Exception to the hearsay rule
Hospital at Las Piñas, Metro Manila, the victim once
G.R. No. 129556 November 11, 1998
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. REY GADO, Accused-Appellant.
MELO, J.:
Accused-appellant Rey Gado seeks reversal of the
judgment of conviction rendered by Branch 276 of the
Regional Trial Court of the National Capital Judicial
Region stationed in Muntinlupa City.
The Information dated July 14, 1992 charging accused-
appellant and his co-accused Emma Gallos with Murder
pertinently alleged:
That on or about the 30th day of January, 1992, in the
Municipality of Muntinlupa, Metro Manila, Philippines,
and within and jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating
together and both of them mutually helping and aiding
one another, with intent to kill, with treachery, while
armed with a bladed weapon, did then and there wilfully,
unlawfully and feloniously stab Melencio M. Manalang,
Jr. in his abdomen as a result of which said victim
sustained a serious body injury which caused his death,
to the damage and prejudice of his heirs in such amount
as may be proven at the trial.
(p. 1, Record.)
During trial, the prosecution adduced the inculpatory
facts through Fernando Reyes, Melencio Manalang, Sr.
(the victim's father), and Dr. Alberto M. Reyes, then
Acting Chief of the NBI Medico-Legal Division, which
may be summarized as follows:
On the evening of January 30, 1992, the victim and
some of his friends were having a drinking session at
the house of Juanito Vicente. Shortly thereafter, the
victim decided to leave and accused-appellant Rey Gado
and Juanito Vicente decided to bring him home. With
them were a certain Emma and her brother whose name
the victim failed to mention. On their way, and while
they were along Fleur De Liz Street, the victim was held
by his companions and he was stabbed in the abdomen
by Rey Gado. As the victim freed himself from his
assailants, the latter fled. He immediately grabbed a
stone and hurled it at them.
While he was proceeding home, he was chanced upon
by barangay tanod Fernando Reyes who offered to help
him home. At about 9 o'clock that evening, he reached
their house. He immediately slumped on the floor and
asked his father to bring him to the hospital. Upon his
father's query, the victim identified Rey Gado as his
assailant.
While aboard a jeep on their way to Perpetual Help
more related what happened to him, identifying the
other companions of Rey Gado. He was given medical
attention at Perpetual Help Hospital but about four hours
thereafter, at around 2 o'clock early morning of January
31, 1992, he succumbed.
On September 15, 1992, an Information charging Rey
Gado and Emma Gallos was filed in court. An order for
the arrest of the accused was accordingly issued on
September 17, 1992, but the same was left unserved.
The trial court ordered the case to be archived on
February 22, 1993. It was not until May 30, 1994 when
Rey Gado, one of the two accused, was served
an alias writ of arrest by the PNP Criminal Service
Command of the Cavite Provincial Office while detained
at Camp Vicente Lim, Calamba, Laguna due to a charge
of Robbery/Hold Up before the Municipal Trial Court of
Carmona, Cavite (p. 11, Record).
On November 21, 1994, both accused-appellant Rey
Gado, and his co-accused Emma Gallos, who voluntarily
appeared in court upon notice, were arraigned and both
entered a plea of not guilty. Emma Gallos was then also
ordered to be detained.
The two accused, on their part, sought refuge in their
defense of alibi. Rey Gado claimed to have been tending
the store of his brother at Sucat, Cupang, Muntinlupa,
about five kilometers away from the place where the
incident happened, while Emma Gallos averred that she
was at home tending to her sick daughter.
The trial court rendered judgment acquitting Emma
Gallos. Rey Gado was, however, convicted of the crime
of murder and sentenced to suffer "the penalty
of reclusion perpetua . . . and [to] indemnify the heirs
of his victim the sum of P50,000.00 and to pay
P50,000.00 as reimbursement for the medical and burial
expenses. . ." Hence, the present appeal anchored on
the following assigned errors:
I
THE LOWER COURT ERRED IN CONSIDERING THE
AFFIDAVIT OF WITNESS FERNANDO REYES.
II
THE LOWER COURT ERRED IN CONSIDERING
MELENCIO MANALANG'S TESTIMONY AS A DYING
DECLARATION.
III
THE LOWER COURT ERRED IN NOT LENDING CREDENCE
TO ACCUSED-APPELLANT'S ALIBI.
IV
THE LOWER COURT ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT.
After carefully going over accused-appellant's
arguments as well as the evidentiary record, we find his
appeal wanting in merit.
On the issue of witness Fernando Reyes's retraction, the
trial court, in its order denying the motion for
reconsideration of accused-appellant, explained thus:
After carefully evaluating the grounds relied upon in the
MOTION FOR RECONSIDERATION AND/OR NEW TRIAL,
this Court holds that the conviction of accused Rey Gado
is not only based on the affidavit of the eye witness
which admittedly was recanted by the affiant, but also
on the declaration of the victim who told his father
Melencio Manalang, Sr. that he was stabbed by accused;
at a time when this victim Melencio Manalang, Jr. felt he
was weakening, and therefore conscious of an
impending death . . .
(p. 282, Record.)
We find no further reason to entertain the argument of
accused-appellant on this matter. We shall instead look
into whether or not sufficient evidence remains to
sustain the conviction of accused-appellant for the crime
charged.
Accused-appellant vigorously takes exception to the
trial court's admission of the testimony of Melencio
Manalang, Sr., who testified in regard to the statements
and declarations of his son concerning his assailants,
claiming that the said declarations are not in the nature
of a dying declaration for the simple reason that they
were not made under a clear consciousness of an
impending death.
We are not persuaded.
Forthwith, we must stress that with regard to the
credibility of Melencio Manalang, Sr. as witness, we find
no reason to disturb the trial court's findings. The settled
and time-tested jurisprudence is that the findings and
conclusions of the trial court on the credibility of
witnesses enjoy the respect of appellate courts for the
reason that trial courts have the advantage of observing
the demeanor of witnesses as they testify (People vs.
Cabiles, G.R. No. 112035, January 16, 1998; People vs.
Moran, 241 SCRA 709 [1995]; People vs. Gamiao, 240
SCRA 254 [1995]). In the absence of any arbitrariness
in the trial court's findings and evaluation of evidence
which tends to show that it overlooked certain material
facts and circumstances, such findings and evaluation of
evidence should be respected on review (People vs. Dio,
226 SCRA 176 [1993]). The presiding judge of the trial
court had the opportunity to actually observe the
conduct and demeanor of the witnesses on the witness
stand while being asked direct-examination questions
by the prosecution, cross-examination questions by the
defense, as well as clarificatory questions by the trial
judge himself. Between the trial judge and this Court,
the former is in a far better position to determine
whether a witness is telling the truth or not. From the
records before us we find no reason to disturb the trial
court's assessment and to discredit Melencio Manalang,
Sr. as a witness.
The central issue to be resolved is whether the
statements, uttered by the victim before he died partake
of the nature of a dying declaration or not.
The Court finds in the affirmative.
Through the dying declarations of the victim as related
by his father, Melencio Manalang, Sr. before Atty. Pepito
Tan at the National Bureau of Investigation, National
Capital Region (Taft Avenue, Manila), the identity of the
killer was established in this case, to wit:
07. T: Maari bang isalaysay mo ang buong pangyayari
ayon sa pagkakakuwento sa iyo ng biktima na si
MELENCIO MANALANG, JR.?
S: Ayon po sa aking anak, nag-inuman silang
magbabarkada sa bahay ni JUANITO VICENTE at nang
siya ay malasing na inihatid siya ni REY GADO at
JUANITO VICENTE na may kasamang isang babae
nagngangalang EMMA at isang lalaki na hindi ko alam
ang pangalan na kapatid ni EMMA. Noong nasa daan na
sila ang Fleur de Luz St. sa ilalim ng puno ng aratiles ay
doon na raw siya sinaksak ni REY GADO sa may tiyan.
Noong nakabitaw si MELENCIO MANALANG, JR. ay
nakadampot pa siya ng bato at pinukol ang grupo nina
REY GADO na nakanya-kanya na ng takbo. Noong pauwi
na siya ay nasalubong daw niya si FERNANDO REYES,
isang Barangay Tanod na siyang naghatid sa kanya sa
bahay. Pagdating sa bahay ay inihatid na namin siya sa
hospital ng Perpetual Help Medical Center, Las Piñas,
Metro Mla. na kung saan siya ay nalagutan ng hininga
ng bandang alas-dos ng madaling araw ng January 31,
1992.
(p. 1, Exhibit E)
The witness reiterated the material points of this sworn
statement during his testimony before the trial court. He
also established the basis for the admissibility of the
dying declaration, as an exception to the hearsay rule,
to wit:
COPY
Q. You said that the victim when he arrived at your
house he was holding his wounds?
A. Yes, your honor.
Q. Immediately when he arrived at your house, what did
he do?
A. He sat down, your honor.
Q. He sat down, where?
A. He sat down on the floor, your honor.
Q. And, you talk at him?
A. Yes, your honor.
Q. And, he was just sitting on the floor, and was he was
holding his wounds?
A. Yes, your honor.
Q. And, did you see any blood coming from his wounds?
A. Yes, your honor.
Q. Now, did you ask him how he felt?
A. He told me to bring him to the hospital, your honor.
Q. Did he tell you why he should be taken to the
hospital?
A. Because he is getting weak, your honor.
Q. Now, did you ask him why he was getting weak?
A. He told me that he was stabbed by Rey Gado, your
honor.
Q. And, so he asked you to bring him to the hospital
because he was getting weak?
A. Yes, your honor.
Q. He told you that he was only feeling weak. Did you
tell him or did you ask him if he did something or if he
wants to eat or anything?
A. I did not say anything, your honor.
Q. Did he say, he did something?
A. No, your honor.
Q. He just told you to bring him to hospital because he
was getting weak?
A. Yes, your honor.
Q. Now, did you ask him where he was stabbed?
A. Yes, your honor, he said that he was stabbed in the
stomach, your honor.
(pp. 17-20, tsn, April 10, 1995)
As a rule, a dying declaration is hearsay and is
inadmissible as evidence. In order that a dying
declaration may be admissible as evidence, four
requisites must concur, namely: that the declaration
must concern the cause and surrounding circumstances
of the declarant's death; that at the time the declaration
was made, the declarant was under a consciousness of
an impending death; that the declarant is competent as
a witness; and that the declaration is offered in a
criminal case for homicide, murder or parricide, in which
the declarant is a victim (People vs. Israel, 231 SCRA
155 [1994]; People vs. Lazarte, 200 SCRA 361 [1991]).
Capitalizing on the fact that the victim was still able to
stand and walk even after the first declaration was
made, accused-appellant contends that there could not
have possibly been a belief of a looming and impending
death on the part of the victim.
We cannot quite agree. From the established facts in the
case at bar, the trial court correctly considered the
declaration of the victim a dying declaration and,
therefore, admissible. The declarant was conscious of
his impending death. This may be gleaned not only from
the victim's insistence right after he reached their house
that he should immediately be brought to the hospital
and that he was becoming weaker by the moment, but
also from the serious nature of his wounds (People vs.
Sarabia, 127 SCRA 100 [1984] and the fact that the said
victim died shortly afterwards (People v. Araja, 105
SCRA 133 [1981]).
Even assuming that the victim's utterances were not
made under a firm belief of an impending death, the
victim's statements may, at the very least, form part of
the res gestae. For the admission of evidence as part of
the res gestae, it is required that (a) the principal act,
the res gestae, be a startling occurrence, (b) the
statements forming part thereof were made before the
declarant had the opportunity to contrive, and (c) the
statements refer to the occurrence in question and its
attending circumstances (People vs. Siscar, 140 SCRA
316 [1985]). We have ruled that while the statement of
the victim may not qualify as a dying declaration
because it was not made under the consciousness of
impending death (People vs. Palamos, 49 Phil. 601
[1926]), it may still be admissible as part of the res
gestae if it was made immediately after the incident
(People vs. Reyes, 52 Phil. 538 [1928]), or a few hours
thereafter (People vs. Tumalip, 60 SCRA 303 [1974]).
Definitely, the victim's statement in the case at hand
was made immediately after the incident, before he
could even have the opportunity to contrive or concoct
a story. Of relevance, too, is the fact that on two
occasions, first at their house, and later while he was
being brought to the hospital, he identified one and the
same person as his assailant.
Where the elements of both a dying declaration and a
statement as part of the res gestae are present, as in
the case at bar, the statement may be admitted as a
dying declaration and at the same time as part of the res
gestae (People vs. Balbas, 122 SCRA 859 [1983]).
From a perusal of the decision of the trial court, one gets
the impression that the supposed eyewitness account
was heavily relied upon. Thus, on motion for
reconsideration, accused-appellant pointed to the
inevitable fact that because of retraction by the
supposed eyewitness of the sworn statement executed
by him before the investigating officer, full credence
thereto may no longer be accorded. The trial court
justified the conviction anyway, upon the strength of the
dying declaration as related by Melencio Manalang, Sr.
The court has re-assessed the evidence of the
prosecution minus the supposed eyewitness account to
determine whether it would be correct to convict
accused-appellant of murder, and not simple homicide.
This Court finds ample basis to uphold the conviction of
accused-appellant for the killing of Melencio Manalang,
Jr. qualified by treachery, as alleged in the Information.
While the victim was being brought to the Perpetual Help
Hospital at Las Piñas, Metro Manila boarded on a jeep
hired for the purpose, the victim related the following to
his father.
FISCAL DE JOYA:
Q. What was your conversation, between you and your
son?
A. He told me that he was stabbed by Rey Gado under
the tree of alatires, ma'am.
Q. And what else did your son tell you?
A. He was able to free himself from the person who was
holding him, he got a stone and he cast stone to the
person who stabbed him, ma'am.
Q. You said that your son told you that one Rey Gado
stabbed him?
A. Yes, ma'am.
Q. What else did your son tell you about the said
stabbing incident?
A. Besides the is being stabbed, he told me that this Rey
Gado has companions in the name of Emma Gallos,
Juanito Vicente and a certain person who is a tall guy
and one John Doe, ma'am.
(pp. 9-10, tsn, April 10, 1995)
It seems fairly established, therefore, that more than
one person attacked the victim. While he was being
stabbed by accused-appellant, some of the companions
of accused-appellant were holding the victim in a
defenseless position. The manner in which the stabbing
was done tended directly and specially to ensure its
execution, affording the victim no chance to put up any
defense. This constitutes alevosia. The killing,
therefore, was qualified to murder. It is to be noted also
that accused-appellant and his companions were
supposed to assist the victim home. However, instead
of bringing him safely home, accused-appellant and his
companions ganged up on the victim, who had no inkling
of any impending attack, having placed himself in the
safekeeping of persons who then turned vicious
assailants.
The defense of alibi presents itself to be very weak vis-
à-vis the evidence adduced by the prosecution pointing
to accused-appellant as the perpetrator of the crime.
Besides, as correctly pointed out by the Solicitor General
in the People's Brief.
For alibi to prosper, it would not be enough for the
accused to prove that he has been elsewhere when the
crime was committed but he must further demonstrate
that it would have been physically impossible for him to
be at the scene of the crime at the time of its
commission. (People vs. Esquilona, 248 SCRA 139
[1995]).
(pp. 8-9, Appellee's Brief.)
Under Article 248 of the Revised Penal Code, as
amended, Murder is punishable by reclusion perpetua to
death, both indivisible penalties. There being neither
mitigating nor aggravating circumstances, the trial court
correctly sentenced accused-appellant to the lower
penalty of reclusion perpetua.
The trial court likewise correctly awarded civil indemnity
in the amount of P50,000.00. However, we do not see
how the award of actual damages in the same amount
may be justified in the light of the evidence tending to
show that only the total amount of P23,217.65 was
actually spent (see: Exhibit F-II, p. 9 Folder of Exhibits).
It is elementary that actual and compensatory damages,
unlike moral and exemplary damages, cannot be left to
the sole discretion of the court. In Del Mundo vs. Court
of Appeals, 240 SCRA 3348 [1995] we stressed that:
A party is entitled to an adequate compensation for such
pecuniary loss actually suffered by him as he has duly
proved. Such damages, to be recoverable, must not only
be capable of proof, but must actually be proved with a
reasonable degree of certainty. We must emphasize that
these damages cannot be presumed, and courts, in
making an award must point out specific facts which
could afford a basis for measuring whatever
compensatory or actual damages are borne.
(p. 356)
The award of actual and compensatory damages in the
case at bar must, therefore, be reduced to the amount
duly proved at the trial which is to P23,217.65.
WHEREFORE, premises considered, the decision
appealed from is hereby AFFIRMED with the
MODIFICATION as to the actual damages as
hereinabove indicated. No special pronouncement is
made as to costs.
SO ORDERED.
G.R. No. L-48883 August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge,
Court of First Instance, Branch II, Sixteenth
Judicial District, Zamboanga City and PILAR
ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action
for certiorari, with prayer for a writ of preliminary
injunction, spawned by the August 4, 1978 order of
respondent judge in Criminal Case No. 750 for
parricide against therein accused Pilar Angeles de
Pimentel, hereinafter referred to as private respondent,
is the admissibility in evidence of the testimony of a
prosecution witness in the said criminal case who dies
before completion of his cross-examination. That issue
is crucial to the fate of private respondent, considering
that the deceased prosecution witness "... is the most
vital and the only eyewitness available to the
prosecution against respondent Pilar Angeles de
Pimentel for the commission of the gruesome crime of
parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal
