony[15] without objection on the
part of petitioners counsel. The latter even cross-examined Yu Chun Kit,[16] and, at the
formal offer of said exhibits, he objected to their admission solely on the grounds that they
were irrelevant, immaterial and self-serving.[17] The photocopies of the checks may
therefore be admitted for failure of petitioner to tender an appropriate objection [18] to their
admission. Nevertheless, their probative value is nil.[19]
Then, too, the proper procedure in the investigation of a disputed handwriting was
not observed. The initial step in such investigation is the introduction of the genuine
handwriting of the party sought to be charged with the disputed writing, which is to serve
as a standard of comparison.[20]The standard or the exemplar must therefore be proved
to be genuine.[21] For the purpose of proving the genuineness of a handwriting Section
22, Rule 132 of the Rules of Court provides:
SEC. 22. How genuineness of handwriting proved. The handwriting of a person may be
proved by any witness who believes it to be the handwriting of such person because he
has seen the person write, or has seen writing purporting to be his upon which the
witness has acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also be given 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.

In BA Finance v. Court of Appeals,[22] we had the occasion to the rule that the
genuineness of a standard writing may be established by any of the following: (1) by the
admission of the person sought to be charged with the disputed writing made at or for the
purposes of the trial, or by his testimony; (2) by witnesses who saw the standards written
or to whom or in whose hearing the person sought to be charged acknowledged the
writing thereof; (3) by evidence showing that the reputed writer of the standard has
acquiesced in or recognized the same, or that it has been adopted and acted upon by
him in his business transactions or other concerns.
We find in the records only photocopies, not the originals, of the long bond papers
containing the alleged specimen signatures.[23] Nobody was presented to prove that the
specimen signatures were in fact signatures affixed by Yu Chun Kit and Co Yok Teng.
Although the former took the witness stand, he was never called to identify or authenticate
his signatures on the said photocopy. Clearly then, Section 22 of Rule 132 of the Rules
of Court and the guidelines set forth in BA Finance v. Court of Appeals[24] were not
complied with.
Moreover, the so-called specimen signatures on the bond paper were not directly
turned over to Tabo by those who purportedly wrote them. They, together with the
questioned checks, were first submitted to the Administration Branch of the PC Crime
Laboratory, then endorsed to the Questioned Document Branch. The chief of the latter
branch thereafter referred them to Tabo. Tabo never saw the parties write the specimen
signatures. She just presumed the specimen signatures to be genuine signatures of the
parties concerned. These facts were disclosed by Tabo during her cross-examination;
thus:
Q These question [sic] signatures and the specimen signatures or standard were just
given to you by the police of Paraaque?
A It was submitted to the Administrative Branch and the Administrative Branch
endorsed that to the Question Document Branch and the Chief of the Document
branch assigned that case to me, sir. That is why I received it and examined it.
COURT:
Q How do you know that, that is the genuine signature?
ATTY. REVILLA
Yes, how do you know that, that is the genuine signatures when you were not able to
see him personally write his signature?
A Because I examined the genuine signatures of Co Yok Teng which was submitted
to the office by the investigator and it is said to be genuine, and I compared the
signatures whether it is genuine or not. And upon comparing, all the specimen
signatures were written by one, and also comparing all question [sic] signatures,
this one (pointing to the chart) are written by one so, they were written, the question
[sic] and specimen were written by two different persons.
Q You did not ask the person to personally give his signature in order that there will be
basis of comparison between standard signature and the question [sic] signature?
A Your Honor, if the specimen signature is not sufficient enough to arrive at a
conclusion, we will tell the investigator to let the person involved to come to our
office to write and sign his signature, if it is not sufficient to arrive at a conclusion
we let him sign.
Q So, you do not normally demand his income tax for example, the residence certificate
or other documents which contained this undisputed signature?
A We did not ask anymore additional specimen because the submitted document is
sufficient enough to arrive at the conclusion.
ATTY. REVILLA:
Q So, you just relied on what were given to you by the investigator as they informed
you that these were genuine and standard signatures?
A Yes, sir.
Q And who was that person who gave you this document?
A It was the Administrative Branch who [sic] endorsed this document to the
Documentation Branch. I do not know the person who brought that.
Q You do not know the person who brought this document to the Administrative
branch?
A Yes, sir I do not know.
Q When you started making comparison and analysis of this question [SIC] signatures
and standard signatures, you did not anymore require the person, Mr. Co Yok
Teng to appear personally to you?
A I did not, sir.[25]
ATTY. REVILLA
Q Mrs. Tabo, like the question [sic] signature of Mr. Co Yok Teng, you also did not
personally see or observe how Mr. Co Yok Teng write this standard signature?
A Yes, sir.
Q And this [sic] standard signatures were just submitted to you?
A Yes, it was submitted to the office, sir.
 Q And when you made the examination and analysis of these documents the standard
and the question [sic] signature you did not require any other signature from these
two personalities except those which were delivered to you?
A Yes, sir.
COURT
Q When this standard signature were submitted to you, you were just told that this is
the genuine signature of the person involved, you were just told?
A Yes, your Honor. As stated in the request it is the genuine signature.
Q So that was your basis in claiming that this is the genuine signature of the persons
involved?
A I examined first the specimen, all the specimen whether it was written by.
Q What are those specimen submitted to you?
A The same checks, your Honor, and the written standard.
Q Did you confront Co Yok Teng?
ATTY. REVILLA
A She said no, your Honor.
COURT
Q Did you confront Yu Chun Kit whether those were actually his genuine signature?
A No, your Honor.
Q So you just relied on the claim of the person who submitted to you that these are the
genuine signatures?
A Yes, your Honor.
Q And on the basis of that you compare the characteristic handwriting between the
alleged genuine and question [sic] signature?
A Yes, your Honor.[26] (underscoring ours for emphasis).
Our review of the testimony of private respondents expert witness, Crispina V. Tabo,
fails to convince us that she was a credible document examiner, despite petitioners
admission that she was. She was candid enough to admit to the court that although she
had testified more or less three hundred times as an expert, her findings were sustained
by the courts in more or less ten cases only. Thus:
Court:
Q How many times have you testified in Court?
A More or less three hundred (300) times, your Honor.
Q How many were sustained by the Court?
 A More or less ten (10), sir.
Q Out of 300?
A Yes, your Honor.[27]
Besides, under the circumstances obtaining in this case, Tabo could by no yardstick be
considered to have adequate knowledge of the genuine signatures of the parties whose
signatures on the questioned checks were claimed to be forged. That knowledge could
be obtained either by (a) seeing the person write some other documents or signatures (ex
visu scriptionis); (b) seeing documents otherwise known to him to have been written by
the person in question (ex scriptis olim visis); or (c) examining, in or out of court, for the
express purpose of obtaining such knowledge, the documents said to have been written
by the person in question (ex comparatione scriptorum).[28] Tabo could not be a witness
under the first and the second. She tried to be under the third. But under the third, it is
essential that (a) certain specimens of handwriting were seen and considered by her and
(b) they were genuinely written by the person in question.[29] Now, as stated above, Tabo
had no adequate basis for concluding that the alleged specimen signatures in the long
bond paper were indeed the signatures of the parties whose signatures in the checks
were claimed to have been forged. Moreover, we do not think that the alleged specimens
before were sufficient in number.[30]
Given the fact that Mrs. Tabos testimony cannot inspire a conclusion that she was an
expert, it was error to rely on her representation. It is settled that the relative weight of the
opinions of experts by and large depends on the value of assistance and guidance they
furnish the court in the determination of the issue involved.[31]
On the issue of negligence, the Court of Appeals held:

