Republic of the PhilippinesSUPREME COURTManila THIRD DIVISION

G.R. No. 111244 December 15, 1997 ARTURO ALANO, petitioner, vs.THE HONORABLE COURT OF APPEALS, HON. ENRICO A. LANZANAS, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Manila, Branch 37, and ROBERTO CARLOS, respondents.

ROMERO, J.: Petitioner Arturo Alano has filed this petition for review of the decision 1 of the Court of Appeals in CA-G.R. SP No. 28150 which affirmed in toto the order of the Regional Trial Court of Manila, Branch 37 2 denying petitioner's motion for the suspension of proceeding of Criminal Case No. 90-84933, entitled "People of the Philippines vs. Arturo Alano" as well as his motion for reconsideration. Criminal Case No. 90-84933 is a prosecution for the crime of estafa. The information 3 alleges: That on or about June 10, 1986, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud Roberto S. Carlos in the following manner, to wit: the said accused, pretending to be still the owner of a parcel of land with an area of 1,172 square meters, more or less, located at Bicutan, Taguig, Metro Manila, covered by Tax Declaration No. 120-004-00398, well knowing that he had previously sold the same to the said Roberto S. Carlos for P30,000.00, sold the aforesaid property for the second time to one Erlinda B. Dandoy for P87,900.00, thereby depriving the said Roberto S. Carlos of his rightful ownership/possession of the said parcel of land, to the damage and prejudice of the said Roberto S. Carlos in the aforesaid amount of P30,000.00, Philippine currency. Contrary to law. Petitioner moved for the suspension of the criminal case on the ground that there was a prejudicial question pending resolution in another case being tried in the Regional Trial Court, National Capital Region, Pasig, Branch 68. The case, docketed as Civil Case No. 55103 and entitled "Roberto Carlos and Trinidad M. Carlos v. Arturo Alano, et. al.," concerns the nullity of the sale and recovery of possession and damages. In the aforementioned Civil Case, private respondent filed a complaint against the petitioner seeking the annulment of the second sale of said parcel of land made by the petitioner to a certain Erlinda Dandoy on the premise that the said land was previously sold to them. In his answer, petitioner contends that he never sold the property to the private respondents and that his signature appearing in the deed of absolute sale in favor of the latter was a forgery, hence, the alleged sale was fictitious and inexistent. At this juncture, it is worth mentioning that the civil case was filed on March 1, 1985, five years before June 19, 1990 when the criminal case for estafa was instituted.

On October 3, 1991, the trial court denied the petitioner's motion as well as a subsequent motion for reconsideration. Aggrieved, petitioner filed a petition for certiorari and prohibition before the Court of Appeals seeking the nullification of the assailed order. On July 26, 1993, 4 the Court of Appeals dismissed the petition for lack of merit, the decretal portion of which reads: WHEREFORE, finding no merit to the petition, the same is hereby DISMISSED, with cost against petitioner. Hence, this petition. The only issue in this petition is whether the pendency of Civil Case No. 55103, is a prejudicial question justifying the suspension of the proceedings in Criminal Case No. 90-84933 filed against the petitioner. Petitioner alleges that his signature appearing in the first deed of absolute sale in favor of private respondent was a forgery, such that there was no second sale covering the said parcel of land. Otherwise stated, if the Court in the said Civil Case rules that the first sale to herein private respondent was null and void, due to the forgery of petitioner's signature in the first deed of sale, it follows that the criminal case for estafa would not prosper. While at first blush there seems to be merit in petitioner's claim, we are compelled to affirm the Court of Appeal's findings. The doctrine of prejudicial question comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal action. 5 In other words, if both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exists, provided the other element or characteristic is satisfied. 6 On the basis of the foregoing and a perusal of the facts obtaining in the case at bar, the disposition of the issue raised need not unduly detain us. We have already ruled that a criminal action for estafa (for alleged double sale of property) is a prejudicial question to a civil action for nullity of the alleged deed of sale and the defense of the alleged vendor is the forgery of his signature in the deed. 7 Notwithstanding the apparent prejudicial question involved, the Court of Appeals still affirmed the Order of the trial court denying petitioner's motion for the suspension of the proceeding on the ground that petitioner, in the stipulation of facts, had already admitted during the pre-trial order dated October 5, 1990 of the criminal case the validity of his signature in the first deed of sale between him and the private respondent, as well as his subsequent acknowledgment of his signature in twenty-three (23) cash vouchers evidencing the payments made by the private respondent. 8 Moreover, it was also noted by the Court of Appeals that petitioner even wrote to the private respondent offering to refund whatever sum the latter had paid. 9