Camilo E. Tamin, who was then on official detail with
the office of the City Fiscal, Zamboanga City, filed with
the Court of First Instance, Sixteenth Judicial District,
Zamboanga City, an amended information for parricide
in Criminal Case No. 1742, charging herein private
respondent as principal by inducement, Mario
Nemenio y delos Santos and Salim Doe as principals
by direct participation and Moises Andaya y Julkanain,
as accomplice, in the fatal stabbing on September 6,
1977 in Zamboanga City of Eduardo Pimentel y Orario,
the lawful husband of private respondent. The
amended information reads:
That on or about September 6, 1977, in
the City of Zamboanga, Philippines,
and within the jurisdiction of this Court,
the above-named accused Pilar
Angeles de Pimentel, with deliberate
intent to kill her husband, Eduardo
Pimentel y Orario, with whom she was
united in lawful wedlock, did then and
there, willfully, unlawfully and
feloniously, induce and offer a sum of
money as consideration or prize to said
accused Mario Nemenio y delos
Santos and Salim Doe to kill her said
lawfully wedded husband Eduardo
Pimentel y Orario, and because and on
account of said promised consideration
or prize which was accepted, the said
accused Mario Nemenio y delos
Santos and Salim Doe, did then and
there, willfully and feloniously assault,
attack and stab with a knife with which
they were conveniently provided, the
person of said Eduardo Pimentel y
Orario, thereby inflicting upon the latter
mortal wound which directly caused his
death; that the above-named accused
Moises Andaya y Julkanain although
without having participated directly in
the commission of the offense above-
described, took part prior to its
commission by then and there acting
as the contact man in the execution of
their plot to kill said Eduardo Pimentel
y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by
her counsel, moved and was granted a separate trial
(p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y
delos Santos, assisted by his counsel de oficio,
entered on arraignment a plea of guilty. Respondent
judge thereafter rendered judgment convicting
accused Mario Nemenio y delos Santos of murder —
qualified by the circumstance of prize and reward-and
not of parricide as charged in the information; because
he "... had no relation whatsoever to the deceased
Eduardo Pimentel ..." and appreciating the mitigating
circumstances of voluntary plea of guilty and lack of
instruction and education, imposed on him the
indeterminate penalty of eight (8) years of prision
mayor as the minimum, to fourteen (14) years and
eight (8) months of reclusion temporal as the
maximum; to indemnify the heirs of the deceased
Eduardo Pimentel the amount of P12,000.00 and to
pay one-fourth (¼) of the costs of the proceedings (pp.
15-19, rec.).
Immediately after promulgation of judgment, accused
Mario Nemenio y delos Santos offered to testify against
his co-accused, herein private respondent, in her
separate trial earlier granted by the respondent judge
in the same criminal case, now numbered 750.
Allowed, he testified as prosecution witness on
February 28, March 6, and March 22, 1978 and as
summarized by the petitioner, his testimony on direct
examination contained in seventy-six (76) pages of
transcripts of stenographic notes (pp. 21-44, 57-64,
rec.), is to the effect "...that he and Salim Doe were
hired by respondent Pilar Angeles de Pimentel, for the
consideration of P3,000.00 to kill Eduardo Pimentel,
husband of respondent Pilar Angeles de Pimentel, in
the evening of September 6, 1977, in the latter's
residence in Zamboanga City, and that it was
respondent Pilar Angeles de Pimentel herself who
actually pointed out the victim Eduardo Pimentel to the
witness, who then stabbed the said victim to
death...That he did not know the Identity of the victim
Eduardo Pimentel at the time of the stabbing in the
evening of September 6, 1977. He was guided solely
by respondent Pilar Angeles de Pimentel, who pointed
out her victim spouse to him ..." (allegation No. 4,
petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22,
1978 the direct examination of its witness Mario
Nemenio y delos Santos, counsel for private
respondent moved for the holding in abeyance of the
cross-examination of the said prosecution witness until
after he (counsel) shall have been furnished with the
transcripts of the stenographic notes of the direct
examination of said prosecution witness (p. 47, TSN,
March 22, 1978, p. 64, rec.); allegation No. 5, petition,
p. 5, rec.). The same was granted by the respondent
judge who ordered the resumption of the hearing on
April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness
failed to appear because he was not served with a
subpoena (p. 108, rec.). Consequently, the hearing
was reset for June 7, 1978 (ibid.)
On June 7, 1978, counsel for private respondent
commenced his cross- examination of prosecution
witness Mario Nemenio y delos Santos, which cross-
examination however was not completed on that
session for lack of material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the
witness further.
COURT
Reservation to continue the cross-
examination is granted.
ORDER: For lack of material time, as
prayed for and upon agreement of the
parties today's hearing is hereby
adjourned and to be resumed on July
3, 1978 at 8:30 o'clock in the morning
(p. 84, rec.).
According to the petition, the uncompleted cross-
examination reduced in fifty-three (53) pages of
transcripts of stenographic notes (pp. 65-84, rec.) had
already "... touched on the conspiracy existing among
Salim Doe, witness Mario Nemenio and respondent
Pilar Angeles de Pimentel to kill Eduardo Pimentel, in
the latter's residence in Zamboanga City in the evening
of September 6, 1977, and also on the actual stabbing
by witness Mario Nemenio of the victim Eduardo
Pimentel who was pointed out to the witness-killer by
his wife, respondent Pilar Angeles de Pimentel ..." (p.
7, rec.). This is not disputed by private respondent.
Continuation of the cross-examination was, as
aforestated, set for July 3, 1978 at 8:30 o'clock in the
morning.
However, prosecution witness Mario Nemenio y delos
Santos was shot dead by the Integrated National Police
patrols on June 21, 1978 while allegedly escaping from
the San Ramon Prison and Penal Farm, Zamboanga
City, where he was then serving his sentence.
Consequently, the completion of his cross-examination
became an impossibility.
On July 20, 1978, petitioner, without any motion on the
part of the defense for the striking out of the deceased
witness's testimony, filed with the respondent court a
motion praying for a ruling on the admissibility of the
testimony of deceased witness Mario Nemenio y delos
Santos.
On August 4, 1978, respondent judge issued an order
declaring as inadmissible the entire testimony of the
deceased witness Mario Nemenio y delos Santos on
the principal ground "... that the defense was not able
to complete its cross-examination of said witness ...",
relying on the case of Ortigas, Jr. vs. Lufthansa, etc.,
L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
Hence, this action, to which WE gave due course on
December 4, 1978, after considering private
respondent's comment as well as those of the Solicitor
General and of the respondent judge who was required
to file one. On even date, WE likewise issued a
temporary restraining order "... effective immediately
and until further orders from this Court enjoining
respondent District Judge from continuing with the trial
of Criminal Case No. 750 (1742) entitled People of the
Philippines, plaintiff, versus Pilar Angeles de Pimentel,
accused, in the Court of First Instance of Zamboanga
City, Branch II."
Petitioner contends that respondent judge gravely
abused his discretion in ruling as inadmissible the
testimony of prosecution witness Mario Nemenio y
delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which
guarantees to the accused the right to cross-examine
the witnesses for the prosecution, is one of the most
basic rights of an accused person under our system of
justice. It is a fundamental right which is part of due
process not only in criminal proceedings but also in civil
proceedings as well as in proceedings in administrative
tribunals with quasi-judicial powers (Savory
Luncheonette vs. Lakas Manggagawang Pilipino, et
al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935
and 1973 Constitutions secured it, thus: "In all criminal
prosecutions, the accused ... shall enjoy the right ... to
meet the witnesses face to face ..." (Section 19, Art. IV,
Bill of Rights, 1973 Constitution; Section 17, Art. III,
1935 Constitution). Echoing the same guarantee,
Section I (f) of Rule 115 of the Revised Rules of Court
provides that in all criminal proceedings the defendant
shall have the right to be confronted at the trial by, and
to cross- examine the witnesses against him.
Constitutional confrontation requirements apply
specifically to criminal proceedings and have been held
to have two purposes; first and primarily, to secure the
opportunity of cross-examination, and secondarily, to
obtain the benefit of the moral impact of the courtroom
atmosphere as it affects the witnesses demeanor (21
Am Jur 2d 360). Stated otherwise, it insures that the
witness will give his testimony under oath, thus
deterring lying by the threat of perjury charge; it forces
the witness to submit to cross-examination, a valuable
instrument in exposing falsehood and bringing out the
truth; and it enables the court to observe the demeanor
of the witness and assess his credibility (California v.
Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-
examination is a fundamental right, WE have ruled that
the same can be waived expressly or implied by
conduct amounting to a renunciation of the right of
cross-examination (Savory Luncheonettee vs. Lakas
ng Manggagawang Pilipino, et al., supra, p. 259, citing
U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela
Cruz, 56 SCRA 84, 91 [19741). The conduct of a party
which may be construed as a implied waiver of the right
to cross-examine may take various forms. But the
common basic principles underlying the application of
the rule on implied waiver is that the party was given
the opportunity to confront and cross-examination an
opposing witness but failed to take advantage of it for
reasons attributable to himself alone. Thus, where a
party has had the opportunity to cross-examine an
opposing witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness
will be received or allowed to remain in the record
(Savory Luncheonette vs. Lakas ng Maggagawang
Pilipino, et al., supra, citing Francisco, Revised Rules
of Court, Vol. on Evidence, p. 853, in turn citing People
vs. Cole, 43 N.Y. 508-512 and Bradley vs. Mirick, 91
N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not
and cannot be done or completed due to causes
attributable to the party offering the witness, as was the
situation in the Lufthansa German Airlines case (64
SCRA 610 [1975]) relied upon by respondent judge,
the uncompleted testimony is thereby rendered
incompetent and inadmissible in evidence. WE
emphasized in the said case that "[T]he right of a party
to cross-examine the witness of his adversary is
invaluable as it is inviolable in civil cases, no less than
the right of the accused in criminal cases. The express
recognition of such right of the accused in the
Constitution does not render the right of parties in civil
cases less constitutionally based, for it is an
indispensable part of the due process guaranteed by
the fundamental law. Subject to appropriate
supervision by the judge in order to avoid unnecessary
delays on account of its being unduly protracted and to
needed injunctions protective of the right of the witness
against self-incrimination and oppressive and
unwarranted harassment and embarrassment, a party
is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 ... Until such cross-
examination has been finished, the testimony of the
witness cannot be considered as complete and may
not, therefore be allowed to form part of the evidence
to be considered by the court in deciding the case" (p.
637). However, WE likewise therein emphasized that
where the right to cross examine is lost wholly or in part
through the fault of the cross-examiner, then the
testimony on direct examination may be taken into
account; but when cross-examination is not and cannot
be done or completed due to causes attributable to the
party offering the witness, the uncompleted testimony
is thereby rendered incompetent (p. 636)
3. The effects of absence of and incomplete cross-
examination of witness on the admissibility in evidence
of his testimony on direct examination has been
extensively discussed thus: "As a general rule, the
testimony of a witness, given on direct examination,
should be stricken where there is not an adequate
opportunity for cross-examination, as where the
witness by reason of his death, illness, or absence
cannot be subjected to cross-examination. Although
the contrary has been held (Scott v. McCann, 24 A.
536, 76 Md. 47), the testimony of a witness, given on
direct examination, should be stricken where there is
not an adequate opportunity for cross-examination
(Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as
where the party against whom he testified is, through
no fault of his own, deprived of the right to cross-
examine him by reason of his death (Henderson v.
Twin Falls County 80 P. 2d 801, 59 Idaho 97; Twin Falls
County, State of Idaho v. Henderson, 59 S. Ct. 149,
305 U.S. 568, 83 L. Ed. 358), or as a result of the illness
of the witness or absence, or a mistrial ordered. The
direct testimony of a witness who dies before
conclusion of the cross-examination can be stricken
only insofar as not covered by the cross-
examination (Curtice v. West, 2 NYS 507, 50 Hun 47,
affirmed 24 N.E. 1099, 121 N.Y. 696), and absence of
a witness is not enough to warrant striking his
testimony for failure to appear for further cross-
examination where the witness has already been
sufficiently cross-examined (Lew Choy v. Lim Sing 216
P. 888, 125 Wash 631), or the matter on which further
cross-examination is sought is not in controversy
(supra). It has been held that a referee has no power
to strike the examination of a witness on his failure to
appear for cross-examination where a good excuse is
given (In re Crooks, 23 Hun 696)" [98 CJS 126-127,
Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a
cross-examination without fault upon his part, as in the
case of the illness or death of a witness after direct
examination, it is generally held that he is entitled to
have the direct testimony stricken from the record. This
doctrine rests on the common law rule that no evidence
should be admitted but what was or might be under the
examination of both parties, and
that exparte statements are too uncertain and
unreliable to be considered in the investigation of
controverted facts (Wray vs. State, 154 Ala 36, 45 So
697; People vs. Manchetti, 29 Cal. 2d 452,175 P2d
533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del 304,
187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49
NW2d 831; Citizens Bank & Trust Co. vs. Reid Motor
Co. 216 NC 432, 5 SE 2d 318). It has been held,
however, that the trial court did not abuse its discretion
in refusing to discharge the jury where the state witness
collapsed before cross- examination was completed, it
being shown that no motion to strike the testimony was
made, that it was not indicated what further information
was sought to be produced by further cross-
examination, and that the witness' testimony was
largely cumulative (Banks vs, Commonwealth, 312 Ky
297, 227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined
that:
xxx xxx xxx
... where the death or illness prevents
cross-examination under such
circumstances that no responsibility of
any sort can be attributed to either the
witness of his party, it seems harsh
measure to strike out all that has been
obtained on the direct
examination. Principle requires in
strictness nothing less. But the true
solution would be to avoid any inflexible
rule, and to leave it to the trial judge to
admit the direct examination so far as
the loss of cross-examination can be
shown to him to be not in that instance
a material loss. Courts differ in their
treatment of this difficult situation;
except that by general concession a
cross-examination begun but
unfinished sufices if its purposes have
been substantially accomplished
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
II
1. Respondent judge's full reliance on the Lufthansa
German Airlines case cannot be sustained. To be sure,
while the cross-examination of the witness in the
aforesaid Lufthansa case and that of the witness in the
present action were both uncompleted, the causes
thereof were different in that while in the present case
it was the death of the witness, in the Lufthansa case,
it was the unjustified and unexplained failure of
Lufthansa to present its witness on the scheduled date
for his cross-examination which had already been
preceded by several postponements initiated by
Lufthansa itself, thus depriving the other party the
opportunity to complete the cross-examination of said
witness. Consequently, this Court therein correctly
ruled as inadmissible the testimony of the said witness
on the principle that "... when cross-examination is not
and cannot be done or completed due to causes
attributable to the party offering the witness, the
uncompleted testimony is thereby rendered
incompetent ..." (supra, at p. 636). As clear as day, the
Lufthansa ruling therefore applies only if there is a
finding that the cause for non-completion of the cross-
examination of a witness was attributable to the very
party offering the said witness. Consequently, the
same is inapplicable to the instant action as the cause
for the non-completion of the cross-examination of
petitioner's witness was a fortuitous event as he was
killed, as per the pleadings submitted in this action, by
the law enforcers (Integrated National Police Patrols)
after his escape from prison. As a matter of fact,
respondent judge, in his questioned order, did not lay
any basis for the application of the Lufthansa ruling as
he failed to make any finding that the non-completion
was due to petitioner, the party offering the witness,
whose testimony he declared as inadmissible in
evidence. A reading of the questioned order reveals
that respondent judge ruled as inadmissible said
questioned testimony mainly because private
respondent can no longer finish her cross-examination;
hence incomplete. However, private respondent
advanced in this action the cavalier theory that the
failure of her counsel to complete his cross-
examination of petitioner's witness was due to the fault
of or was attributable to the petitioner, People of the
Philippines, because it was the very agents of State
who killed its own witness; hence, making the
questioned testimony of petitioner's witness
inadmissible, per the Lufthansa ruling.
The contention does not deserve serious
consideration. There was no finding nor any showing
as the same is farfetched or inconceivable that the
killing of the witness of petitioner by its own agents was
ill-motivated. The prosecution did not order the
shooting of the government witness. He was shot while