[T]here is overwhelming evidence to show that appellee (petitioner herein) was less
than prudent in the treatment of appellants (private respondents) account.

According to Chun Yun Kit, they had an agreement with Appellees Assistant branch
manager, Felicidad Dimaano, that appellant should be informed whenever a check for
than P10,000.00 is presented for encashment. Dimaano did not controvert Chun Kits
testimony on this point. Such an arrangement was not observed by appellee with
respect to the payment of the checks in question. (Emphasis supplied).

We do not agree. During the hearing on 1 February 1989, Felicidad Dimaano denied
having such agreement with the private respondent. Rather, the agreement was that all
encashments over the counter of P10,000.00 and above should be accompanied by one
of the signatories of private respondent. But this agreement was made only on 31 March
1987, or a few days after the encashment of the checks in question.[32]
At any rate, since the questioned checks, which were payable to cash, appeared
regular on their face and the bank found nothing unusual in the transaction, as the
respondent usually issued checks in big amounts[33] made payable to cash or to a
particular person or to a company,[34] the petitioner cannot be faulted in paying the value
of the disputed checks.
 Contrary to the finding of the Court of Appeals, the private respondent is the one
which stands to be blamed for its predicament. Chun Yun Kit testified that in the morning
of 23 March 1987, he and some employees found the doors of their office and the filing
cabinets containing the companys check booklet to have been forcibly opened. They also
found the documents in disarray. Under these circumstances, a prudent and reasonable
man would simply have to go over the check booklet to find out whether a check was
missing. But, apparently, private respondents officers and employees did not bother to do
so. If they did examine the booklet they could have readily discovered whether a check
was taken. The following testimony of Chun Yun Kit is apropos:
Q You said also during the last hearing that on the morning of March 23, 1987 you
found out in the morning that the doors of the office were forced opened?
A Yes, sir.
Q And you also testified during the last hearing that the locked [sic] of the filing cabinet
were also forced opened?
A Yes, sir.
Q And you found out on that same time and date on March 23, 1987 that the documents
in the filing cabinet were not in their proper position?
A Yes, sir.
Q What did you do when you found out this [sic] circumstances on March 23, 1987?
A We did not do anything because nothing was lost.
Q Did it not occur to you Mr. Witness, that considering that burglary was committed in
your office, the doors of your office were forced opened, the locks of the filing
cabinet were forced opened, the documents placed in the filing cabinet were not
in their proper position, it did not occur to you to check the checks of the company
as being placed in the filing cabinet?
A When we examined the check booklet, we did not discover anything lost.
Q You did not at all bother Mr. Witness or your treasurer to check something might
have lost in the check [sic], considering that the burglery [sic] and the filing cabinet
were forced opened?
A No, sir.
Q Did you notice anything lost?
A No, sir.[35]
Neither did any of private respondents officers or employees report the incident to the
police authorities,[36] nor did anyone advise the petitioner of such incident so that the latter
could adopt necessary measures to prevent unauthorized encashments of private
respondents checks. Hence, as correctly held by the trial court, it is the private
respondent, not the petitioner, which must bear the loss.
 WHEREFORE, the instant petition is GRANTED the challenged decision of the Court
of Appeals in CA-G.R. CV No. 33513 is hereby REVERSED, and the decision of the
Regional Trial Court of Makati in Civil Case No. 16882 is hereby REINSTATED.
SO ORDERED.
Melo, Kapunan, Martinez, and Pardo JJ., concur.
G.R. No. 111027 February 3, 1999

BERNARDINO RAMOS and ROSALIA OLI, petitioners,

vs.
COURT OF APPEALS, RODOLFO BAUTISTA and FELISA LOPEZ, respondents.