In this regard, the pre-trial provision on criminal procedure found in Rule 118 of the Rules of Court provides: Sec. 2. Pre-trial conference; subject. . . . The pre-trial conference shall consider the following: (a) Plea bargaining (b) Stipulation of facts From the foregoing, there is no question that a stipulation of facts by the parties in a criminal case is recognized as declarations constituting judicial admissions, hence, binding upon the parties 10 and by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statement contained in the exhibit. 11 Accordingly, the stipulation of facts stated in the pre-trial order amounts to an admission by the petitioner resulting in the waiver of his right to present evidence on his behalf. While it is true that the right to present evidence is guaranteed under the Constitution, 12 this right may be waived expressly or impliedly. 13 Since the suspension of the criminal case due to a prejudicial question is only a procedural matter, the same is subject to a waiver by virtue of the prior acts of the accused. After all, the doctrine of waiver is made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large. 14 Accordingly, petitioner's admission in the stipulation of facts during the pre-trial of the criminal amounts to a waiver of his defense of forgery in the civil case. Hence, we have no reason to nullify such waiver, it being not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. 15 Furthermore, it must be emphasized that the pre-trial order was signed by the petitioner himself. As such, the rule that no proof need be offered as to any facts admitted at a pre-trial hearing applies. 16 WHEREFORE, in view of the foregoing, the appealed decision of the Court of Appeals dated July 26, 1993 is AFFIRMED. Costs against petitioner. SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur. Footnotes 1 Penned by Justice Regina G. Ordoez-Benitez and concurred in by Justice Manuel C. Herrera and Bernardo P. Pardo. 2 Per Judge Angelina Gutierrez. 3 Rollo, p. 30.

4 Id., pp. 96-101. 5 Flordelis v. Castillo, 58 SCRA 301 (1974); Donato v. Luna, 160 SCRA 441 (1988). 6 Benitez v. Concepcion, Jr., 2 SCRA 178 (1961). 7 Ras v. Rasul, 100 SCRA 125 (1980). 8 Pre-trial Order, Rollo, pp. 134-140. 9 Decision, Rollo, p. 101. 10 People v. Hernandez, 260 SCRA 25 (1996). 11 People v. Bocar, 27 SCRA 512 (1969). 12 Sec. 14, Art. 3, 1987 Constitution. 13 People v. Dichose, 96 SCRA 957 (1980). 14 People v. Donato, 198 SCRA 130 (1991). 15 Article 6, Civil Code. 16 Afable, et al., v. Ruiz, et al., 56 O.G. 3767; Permanent Concrete Products, Inc. v. Teodoro, 26 SCRA 339 (1969); Munasque v. Court of Appeals, 139 SCRA 533 (1985).

SECOND DIVISION

LBC EXPRESS, INC. and,G.R. No. 161760 LBC INTERNATIONAL, INC.,

Petitioners,

Present:

PUNO, J., Chairman, - versus - AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and SPOUSES EUBERTO and CHICO-NAZARIO, JJ. SISINIA ADO, ' Respondents. Promulgated: August 25, 2005 x-----------------------------------------------x' DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 73732 affirming that of the Regional Trial Court (RTC) of Naval, Biliran, Branch 16, holding LBC International, Inc. and LBC Express, Inc. solidarily liable for damages.

The factual backdrop of the case, as found by the CA, is as follows:

Euberto Ado was an overseas contract worker, employed as a mechanic in the Marine Workshop of Al Meroouge Group in Bahrain.[2] He was the holder of Passport No. L067892.

Al-Mulla Cargo & Packing (AMCP) of Manama, Bahrain was an agent of LBC International, Inc. and LBC Express, Inc. (hereinafter collectively referred to as LBC).[3]

When his two-year contract of employment expired, Euberto, together with his wife Sisinia, decided to take a three-month vacation to the Philippines. They secured a re-entry visa to Bahrain.

Before flying to the Philippines, on August 8, 1995, Euberto transported five (5) boxes, each weighing 168 kilograms, through AMCP,[4] with himself as the consignee of the packages. AMCP issued House Air Waybill (HAWB) No. 004467 covering Eubertos' packages. Under the waybill, Zachary Furagganan, the LBC's import manager and the representative of AMCP in the Philippines with office at LBC

International, Inc., LBC Aviation Center, Domestic Road, Pasay City,[5] was the party to notify upon Euberto's arrival in .[6]

Upon their arrival in the Philippines, the spouses Ado proceeded to LBC's Customer Service Department located at the LBC Aviation Center, Domestic Road, Pasay City, to take delivery of the boxes from Furagganan. Myrna Mendoza, an employee of LBC, suggested that Euberto avail of the custom duty exemptions for his packages, and entrust his passport to her for submission to the Customs Office. Euberto hesitated because it contained his re-entry visa to Bahrain, which he needed to get another two-year contract with Al Meroouge. He was concerned that his passport might get lost. However, after being assured that his passport, together with his boxes, would be forwarded to him, he acquiesced. He turned over his passport to LBC, for which he was issued a receipt.[7]

Euberto's boxes were delivered to him via the LBC-Ormoc City Branch on different dates: three boxes on September 7, 1995;[8] one box on September 14, 1995[9] and one box on September 16, 1995.[10] He inquired about his passport, but the Ormoc City LBC Manager told him that his passport was not in their office. He advised Euberto to wait for a few days, as it might arrive on a later date. Euberto made several follow-ups, to no avail.[11] Furagganan sent letter-inquiries to the

managers of the LBC-Cebu Branch and LBC-Catbalogan Branch,[12] informing them that Euberto's passport was attached to HAWB No. 004467, together with the waybills and bill of lading of shipments. However, the passport of Euberto could not be located.

Euberto then engaged the services of counsel who, on January 8, 1996, sent a demand letter[13] to LBC. Still, LBC did not act on the demand and failed to return his passport. Euberto was not able to return to Bahrain and report back for work.