escaping from prison. It is petitioner's cause which will
possibly suffer from said death; not the cause of private
respondent. It may be true that the escape of the said
witness and his consequent death may be attributable
to the negligence of petitioner's agents; but such
negligence may not bind the petitioner as to pre-
judicially affect its cause and interest — the
prosecution of criminal offenses — by reason of the
generally accepted principle that the State is not bound
by the negligence or tortious acts of its agents. As the
cause of non-completion was, as aforesaid, beyond the
control of the prosecution, respondent judge's
questioned order cannot be sustained on the basis of
the Lufthansa ruling which, as aforestated, was
principally anchored on the finding that the cause of the
non-completion of the cross-examination of the therein
witness was attributable to the very party offering him
as a witness.
2. On the other hand, WE find no merit in petitioner's
contention that the testimony of its deceased witness
is admissible on the ground that private respondent
had waived her right to cross-examine the witness and
that the cause of non-completion was attributable to
said private respondent. As correctly pointed out by
private respondent and sustained by respondent judge,
petitioner is not justified in attributing fault to her
(private respondent) and in contending that she is
deemed to have partly lost already the right of cross-
examination by not availing of the right to cross-
examine the witness Mario Nemenio on March 22,
1978 or right after his direct examination was closed
and delaying until the lapse of two and a half (2½)
months thereafter before making such cross-
examination; because while it is true that her counsel
did not immediately start with his cross-examination of
the deceased witness on March 22, 1978, he did avail,
however, of such right on the same day by initially
obtaining an opportunity to make preparations for an
effective exercise thereof considering the nature of the
case — a capital one — and the length of the direct
examination; three sittings on three different dates or
on February 28, 1978, March 6, 1978 and March 22,
1978. Hence, there was no waiver of her right of cross-
examination. Moreover, the deferment of the cross-
examination of the witness requested by private
respondent on March 22, 1978 was approved by
respondent judge without any objection on the part of
petitioner (pp. 45, 46, 64, rec.). And on the date for the
cross-examination of the witness Mario Nemenio or on
April 19, 1978, counsel for private respondent failed to
cross-examine the said witness not of his own design
but because said witness failed to appear on that date
for the reason that due to the oversight of the court's
personnel the subpoena for said witness was not
served on him at the San Ramon Prison and Penal
Farm (pp. 90, 108, rec.). And respondent judge had to
re-set the hearing for the cross-examination of the
witness by the private respondent only to June 7, 1978
because of the fact that respondent judge took, with the
approval of the Supreme Court, his summer vacation
the whole month of May, 1978.
It is thus apparent that no fault can be imputed to the
private respondent for the length of time that elapsed
before her counsel was able to commence his cross-
examination of the witness. And private respondent's
counsel was not able to complete his cross-
examination of the witness on June 7, 1978 for lack of
material time by reason of which and upon agreement
of the parties the hearing was adjourned and ordered
resumed on July 3, 1978 (p. 84, rec.).
It appears, therefore, that the situation is one whereby
the cause of non-completion of the cross-examination
of the deceased witness was attributed neither to the
fault of petitioner nor the private respondent.
Consequently, the admissibility or inadmissibility of the
testimony of the said witness cannot be resolved on the
basis of the rule enunciated in the Lufthansa case.
III
There is merit in the contention of the petitioner that the
questioned testimony of its deceased witness is
admissible in evidence because private respondent's
counsel had already "... rigorously and extensively
cross-examined witness Mario Nemenio on all
essential elements of the crime charged (parricide), all
of which have been testified upon by said witness in his
direct examination-in-chief, and consequently, the
cross-examination-in- chief, has already been
concluded."
The cross-examination was completed insofar as the
essential elements of the crime charged — parricide,
fact of killing-is concerned. What remained was merely
the cross-examination regarding the price or reward,
which is not an element of parricide, but only an
aggravating circumstance (par. 11, Art. 14, Revised
Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is
Parricide under Article 246 of the
Revised Penal Code.
The elements of the crime of Parricide
are that a person was killed; that the
killing was intentionally caused by the
accused; and that the victim is a parent
or child, whether legitimate or
illegitimate, or the lawful spouse, or
legitimate ascendant or descendant of
the accused. Once these facts are
established beyond reasonable doubt,
conviction is warranted (See Aquino,
The Revised Penal Code, 1961 Ed.,
Vol. II, p. 1171).
The deceased Eduardo Pimentel has
been sufficiently shown to be the lawful
husband of private respondent Pilar
Pimentel by means of the marriage
contract executed between them on
May 18, 1971 ... marked as Exhibit 'R'
for the prosecution ...
The cross-examination of witness
Mario Nemenio by the counsel for
private respondent on June 7, 1978
touched on the conspiracy, and
agreement, existing among Salim Doe,
witness Mario Nemenio and private
respondent Pilar Pimentel to kill
Eduardo Pimentel, in the latter's
residence in Zamboanga City in the
evening of September 6, 1977, and
also on the actual stabbing by witness
Mario Nemenio of the victim Eduardo
Pimentel who was pointed out to the
witness-killer by his wife, the private
respondent Pilar Pimentel herself...
The matter of consideration or price of
P3,000.00, which both the public and
private respondents maintain was not
touched in the cross-examination of
witness Mario Nemenio, is not an
essential element of the crime of
parricide. Price or consideration is
merely an aggravating circumstance of
the crime charged, not an essential
element thereof. The failure to touch
the same in the cross-examination
would not at all affect the existence of
the crime of parricide. Furthermore,
there is no showing or even the
slightest indication that the witness or
his testimony would be discredited if he
was cross-examined on the promised
consideration. The probability is rather
very great that the witness would only
have confirmed the existence of the
promised consideration were he cross-
examined on the same.
From the foregoing discussion, it is
submitted that the rigorous and
searching cross-examination of
witness Mario Nemenio on June 7,
1978, practically concluded already the
cross-examination-in-chief, or has
already substantially accomplished the
purpose of the cross-examination, and
therefore, the failure to pursue the
privilege of further cross-examination,
would not adversely affect the
admissibility of the direct testimony of
said witness anymore (pp. 159162,
rec.).
Private respondent did not dwell on the aforesaid
points in her memorandum.
Because the cross-examination made by the counsel
of private respondent of the deceased witness was
extensive and already covered the subject matter of his
direct testimony as state witness relating to the
essential elements of the crime of parricide, and what
remained for further cross-examination is the matter of
price or reward allegedly paid by private respondent for
the commission of the crime, which is merely an
aggravating circumstance and does not affect the
existence of the offense charged, the respondent judge
gravely abused his discretion in declaring as entirely
inadmissible the testimony of the state witness who
died through no fault of any of the parties before his
cross-examination could be finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF
THE RESPONDENT JUDGE IS HEREBY SET ASIDE;
THE RESTRAINING ORDER OF DECEMBER 4, 1978
ISSUED BY THIS COURT IS HEREBY LIFTED; AND
RESPONDENT JUDGE OR HIS SUCCESSOR IS
ACCORDINGLY ORDERED TO PROCEED WITH
THE TRIAL OF CRIMINAL CASE NO. 750 (1742) AND
TO ADMIT AND CONSIDER IN DECIDING THE CASE
THE TESTIMONY OF THE DECEASED WITNESS
MARIO NEMENIO y DELOS SANTOS EXCLUDING
ONLY THE PORTION THEREOF CONCERNING THE
AGGRAVATING CIRCUMSTANCE OF PRICE OR
REWARD WHICH WAS NOT COVERED BY THE
CROSS-EXAMINATION. NO COSTS.
Teehankee (Chairman), Guerrero, De Castro and
Melencio-Herrera, JJ., concur.
Fernandez, J., is on leave.
G.R. NO. 146556 April 19, 2006
DANILO L. PAREL, Petitioner,
vs.
SIMEON B. PRUDENCIO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by
Danilo Parel (petitioner) which seeks to set aside the
Decision1 dated March 31, 2000 of the Court of
Appeals (CA) which reversed the Decision of the
Regional Trial Court (RTC), Branch 60, Baguio, in Civil
Case No. 2493-R, a case for recovery of possession
and damages. Also assailed is CA Resolution2 dated
November 28, 2000.
On February 27, 1992, Simeon Prudencio
(respondent) filed a complaint for recovery of
possession and damages against petitioner with the
RTC Baguio alleging that: he is the owner of a two-
storey residential house located at No. 61 Forbes Park
National Reservation near Department of Public
Service (DPS) compound, Baguio City; such property
was constructed solely from his own funds and
declared in his name under Tax Declaration No. 47048;
he commenced the construction of said house in 1972
until its completion three years later; when the second
floor of said house became habitable in 1973, he
allowed petitioner’s parents, Florentino (now
deceased) and Susan Parel, to move therein and
occupy the second floor while the construction of the
ground floor was on-going to supervise the
construction and to safeguard the materials; when the
construction of the second floor was finished in 1975,
respondent allowed petitioner’s parents and children to
transfer and temporarily reside thereat; it was done out
of sheer magnanimity as petitioner’s parents have no
house of their own and since respondent’s wife is the
older sister of Florentino, petitioner’s father; in
November 1985, respondent wrote Florentino a notice
for them to vacate the said house as the former was
due for retirement and he needed the place to which
petitioner’s parents heeded when they migrated to U.S.
in 1986; however, without respondent’s knowledge,
petitioner and his family unlawfully entered and took
possession of the ground floor of respondent’s house;
petitioner’s refusal to vacate the house despite
repeated demands prompted respondent to file the
instant action for recovery of possession. Respondent
also asked petitioner for a monthly rental of P3,000.00
from April 1988 and every month thereafter until the
latter vacates the said premises and surrender
possession thereof; and for moral and exemplary
damages, attorney’s fees and cost of suit.
Petitioner filed his Answer with Counterclaim alleging
that: his parents are the co-owners of the said
residential house, i.e., the upper story belongs to
respondent while the ground floor pertains to
petitioner’s parents; he is occupying the ground floor
upon the instruction of his father, Florentino, with
respondent’s full knowledge; his parents spent their
own resources in improving and constructing the said
two-storey house as co-owners thereof; the late
Florentino was an awardee of the land on which the
house stands and as a co-owner of the house, he
occupied the ground floor thereof; the demand to
vacate was respondent’s attempt to deprive petitioner’s
parents of their rights as co-owner of the said house;
that respondent had filed ejectment case as well as
criminal cases against them involving the subject
house which were all dismissed. Petitioner asked for
the dismissal of the complaint and prayed for damages
and attorney’s fees.
After trial on the merits, the RTC rendered a
Decision3 dated December 15, 1993, the dispositive
portion of which reads:
WHEREFORE, premises considered, the Court hereby
declares that the house erected at No. 61 DPS
Compound, Baguio City is owned in common by the
late Florentino Parel and herein plaintiff Simeon
Prudencio and as such the plaintiff cannot evict the
defendant as heirs of the deceased Florentino Parel
from said property, nor to recover said premises from
herein defendant.
Likewise, the plaintiff is ordered to:
(a) pay the defendant in the total sum
of P20,000.00 for moral and actual damages;
(b) pay the defendant P20,000.00 in Attorney’s
fees and P3,300.00 in appearance fees;
(c) pay the costs of this suit.4
The RTC found the following matters as conclusive:
that petitioner’s father was an allocatee of the land on
which the subject house was erected, as one of the
lowly-paid government employees at that time when
then Mayor Luis Lardizabal gave them the chance to
construct their own house on said reservation; that
respondent failed to show proof of any contract, written
or oral, express or implied, that the late Florentino and
his family stayed on the house not as co-owners but as
mere lessees, nor any other proof that would clearly
establish his sole ownership of the house; and, that the
late Florentino was the one who gathered the laborers
for the construction of the house and paid their salaries.
Thus, the RTC ruled that co-ownership existed
between respondent and petitioner’s father, Florentino.
The RTC concluded that respondent and petitioner’s
father agreed to contribute their money to complete the
house; that since the land on which said house was
erected has been allocated to petitioner’s father, the
parties had the understanding that once the house is
completed, petitioner’s father could keep the ground
floor while respondent the second floor; the trial court
questioned the fact that it was only after 15 years that
respondent asserted his claim of sole ownership of the
subject house; respondent failed to disprove that
petitioner’s father contributed his own funds to finance
the construction of the house; that respondent did not
question (1) the fact that it was the deceased Florentino
who administered the construction of the house as well
as the one who supplied the materials; and (2) the fact
that the land was in Florentino’s possession created
the impression that the house indeed is jointly owned
by respondent and Florentino.
The RTC did not give credence to the tax declaration
as well as the several documents showing the City
Assessor’s assessment of the property all in
respondent’s name since tax declarations are not
conclusive proof of ownership. It rejected the affidavit
executed by Florentino declaring the house as owned
by respondent saying that the affidavit should be read
in its entirety to determine the purpose of its execution;
that it was executed because of an advisement
addressed to the late Florentino by the City Treasurer
concerning the property’s tax assessment and
Florentino, thought then that it should be the
respondent who should pay the taxes; and that the
affidavit cannot be accepted for being hearsay.
Aggrieved by such decision, respondent appealed to
the CA. In a Decision dated March 31, 2000, the CA
reversed the trial court and declared respondent as the
sole owner of the subject house and ordered petitioner
to surrender possession of the ground floor thereof to
respondent immediately. It also ordered petitioner to
pay respondent a monthly rental of P2,000.00 for use
or occupancy thereof from April 1988 until the former
actually vacates the same and the sum of P50,000.00
as attorney’s fees and cost of suit.
The CA found as meritorious respondent’s contention
that since petitioner failed to formally offer in evidence
any documentary evidence, there is nothing to refute
the evidence offered by respondent. It ruled that the
trial court’s statement that "defendants’ occupancy of
the house is due to a special power of attorney
executed by his parents most specially the deceased
Florentino Parel who is in fact a co-owner of said
building" is wanting of any concrete evidence on
record; that said power of attorney was never offered,
hence, could not be referred to as petitioner’s evidence
to support his claim; that except for the bare
testimonies of Candelario Regua, the carpenter-
foreman, that it was Florentino who constructed the
house and Corazon Garcia, the former barangay
captain, who testified that the lot was allocated to
petitioner’s father, there was no supporting document
which would sufficiently establish factual bases for the
trial court’s conclusion; and that the rule on offer of
evidence is mandatory.
The CA found the affidavit dated September 24, 1973
of Florentino, petitioner’s father, stating that he is not
the owner of the subject house but respondent, as
conclusive proof of respondent’s sole ownership of the
subject house as it is a declaration made by Florentino
against his interest. It also found the tax declarations
and official receipts representing payments of real
estate taxes of the questioned property covering the
period 1974 to 1992 sufficient to establish respondent’s
case which constitute at least proof that the holder has
a claim of title over the property.
Petitioner’s motion for reconsideration was denied in a
Resolution dated November 28, 2000. 1avvphil.net
Hence, the instant petition for review on certiorari with
the following Assignment of Errors:
1. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN FINDING RESPONDENT AS
THE OWNER OF THE BUILDING AT 61 FORBES
PARK NATIONAL RESERVATION, NEAR DPS
COMPOUND, BAGUIO CITY, NOTWITHSTANDING
THE FINDING OF THE REGIONAL TRIAL COURT OF
CO-OWNERSHIP BETWEEN THE LATE
FLORENTINO PAREL AND RESPONDENT;
2. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN ORDERING PETITIONER TO
SURRENDER POSSESSION OF THE GROUND
FLOOR OF THE SUBJECT BUILDING TO
RESPONDENT;
3. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN ORDERING PETITIONER TO
PAY RESPONDENT P2,000.00/MONTH FOR USE
OR OCCUPANCY OF THE SUBJECT PREMISES
FROM APRIL 1988 UNTIL PETITIONER ACTUALLY
VACATES THE SAME;
4. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN ORDERING PETITIONER TO
PAY TO RESPONDENT P50,000.00 ATTORNEY’S
FEES AND COSTS OF SUIT;
5. THE HONORABLE COURT OF APPEALS ERRED
IN DENYING PETITIONER’S MOTION FOR
RECONSIDERATION. 5
Petitioner concedes that while his former counsel failed
to make a formal offer of his documentary evidence
before the trial court and that the court shall consider
no evidence which has not been formally offered, he
maintains that the said rule is not absolute, citing the
case of Bravo, Jr. v. Borja; 6 that his documentary
evidence which were not formally offered in evidence
were marked during the presentation of the testimony
of petitioner’s witnesses and were part of their
testimonies; that these evidence were part of the
memorandum filed by him before the trial court on July
12, 1993.
Petitioner insists that even in the absence of the
documentary evidence, his testimony as well as that of
his witnesses substantiated his claim of co-ownership
of the subject house between his late father and