ROMERO, J.:

May the heir of the original registrant of parcels of land under the Torrens System, be
deprived of ownership by alleged claimants thereof through acquisitive prescription?

Impugned in this petition for review on certiorari is the Decision1 of the Court of Appeals
which affirmed in toto that of the Regional Trial Court of Aparri, Cagayan, Branch
VIII, 2 disposing of Civil Case No. VIII-7, an action for reconveyance with damages, as
follows:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered

as follows:

1. Ordering the dismissal of the instant case;

2. The defendants are hereby declared absolute owners of the land

described in paragraph 2 of the complaint, Lot No. 572 and Lot No. 579
Gattaran Cadastre, Gattaran, Cagayan;

3. The affidavit of Self-Adjudication (Exhibit "6") and Transfer Certificate of

Titles Nos. T-31699 and T-31698 (Exhibit "7" & "8") are hereby declared
valid; and

4. Ordering the heirs of the late Bernardino Ramos and other persons
acting in their behalf, to refrain from molesting or disturbing the
possession and ownership of the defendants of the land described in
paragraph 2 of the complaint, designated as Lot 572 and Lot 579 Gattaran
Cadastre, Gattaran, Cagayan, covered by Original Certificate of Titles
Nos. 17811 and 17812 which was (sic) cancelled by Transfer Certificate of
Titles Nos. T-31699 and T-31698.

No pronouncement as to costs and damages.

SO ORDERED.

as well as the resolution of July 1, 1993, denying reconsideration thereof.

The records disclose the following antecedent facts:

On March 14, 1939, Pedro Tolentino, claiming absolute ownership over Lot Nos. 572
and 579 of the Gattarancadastre in Lapogan, Gattaran, Cagayan, separately sold said
lots to petitioners, the spouses Bernardino Ramos and Rosalia Oli, in consideration of
the amount of eighty pesos (P80.00) for each sale. The aforesaid conveyances were
allegedly evidenced by two documents both entitled "Escritura de Compra Venta" 3 and
acknowledged before a notary public.

Subsequently, however, petitioners instituted on January 8, 1976 an action for

reconveyance with damages4 alleging that while they were "in open public, adverse,
peaceful and continuous possession" of the subject lots "in good faith and with just title,
for not less than fifty (50) years, personally and through their predecessors-in-interest,"
they were surprised to discover in November 1975, that decrees of
registration 5 covering Lot Nos. 572 and 579 were already issued on January 7, 1940.
They complained further the subsequent issuance by the Register of Deeds of Cagayan
on March 11, 1941, Original Certificates of Title Nos. 17811 and 17812 covering Lot
Nos. 572 and 579, respectively, in favor of Lucia Bautista since the latter allegedly
neither laid claim of ownership nor took possession of them, either personally or through
another. Petitioners claimed instead that they were the ones who acquired prior
ownership and possession over the lots to the exclusion of the whole world. Thus, they
concluded that the original certificates of title as well as Transfer Certificates of Title
Nos. T-31698 and T-31699 obtained by private respondent Rodolfo Bautista who
adjudicated unto himself said lots on September 20, 1975, as sole heir of Lucia
Bautista 6were null and void. On the theory that they already acquired the subject lots
by acquisitive prescription, petitioners demanded their return but private respondents
refused to do so, hence, compelling them to file a complaint for reconveyance with
damages.

On the other hand, herein private respondents, the spouses Rodolfo Bautista and Felisa
Lopez, likewise claimed absolute ownership of the lots covered by TCT Nos. T-31698
and T-31699. They alleged that while the records of the Bureau of Lands showed that
during the cadastral survey in Gattaran in 1932, Pedro Tolentino was a claimant over
lands in the cadastre, the same was only with respect to Lot No. 1399 which was
eventually titled under his name as OCT No. 16110. It just happened that Lot No. 1399
was adjacent to Lot No. 572, a portion of which was occupied by petitioners upon the
tolerance of the original registrant Lucia Bautista.

By way of affirmative defense, private respondents maintained that the action for
reconveyance filed by petitioners was tantamount to a reopening of the cadastral
proceedings or a collateral attack on the decrees of registration which cannot be done
without violating the rule on conclusiveness of the decree of registration. Moreover, they
argued that since the lots were already under the operation of the Torrens System,
acquisitive prescription would no longer be possible.