On September 22, 1997, Euberto filed a Complaint[14] for damages against LBC Express, Inc. and LBC International, Inc. with the RTC of Naval, Biliran. The case was docketed as Civil Case No. B-1024 and raffled to Branch 16, and was later amended[15] to implead Euberto's wife Sisinia. The complaint alleged that because of the loss of Euberto's passport through the gross negligence of the defendants, he failed to report back for work in Bahrain. The spouses Ado prayed that damages for Euberto's unearned income be awarded to them and that after due proceedings, the court render judgment in their favor, as follows: 1. Condemning and ordering the defendants, jointly and severally, to pay the plaintiff the following sums: a. P300,000.00 as moral damages; b. P200,000.00 as exemplary damages; c. Actual and compensatory damages of P20,000.00 a month from October 10, 1995 with

interest at the legal rate of 12% per annum until fully paid; d. P30,000.00 as attorney's fees; e. P20,000.00 as litigation expenses; f. To pay the costs of the suit. 2. Plaintiffs further pray for such other reliefs and remedies as [the] Honorable Court may deem just and equitable in the premises.[16]

In their answer with counterclaim,[17] LBC alleged that their delivery van carrying Euberto's packages was forcibly opened and pilfered byunidentified person/s at its Pasay City office, and surmised that the said passport was probably one of the items stolen. The spouses Ado had only themselves to blame for the damages they sustained, as Euberto failed to secure a replacement passport from the Department of Foreign Affairs, and a visa from the Embassy of Bahrain.

To prove their claim for actual damages, spouses Ado offered in evidence a certification from Euberto's employer, which reads: TO WHOM IT MAY CONCERN: This is to certify that Mr. Euberto Ado holder of Passport Number L 067892 was working as a Mechanic at our Marine Workshop. He left Bahrain on 08.08.1995 to on holiday for the period of three months. He was getting the basic salary of BD 280.000 (Two hundred & Eighty) only monthly. He was holding the return visa for coming back to after having his leave. Mr. Euberto Ado could not return back to Bahrain [as] his passport was misplace[d] in .

Your's (sic) Sincerely, Praful V. Birje (Manager)[18]

On August 14, 2001, the spouses Ado filed their formal offer of documentary evidence.[19] The defendants were given ten (10) days from August 30, 2001 within which to file their comments thereon. Meanwhile, trial was set at 8:30 a.m. of October 10, 2001 and on November 8 and 9, 2001 for the defendants to adduce their evidence.[20] However, the defendants failed to file their respective comments and on October 4, 2001, the court issued an Order[21] admitting all the documentary evidence of the plaintiffs. On October 10, 2001, the case was called for hearing. There was no appearance for the defendants, and the court issued an order declaring that the defendants were deemed to have waived their right to adduce their evidence, and that the case was considered submitted for decision.[22]

On October 22, 2001, the trial court rendered judgment[23] in favor of the spouses Ado. The fallo of the decision reads: WHEREFORE, premises considered, this Court finds in favor of the plaintiffs and renders judgment against the defendants making them liable solidarily to pay the plaintiffs: (a) P480,000.00 in compensatory damages plus legal interest from the filing of this complaint until fully paid; (b) P300,000.00 in moral damages; (c) P30,000.00 in attorney's fees; and

(d) to pay the costs. SO ORDERED.[24]

The trial court declared that Euberto's passport was lost because of the defendants' gross negligence.

On November 5, 2001, LBC filed a Motion dated October 31, 2001, for the reconsideration of the trial court's Order dated October 10, 2001, praying that trial proceed as scheduled on November 8, 2001. The defendants also filed their comments on the plaintiffs' formal offer of evidence. Before the trial court could resolve the motion, the defendants received a copy of the decision on November 9, 2001.

On November 14, 2001, LBC appealed the decision to the CA. In their Brief, LBC, as appellants, alleged that: 1. The lower court erred in declaring that plaintiff-appellee Euberto Ado lost a renewed contract at a basic salary of 280 Bahrain Dinar that entitles the plaintiffs-appellees for the award of actual and moral damages as well as attorney's fees. 2. The lower court erred in declaring that the defendantsappellants waived its (sic) right to present the necessary evidence.[25]

LBC questioned the trial court's ruling that due to the loss of his passport, Euberto lost the opportunity for the renewal of his two-year contract, at the basic salary of about P20,000.00 a month in Bahrain, or for the total peso equivalent of P480,000.00 for two years. They argued that such ruling of the court was based on mere speculations. Moreover, the certification issued by Euberto's employer does not indicate that he had an existing contract, or that he would be given another two-year contract. LBC argued that Euberto failed to lessen the damages he suffered by filing an application for the issuance of another passport and or application for a two-year contract before the Bahrain Embassy in the Philippines; hence, the spouses Ado were not entitled to any damages, much less moral damages as they failed to adduce evidence that LBC acted in bad faith in failing to return Euberto's passport.

On the second assignment of error, LBC averred that the trial court erred in declaring the case submitted for decision for their failure to appear for the trial on October 10, 2001. If they had been allowed to adduce their evidence, they would have presented Jimwell Morales, who would testify that the shipments and Euberto's passport were properly handled. When the shipments and cargoes were brought to the LBC Express, Inc., Head Office at Pasay City for sorting and

forwarding to their final destination, the delivery van carrying various shipments, including those of the spouses Ado and the passport attached to the shipments' air waybill, was forcibly opened by robbers along 14th Street, Port Area, South Harbor, .[26]

On July 10, 2003, the CA rendered judgment affirming the assailed decision.