respondent as found by the trial court.
Petitioner argues that the CA erred in finding the
affidavit of petitioner’s father declaring respondent as
owner of the subject house as conclusive proof that
respondent is the true and only owner of the house
since the affidavit should be read in its entirety to
determine the purpose for which it was executed.
Petitioner further contends that since he had
established his father’s co-ownership of the subject
house, respondent has no legal right to eject him from
the property; that he could not be compelled to pay
rentals for residing in the ground floor of the subject
house; that respondent should bear his own expenses
and be adjudged liable for damages which petitioner
sustained for being constrained to litigate.
The principal issue for resolution is whether petitioner
was able to prove by preponderance of evidence that
his father was a co-owner of the subject two-storey
residential house.
The issue raised by petitioner is mainly factual in
nature. In general, only questions of law are appealable
to this Court under Rule 45. However, considering that
the findings of the RTC and CA are contradictory, the
review of the case is in order.7
We agree with the CA that respondent had shown
sufficient evidence to support his complaint for
recovery of possession of the ground floor of the
subject house as the exclusive owner thereof.
Respondent presented the affidavit dated September
24, 1973 executed by Florentino and sworn to before
the Assistant City Assessor of Baguio City, G.F.
Lagasca, which reads:
I, FLORENTINO PAREL, 42 years of age, employee,
and residing at Forbes Park, Reservation No. 1, after
having been sworn to according to law depose and say:
That he is the occupant of a residential building located
at Forbes Park, Reservation No. 1, Baguio City which
is the subject of an advicement addressed to him
emanating from the Office of the City Assessor, Baguio
City, for assessment and declaration for taxation
purposes;
That I am not the owner of the building in question;
That the building in question is owned by Mr. Simeon
B. Prudencio who is presently residing at 55 Hyacinth,
Roxas District, Quezon City.
Further, affiant say not.8 (Underscoring supplied)
Section 38 of Rule 130 of the Rules of Court provides:
SEC. 38. Declaration against interest. – The
declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made
so far contrary to the declarant's own interest, that a
reasonable man in his position would not have made
the declaration unless he believed it to be true, may be
received in evidence against himself or his successors-
in-interest and against third persons.
The theory under which declarations against interest
are received in evidence notwithstanding they are
hearsay is that the necessity of the occasion renders
the reception of such evidence advisable and, further
that the reliability of such declaration asserts facts
which are against his own pecuniary or moral interest.9
The affiant, Florentino, who died in 1989 was
petitioner’s father and had adequate knowledge with
respect to the subject covered by his statement. In said
affidavit, Florentino categorically declared that while he
is the occupant of the residential building, he is not the
owner of the same as it is owned by respondent who is
residing in Quezon City. It is safe to presume that he
would not have made such declaration unless he
believed it to be true, as it is prejudicial to himself as
well as to his children’s interests as his heirs.10 A
declaration against interest is the best evidence which
affords the greatest certainty of the facts in
dispute.11 Notably, during Florentino’s lifetime, from
1973, the year he executed said affidavit until 1989, the
year of his death, there is no showing that he had
revoked such affidavit even when a criminal complaint
for trespass to dwelling had been filed by respondent
against him (Florentino) and petitioner in 1988
regarding the subject house which the trial court
dismissed due to the absence of evidence showing that
petitioner entered the house against the latter’s will and
held that the remedy of respondent was to file an action
for ejectment;12 and even when a complaint for
unlawful detainer was filed against petitioner and his
wife also in 1988 which was subsequently dismissed
on the ground that respondent’s action should be
an accion publiciana which is beyond the jurisdiction of
the Municipal Trial Court.13
Moreover, the building plan of the residential house
dated January 16, 1973 was in the name of respondent
and his wife. It was established during petitioner’s
cross-examination that the existing structure of the two-
storey house was in accordance with said building
plan.14
Notably, respondent has been religiously paying the
real estate property taxes on the house declared under
his name since 1974.15 In fact, petitioner during his
cross-examination admitted that there was no occasion
that they paid the real estate taxes nor declared any
portion of the house in their name.16
We agree with the CA that while tax receipts and
declarations are not incontrovertible evidence of
ownership, they constitute at least proof that the holder
has a claim of title over the property.17 The house which
petitioner claims to be co-owned by his late father had
been consistently declared for taxation purposes in the
name of respondent, and this fact, taken with the other
circumstances above-mentioned, inexorably lead to
the conclusion that respondent is the sole owner of the
house subject matter of the litigation.
Respondent having established his claim of exclusive
ownership of the subject property, it was incumbent
upon petitioner to contravene respondent’s claim. The
burden of evidence shifted to petitioner to prove that
his father was a co-owner of the subject house.
We held in Jison v. Court of Appeals, to wit:18
xxx Simply put, he who alleges the affirmative of the
issue has the burden of proof, and upon the plaintiff in
a civil case, the burden of proof never parts. However,
in the course of trial in a civil case, once plaintiff makes
out a prima facie case in his favor, the duty or the
burden of evidence shifts to defendant to controvert
plaintiff's prima facie case, otherwise, a verdict must be
returned in favor of plaintiff. Moreover, in civil cases,
the party having the burden of proof must produce a
preponderance of evidence thereon, with plaintiff
having to rely on the strength of his own evidence and
not upon the weakness of the defendant’s. The concept
of "preponderance of evidence" refers to evidence
which is of greater weight, or more convincing, that
which is offered in opposition to it; at bottom, it means
probability of truth.19
In this case, the records show that although petitioner’s
counsel asked that he be allowed to offer his
documentary evidence in writing, he, however, did not
file the same.20 Thus, the CA did not consider the
documentary evidence presented by petitioner.
Section 34 of Rule 132 of the Rules of Court provides:
Section 34. Offer of evidence. – The court shall
consider no evidence which has not been formally
offered. The purpose for which the evidence is offered
must be specified.
A formal offer is necessary because it is the duty of a
judge to rest his findings of facts and his judgment only
and strictly upon the evidence offered by the parties to
the suit.21 It is a settled rule that the mere fact that a
particular document is identified and marked as an
exhibit does not mean that it has thereby already been
offered as part of the evidence of a party.22
Petitioner insists that although his documentary
evidence were not formally offered, the same were
marked during the presentation of the testimonial
evidence, thus it can properly be taken cognizance of
relying in Bravo, Jr. v. Borja.23
Such reliance is misplaced. In Bravo Jr., we allowed
evidence on minority by admitting the certified true
copy of the birth certificate attached to a motion for bail
even if it was not formally offered in evidence. This was
due to the fact that the birth certificate was properly
filed in support of a motion for bail to prove petitioner’s
minority which was never challenged by the
prosecution and it already formed part of the records of
the case. The rule referred to in the Bravo case was
Section 7 of Rule 133 of the Rules of Court which
provides:
Section 7. Evidence on motion.- When a motion is
based on facts not appearing of record, the court may
hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that
the matter be heard wholly or partly on oral testimony
or depositions.
and not Section 34 of Rule 132 of the Rules of Court
which is the one applicable to the present case.
Even assuming arguendo that the documentary
evidence of petitioner should be considered in his
favor, the evidence showing that respondent had filed
civil and criminal cases against petitioner which were
dismissed as well as the alleged Special Power of
Attorney of petitioner’s parents whereby they
authorized petitioner to stay in the ground floor of the
house, did not establish co-ownership of Florentino
and respondent of the subject house.
The testimonies of petitioner and his witnesses failed
to show that the subject house is co-owned by
petitioner’s father and respondent.
Candelario Regua merely testified that he was hired by
petitioner’s father, Florentino, to construct the
residential building in 1972;24 that he listed the
materials to be used for the construction which was
purchased by Florentino;25 that he and his men
received their salaries every Saturday and Wednesday
from Florentino or his wife, respectively;26 that he had
not met nor seen respondent during the whole time the
construction was on-going.27 On cross-examination,
however, he admitted that he cannot tell where the
money to buy the materials used in the construction
came from.28
Corazon Garcia merely testified that Florentino started
building the house when he was allocated a lot at DPS
compound, that she knew Florentino constructed the
subject house29 and never knew respondent. 30 The
bare allegation that Florentino was allocated a lot is not
sufficient to overcome Florentino’s own affidavit
naming respondent as the owner of the subject house.
Petitioner himself testified that it was his father who
saw the progress of the construction and purchased
the materials to be used; 31 and as a young boy he
would follow-up some deliveries upon order of his
father 32 and never saw respondent in the construction
site. The fact that not one of the witnesses saw
respondent during the construction of the said house
does not establish that petitioner’s father and
respondent co-owned the house.
We also find that the CA did not err in ordering
petitioner to pay respondent being the sole owner of
the subject house a monthly rental of P2,000.00 from
April 1988, the date of the extra-judicial demand, until
petitioner actually vacates the subject house. Although
the CA made no ratiocination as to how it arrived at the
amount of P2,000.00 for the monthly rental, we find the
same to be a reasonable compensation for the use of
the ground floor of the subject house which consists of
a living room, a dining room, a kitchen and three
bedrooms. The rental value refers to the value as
ascertained by proof of what the property would rent or
by evidence of other facts from which the fair rental
value may be determined. 33
We likewise affirm the CA’s award of attorney’s fees in
favor of respondent. Article 2208 of the Civil Code
allows the recovery of attorney’s fees in cases when
the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur
expenses to protect his interest 34 and in any other
case where the court deems it just and equitable that
attorney’s fees and expenses of litigation should be
recovered 35 which are both shown in the instant case.
WHEREFORE, the decision of the Court of Appeals
dated March 31, 2000 and its Resolution dated
November 28, 2000 are AFFIRMED.
G.R. No. L-44988 October
31, 1936
THE PEOPLE OF THE PHILIPPINE
ISLANDS, Plaintiff-Appellee,
vs. CANUTO BERNAL, Defendant-
Appellant.
Juan M. Ladaw for appellant.
Acting Solicitor-General Melencio for
appellee.
IMPERIAL, J.: chanrobles vi rtua l law lib rary
The accused was charged with the
crime of theft, the information
alleging that, aside from the
presence of the aggravating
circumstance of nocturnity, the
accused is an habitual delinquent
because he had been convicted, prior
to the commission of the offense at
bar, thrice of the same crime of theft.
The accused pleaded not guilty, but
the court, after trial, found him guilty
as charged, and sentenced him to
four (4) months and one (1) day
of arresto mayor, to pay the
accessories of the law, to return the
three stolen roosters to Mariano de
Leon or to indemnify the latter the
value thereof in the sum of P3, and
to pay the costs. As an habitual
delinquent, because previously
convicted three times of the same
crime of theft, he was sentenced to
an additional penalty of seven (7)
years of prision mayor. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary
The facts are not disputed by the
defense. It has been established that
late in the evening of October 11,
1935, the accused, without the
owner's consent, took three
gamecocks belonging to Elias
Piamonte valued at P50, and three
other roosters belonging to Mariano
de Leon valued at P3. Only two of the
gamecocks of Elias Piamonte, valued
at P30, were recovered. It has
equally been established that the
accused had been thrice convicted of
the crime of theft; The first time on
April 25, 1935 by the justice of the
peace court of San Pablo, Laguna;
the second time on June 24, 1935 by
the justice of the peace court of San
Pablo, Laguna; and third time on
October 19, 1935, by the justice of
the peace court of Tanauan,
Batangas. chanroblesv irt ualawli bra ry
The defense assigns only one error of
law in the judgment, to wit, the
accused an habitual delinquent under
subsection ( b) of paragraph 5 of
article 62 of the Revised Penal Code,
and in imposing upon him the penalty
therein provided. It contends that the
applicable provision is that found in
subsection ( a) of the aforesaid codal
paragraph and article, because in
truth and according to the decisions,
the accused has no more than two
prior convictions, the third being the
one at bar. Elaborating on this
contention, the defense alleges that
the conviction on October 19, 1935,
for the crime of theft should not be
counted against the accused because
it took place after the commission of
the offense at bar on the 11th of the
said month and year. The Solicitor-
General in his brief agrees with the
defense, and recommends that the
penalty fixed in subsection ( a) of
paragraph 5 of article 62 of the
Revised Penal Code be imposed upon
the accused. We hold that the third
conviction, having taken place after
the commission of the last offense
with which the accused is now
charged, should not be reckoned with
in determining habitual delinquency
and the additional penalty to be
imposed, upon the authority of the
decisions of this court in People vs.
Santiago (55 Phil., 266), People vs.
Ventura (56 Phil., 1, 5), and People
vs. Reyes (G.R. Nos. 43904, 43905,
October 18, 1935 [62 Phil., 966). chanroblesvi rtua lawlib rary chanrob les
virtua l law lib rary
The aggravating circumstance of
recidivism should be taken into
chan robles v irt ual law l ibra ry
account in the commission of the
crime of theft in view of the
established fact that the accused was
thrice convicted of the said crime
prior to the trial of this case on
November 4, 1935 (art. 14, par. 9,
Revised Penal Code). For this reason,
the penalty imposable should be six
(6) months and one (1) day of prision
correccional. As an habitual
delinquent, because he was twice
convicted of the crime of theft prior
to the commission of the offense at
bar (art. 62, last paragraph of the
Revised Penal Code), he should be
sentenced to the additional penalty of
three (3) years of prision
correccional pursuant to subsection
( a) of paragraph 5 of the said
article. chan roble svirtualawl ibra ry chan roble s virtual law l ibrary
The question arose, in the course of
our deliberation on this case, of
whether or not in instances where the
accused turns out to be an habitual
delinquent the aggravating
circumstance of recidivism, when
alleged and proved, should be taken
into account in fixing the penalty
applicable for the commission of the
principal offense, independently of
the additional penalty provided by
law for habitual delinquency. It has
been urged that said aggravating
should not be considered, otherwise
it would be twice held against the
accused inasmuch as it is necessarily
taken into account in ascertaining
whether he is a habitual delinquent or
not. The majority of the court hold to
the contrary view, namely, that
recidivism should be reckoned with;
hence, the accused is sentenced to
the minimum of the maximum
penalty fixed by law.
In resolving this question as above
set out, the majority of the court
gave heed to the following
considerations:
First: This is not the first time that
the question has been submitted to
the consideration of the court.
In People vs. Melendrez (59 Phil.,
154), and People vs, Espina (62 Phil.,
607), we have already held that in
cases similar to the one at bar, the
aggravating circumstance of
recidivism should be taken into
consideration, notwithstanding the
allegation and proof that the accused
were habitual delinquents and should
accordingly be sentenced to the
additional penalty provided by law;
andchanrobles vi rtua l law lib ra ry
Second: It is not correct to assume
that recidivism is twice taken into
account when the accused is declared
an habitual delinquent and when it is
deemed to aggravate the crime in
fixing the principal penalty to be
imposed, because recidivism as an
aggravating circumstance modifying
criminal liability is not an inherent or
integral element of habitual
delinquency which the Revised Penal
Code considers as an extraordinary
and special aggravating
circumstance. chanroblesv irt ualawli bra ry chan robles v irt ual la w libra ry
Under the last subsection of
paragraph 5 of article 62 of he
Revised Penal Code, a person shall be
deemed to be habitually delinquent,
if within a period of ten years from
the date of his release or last
chanrob lesvi rtualaw lib rary cha nrob les vi rtua l law lib rary
conviction of the crime of robbery,
theft, estafa, or falsification, he is
found guilty of any of said crimes a
third time or oftener. Paragraph 9 of
article 14 of the Revised Penal Code
chanrobles vi rtua l law lib rary defines recidivism by stating that it is
committed by a person who, at the
time of his trial for one crime, shall
have been previously convicted by
final judgment of another crime
embraced in the same title of the
Code. Defining reiteration or
habituality paragraph 10 of the same
article provides that it is committed
when the offender has been
previously punished for an offense to
which the law attaches at an equal or
greater penalty or for two or more
crimes to which it attaches a lighter
penalty. Reflecting on these
definitions it will be seen that
recidivism, viewed as an aggravating
circumstance, is not a factor or
element which necessarily forms an Separate Opinions
integral part of habitual delinquency.
It will be noted that the elements as chanrob les vi rtual law lib rary