After due proceedings, the trial court dismissed petitioners' complaint underscoring the
fact that during the cadastral proceedings in 1940, Bernardino Ramos did not file an
answer for the two lots although he was allegedly the claimant and possessor thereof
under the deeds of sale executed by Pedro Tolentino in his favor on March 14, 1939.
Since it was only Lucia Bautista who filed an answer and who appeared to be the lawful
claimant in the proceedings, she was therefore issued original certificates of title for the
subject lots. The trial court presumed that everyone was notified about the proceedings
inasmuch as cadastral proceedings are in rem. More notably, within one year from the
issuance of the decree of registration on January 9, 1940, Bernardino Ramos likewise
failed to avail of a petition to reopen the proceedings on the ground of fraud as he
subsequently alleged in his belated action for reconveyance. Consequently, when the
action for reconveyance was finally filed, more than thirty-six (36) years had already
elapsed and laches had set in. The trial court ruled in this wise:

The settled rule on the indefeasibility and incontrovertibility of the title after
the expiration of one year from the entry of the final decree of registration,
now bars the plaintiffs from availing this action for reconveyance; the
property in question not having been satisfactorily shown that same was
wrongfully titled to in the name of Lucia Bautista. Accordingly, her titles
thereto, Exhibit "4" and Exhibit "5", are therefore valid. By operation of law
Transfer Certificate of Title Nos. 31699 and 31698 in the name of Rodolfo
Bautista (Exhibit "7" & "8") are also valid. The defendant Rodolfo Bautista
is a possessor with a Torrens title who is not aware of any flaw of his title
which invalidates it, is considered possessor in good faith and his
possession does not lose this character except in the case and from the
moment by final judgment of the Court (sic). Diaz vs. Rodriguez, L-20300-
01 and Republic vs. Court of Appeals, L-20355-56, April 30, 1965, 13
SCRA 704.

In the same vein, it is a settled rule that a party seeking the reconveyance
to him of his land that he claims had been wrongfully registered in the
name of another person, must recognize the validity of the certificate of
title of the latter. It is also a settled rule that a reconveyance may only take
place if the land that is claimed to be wrongfully registered is still
registered in the name of the person who procured the wrongful
registration. No action for reconveyance can take place as against a third
party who acquired title over the registered property in good faith and for
value. Defendant Rodolfo Bautista fittingly steps into the shoes of an
innocent third person. [Emphasis supplied].

Dissatisfied with the trial court's disposition of the case, petitioners seasonably appealed
the same to the Court of Appeals. The appellate court, however, found the conclusions
reached by the trial court in accord with law and the evidence presented, hence, it
affirmed the same in toto on October 23, 1992. Having been denied reconsideration,
petitioners interposed the instant petition for review on certiorari alleging the following
as grounds therefor:

1. RESPONDENT COURT OF APPEALS ERRED AND ACTED WITH

GRAVE ABUSE OF DISCRETION IN AFFIRMING IN TOTO THE
 DECISION OF THE TRIAL COURT WHICH FOUND BY MERE
PRESUMPTION THAT PRIVATE RESPONDENTS ARE IN
POSSESSION OF THE LAND IN SUIT WHEN THE FACTS ADDUCED
DURING THE TRIAL CLEARLY PROVED THAT PETITIONERS HAVE
BEEN IN POSSESSION THEREOF FOR MORE THAN 30 YEARS.

2. RESPONDENT COURT OF APPEALS ERRED AND ACTED WITH

GRAVE ABUSE OF DISCRETION IN FINDING THAT THE INSTANT
ACTION FOR RECONVEYANCE INSTITUTED BY PETITIONERS HAD
ALREADY PRESCRIBED.

3. RESPONDENT COURT OF APPEALS ERRED IN CONFORMING

WITH THE TRIAL COURT'S DECISION THAT RECONVEYANCE WILL
NO LONGER PROSPER IF THE LANDS IN SUIT HAD ALREADY BEEN
TRANSFERRED TO A THIRD PERSON IN GOOD FAITH AND FOR
VALUE WHEN THE FACTS SHOW THAT PRIVATE RESPONDENTS
HAD ADMITTED THEY ALLEGEDLY INHERITED THE LANDS IN SUIT
AND THEREFORE THEY ARE NOT THIRD PARTIES.

We sustain the appellate court's decision.

Inasmuch as petitioners anchor their claim of ownership over the parcels of land on the
alleged deeds of sale executed by Pedro Tolentino in their favor, we believe that the
issue of the authenticity and binding effect of those documents should be addressed at
the outset.

The two documents denominated as Escritura de Compra Venta which were executed
in 1939 would have well qualified as ancient documents 7 since they were already in
existence for more than thirty years in 1976 when the case for reconveyance was
initially filed. The original documents, however, were not presented in evidence as these
had been apparently lost in the fire that gutted the office of petitioners' counsel. Under
the circumstances, it should have been the duty of petitioners therefore to prove the
existence of the documents in accordance with Rule 130 of the Revised Rules of Court
which states:

Sec. 5. When original document is unavailable. — When the original

document has been lost or destroyed, or can not be produced in court, the
offerror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.

It appears that the loss of the two documents of sale was shown by testimonial
evidence of petitioners' counsel, Atty. MacPaul B. Soriano, whose law office was
burned. Upon realizing that the documents involved here had been irretrievably lost
because of the fire, Atty. Soriano suggested to petitioners that they should see their
other lawyer, Atty. Laggui, who could provide them with certified true copies
thereof.8 Thus, the copies of the documents that petitioners presented in court each
contained the following certification:

CERTIFICATION

I, ANTONIO N. LAGGUI, Notary Public for and in the Province of

Cagayan, hereby certify that the foregoing is a true, correct and literal
copy of the original copy of Dec. No. 1, Page No. 44, Book No. 1, Series
of 1939 of the Notarial Register Luis Rosacia, shown to me by, and in
possession of Bernardino Ramos.