LBC, now the petitioners, filed their petition for review on certiorari claiming that the CA erred ' A. IN FINDING THAT RESPONDENT EUBERTO ADO HAD A TWOYEAR CONTRACT WITH HIS FORMER EMPLOYER ABROAD THAT ALLEGEDLY JUSTIFIES THE AWARD TO HIM OF EXORBITAN (SIC) ACTUAL OR COMPENSATORY DAMAGES OF FOUR HUNDRED EIGHTY THOUSAND PESOS (P480,000.00); B. IN AFFIRMING THE AWARD OF ACTUAL OR COMPENSATORY DAMAGES BASED ON SPECULATION/OR GUESSWORK, IN VIOLATION OF THE 'BEST EVIDENCE OBTAINABLE RULE; C. IN AFFIRMING THE AWARD OF THREE HUNDRED THOUSAND PESOS (P300,000.00) MORAL DAMAGES, FOR PETITIONER COMMITTED NO BAD FAITH AND THERE IS NO SUFFICIENT PROOF ON RESPONDENTS' ALLEGED MORAL SUFFERING; D. IN AFFIRMING THE AWARD OF SUCH MORAL DAMAGES, BECAUSE THE SAME HAS BECOME PUNITIVE FOR PETITIONER OR HAS BECOME A MEASURE FOR RESPONDENTS' ENRICHMENT AT PETITIONERS' EXPENSE; E. IN AFFIRMING [THE] AWARD OF ATTORNEY'S FEES, PETITIONER NOT BEING IN BAD FAITH, AND TO PUT A PREMIUM TO LITIGATE NOT BEING A SOUND PUBLIC POLICY.[27]

The petitioners reiterate their submissions in the appellate court in support of their petition.

The petition is partially granted.

One is entitled to actual or compensatory damages in the form of an adequate compensation for such pecuniary losses suffered as has been duly proved. In contracts, the damages for which the obligor who acted in good faith shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In the case where the obligor acted in bad faith, the obligor shall be responsible for all the damages which may be reasonably attributed to the non-performance of the obligation.[28]

The Court agrees with the petitioners' contention that the respondents failed to adduce preponderant evidence to prove that upon his return to Bahrain, he would be automatically employed by his former employer for a period of two years and

that he will be given the same job with the same compensation as provided for in his expired employment contract.

It is well-settled in our jurisdiction that actual or compensatory damages is not presumed, but must be duly proved with reasonable degree of certainty. A court cannot rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend upon competent proof that they have suffered and on evidence of the actual amount thereof.[29] Indeed, the party alleging a fact has the burden of proving it and a mere allegation is not evidence.[30]

In this case, the only evidence adduced by the respondents to prove that Euberto had been granted a two-year re-entry visa and that upon his return to Bahrain he would be automatically given a two-year employment contract is Euberto's own testimony and his employer's certification. The CA found the same to be sufficient, and affirmed the award for actual/compensatory damages, thus: We do not agree. It is worthy to note that appellants' reproduction of appellee Euberto's testimony is, to say the least, incomplete. A more judicious scrutiny of the records, however, reveal that while the two-year contract has not actually been executed between appellee Euberto and his employer, his employment is assured by the fact that he was issued a re-entry visa by the embassy. The portion of the cross-examination left out by the appellant reads: Q-Is a re-entry visa an assurance of contract (sic)? A-Yes, automatically. Q-On what basis?

A-If I could go back to place (sic) of work before the expiration of my re-entry visa, automatically, another contract will be issued. Q-Is that so? A-Yes, Sir. Contrary, therefore, to appellant's assertion, the re-entry visa may be considered as sufficient proof of the continuation of his contract with Al Meroouge for a period of another two years, since he will not be issued the same by Bahrain's embassy, absent any showing that he has a valid reason to return to the same country. Moreover, the Certification (Exhibit 'A, Records, p. 193) issued by appellee Euberto's employer, Al Meroouge, explicitly stated that, when said appellee left Bahrain on August 1995, he was merely 'on holiday', or simply on leave, for a period of three months, indicating that he was in fact expected to return to work after the said period. The last portion of said Certification even recognized the reason for his failure to return after his leave, stating thus: He was holding the return visa for coming back to (sic) after having his leave. Mr. Euberto Ado could not return to Bahrain has (sic) his passport was misplace (sic) in . (Emphasis and underscoring [sic] supplied)[31]

The appellate court's conclusion based on respondent Euberto's testimony and the certification of his former employer is a non sequitur. The entirety of the relevant portions of respondent Euberto's testimony on cross-examination reads: ATTY. MAYOL: Q For the period of two (2) years for how long have you been working? A Two (2) years finished contract. Q And another contract should be made whenever you return? A Yes, Sir. Q In 1995, you were in Al Meroouge, you were able to perform your job on the period of your contract.

Supposedly, you go back to Bahrain you will be under the same company? A Yes, Sir. Q But you have no contract yet? A I have re-entry visa. Whenever I will assume work in Bahrain automatically another contract will be issued. Q At that time, there was no contract yet? A Not yet. Q Is a re-entry visa an assurance of contract? A Yes, automatically. Q On what basis? A If I could go back to place of work before the expiration of my re-entry visa, automatically, another contract will be issued. Q Is that so? A Yes, Sir. Q In support of your testimony, you presented a certification from your alleged employer? A Yes, Sir. Q Who secured that certification? A I requested one of my compadre because he was there.