well as the basis of each of these

circumstances are different. For ABAD SANTOS, J., concurring in
recidivism to exist, it is sufficient that part and dissenting in part: chanroble s virtual law l ib rary

the accused, on the date of his trial,

I agree that the appellant is guilty of
shall have been previously convicted
the crime of theft, but I am
by final judgment of another crime
constrained to dissent once more
embraced in the same title. For the
from the opinion of the majority in so
existence of habitual delinquency, it
far as it holds that, in the imposition
is not enough that the accused shall
of the penalty prescribed by law for
have been convicted of any of the
the crime committed by the
crimes specified, and that the last
appellant, the aggravating
conviction shall have taken place ten
circumstance of recidivism should be
(10) years before the commission of
taken into consideration. My views on
the last offense. It is necessary that
this point have already been set forth
the crimes previously committed be
in my opinion filed in the case
prior to the commission of the
of People vs. Melendrez (59 Phil.,
offense with which the accused is
154), but they will perhaps bear
charged a third time or oftener.
further elaboration.
chanroble svirtualawl ibra ry chan roble s virtua l law lib ra ry

chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

In view of the foregoing, the

I maintain that, upon the facts of this
appealed judgment is modified, and
case and the law applicable thereto,
the accused-appellant is found guilty
the aggravating circumstance of
of the crime of theft charged in the
recidivism should not be taken into
complaint and sentenced to six (6)
consideration in the imposition of the
months and one (1) day of prision
penalty prescribed by law for the
correccional, to return to the
crime of which the appellant has been
offended parties the stolen and
found guilty.
unrecovered roosters, or in default
chanrob lesvi rtua lawlib rary c hanro bles vi rtua l law lib ra ry

thereof to indemnify Elias Piamonte

in the sum of P20 and Mariano de
Leon in the sum of P3, with the
corresponding subsidiary
imprisonment in case of insolvency,
and to an additional penalty of three
(3) years of prision correccional, with
the costs in both instances. So
ordered. chanroble svi rtualaw lib rary
Article 14, paragraph 9, of the
Revised Penal Code, defines a
recidivist as follows:
A recidivist is one who, at the time of
his trial for one crime, shall have
been previously convicted by final
judgment of another crime embraced
chan rob les vi rtual law lib rary

in the same title of this Code.

Avanceña, C. J., Villa-Real, Diaz, and
Laurel, JJ., concur.
And article 62, paragraph 5 ( c), of
the same Code, defines a habitual
delinquent as follows:
For the purposes of this article, a
person shall be deemed to be
habitual delinquent, if within a period
of ten years from the date of his
release or last conviction of the
crimes of robo, hurto, estafa,
or falsificacion, he is found guilty of
any of said crime, a third time or
oftener.
It seems clear from the provisions of
law above quoted that if, within a
period of ten years from the date of
his release, or last conviction of the
crime of robo, hurto, estafa,
or falsificacion, a person be found
guilty of the same crime for
the second time, he would be
deemed a recidivist; and if he be
found guilty for the third time or
oftener, he would be deemed a
habitual delinquent. The law
determines the effect to be given to
one previous conviction, and it also
determines the effect of two or more
previous convictions. One previous
conviction merely constitutes the
generic aggravating circumstance
prescribed by article 14, paragraph 9,
while two or more previous
convictions qualify the crime. The
previous convictions enter into the
third or subsequent offense to the
extent of aggravating it, and
increasing the punishment. In other
words such previous convictions
constitute an essential element of the
aggravated offense. "The previous
conviction enters into the second or
third offense to the extent of
aggravating it, and increasing the
punishment; and, where it is sought
to impose the greater penalty for a
second or third offense, the previous
conviction or convictions, like every
other material fact, must be distinctly
alleged in the indictment. 'When the
statute imposes a higher penalty
upon a second and a third conviction,
respectively, it makes the prior
conviction of a similar offense a part
of the description and character of
the offense intended to be punished;
and therefore the fact of such prior
conviction must be charged as well as
proved. It is essential to an
indictment that the facts constituting
the offense intended to be punished
should be averred.' And in like
manner, when a statute, besides
imposing a higher penalty upon a
second or third conviction than upon
the first, provides that any person
convicted of two or more offenses
upon the same indictment shall be
subject to the same punishment as if
he had been successively convicted
on two indictments, still the second
and third offenses must be alleged in
the indictment to be second and third
offenses in order to warrant the
increased punishment." (Clark's
Criminal Procedure, p. 204, cited with
approval in People vs. Nayco, 45
Phil., 167.)
chanrobles vi rtua l law lib ra ry
The same view is expressed by Viada
in commenting on article 533 of the
Penal Code of Spain "Tratase aqui del
hurto cualificado, cuya criminalidad
ha creido conveniente agravar el
legislador, y, por lo tanto, castigar
con penas mas severas, cuando por
los objetos sobre que recae, o por el
lugar en que se comete, o por las
circunstancias personales del
culpable o sus relaciones con el
perjudicado, se demuestra la mayor
perversidad del primero en la
comision de semejante delito.
Algunas de estas circunstancias,
como la de ejecutarse el delito
el lugar sagrado, la de
intervenir abuso de confianza y la de
ser el culpable reincidente, son ya de
por si circunstancias agravantes
genericas de todo delito en que
concurren (nums. 19, 10 y 18 del
articulo 10). Aqui son algo mas; son
circunstancias constitutivas, esencial
es de los delitos previstos en este
articulo, y por lo tanto, con arreglo al
79, no cabe apreciarlas al efecto de
aumentar la pena en aquel señalada,
la que debera imponerse siempre en
el grado medio, a no concurrir
cualquiera otra de las circunstancias
generales de agravacion del art. 10
que no sea de las expresadas, en
cuyo caso procederia la aplicacion de
la pena en el grado maximo con
arreglo al num. 3.� del art. 82; o a
no mediar alguna circunstancia
atenuante, pues entonces deberia
imponerse al culpable la pena en el
grado minimo, en conformidad a lo
dispuesto en el num. 2.� del
precipitado art. 82." (Viada, 5th ed.
vol. 6, p. 289.)
chanrobles vi rt ual law li bra ry
In United States vs. Campo (23 Phil.,
368), this court held that the
existence of the generic aggravating
circumstances need not be alleged in
a complaint or information, but if
proven at the trial, they must be
taken into consideration in imposing
the penalty. On the other hand, a
qualifying circumstance must be
alleged and proved in order that the
same may be taken into
consideration. It has also been held
that once a circumstance has been
treated as a qualifying circumstance,
it may not again be taken into
consideration as a generic
aggravating circumstance.
In those cases wherein, under the
provisions of the Penal Code, the
legal designation characterization of
an offense is modified by an
allegation set forth in the complaint
or information showing that such
offense had been marked with one of
the above-mentioned generic
aggravating circumstances, this
aggravating circumstance when
alleged and proven is treated as a
qualifying circumstance, and in that
event, having once been taken into
consideration for the purpose of
giving to the acts committed by the
convict a legal qualification or
characterization higher than they
would otherwise have had, it should
not be again taken into consideration
as an aggravating circumstance
marking the commission of this
higher offense. (Emphasis supplied.)
In People vs. Nayco, supra, this court
held that to convict the accused as an
habitual delinquent, the previous
convictions, like any qualifying
circumstance, must be alleged and
proved.chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry
Article 533 of the Penal Code of Spain
provides:
El hurto se castigara con las penas esas tres reincidencias, aplicando dos
inmediatamente superiores en grado de ellas, la una como circunstancia
a las respectivamente señaladas en cualificativa y la otra como generica
los dos articulos anteriores: o comun, infringe la disposicion legal
ultimamente citada, a la vez que la
xxx xxx xxx chanrobles vi rt ual law li bra ry