This certification, however, does not imply that the documents certified to were
authentic writings although it proves the existence of the documents purportedly
evidencing the sale. Rule 132 provides the manner by which the due execution and
authenticity of private writings like the deeds involved here, should be established.
Thus:

Sec. 20. Proof of private document. — Before any private document

offered as authentic is received in evidence, its due execution and
authenticity must be proved either:

1. By anyone who saw the document executed or written; or;

2. By evidence of the genuineness of the signature or handwritng of the

maker;

Any other private document need only be identified as that which it is

claimed to be.

Unfortunately for petitioners, the documents upon which they relied in establishing their
claim of ownership, had not been duly presented in evidence in accordance with the
aforecited Rule. They failed to present any person who could have witnessed the
execution of the documents, like the instrumental witnesses thereof. Understandably,
they could not even demonstrate the genuineness of the signatures of the parties to the
sale because the copies they offered in evidence did not bear those signatures.
Consequently, under the Rules of Court, the documents' authenticity and due execution
are suspect and may not be given that much weight.

Furthermore, assuming arguendo that the existence of the documents was properly
established, still, the supposed agreement embodied in the two documents bound only
the parties thereto, namely Pedro Tolentino and the petitioners, because the latter failed
to prove that these were later registered as to operate against the whole world. They
could not have bound third persons like Lucia Bautista because of the basic civil law
principle of relativity of contracts which provides that contracts can only bind the parties
who had entered into it, and it cannot favor or prejudice a third person. 9 This basic
principle applies even if the sales were supposedly concluded at a time prior to the
operation of the Torrens system of land registration over the properties involved. When
the properties were eventually titled in favor of Lucia Bautista, the sale between Pedro
Tolentino and petitioners could not have affected Lucia Bautista and her successor-in-
interest because the pertinent law in point, Act No. 496, as amended by P.D. No. 1529
unequivocably provides:

Sec. 50. . . .. But no deed, mortgage, lease, or other voluntary instrument

except a will, purporting to convey or affect registered land, shall take
effect as a conveyance or bind the land, but shall operate only as a
contract between the parties and as evidence of authority to the clerk or
register of deeds to make registration. The act of registration shall be the
operative act to convey and affect the land, and in all cases under this Act
the registration shall be made in the office of the register of deeds for the
province or provinces or city, where the land lies. [Emphasis supplied].

Sec. 51. Every conveyance, mortgage, lease, lien, attachment, order,

decree, instrument, or entry affecting registered land which would under
existing laws, if recorded, filed, or entered in the office of the register of
deeds, affect the real estate to which it relates shall, if registered, filed, or
entered in the office of the register of deeds in the province or city where
the real estate to which such instrument relates lies, be notice to all
person from the time of such registering, filing, or entering.

Hence, petitioners' failure to register the Escritura de Compra Venta resulted in

the sale being binding only between them and the vendor, Pedro Tolentino. Lucia
Bautista and her successors-in-interest, being third parties to the sale, could not
have been bound thereby.

To give a semblance of ownership over the properties, petitioners introduced in

evidence documents showing that their successors-in-interest mortgaged the
properties. While only owners of properties have the right to mortgage the same, the
papers evidencing the alleged mortgages do not, however, conform to the formal and
substantive requirements therefor. One such document 10 dated May 24, 1987 and
handwritten in the English language described the property allegedly mortgaged to a
certain Santos Tolentino as "a certain parcel of land estimated at one hectare." The
other alleged mortgage instrument dated August 12, 1985, 11 likewise handwritten but in
the Ilocano dialect, did not sufficiently describe the subject property of the mortgage.
There is indeed no way that we can ever determine if the lands referred to in the
mortgage were the lots now in controversy. At any rate, while petitioners' daughter,
Erlinda Ramos, testified that the properties in controversy were the ones she and her
sisters mortgaged, that claim is now self-serving since they are presently the claimants
of the lands. 12 Interestingly, Erlinda herself admitted that her father never declared the
lots for taxation purposes and neither did they ever pay real property taxes thereon. In
short, the alleged mortgage papers could very well refer to properties other than Lot
Nos. 572 and 579 and that the trial court correctly ruled that what petitioners proved can
not ripen into ownership "in derogation to that of the registered owner." 13

Petitioners' supposed possession of the lots for more than forty (40) years, therefore,
stands as a bare claim with nothing whatsoever to prop it up. Under the circumstances
of the case, they would only succeed upon sufficient evidence to support their allegation
that fraud attended the registration of the property in Lucia Bautista's name. As it is,
however, petitioners failed to present evidence on the matter thereby leaving their claim
barren.

In contrast, private respondent Rodolfo Bautista's claim to the properties registered

under the Torrens system which he traces to his aunt, Lucia Bautista, appears
incontrovertible. Under the Cadastral Act, the original certificates of title issued to the
original registrant, shall have the same effect as certificates of title granted on
application for registration of land under the Land Registration Act, because "no title to
registered land in derogation to that of the registered owner shall be acquired by
prescription or adverse possession." 14 Pedro Tolentino and petitioners, as the former's
alleged successors-in-interest, have therefore no valid claim of ownership over the
property, particularly since petitioners simply failed to substantiate the nature and extent
of Tolentino's rights and interests over the lots. Such being the case, the conveyances
in their favor were void as the subject properties were lawfully owned by another
person. 15

Neither may petitioners' argument that private respondent Rodolfo Bautista, being the
son-in-law of Pedro Tolentino, was bound by the sale and therefore he and his present
wife hold the properties in trust for petitioners' successors-in-interest hold. On that
basis, they aver that their right to claim the property in trust is imprescriptible.