Q You were not the one who secured that certification? A Yes, of course, because I am here and I could not go back because my passport was lost. Q How close are you with your manager? A Very close because I was even entrusted to maintain the yatch owned by the manager. Q The fact that you were not in Bahrain, you have no personal knowledge about the issuance of certification? A Yes, I have no personal knowledge. COURT: What is that certification? ATTY. SABITSANA: Certification of employment and salary.

COURT: The past employment? ATTY. SABITSANA: Yes, Your Honor.[32]

Thus, Euberto's two-year contract of employment had already expired before leaving Bahrain for his three-month vacation in the Philippines. Whether or not respondent Euberto's employer would automatically employ him upon his return to Bahrain after his sojourn in the Philippines would depend entirely upon his employer. The respondents failed to adduce any evidence that Euberto's employer would give him his former position under the same terms and conditions stipulated in his previous employment contract. Euberto even failed to prove, by preponderant evidence, other than his self-serving testimony, that the re-entry visa issued to him was at his employer's behest, with an assurance that upon his return to Bahrain, he would automatically be re-employed. The respondents could very well have secured an undertaking or an authenticated certification from Euberto's employer that upon his return to Bahrain, he would be automatically employed for a period of two years under the same terms and conditions of the first contract. While they adduced in evidence a certification from Euberto's employer that he had been issued a re-entry visa, there was no undertaking to automatically re-employ respondent Euberto for another two years upon his return to Bahrain for a monthly salary of 280 Bahrain Dinars. The CA, thus, erred in affirming the award of actual or compensatory damages of P480,000.00 to the respondent spouses.

There is preponderant evidence that the respondents indeed suffered some pecuniary loss due to the loss of Euberto's passport. However, the respondents failed to adduce preponderant evidence of the passport's value. Nevertheless, they are entitled to temperate damages of P10,000.00 under Article 2224 of the New Civil Code which provides: '[t]emperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.[33]

The CA affirmed the award of moral damages in favor of the respondents as follows: Considering the foregoing and the fact that appellants had in fact been negligent in handling appellee Euberto's passport, the trial court could not be said to have erred in awarding both actual and moral damages to the appellees, the latter being justified further by the fact that the appellee's entire family suffered, having lost much-needed source of their income, which also resulted in their failure to complete the construction of the house they were building.[34]

Case law has it that moral damages may be awarded for breach of contract where the breach thereof by the obligor is wanton, reckless, malicious or in bad faith,

oppressive or abusive,[35] or where the obligor is guilty of gross negligence amounting to bad faith.[36] In the case of Philippine Telegraph & Telephone Corporation v. Court of Appeals,[37] the Court had laid the requisites for awarding moral damages, thus: first, evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; second, a culpable act or omission factually established; third, proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and fourth, that the case is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.

Article 2220 of the Civil Code states that breach of contract may be a legal ground for awarding moral damages if the defendant acted fraudulently or in bad faith.

The rulings of the trial and appellate courts that the respondent spouses are entitled to moral damages are correct. While the failure to deliver Euberto's passport does not per se amount to willful misconduct[38] or bad faith, the evidence on record shows that the petitioners indeed acted in bad faith and in wanton disregard of their contractual obligation to the respondents.

The respondents made numerous inquiries from the petitioners on the whereabouts of Euberto's passport, and repeatedly made requests for its return; the petitioners dilly-dallied and gave various excuses. The petitioners told the respondents that the passport may have been inadvertently transported to their other branches. Exasperated, the respondents had to secure the services of counsel. Their demands for the production of the passport (made through counsel) were ignored by the petitioners. Worse still, the petitioners alleged in their answer to the complaint that the van carrying Euberto's passport, while parked somewhere along 14th Street, Port Area, South Harbor, , was forcibly opened by unidentified person/s who pilfered its contents, probably including the said passport.[39] The trial court found the allegation of pilferage to be baseless and declared as follows: The defendants LBC failed to notify Euberto Ado at the earliest possible time that his passport was lost. It was only in the second week of October 1996 that he was informed through the letters of Atty. Florencio C. Lameyra, dated October 9, 1996, to the Chief, Legal and Enforcement Division of the Civil Aeronautics Board, and the letter of Atty. Generoso Santos that his passport was lost and not stolen by thieves as asserted in their answer.[40]

Thus, with the attendant circumstances, there is ample basis for an award of moral damages to the respondents. There is, to be sure, no hard and fast rule for determining what would be a fair amount of moral damages.Each case has to be resolved based on the attendant particulars. The Court finds that an award of

P50,000.00 as moral damages in favor of the respondents is commensurate in this case.

Considering that the petitioners were guilty of bad faith and the private respondents were compelled to litigate,[41] the latter are entitled to the amount of P15,000.00 as attorney's fees.

IN LIGHT OF ALL THE FOREGOING, the Court of Appeals' Decision in CA-G.R. CV No. 73732 is AFFIRMED WITH MODIFICATION. The award for actual/compensatory damages is deleted. In lieu thereof, the respondents, spouses Euberto and Sisinia Ado, are awarded temperate damages in the amount of P10,000.00. The awards for moral damages and attorney's fees are reduced to P50,000.00 and P15,000.00, respectively. No costs.

SO ORDERED.