circunstancia 18.a del art. 10 y la

regla 3.a del referido Codigo Penal.
3.� Si fuere dos o mas veces ( S. de 21 de diciembre de l872,
reincidente. Gaceta de 16 de febrero de
l873. Viada, 5th ed., vol. 6, 317.)
Commenting on this article Viada
says: It will be observed that the reason for
not taking into consideration the
Cuestion 60. Comete uno un delito de
second conviction as a generic
hurto, y resulta haber sido penado
aggravating circumstance in the
anteriormente tres veces por delito
imposition of the penalty prescribed
de la misma especie: cabe en este
under article 533 of the Penal Code of
caso apreciar la circunstancia de esa
Spain, is because the third or
triple reincidencia, primero
subsequent conviction, together with
como qualificativa, para elevar la
the previous ones, constitutes but a
pena al grado inmediatamente
single qualifying circumstance. The
superior, tomando para ello dos de
same may be said in relation to
las tres reincidencias, y segregar la
article 62, paragraph 5, of the
tercera como agravante generica,
Revised Penal Code. The third or
para imponer al culpable dicha para
subsequent conviction, combined
imponer al culpable dicha pena
with the previous ones, constitutes
superior en el grado maximo? El
but a single qualifying circumstance.
Tribunal Supremo ha resuelto la
In other words, the second conviction
negative, fundandose en que con
- which generally goes to make up
arreglo a lo prescrito en el art. 533,
the generic aggravating circumstance
numero 3.� la pena del delito
of recidivism - is necessarily included
de hurto debe ser la inmediatamente
in the number of convictions required
superior en grado a la respectiva del
to establish habitual delinquency.
531, cuando su autor fuere dos o
chanroble svirtualawl ib rary chan rob les

virtua l law lib rary

mas veces reincidente; siendo Recto, J., concur.