But petitioners' argument would only be tenable upon proof that the property was
acquired through mistake or fraud. As earlier observed, however, petitioners' claim of
fraud was never substantiated and, hence, it has remained a groundless charge.
Consequently, petitioners' claim of imprescriptibility of the action for reconveyance is
baseless.

Sec. 38 of the Land Registration Act provides that a decree of registration duly issued is
subject "to the right of any person deprived of land or of any estate or interest therein by
decree of registration obtained by fraud to file in the competent Court of First Instance
(now the Regional Trial Court) a petition for review within one year after entry of the
decree, provided no innocent purchaser for value has acquired an interest." The same
law provides that upon the expiration of the term of one year, "every decree or
certificate of title . . . shall be imprescriptible."

Under the law, an action for reconveyance of real property resulting from fraud
prescribes in four (4) years from the discovery of the fraud. 16 Discovery of the fraud
must be deemed to have taken place when Lucia Bautista was issued OCT Nos.
178111 and 17812 because registration of real property is considered a "constructive
notice to all persons" and it shall be counted "from the time of such registering, filing or
entering." 17 An action based on implied or constructive trust prescribes in ten (10)
years. This means that petitioners should have enforced the trust within ten (10) years
from the time of its
creation 18 or upon the alleged fraudulent registration of the property. But as it is,
petitioners failed to avail of any of the aforementioned remedies within the prescribed
periods. With no remedy in view, their claims should forever be foreclosed.

The Court, however, subscribes to petitioners' argument that the courts a

quo incorrectly held that private respondents are third persons to whom ownership of
the properties had been transmitted. But this error alone may not save the day for
petitioners. They have, in a sense, slept on whatever rights they claimed to have over
the properties and by the time they were roused, the law had stepped in to bar their
claims. On the other hand, private respondents' inattention to the property from the time
of Lucia Bautista's death until private respondent Rodolfo Bautista's retirement from the
military should not be construed as an abandonment thereof. Private respondents have
in their favor the law that protects holders of title under the Torrens System of land
registration. As this Court so eloquently pronounced in 1915:

Once a title is registered, the owner may rest secure, without the necessity
of waiting in the portals of the court or sitting in the "mirador de su casa,"
to avoid the possibility of losing his land. 19

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of
merit. The decision and the resolution appealed from in CA-G.R. CV No. 30033 dated
October 23, 1992 and July 1, 1993, respectively, are AFFIRMED.

Costs against petitioners.

SO ORDERED.

Vitug, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.

G.R. No. 157075 July 17, 2006

RAMCAR, INCORPORATED, petitioner,

vs.
HI-POWER MARKETING, LEONIDAS D. BOHOL, and RHODORA A.
BOHOL, respondents.

DECISION

TINGA, J.:

Before the Court is a Petition for Certiorari filed by Ramcar, Incorporated (Ramcar),
raising the same questions of fact passed upon by both the lower court1 and the Court
of Appeals.

The antecedents are as follows:

Respondent Leonidas Bohol (Bohol) is a distributor of Ramcar products in Quezon City

and San Pablo City using the business name Hi-Power Marketing.

On 4 March 1982, Ramcar and Bohol entered into a loan agreement whereby Ramcar
allotted P300,000.00 as a trade credit line for the batteries to be distributed by Bohol,
and released another P300,000.00 as a straight loan to the latter.2 To secure the
payment of the loan, Bohol executed a Real Estate Mortgage 3 over a parcel of land and
its improvements covered by Transfer Certificate of Title (TCT) No. 285976.4 Bohol also
signed an undated promissory note5 stipulating the schedule of payments and the
breakdown of the principal amount and the interest to be paid.

Subsequently, on the premise that Bohol had defaulted on his loan, Ramcar petitioned
the sheriff of Quezon City to foreclose the mortgage to satisfy an indebtedness
of P370,429.42 plus interest. The auction sale was set on 6 July 1984.6

On 3 July 1984, Bohol and his wife (spouses Bohol) filed a Petition for Prohibition with
Preliminary Injunction before the Regional Trial Court (RTC) of Quezon City, Branch
101, docketed as Special Civil Action No. Q-42032, to prevent the sheriff from
conducting the auction sale. The RTC issued a status quo order on 4 July 1984, thereby
temporarily averting the scheduled sale.7

After trial, finding that Bohol had defaulted in the performance of his obligation, the RTC
rendered its decision dismissing the petition for prohibition. The spouses Bohol filed a
Motion for Reconsideration and For New Trial8which was denied by the RTC on 4
November 1985.9 They then appealed to the Court of Appeals (CA), with the appeal
docketed as CA-G.R. CV No. 11496.

While the case was pending before the CA, Ramcar requested the Office of the Sheriff
of Quezon City to proceed with the implementation of the extrajudicial foreclosure in
view of the dismissal of the petition for prohibition of the spouses Bohol. A notice of
sheriff's sale was issued and published for three consecutive weeks in a newspaper of
general circulation.