ROMEO J. CALLEJO, SR. Associate Justice

WE CONCUR:

REYNATO S. PUNO Associate Justice Chairman

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

REYNATO S. PUNO Associate Justice Chairman, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairman's Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

HILARIO G. DAVIDE, JR. Chief Justice

Endnotes:

[1] Penned by Associate Justice Mercedes Gozo-Dadole, with Associate Justices Conrado M. Vasquez, Jr. and Rosmari D. Carandang, concurring; Rollo, pp. 3247.cralaw [2] Exhibit 'A.cralaw [3] See Exhibit 'B.cralaw [4] Ibid.cralaw [5] Exhibit 'B-2.cralaw [6] TSN, 14 March 2001, p. 8.cralaw [7] Exhibit 'C.cralaw [8] Exhibit 'D-1.cralaw [9] Exhibit 'E. cralaw [10] Exhibit 'F.cralaw [11] TSN, 14 March 2001, p. 15.cralaw [12] Exhibits 'H and 'I.cralaw [13] Exhibit 'K.cralaw [14] Records, p. 1.cralaw [15] Id. at 40, 84.cralaw [16] Id. at 88-89.cralaw [17] Id. at 101.cralaw [18] Rollo, p. 193; Exhibit 'A. cralaw [19] Id. at 189-192.cralaw

[20] Id. at 203.cralaw [21] Id. at 206-208.cralaw [22] Records, p. 210.cralaw [23] Id. at 211-219; Penned by Judge Enrique O. Asis.cralaw [24] Id. at 219.cralaw [25] CA Rollo, p. 33.cralaw [26] CA Rollo, pp. 50-51.cralaw [27] Rollo, pp. 5-6.cralaw [28] Article 2201, New Civil Code.cralaw [29] Bayer Phils., Inc. v. Court of Appeals, 394 Phil. 777 (2000).cralaw [30] Saguid v. Court of Appeals, G.R. No. 150611, 10 June 2003, 403 SCRA 678. 'cralaw [31] Rollo, pp. 43-44.cralaw [32] TSN, 1 August 2001, pp. 3-4.cralaw [33] Emphasis supplied.cralaw [34] Rollo, p. 44.cralaw [35] Herbosa v. Court of Appeals, 425 Phil. 431 (2002).cralaw [36] Sarmiento v. Spouses' Sun-Cabrido, 449 Phil. 108 (2003).cralaw [37] 437 Phil. 76 (2002).cralaw [38] See Luna v. Court of Appeals, G.R. Nos. 100374-75, 27 November 1992, 216 SCRA 107, where the Court did not subscribe to the therein petitioners' argument that the private respondent's failure to deliver their luggage at the designated time and place amounted ipso facto to willful misconduct. The Court went on to state that for willful misconduct to exist, there must be a showing that the acts complained of were impelled by an intention to violate the law, or were in persistent disregard of one's rights; it must be evidenced by a flagrantly or shamefully wrong or improper conduct. cralaw [39] Records, p. 103.cralaw

[40] Rollo, p. 56.cralaw [41] See Rollo, p. 53.

Republic of the PhilippinesSUPREME COURTManila FIRST DIVISION G.R. No. 75028 November 8, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.PIOQUINTO DE JOYA y CRUZ, defendant-appellant. The Solicitor General for plaintiff-appellee. Rodolfo P. Liwanag for accused-appellant.

FELICIANO, J.:p In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was charged before the Regional Trial Court, 3rd Judicial Region, Branch 14, Malolos, Bulacan with the crime of robbery with homicide committed as follows: That on or about the 31st day of January, 1978, in the municipality of Baliuag, province of Bulacan, Philippines and within the jurisdiction of this Honorable Court, the said accused Pioquinto de Joya y Cruz, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and without the knowledge and consent of the owner and, by means of violence and intimidation, take, carry and cart away two (2) rings, one (1) necklace, one (1) piece of earring, belonging to Arnedo Valencia y Angeles and Eulalia Diamse Vda. de Salac, to their damage and prejudice in the sum of FIVE HUNDRED FIFTY PESOS (P550.00); and that on the occasion of the said robbery and for the purpose of enabling him to take the said properties, the accused did then and there wilfully, unlawfully and feloniously with treachery, evident premeditation and great advantage of superior strength, with intent to kill, attack, assault and use personal violence upon the person of Eulalia Diamse Vda. de Salac by stabbing and hitting the latter on her neck and other parts of her body with pointed instrument causing injuries which directly caused the death of the said Eulalia Diamse Vda. de Salac. That in the commission of the offense, the following aggravating circumstances were present (1) abuse of superior strength; (2) committed in the dwelling of the offended party; (3) disregard of age and sex; (4) abuse of confidence. Contrary to law. 1