evidente, por lo tanto, que las tres
expresadas reincidencias, y aun G.R. No. 136303 July 18, 2000
cualquiera otras que hubiese
THE PEOPLE OF THE PHILIPPINES, plaintiff-
ademas, no pueden constituir sino appellee,
una sola circunstancia cualificativa, vs.
cuyo efecto es unicamente el de ANTHONY MELCHOR PALMONES, ANTHONY
BALTAZAR PALMONES, accused-appellants.
elevar la pena al grado superior
inmediato; y que la Sala DECISION
sentenciadora, al dividir y separar
GONZAGA-REYES, J.:
This is an appeal by accused-appellants Anthony
Melchor Palmones and Anthony Baltazar Palmones
from the decision1 of Branch 17 of the Regional Trial
Court of Kidapawan, Cotabato, 12th Judicial Region,
convicting them of the crime of murder2
The information3 dated June 4, 1997 charging accused-
appellants of the crime of murder reads as follows:
"That in the evening of April 27, 1997 at Barangay
Magsaysay, Municipality of Kidapawan, Province of
Cotabato, Philippines, the above-named accused, with
intent to kill, armed with a gun, did then and there,
willfully, conspiring, confederating and mutually helping
one another, unlawfully, feloniously and with treachery,
attack, assault, and shot the person of SPO2 ASIM
MAMANSAL, thereby hitting and inflicting upon the
latter gunshot wounds on the vital parts of his body
which is the cause of the death thereafter.
CONTRARY TO LAW."
Both accused were arraigned on July 15, 1997 and
both pleaded not guilty to the charge against them.
Thereafter, trial on the merits commenced.
The prosecution first presented Sonny Boy Redovan, a
28 year-old farmer who was the nephew of the victim.
He testified that at around 10:00 in the evening of April
27, 1997, his mother and elder brother informed him
that something had happened to his uncle SP02 Asim
Mamansal. They then rushed to the Kidapawan
Doctor’s Hospital and proceeded to the emergency
room. Upon seeing his uncle, the witness went near
him and asked him what had happened to him. His
uncle answered that he had been waylaid. The witness
then asked the victim who the perpetrators were and
the victim answered that it was "Juany and Tony
Palmones" which were the nicknames of the two
accused-appellants.4 He claimed that while he was
talking with his uncle, there were attendants, nurses,
and other bystanders whom he did not know present
inside the emergency room. A few minutes after he
talked with the victim, a certain Dr. Aguayo arrived and
examined the wounds of his uncle. About and hour
later, he saw Police Inspector Alexander Tagum arrive
and he heard him ask his uncle who had shot him. The
witness then heard his uncle positively answer the
policeman that his assailants were Juany and Tony
Palmones.5
On cross-examination, he testified that he was able to
talk with his uncle for about one hour and that the most
important part of their conversation was the
identification of his uncle’s assailants.6 He stated that it
did not occur to his mind to immediately report to the
police what his uncle had told him as his mind was
troubled at that time. It was only after the burial of his
uncle on April 28, 1997 that he told Insp. Tagum that it
was Tony and Juany Palmores who had shot his uncle.7
The prosecution next presented Dr. Hazel Mark
Aguayo who testified that he was the surgeon-on-duty
on the day that SP02 Mamansal was shot. He stated
that before he operated on the victim, he interviewed
Mamansal and one of the questions he asked is
whether the victim had known who had shot him. He
claimed that Mamansal told him that he did not know
who had shot him.8 He did not pursue this line of
questioning further as he was told by a companion of
the victim that the area where the victim was shot was
dark.9 He testified that he operated on the victim at
around 12:00 in the evening. He operated for around
four (4) hours but the victim developed cardio
respiratory arrest at around 8:30 the following morning
and thereafter, the victim died in the ward.10
On cross-examination, he stated that it was Sonny Boy
Redovan who was with SP02 Mamansal at the time
that he was interviewing the victim and that it was
Redovan who told him that the assailant could not be
identified because the area where the shooting
happened was dark.11 He likewise claimed that before
he arrived at the hospital, a certain Dr. Caridad Jalipa
was already attending to the victim and that she told
him that the victim remained silent when she asked him
about the person who shot him.12
The third witness for the prosecution was Police
Inspector Alexander Camilon-Tagum. He testified that
on the night of April 27, 1997, he was at the
Kidapawan, Cotabato Police Outpost. After receiving a
radio report, he proceeded to Brgy. Magsaysay,
Kidapawan where he discovered that one of his men,
SP02 Mamansal, was shot.13 After conducting an initial
investigation of the crime scene, he sent his men
towards different directions to look for suspects. He
then proceeded to the hospital together with another
witness, Alice Villamor. On the way to the hospital,
Alice Villamor pointed to a passing motorcycle and told
him that it was the motorcycle the assailants were
riding. He chased the motorcycle but he was not able
to catch up with them as his car ran out of gas.14 He was
able to borrow a motorcycle and he proceeded to
chase the other motorcycle again. While riding on the
borrowed motorcycle, a certain PO3 Aniceta called him
on the radio and told him that the assailants were
Juany and Tony Palmones.15 He and his men
proceeded to the residence of the suspects where the
brother of the accused-appellants, Triny Palmones,
met them. He asked Triny Palmones where his
brothers were and the latter responded that he didn’t
know. He then asked Triny Palmones whether his
brothers owned a motorcycle and the latter admitted
that they owned a Kawasaki motorcycle which matched
the description of the motorcycle he had been
chasing.16 He then told his men to continue pursuing the
assailants and after exhausting all efforts, he
proceeded to the Kidapawan Doctor’s Hospital. He
confronted the victim in the emergency room and
asked him about his assailants. The victim answered
that it was Juany and Tony Palmones.17 At that time, he
claimed that Dr. Aguayo and two other medical ladies
were inside the room.
On cross-examination, he testified that he was able to
speak with Alice Villamor about the incident but that
she told him that she was not able to identify the
assailant even though she was right beside the victim
because of darkness.18 He admitted that when he went
to the hospital, he was already entertaining the idea
that the suspects were Juany and Tony Palmones
because of the radio call he received earlier. He
likewise admitted that the only question which he asked
the victim was "who shot you?" and that he was not
able to reduce his findings to writing.19
The next witness for the prosecution was Mila Arimao
Mamansal, the wife of the victim, who testified mainly
on the expenses she incurred because of the death of
her husband. She also stated that she was able to talk
with witness Sonny Boy Redovan at the hospital but the
latter did not tell her anything about the alleged
assailants of her husband. It was only on April 29, 1997
that she heard Redovan tell the Chief of Police of
Kidapawan that Juany and Tony Palmones were the
ones who had shot her husband.20
The prosecution next presented Asmyra Mamansal,
the daughter of the victim. She testified that on the
night of the incident, she was at her aunt’s house where
she was informed about the shooting of her father. She
immediately proceeded to the hospital where she saw
her father lying on a bed calling her name. Her father
then told her to take down the name Alice Villamor
whom she knew as the name of her father’s
mistress.21 She was able to talk with her father for about
thirty minutes.
On cross-examination, she testified that in the course
of her conversation with her father, her father did not
tell her the reason why he mentioned the name of Alice
Villamor nor did he tell her about the persons who had
shot him.22
The other two witnesses of the prosecution identified
the death certificate23 of SPO2 Mamansal and the
extract of the police blotter24 where the shooting incident
was recorded.
For their part, accused-appellants presented ten (10)
witnesses to support their case.
The first witness, Alex Siago, a barangay kagawad,
testified that he was one of the first persons to go to the
victim after the latter was shot.25 He stated that a certain
Patricio Fuertes and Samuel Angelio then brought the
victim to the Kidapawan Doctor’s Hospital. Thereafter,
another kagawad, a certain Gregorio Lonzaga called
up the police to report the incident.26 A few minutes
later, Inspector Tagum arrived and proceeded to make
an investigation of the incident. He also claimed that he
was the one who lent Insp. Tagum his motorcycle when
the latter gave chase to another motorcycle bearing
two passengers.27 Considering that he was only five (5)
meters away from the motorcycle when it passed by,
he was able to see the faces of the passengers and he
was certain that they were not the two accused-
appellants.28
The next witness, Patricio Fuertes, testified that he was
person who brought the victim to the hospital.29 At the
hospital, he saw three policemen, whom he did not
recognize, talking with the victim. He was about a
meter away from the bed of the victim when he heard
a policeman, ask Mamansal whether he had
recognized who had shot him. He then heard the victim
reply that he did not recognize his assailants.30 He
likewise told the court that while he was bringing the
victim to the hospital, he was not able to talk with
Mamansal and neither did the victim identify his
assailants.31
The next witness for the defense was Alicia Villamor,
the alleged girlfriend of the victim and his companion at
the time he was shot. She testified that in the evening
of April 27, 1997, she was in her store together with the
victim. At around 10:00 p.m., she closed shop and went
home together with Mamansal and her two
helpers.32 While they were already near her house in
Magsaysay, someone suddenly shot Mamansal. She
was just at the side of Mamansal when the shooting
happened but she claimed that she was not able to
identify the assailants as it was dark.33 Patricio Fuertes
then brought the victim to the hospital but she did not
accompany him as her clothes were stained with blood.
After changing her clothes, a group of policemen
arrived at the crime scene. After conferring with the
policemen, she then rode with Insp. Tagum in going to
the hospital.34 On the way, Insp. Tagum tried to halt a
passing motorcycle. When the passengers of the
motorcycle kept on going, Insp. Tagum fired warning
shots and gave chase but the car they were riding in
ran out of gas. He then saw Alex Siago provide Tagum
with a motorcycle and again the latter gave
chase.35 She claimed that she was not able to see the
persons riding the motorcycle as it was moving quite
fast. When she finally arrived at the hospital, she saw
that Insp. Tagum was already there. She was then able
to talk with the victim who told her that he did not see
the person who had shot him.36
The next witness, Rommel Arambala, a 27 year old
neighbor of Alive Villamor, corroborated the
testimonies the three previous witnesses.
The defense also called the two accused-appellants to
support their defense of alibi.
Accused-appellant Anthony Melchor Palmones
testified that at the time of the incident, he was in his
house in Kisulan, Sultan Kudarat, having a drinking
session with friends. He estimated that Kisulan, Sultan
Kudarat was at least two hours away from the scene of
the crime.37 Their group started drinking at around 8:00
in the evening and they only finished drinking at around
11:00 p.m. By 11:30, their group had already
dispersed.38 He admitted knowing the victim as a
policeman in Kidapawan but he denied having a
quarrel or a grudge against him.39
The testimony of accused-appellant Anthony Melchor
Palmones was corroborated by witnesses SPO1 Ramil
Bahian and Jolito Silva.
For his part, accused-appellant Anthony Baltazar
Palmones claimed that at the time of the shooting of
Mamansal, he was at his house in Datu Piang St.,
Kidapawan, Cotabato, having a drink with a few
friends. He stated that on the day of the incident, at
around 5:00 p.m. of April 27, 1997, he was resting
inside his home as he had just come from work. While
in his house, Rodolfo Barrientos arrived to borrow
some money from him.40 After giving him the money, the
accused asked Rodolfo Barrientos to stay for dinner
and to have some drinks. While they were drinking
"tuba," Jerry Barrientos arrived and joined them. They
only stopped drinking at around 11:00 p.m.41 The
accused likewise testified that he only knew the victim’s
surname and that he did not have any quarrel with or
grudge against the victim in the past.42
On cross-examination, he denied that he drove a
motorcycle to work. He admitted however, that during
the drinking spree, he went out of his house to buy
"tuba" from a nearby store.43 On re-direct, he stated that
the store was only 10 to 15 meters away from his home
and that he was only gone for 2 to 5 minutes.44
Accused-appellant Anthony Baltazar Palmones’s
testimony was corroborated by Rodolfo Barrientos and
Jerry Barrientos who both claimed that they were
drinking with accused-appellant at the latter’s home at
the time of the incident.
On May 8, 1998, the trial court rendered its questioned
decision finding accused-appellants guilty of the crime
of murder. The dispositive portion of the decision
reads, as follows:
"WHEREFORE, prescinding (sic) from the foregoing
facts and considerations, the Court finds both accused
Anthony Melchor Palmones and Anthony Baltazar
Palmones guilty beyond reasonable doubt, as principal
of the crime of Murder, hereby sentenced (sic) both
accused each to suffer the penalty of Reclusion
Perpetua and to indemnify the heirs of Asim Mamansal,
the sum of P50,000.00 and to pay the costs."
Accused-appellants filed a Motion for
Reconsideration45 of this decision but the trial court, in
an Order dated 26 October 199846 , denied the same for
lack of merit. Hence, this appeal where accused-
appellants raise the following assignment of errors:
I.
THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED NOTWITHSTANDING THE FAILURE OF
THE PROSECUTION TO PROVE THEIR GUILT
BEYOND REASONABLE DOUBT.
II.
THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANTS BASED ON THE
WEAKNESS OF THEIR DEFENSE.
III.
THE FACTS, AS ESTABLISHED BY ALL THE
EVIDENCE PRESENTED DO NOT SUPPORT THE
LOWER COURT’S FINDING OF GUILT.
IV.
THE COURT A QUO COMMITTED A PALPABLE
ERROR AND HAD DEMONSTRATED CLEAR BIAS
AND PREJUDICE IN FAVOR OF THE
PROSECUTION AND AGAINST THE ACCUSED.
V.
THE COURT A QUO ERRED IN GIVING FULL
WEIGHT AND CREDENCE TO THE TESTIMONY OF
SONNY BOY REDOVAN AND INSPECTOR
ALEXANDER TAGUM.
VI.
THE COURT A QUO ERRED IN FINDING THAT THE
VICTIM, ASIM MAMANSAL WAS ABLE TO IDENTIFY
HIS ASSAILANTS BEFORE HE DIED.
VII.
THE COURT A QUO ERRED IN CONSIDERING THE
ALLEGED DYING DECLARATION OF ASIM
MAMANSAL AS AN EXCEPTION TO THE HEARSAY
RULE.
VIII.
THE COURT A QUO ERRED IN CONSIDERING THE
ALLEGED DYING DECLARATION OF ASIM
MAMANSAL AS PART OF THE RES GESTAE RULE.
The Office of the Solicitor General ("OSG"), for its part,
filed a Manifestation in Lieu of Brief47 where it
recommended that the accused-appellants be
acquitted of the crime charged against them. In this
Manifestation, the OSG reasoned that the identity of
the assailants was not sufficiently established by the
evidence of the prosecution and that the trial court
erred in admitting the alleged dying declaration of the
victim as an exception to the hearsay rule.
From the records of the case, the conviction of the two
accused-appellants was based largely on the alleged
dying declaration of the victim made to two witnesses
of the prosecution and the apparent weakness of their
defense of alibi. It behooves us therefore to determine
the admissibility of the alleged oral dying declaration of
the deceased Asim Mamanal as testified to by
prosecution witnesses Sonny Boy Redovan and Police
Investigator Alexander Tagum.
As a rule, a dying declaration is hearsay, and is
inadmissible as evidence.48 This is pursuant to Rule
130, section 30 of the Rules of Court which states:
Sec. 30. Testimony generally confined to personal
knowledge; hearsay excluded. – A witness can testify
only to those facts which he knows of his own
knowledge; that is, which are derived from his own
perception, except as otherwise provided in these
rules.
There are several exceptions however to the rule of
inadmissibility of hearsay evidence, the first one of
which is the admissibility of dying declarations given
under the circumstances specified in Section 31, Rule
130 of the Rules of Court, to wit:
Sec. 31. Dying declaration. – The declaration of a
dying person, made under a consciousness of an
impending death, may be received in a criminal case
wherein his death is the subject of inquiry, as evidence
of the cause and surrounding circumstances of such
death
As such, the requirements for the admissibility of
an ante mortem statement are: (a) it must concern the
crime and the surrounding circumstances of the
declarant’s death; (b) at the time it was made, the
declarant was under a consciousness of impending
death; (c) the declarant was competent as a witness;
and (d) the declaration was offered in a criminal case
for murder, murder or parricide win which the decedent
was the victim.49
As testified to by prosecution witness Sonny Boy
Redovan, the supposed dying declaration of the victim
was made as follows:
PROS. DE GUZMAN:
Q: Did you reach the Kidapawan Doctor’s Hospital,
Inc.?
A: Yes, sir.
Q: What did you discover?
A: Upon arrival, I immediately proceeded to the
emergency room.
Q: What did you do in the emergency room?
A: I saw my uncle there lying.
Q: Are you referring to SPO2 Asim Mamansal?
A: Yes, sir.
Q: What did you do after that?
A: Upon seeing his condition I went near him and
whispered "Ano ba ang nangyari sa yo?" meaning
"What happened to you?"
Q: What was the answer, if any?
A: His answer (sic) that he was waylaid.
Q: What else did he tell you?
A: I was worried after saying those words, I asked him
who are the perpetrators.
Q: What was the answer?
A: And he said "It’s Juany and Tony Palmones."
Q: When those words uttered to you (sic) where there
other persons inside the room?
A: Attendants, nurses, "ususero," I do not know the
others.50
In a similar vein, Police Investigator Alexander Tagum
likewise testified that the victim named the two accused
as his assailants prior to the victim’s death. Thus:
Q: What did you do at the Kidapawan Doctor’s
Hospital?
A: I immediately went to the room wherein SPO1
Mamansal was lying.
Q: What did you do while you were inside the room
where SPO1 Mamansal was lying?
A: I immediately confronted him sir and immediately
asked the question: Who shot you?
Q: What was the answer?
A: SPO1 Mamansal answered sir, it is Juany and Tony
Palmones.
XXX
Q: Can you remember who were your companions (sic)
inside the room where SPO2 Mamansal was lying?
A: I noticed two (2) ladies medical orderly (sic) and Dr.
Aguayo.51
In cases where an alleged dying declaration is sought
to be admitted, it must be proven that that the
declaration was made "under a consciousness of
impending death" which means simply that the
declarant is fully aware that he is dying or going to die
from his wounds or injuries soon or imminently, or shall
have a complete conviction that death is at hand, or
there must be "a settled hopeless expectation."52
In the instant case, it was not established by the
prosecution that the statements of the declarant
concerning the cause and surrounding circumstances
of his death were made under the consciousness of
impending death. No proof to this effect was ever
presented by the prosecution. It was not shown
whether Sonny Boy Redovan or Inspector Alexander
Tagum ever asked the victim whether he believed that
he was going to die out of his injuries or any other
similar question. Sonny Boy Redovan claimed that he
was able to talk with the victim for around an hour but
the only thing he revealed of their conversation was the
alleged identification of the victim of his two
assailants.53 For his part, Inspector Tagum admitted
that the only question he asked of the victim was if the
victim knew who had shot him.54
While it is true that the law does not require that the
declarant explicitly state his perception that he has
given up the hope of life55 , the circumstances
surrounding his declaration must justify the conclusion
that he was conscious of his impending death.56 In the
instant case, it was not proven that the victim was ever
aware of the seriousness of his condition. As testified
to by Dr. Mark Aguayo, the vital signs of the victim, prior
to his operation, were quite stable.57 Moreover, from the
time the victim was brought to the hospital at 10:30
p.m. until his operation at 12:00 midnight, he was still
able to talk intelligently with at least four (4) other
persons on various matters. The fact that his vital signs
were strong and that he still had strength to converse
with these four (4) witnesses belie the conclusion that
the victim was under the consciousness of death by
reason of the gravity of his wounds.
Neither may the alleged statements attributed to the
victim be admissible as part of the res gestae. Res
gestae refers to those exclamations and statements