On 28 November 1985, or the day before the scheduled auction sale, the spouses
Bohol and Hi-Power Marketing filed a case against Ramcar before the RTC, docketed
as Civil Case No. Q-46683, praying that their obligation be declared extinguished and
their property released from the mortgage on the ground that they have already
overpaid their account.10

Nonetheless, the auction sale pushed through on 29 November 1985, with Ramcar
emerging as the highest bidder.11 After the period to redeem the property had expired,
Ramcar caused the transfer of the certificate of title to its name. Thus, on 11 February
1987, TCT No. 354635 was issued in favor of Ramcar in place of the old certificate of
title in the name of Bohol.12 On 4 May 1987, Ramcar filed a Petition for a Writ of
Possession with the RTC of Quezon City, docketed as LRC Case No. Q-3696.13

Almost one year later, the decision on the appeal by the spouses Bohol in CA-G.R. CV
No. 11496 was promulgated on 8 March 1988. The CA declared that the main issue to
be threshed out was whether there was indeed default in payment on the part of the
spouses Bohol.14 This issue was not thoroughly passed upon by the trial court. Thus,
the CA found the need to remand the case for further hearing on the question of default.
It held:

Since default was the principal ground relied upon for the foreclosure of
mortgage, RAMCAR was called upon to prove it and it was absolutely necessary
to make a finding that there was in fact a default. While the parties opted to
submit the case upon position papers, the latter unfortunately did not provide any
clarification. On the contrary, the parties presented positions seriously at odds
with each other, and the issue remained as murky as it was before the
submission of the papers. RAMCAR's brief is not of any assistance either; it
merely reiterates the amount stated in its application for foreclosure and contains
no explanation of the issues.

There was therefore urgent need to receive evidence, from the Bohols, that they
might prove their claim of overpayment, from RAMCAR, that it might establish
not only the fact of default but also the particular loan availment it sought to
satisfy with the aborted foreclosure. The decision was clearly premature. 15

As both Civil Case No. Q-46683 (verified complaint for the extinguishment of Bohol's
obligation) and LRC Case No. Q-3697 (for ex-parte issuance of a writ of possession in
favor of Ramcar) were pending at the time Special Civil Action No. Q-42032 was
ordered remanded to the trial court, and there being interrelated issues, the three cases
were consolidated before RTC Branch 101, Quezon City.16
After trial and reception of the parties' respective evidence, the RTC in a
Decision17 dated 19 January 1999 ruled in favor of Ramcar, finding that Bohol had an
outstanding unpaid obligation in the amount of P370,959.62. It also declared the
extrajudicial foreclosure valid and consequently affirmed the validity of the transfer of
Bohol's property to Ramcar.18

Bohol went up to the CA with the appeal docketed as CA-G.R. SP No. 52593. The CA
reversed the RTC decision, declared the obligation of the spouses Bohol to Ramcar
extinguished by payment, and the extrajudicial foreclosure of the real estate mortgage
null and void. The appellate court also set aside the writ of possession issued in favor of
Ramcar, cancelled the latter's TCT No. 354635, and reinstated Bohol's TCT No.
285976. The CA ruled:

The pivotal question in these cases is whether the Bohols were in default in the
payment of their loan obligation to Ramcar at the time Ramcar foreclosed the
mortgage on the Bohol['s] property. x x x

xxxx

From comparison of the two sets of computations, it appears the Bohols had paid
to Ramcar more than the amount that Ramcar is seeking to collect from them.
The reason for this is that the Bohols had shown payments and deliveries that
were not taken into consideration by Ramcar when it computed the account of
the Bohols. Ramcar failed to prove that the amounts paid by the Bohols, as
reflected by the Exhibits C to G, were already credited to them in the statement
of account Exhibit 18, which in turn was the basis for the extrajudicial foreclosure.
Resultantly, the Bohols had overpaid the mortgaged obligation and may not,
therefore, be considered in default. The extrajudicial foreclosure proceedings
instituted against them lacks legal basis and its consequences must be rectified
accordingly in the interest of justice.19

Ramcar filed a Motion for Reconsideration which was denied by the CA in its Resolution
dated 22 November 2002.20

On 21 February 2003, Ramcar filed this Petition for Certiorari against the spouses Bohol
and Hi-Power Marketing alleging that the CA committed grave abuse of discretion: (1) in
refusing to consider the evidence of Ramcar showing that Bohol still has an outstanding
balance on his loan; and (2) in reversing the final order of the RTC granting the writ of
possession in favor of Ramcar.

Ramcar contends that Bohol, by means of double crediting and wrong posting, made it
appear that he has already fully paid the obligation. Ramcar also questions the
nullification of the extrajudicial sale, contending that the legal requirements were
observed by the sheriff in proceeding with the sale.
The spouses Bohol, in their Comment,21 assert that the instant petition is not the proper
remedy as the CA did not commit grave abuse of discretion in rendering the assailed
Decision. They also refute the allegation of Ramcar that they have not fully paid the
loaned amount. After a lengthy discussion of the facts of the case and the computations
made by the CA, they posit that the documents on record clearly show that they have
already fulfilled their obligation to Ramcar. Further, they submit that the documents
which Ramcar attached to its petition have not been presented before the RTC, are
utterly self-serving, and should not be accorded any probative value.

Ultimately, the issue to be decided in this case is whether Bohol has already satisfied
his obligation to Ramcar in full.