At arraignment, appellant De Joya pleaded not guilty. After trial, the court a quo rendered a decision dated 16 May 1986 convicting De Joya of the crime charged. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable doubt of the crime of Robbery with Homicide, committed with the aggravating circumstances of: abuse of superior strength, old age, disregard of sex the victim a woman 88 years old, the crime was committed in the dwelling of the victim. The accused being 72 years old death penalty cannot be imposed against him as provided in Article 47 of the Revised Penal Code. The Court therefore, sentences the accused to LIFE IMPRISONMENT; to indemnify the heirs of the victim in the amount of P20,000.00 and to pay damages in the amount of P550.00. The bond of the accused is ordered cancelled and the accused to be confined immediately in the National Penitentiary pending review of his case by the Supreme Court. The Clerk of Court is ordered to immediately forward the record of this case to the Supreme Court for review. SO ORDERED. 2 In this appeal, appellant raises a number of issues all of which, however, amount to one basic assertion: that the lower court erred in concluding that appellant was guilty beyond reasonable doubt of the crime charged. The facts have been summarized in the brief of the Solicitor General in the following manner: The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their ten (10) year old son Alvin Valencia and Herminia Valencia's 88-year old mother, Eulalia Diamse, are residents of Balagtas St., Baliuag, Bulacan. (TSN, June 11, 1981, p. 2). Both spouses are teachers by profession. Arnedo Valencia teaches at the Tiaong Elementary School at Barrio Tiaong, Baliuag, Bulacan whereas Herminia Valencia teaches in an intermediate school at Baliuag, Bulacan. (TSN, March 11, 1980, p. 7). In the afternoon of January 31, 1978, Herminia Salac-Valencia left for school to teach. Her mother Eulalia Diamse was then [sitting] at their sofa watching the television set. (TSN, October 12, 1978, p. 3). Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the afternoon, his classes were dismissed and he proceeded home. (TSN, March 11, 1980, p. 8). At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's neighbor by the name of Gloria Capulong, together with a friend, went out of the former's house to visit a friend. While at her yard, Gloria Capulong looked back to the direction of the Valencia's house. She noticed appellant Pioquinto de Joya standing and holding a bicycle at the yard of the Valencia's. (TSN, June 11, 1981, pp. 2-4).

When Alvin reached home, he saw his grandmother Eulalia Diamse lying down prostrate and drenched with her own blood. He immediately threw his bag and ran towards her. He then held her hands and asked her: "Apo, Apo, what happened?". (TSN, March 11, 1980, p. 10). . . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After saying these words, she let go of Alvin's hand and passed away. (TSN, Ibid., pp. 14 and 17). Alvin then called for his Nana Edeng and told her to see his lola because she was drenched with her own blood. His Nana Edeng told him to immediately see his mother Herminia SalacValencia to inform her of what happened. (TSN, Id). Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is drenched in her own blood." (TSN, March 11, 1980, p. 20). Herminia immediately ran outside the school, flagged down a tricycle and went home. Alvin followed, riding his bicycle (TSN, Id., p. 21). When she reached their house, she found her mother lying prostrate in her own blood at their sala in front of the television. Her mother's hands were stretched open and her feet were wide apart. Blood was oozing out of her mother's ears. She then embraced her mother and placed her on the sofa. She asked Alvin and the tricycle driver to call Dr. Delfin Tolentino. (TSN, October 12,1978, pp. 25-26). Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the body of Eulalia Diamse. Said doctor declared that said Eulalia Diamse had a heart attack which caused her death. When asked by Herminia Valencia why her mother's ears were punctured, no reply was given by said doctor. Herminia requested for a death certificate, but Dr. Tolentino did not issue one and instead immediately left. (TSN, Ibid., pp. 27-29). Herminia found out that the two (2) gold rings worn by her mother were missing. The right earring of her mother was likewise missing. All of these were valued [at] P300.00 (TSN, Id., p. 15). That same afternoon, Herminia saw the room of the groundfloor ransacked. The contents of the wardrobe closet (aparador) were taken out. Its secret compartment/box was missing. And the lock of the aparador was destroyed. (TSN, October 12, 1978, pp. 15-17). When she went upstairs after putting her mother on a bed at the ground floor, she found the two (2) rooms thereat in disarray. She then caused the rooms and things photographed by a certain Ricardo Ileto (Exhibits "A" to "A-11"; TSN, October 12, 1978, p. 17). Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to issue a death certificate so that her mother could be embalmed. (TSN, Id., pp. 33-34). On the same night, Herminia found a beach walk step-in (Exhibit "B") by the side of the cabinet near the door of their room downstairs, more or less one meter from where the victim was lying prostrate. (TSN, October 12,1978, pp. 24-25). Herminia was able to recognize the said step-in because of its color and size, as the other half of the pair she bought for her husband Arnedo but which she gave to Socorro de Joya, the wife of herein appellant, before Christmas of 1977 when she saw the old and wornout pair of slippers of the latter. (TSN, Ibid.).