made by either the participants, victims, or spectators
to a crime immediately before, during, or immediately
after the commission of a crime, when the
circumstances are such that the statements were made
as a spontaneous reaction or utterance inspired by the
excitement of the occasion and there was no
opportunity for the declarant to deliberate and to
fabricate a false statement.58
In order to admit statements as evidence part of the res
gestae, the element of spontaneity is critical. The 1âwphi 1
following factors have generally been considered in
determining whether statements offered in evidence as
part of the res gestae have been made spontaneously:
(1) the time that lapsed between the occurrence of the
act or transaction and the making of the statement; (2)
the place where the statement was made; (3) the
condition of the declarant when he made the
statement; (4) the presence or absence of intervening
events between the occurrence and the statement
relative thereto; and (5) the nature and circumstances
of the statement itself.59
Tested against these factors to test the spontaneity of
the statements attributed to the victim, we rule that
these statements fail to qualify as part of the res
gestae. When Mamansal allegedly uttered the
statements attributed to him, an appreciable amount of
time had already elapsed from the time that he was
shot as the victim was shot at around 10:00 p.m. but he
only uttered the statements attributed to him about 30
minutes to an hour later. Moreover, he allegedly made
these statements not at the scene of the crime but at
the hospital where he was brought for treatment.
Likewise, the trip from the scene of the crime to the
hospital constituted an intervening event that could
have afforded the victim opportunity for deliberation.
These circumstances, taken together, indubitably show
that the statements allegedly uttered by Mamansal lack
the requisite spontaneity in order for these to be
admitted as part of the res gestae.
Finally, after a thorough reading of the testimonies
presented by both sides, it is even doubtful that the
victim ever uttered these alleged ante
mortem statements in the first place. We note that the
testimonies of Sonny Boy Redovan and Investigator
Alexander Tagum are contradicted not only by the
witnesses for the defense but also by the prosecution’s
own witnesses.
Dr. Mark Aguayo, the doctor who performed the
operation on the victim and who is an impartial and
disinterested witness, categorically stated that the
victim told him that he did not recognize those who had
shot him.60 He likewise testified that witness Sonny Boy
Redovan told him in the emergency room that the
victim was not able to recognize his assailants because
of darkness.61 Similarly, the wife and the daughter of
Asim Mamansal, who were also able to talk with the
victim prior to his death, likewise denied that the victim
ever told them the identity of his assailants. We fail to
see why the victim should choose to tell some people
the identity of his assailants and deny his knowledge of
the same to others.
With respect to the witnesses for the defense, Alex
Siago and Patricio Fuertes, who were both present at
the site of the shooting immediately after the incident,
testified that they did not hear the victim identify his
assailants. Patricio Fuertes even stated that at the
hospital, he heard Mamansal tell the police officers
present that he did not recognize those who had shot
him. Most importantly, Alice Villamor, who was the
lover of the victim and who was with him during the
shooting, categorically stated that it was not possible to
recognize the assailants as the area where the
shooting happened was dark. Moreover, she was able
to talk with Mamansal at the hospital where he told her
that he did not see the persons who had shot him. This
testimony of Villamor is quite significant and we fail to
see why the trial court failed to consider the same in its
decision. Alice Villamor, as the lover of the victim, had
no motive to lie for the defense and had all the reason
to speak the truth in order to seek justice for the death
of her lover.
As previously stated, the trial court based its judgment
of conviction on the alleged ante mortem statements of
the victim and the apparent weakness of the defense
put up by the two accused-appellants. As it now stands
however, the weakness of the alibi of the two accused-
appellants cannot be held against them in view of the
absence of a clear and positive identification of them
as the perpetrators of the crime. And while their alibi
may not have been proven so satisfactorily as to leave
no room for doubt, such an infirmity can not strengthen
the weakness of the prosecution’s evidence, the
reason being that in a criminal prosecution, the State
must rely on the strength of its own evidence and not
on the weakness of the defense.62
WHEREFORE, premises considered, the judgment
dated 8 May 1998 of Branch 17 of the Regional Trial
Court of Kidapawan, Cotabato is hereby REVERSED
and SET ASIDE. Accused-appellants Anthony Melchor
Palmones and Anthony Baltazar Palmones are
ACQUITTED and ordered RELEASED from
confinement unless they are being held for some other
legal grounds.
SO ORDERED.
G.R. No. 99287 June 23, 1992
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. MARTIN S. VILLARAMA, JR., AND JAIME
MANUEL, respondents.
MEDIALDEA, J.:
This petition for certiorari seeks to reverse the decision
and the order of the Regional Trial Court, National
Capital Region at Pasig, Metro Manila dated February
25 and March 13, 1991, respectively in Criminal Case
No. 1345-D entitled "People of the Philippines v. Jaime
Manuel y Ohide" for violation of Section 16, Article 111,
RA 6425, as amended.
Briefly, the antecedent facts of the case are as follows:
On August 24, 1990, Jaime Manuel y Ohide was
charged with violation of Section 16, Republic Act No.
6425, as amended. The penalty prescribed in the said
section is imprisonment ranging from six years and one
day to twelve years and a fine ranging from
six thousand to twelve thousand pesos. The
information against him reads:
That on or about the 21st day of
August, 1990, in the Municipality of San
Juan, Metro Manila, Philippines, and
within the jurisdiction of this Honorable
Court, the above-named accused,
without the corresponding license or
prescription did then and there willfully,
unlawfully and feloniously have in his
possession, custody and control 0.08
grams of Methamphetamin
Hydrocloride (Shabu) wrapped with an
aluminum foil, which is a regulated
drug.
 CONTRARY TO LAW. (p. 15, Rollo)
During the arraignment, the accused entered a plea of
not guilty. Thereafter, trial ensued. On November 21,
1990, the prosecution rested its case. On January 9,
1991, counsel for private respondent verbally
manifested in open court that private respondent was
willing to change his former plea of "not guilty" to that
of "guilty" to the lesser offense of violation of Section
17, R.A. No. 6425, as amended. The said section
provides a penalty of imprisonment ranging from six
months and one day to four years and a fine ranging
from six hundred to four thousand pesos shall be
imposed upon any pharmacist, physician, dentist,
veterinarian, manufacturer, wholesaler who violates or
fails to keep the records required under Section 25 of
the Act; if the violation or failure involves a regulated
drug. That same day, the respondent Judge issued an
order (Annex "B," p. 17, Rollo) directing private
respondent to secure the consent of the prosecutor to
the change of plea, and set the promulgation of
decision on January 30, 1991. On January 30, 1991,
respondent Judge postponed the promulgation of the
decision to February 18, 1991 to give private
respondent another opportunity to secure the consent
of the prosecutor. Also, on the said date, the private
respondent filed his Request to Plead Guilty to a
Lesser Offense. On February 18, 1991, respondent
Judge issued another order (Annex "D," p. 19, Rollo)
postponing the promulgation of decision to February
25, 1991 to give private respondent further opportunity
to secure the consent of the prosecutor. On February
20, 1991, the prosecutor filed his Opposition to the
Request to Plead Guilty to a Lesser Offense (annex
"E," p. 20, Rollo) on the grounds that: (1) the
prosecution already rested its case on November 21,
1990; (2) the possibility of conviction of private
respondent of the crime originally charged was high
because of the strong evidence of the prosecution; and
(3) the valuable time which the court and the
prosecutor had expended would be put to waste. On
February 21, 1991, private respondent filed his Reply
to Opposition with Leave of Court to Plead Guilty to a
Lesser Offense (annex F, p. 21, Rollo), alleging
therein, among other matters, that the Rules on
Criminal Procedure does not fix a specific period within
which an accused is allowed to plead guilty to a lesser
offense. Subsequently, on February 25, 1991,
respondent Judge rendered a decision granting the
accused's motion, to wit:
It may well be appropriate at this time
to state that the accused is not availing
of the "voluntary plea of guilt" as a
mitigating circumstance envisioned
under Article 13, paragraph 7 of
the Revised Penal Code. The accused
simply wants to avail of Section 2, Rule
116 of the Rules. As pointed out by
Atty. Fernando Fernandez of the PAO,
there is nothing in the said provision
which requires that the same be
availed of prior to the presentation of
the evidence for the prosecution. It is
conceded though, as pointed out by the
prosecution, that such is a waste of
time on the part of the Office of the
Provincial Prosecutor and of the Court,
nonetheless, this Court, having in
mind Section 2 of Rule 1 which
provides that the rules shall be liberally
construed in order to promote their
object and to assist the parties in
obtaining just, speedy and inexpensive
determination of every action and
proceeding and also for humanitarian
considerations, hereby APPROVES
and GRANTS the Motion at bar.
Moreover, such an admission of guilt
by the accused indicates his
submission to the law and a moral
disposition on his part to reform. (Vide:
People vs. Coronel, G.R. No. L-19091,
June 30, 1966)
Let it be made of record however that
the Court is not putting a premium on
the change of heart of the accused in
mid-stream.
WHEREFORE, finding the accused
JAIME MANUEL Y CHIDE @ Manny
guilty beyond reasonable-doubt of the
crime of violation of Section 17, Article
III, Republic Act No. 6425, as
amended, he is hereby sentenced to a
straight prison term of two (2) years
and one (1) day of prision correccional,
to pay a fine of Two Thousand Pesos
(P2,000.00) with subsidiary
imprisonment in case of insolvency and
to pay the costs.
In the service of his sentence, the
accused shall be credited in full with the
period of his preventive imprisonment.
Pursuant to Section 20, Article IV of
Republic Act No. 6425, as amended,
let the 0.08 grams of
methamphetamine hydrochloride
(shabu) subject matter of this case be
confiscated and forfeited in favor of the
Government and be turned over to the
Dangerous Drugs Board Custodian,
NBI, to be disposed of according to law.
 SO ORDERED. (Rollo, pp. 24-25)
Forthwith, the prosecutor filed a Motion for
Reconsideration of the aforestated decision but the
same was denied in the order of March 13, 1991, which
states:
It is the considered view of this Court
that Section 2, Rule 116 of
the Rules should not be interpreted to
the letter in "victimless crimes" such as
this case, possession of regulated
drugs, which is more of a "social
disease" case so to speak and in the
light of (the) provision itself that "with
the consent of the offended party and
the fiscal." Is the fiscal the offended
party?
Moreover as the records show, the
Office of the Provincial Fiscal has not
been very consistent on this "lesser
offense plea" thing. It would perhaps be
in consonance with justice that a
guideline be laid down by the said
Office, if only to apprise the public, the
Court and the accused on when said
consent is to be given by the fiscal as a
matter of course and when it will be
withheld. For to leave the same
undefined is in the mind of this Court,
not conducive to a "just, speedy and
inexpensive determination of every
action and proceeding.
SO ORDERED. (Rollo, pp. 41-42)
Hence, this petition raising the following issues:
I. WHETHER OR NOT RESPONDENT
JUDGE ERRED IN GRANTING
PRIVATE RESPONDENT'S
REQUEST TO PLEAD GUILTY TO A
LESSER OFFENSE BECAUSE THE
REQUEST WAS FILED OUT OF TIME
AND THE CONSENT THERETO OF
THE PROSECUTOR AND THE
OFFENDED PARTY WAS NOT
OBTAINED.
II. WHETHER OR NOT
RESPONDENT JUDGE ERRED IN
CONVICTING PRIVATE
RESPONDENT OF THE LESSER
OFFENSE OF VIOLATION OF
SECTION 17, REPUBLIC ACT NO.
6425, AS AMENDED, INSTEAD OF
THE OFFENSE ORIGINALLY
CHARGED OF VIOLATION OF
SECTION 16 OF THE SAME LAW, IN
VIEW OF THE ABSENCE OF A VALID
CHANGE OF PLEA. (Rollo, pp. 74-75)
In the resolution of January 20, 1992, We issued a
temporary restraining order to enjoin the respondent
Judge from enforcing the questioned judgment in the
aforesaid criminal case (Rollo, p. 86).
The petition is meritorious.
Plea bargaining in criminal cases, is a process whereby
the accused and the prosecution work out a mutually
satisfactory disposition of the case subject to court
approval (see Black Law Dictionary, 5th Ed., 1979, p.
1037). It usually involves the defendant's pleading
guilty to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a lighter
sentence than that for the graver charge (ibid).
Ordinarily, plea-bargaining is made during the pre-trial
stage of the criminal proceedings. However, the law
still permits the accused sufficient opportunity to
change his plea thereafter. Thus, Rule 116 of the Rules
of Court, Section 2 thereof, provides:
Sec. 2. Plea of guilty to a lesser
offense. — The accused, with the
consent of the offended party and the
fiscal, may be allowed by the trial court
to plead guilty to a lesser offense,
regardless of whether or not it is
necessarily included in the crime
charged, or is cognizable by a court of
lesser jurisdiction than the trial court.
No amendment of the complaint or
information is necessary.
A conviction under this plea, shall be
equivalent to a conviction of the offense
charged for purposes of double
jeopardy.
However, the acceptance of an offer to plead guilty to
a lesser offense under the aforequoted rule is not
demandable by the accused as a matter of right but is
a matter that is addressed entirely to the sound
discretion of the trial court (Manuel v. Velasco, et al.,
G.R. No. 94732, February 26, 1991, En
Banc Resolution).
In the case at bar, the private respondent (accused)
moved to plead guilty to a lesser offense after the
prosecution had already rested its case. In such
situation, jurisprudence has provided the trial court and
the Office of the Prosecutor with yardstick within which
their discretion may be properly exercised. Thus,
in People v. Kayanan (L-39355, May 31, 1978, 83
SCRA 437, 450), We held that the rules allow such a
plea only when the prosecution does not have sufficient
evidence to establish guilt of the crime charged. In his
concurring opinion in People v. Parohinog (G.R. No. L-
47462, February 28, 1980, 96 SCRA 373, 377), then
Justice Antonio Barredo explained clearly and tersely
the rationale of the law:
. . . (A)fter the prosecution had already
rested, the only basis on which the
fiscal and the court could rightfully act
in allowing the appellant to charge his
former plea of not guilty to murder to
guilty to the lesser crime of homicide
could be nothing more nothing less
than the evidence already in the record.
The reason for this being that Section 4
of Rule 118 (now Section 2, Rule 116)
under which a plea for a lesser offense
is allowed was not and could not have
been intended as a procedure for
compromise, much less bargaining.
As evident from the foregoing, the trial court need not
wait for a guideline from the Office of the Prosecutor
before it could act on the accused's motion to change
plea. As soon as the fiscal has submitted his comment
whether for or against the said motion, it behooves the
trial court to assiduously study the prosecution's
evidence as well as all the circumstances upon which
the accused made his change of plea to the end that
the interests of justice and of the public will be served.
A reading of the disputed rulings in this case failed to
disclose the strength or weakness of the prosecution's
evidence. Apparently, the judgment under review dwelt
solely on only one of the three objections (i.e. waste of
valuable time already spent by the court and
prosecution) interposed by the Fiscal which was the
least persuasive. It must be recalled that the other two
grounds of objection were that the prosecution had
already rested its case and that the possibility of
conviction of the private respondent of the crime
originally charged was high because of the strong
evidence of the prosecution. Absent any finding on the
weight of the evidence in hand, the respondent judge's
acceptance of the private respondent's change of plea
is improper and irregular.
The counsel for the private respondent argues that only
the consent of the fiscal is needed in crimes involving,
violation of RA 6425 as amended because there is no
offended party to speak Of and that even the latter's
consent is not an absolute requirement before the trial
court could allow the accused to change his plea.
We do not agree. The provision of Section 2, Rule 116
is clear. The consent of both the Fiscal and the
offended party is a condition precedent to a valid plea
of guilty to a lesser offense (see Manuel v. Velasco, et
al., supra, p. 6). The reason for this is obvious. The
Fiscal has full control of the prosecution of criminal
actions (Cinco, et al. v. Sandiganbayan, et al., G.R.
Nos. 92362-67, October 15, 1991). Consequently, it is
his duty to always prosecute the proper offense, not
any lesser or graver one, when the evidence in his
hands can only sustain the former (see People v.
Parohinog, supra, concurring opinion of then Justice
Barredo, p. 377; also Vda. de Bagatua, et al. v. Revilla,
et al., 104 Phil. 393, 395-396).
It would not also be correct to state that there is no
offended party in crimes under RA 6425 as amended.
While the acts constituting the crimes are not wrong in
themselves, they are made so by law because they
infringe upon the rights of others. The threat posed by
drugs against human dignity and the integrity of society
is malevolent and incessant (People v. Ale, G.R. No.
70998, October 14, 1986, 145 SCRA 50, 58). Such
pernicious effect is felt not only by the addicts
themselves but also by their families. As a result,
society's survival is endangered because its basic unit,
the family, is the ultimate victim of the drug menace.
The state is, therefore, the offended party in this case.
As guardian of the rights of the people, the government
files the criminal action in the name of the People of the
Philippines. The Fiscal who represents the government
is duty bound to defend the public interests, threatened
by crime, to the point that it is as though he were the
person directly injured by the offense (see United
States v. Samio, 3 Phil. 691, 696). Viewed in this light,
the consent of the offended party, i.e. the state, will
have to be secured from the Fiscal who acts in behalf
of the government.
Lastly, the counsel for the private respondent maintains
that the private respondent's change of plea and his
conviction to the lesser offense of violation of Section
17, RA No. 6425 as amended is no longer open to
review otherwise his constitutional right against double
jeopardy will be violated.
Such supposition has no basis. The right against
double jeopardy given to the accused in Section 2,
Rule 116 of the Rules of Court applies in cases where
both the fiscal and the offended party consent to the
private respondent's change of plea. Since this is not
the situation here, the private respondent cannot claim
this privilege. Instead, the more pertinent and
applicable provision is that found in Section 7, Rule 117
which states:
Sec. 7. Former conviction or acquittal;
double jeopardy. —
xxx xxx xxx
 However, the conviction of the accused
shall not be a bar to another
prosecution for an offense which
necessarily includes the offense
charged in the former complaint or
information under any of the following
instances:

(a) . . . ;

(b) . . . ;

(c) the plea of guilty to the lesser

offense was made without the consent
of the Fiscal and of the offended party;

xxx xxx xxx

Under this rule, the private respondent could still be

prosecuted under the original charge of violation of
Section 16 of RA 6425 as amended because of the lack
of consent of the Fiscal who also represents the
offended party, i.e., the state. More importantly, the trial
court's approval of his change of plea was irregular and
improper.

ACCORDINGLY, the petition is hereby GRANTED.

The judgment and order of the Regional Trial Court,
National Capital Region at Pasig, Branch 156 dated
February 25 and March 13, 1991, respectively in
Criminal Case No. 1345-D (People v. Manuel y Ohide)
are REVERSED and SET ASIDE. The said criminal
case is hereby remanded to the trial court for
continuation of trial on the original charge of violation
of Section 16 of Republic Act No. 6425 as amended.
The temporary restraining order issued in this case is
made permanent. No costs.

SO ORDERED.