The present petition must be dismissed for failure of Ramcar to prove that the CA
committed grave abuse of discretion. A writ of certiorari may be issued only for the
correction of errors of jurisdiction or grave abuse of discretion amounting to lack or
excess of jurisdiction. The writ cannot be used for any other purpose as its function is
limited to keeping the inferior courts within the bounds of its jurisdiction.22

In this case, although Ramcar alleged in its Petition that the CA committed grave abuse
of discretion, it did not in any manner show how the appellate court committed such
abuse. It is an empty allegation bereft of any substantiation.

The original action for certiorari may be directed against an interlocutory order of the
court prior to appeal from the judgment or where there is no appeal or any other plain,
speedy or adequate remedy.23 There was a plain, speedy or adequate remedy available
to Ramcar. It could and should have filed an appeal assailing the Decision of the CA.

It is worth mentioning that Ramcar received the Resolution of the CA denying its Motion
for Reconsideration on 23 December 2002.24 Ramcar filed its Petition for Certiorari on
21 February 2003 or sixty (60) days after receipt of the Resolution. Since Ramcar failed
to appeal within fifteen (15) days from its receipt of the Resolution, the decision of the
CA had become final and executory. It is well-settled that the filing of the petition for
certiorari cannot serve as a substitute for the lost remedy of appeal.25 Where the issue
or question involves or affects the wisdom or legal soundness of the decision—not the
jurisdiction of the court to render said decision—the same is beyond the province of a
petition for certiorari.26

The fact that this Petition for Certiorari raises questions of fact further militates against
it. In Day v. RTC of Zamboanga City, Br. XIII,27 the Court held that in an original action
for certiorari, questions of fact cannot be raised much less passed upon by the
respondent court. Only established or admitted facts can be considered.28

In any case, even if we dispense with the technicalities and reevaluate the questions of
fact raised by Ramcar as an exception29 to the general rule that such questions cannot
be reviewed by this Court, the petition should still be dismissed.
The CA, in ruling for the spouses Bohol, held that:

The Bohols on the other hand, sought to establish overpayment with figures
contained in: (1) their summaries, Exhibit C, D, E of deliveries of wooden crates
to Ramcar with supporting delivery receipts, (2) list of credit memos, Exhibit F,
issued by Ramcar to Bohol showing discounts and price adjustments given to the
Bohols, with supporting credit memos; and (3) cash payments, Exhibit G., with
official receipts showing remittances to Ramcar. In the hearing on August 11,
1995, as appearing on page 17 of the transcript, the trial court directed the
petitioners to underline the entries in their records of payments and deliveries
which were not credited to them by Ramcar. In compliance, they made
undelinings in Exhibit C, D, E, F and G. They also presented two more
statements, Exhibit H and I, which were supposed to reflect additional credit
memos and payments to Ramcar, but because these were not supported by
evidence, unlike the previous statements, we chose to ignore them. x x x x30

It is significant to note that the CA closely analyzed and discussed the merits of the
case, taking into consideration the alleged double crediting and wrong posting of Bohol.
It concluded, after weighing the respective evidence adduced by the parties, that Bohol
has fully satisfied his obligation to Ramcar. In fact, according to the CA, Bohol even
made excess payments to Ramcar. The CA extensively computed the statements of
account and the receipts presented and found that Bohol should prevail in the present
dispute.

In contrast, the trial court's decision is bereft of any meaningful evaluation of the
evidence choosing instead merely to replicate the allegations of the various parties
particularly the calculations offered by Ramcar.

It should also be stressed that in the instant petition, Ramcar neither denied the veracity
of the receipts and credit memos Bohol presented to the lower court nor effectively
repudiated these documents. Ramcar merely claims wrong posting on the part of Bohol
in arriving at a conclusion of overpayment. While Ramcar questions the CA's finding of
overpayment by Bohol, it did not focus its petition on this issue but gave a protracted
and irrelevant discussion regarding the redemption of a mortgaged property.

Ramcar also presented to this Court annexes "F", "G" and "H" showing the breakdown
of purchases Bohol had made from January 1982 to August 1983, the alleged payments
made by Bohol from February 1982 to October 1983, and the credit memos issued by
Ramcar thru offsetting from February 1982 to February 1984, respectively. These
documents tend to prove that Bohol still has an outstanding balance. However, as
correctly pointed out by Bohol, the annexes were not presented before the RTC in
Ramcar's Formal Offer of Evidence31

and the person who prepared the documents did not authenticate the documents in
court. The Court cannot even determine the identity of the person who prepared the
documents as only the signature was affixed to the lower right hand corner of each
page of the documents.

Our rule on evidence provides the procedure on how to present documentary evidence
before the court, as follows: firstly, the documents should be authenticated and proved
in the manner provided in the rules of court; secondly, the documents should be
identified and marked; and thirdly, it should be formally offered to the court and shown
to the opposing party so that the latter may have the opportunity to object thereto. 32

We have carefully examined the documentary evidence presented by the parties in the
RTC and the CA and found that the documents now being presented by Ramcar, i.e.
the purchases of Hi-Power Marketing, payments of battery account, and credit memos
issued by Ramcar applied to Hi-Power Market thru offsetting were not part of the
records in the lower court or the appellate court. They were submitted for the first time
to this Court. This being the case, we shall not take them into account.

In view of the foregoing, we find that the Court of Appeals committed neither grave
abuse of discretion nor any error in judgment in rendering the assailed Decision.

WHEREFORE, the instant petition is hereby DISMISSED. The Decision of the Court of
Appeals dated 28 June 2002 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., J.J., concur.