Appellant Pioquinto de Joya visited the wake only once. During the second day of the four-day wake, Herminia saw herein appellant Pioquinto de Joya enter the kitchen and peep under the cabinet of the (Valencia's) house. (TSN, Id.). On February 3, 1978, a post-mortem examination was conducted by Dr. Romulo Madrid, a medico-legal officer of the National Bureau of Investigation. Per examination, the cause of the death arrived by Dr. Madrid was "shock, secondary to punctured wound neck" (Exhibit "D-1") situated at the right side of the neck, just below the right ear wherein it went out thru and thru, opposite, almost in the same location, from one side of the neck to the opposite side. (Exhibit "D-2"). In its decision, the trial court became quite clear as to the factors which led to the judgment of conviction against appellant. These factors, as set out in the decision of the trial court, were the following: In the case at bar, the prosecution relied heavily on the circumstances surrounding the death of the victim as testified to by the witnesses and proven during the trial, also the dying statement of the deceased, which are: Herminia testified that two weeks before the incident the accused and the deceased quarreled over a bicycle which the former took from their house without the consent of the latter; that Exhibit "B" (step-in beach walk type) which was found near the cabinet one meter away from the body of the victim was identified by Herminia as the step-in that she gave to the wife of the accused and which she saw accused wearing on January 29, 1978 when she visited them in their house; the testimony of Gloria Capulong that she saw the accused in the afternoon of January 31, 1978 at around 3:00 p.m. in the yard of Herminia standing and holding a bicycle; the accused admitted, although his wife is the sister of the husband of Herminia he never visited the deceased during the four days that it was lying in state without any justifiable reason and contrary to the ordinary experience of man; last but most convincing is the dying statement of the deceased when her grandson Alvin asked her "Apo, Apo, what happened?" and she answered, "Si Paki", then she expired. When Alvin was asked during his testimony who is this Paki, he identified the accused. The accused during his testimony never denied that he is called Paki. The foregoing circumstances established during the trial plus the dying statement of the deceased leads only to one fair and reasonable conclusion, that the accused is the author of the crime. Analyzing the above portion of the decision, the elements taken into account by the court in convicting appellant De Joya of robbery with homicide may be listed as follows: 1. The dying statement made by the deceased victim to her grandson Alvin Valencia a 10-year old boy: "Si Paqui"; 2. The quarrel, which, according to Herminia Valencia, daughter of the deceased victim, took place two weeks before the robbery and homicide, between the appellant and the deceased over the use of a bicycle which appellant allegedly took from the Valencia's house without the consent of the victim; 3. The rubber slipper, one of a pair, ("step-in beach walk type") which according to Herminia, she found near a cabinet in their house one (1) meter away from the body of the victim, and

which Herminia identified as one of the pair that she had given to the wife of the accused the previous Christmas Season; 4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the afternoon of 31 January 1978 in the yard of the Valencias, standing and holding a bicycle and doing nothing; 5. The statement of appellant that he did not visit the deceased during the four-day wake. We turn first to the dying statement made by the victim when the 10-year old Alvin Valencia asked his grandmother who was sprawled on the floor of their house drenched with blood: "Apo, Apo, what happened?" The deceased victim said: "Si Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of appellant Pioquinto de Joya. It must be noted at once, however, that the words "Si Paqui" do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b) the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designed to designate the object of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?" It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. 3 The doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's classic work: The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely apart of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. 4 (Emphasis supplied) The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received. 5 It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the deceased had intended to name the person who had thrust some sharp instrument through and through her neck just below her ears. But Eulalia herself did not say so and we cannot

speculate what the rest of her communication might have been had death not interrupted her. We are unable to regard the dying statement as a dying declaration naming the appellant as the doer of the bloody deed. The other elements taken into account by the trial court are purely circumstantial in nature. When these circumstances are examined one by one, none of them can be said to lead clearly and necessarily to the conclusion that appellant had robbed and killed the deceased Eulalia Diamse. The quarrel over the use of the bicycle which was supposed to have taken place two weeks before Eulalia's death does not, in our view, constitute adequate proof of a motive capable of moving a person to slay another in such a violent and gory manner. Failure to prove a credible motive where no identification was shown at all, certainly weakens the case of the prosecution. The testimony of Herminia Valencia about the single slipper that she found near or under the cabinet in the living room where Eulalia Diamse was slain, can scarcely be regarded as conclusive evidence that such slipper was indeed one of the very same pair of slippers that she had given to appellant's wife, who was also the sister of Herminia's husband. Rubber or beach, walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife. And even if conclusive identification of the slippers had been offered, and it is assumed that appellant (rather than his wife) had worn those very slippers on that fatal afternoon, still the presence of that singular slipper did not clearly and directly connect the appellant to the robbery or the slaying. At most, under that assumption, the presence of that slipper in the house of the Valencias showed that the accused had gone to the house of the Valencias and there mislaid that slipper. We note in this connection, that appellant himself had testified that he did enter the house of the Valencias that afternoon, but after the killing of Eulalia Diamse had been perpetrated, and there had found many persons in the house viewing the body. The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a bicycle and doing nothing is, by itself, not proof of any act or circumstance that would show that appellant had perpetrated the slaying or the robbery. The behaviour of the appellant, as testified to by Gloria Capulong, offers no basis for supposing that appellant, himself 72 years of age, had just slain an 88-year old woman by skewering her through the neck and had ransacked both floors of the Valencia house. Appellant's failure to present himself to pay his respects to the deceased or her immediate family during the four-day wake, does not give rise to any inference that appellant was the slayer of Eulalia Diamse. Appellant had explained that he had been busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted, had dropped in the Valencias' house in the afternoon Eulalia Diamse was killed and had viewed the body (before it was lying in state) along with several other persons. His reluctance or inability to participate in the formal wake is not necessarily a sign of guilt. We are unable to agree with the trial judge that such behaviour was "contrary to the ordinary experience of man" although respect for the dead is a common cultural trait of the Filipinos. In the Solicitor-General's brief, it is casually contended that the circumstantial evidence against appellant included: "the attempt on the part of appellant Pioquinto de Joya through his counsel to settle the case amicably." 6 We have examined the testimony that the Solicitor General

pointed to in referring to a supposed attempt to settle the criminal charge amicably. That testimony, given by Arnedo Valencia, son-in-law of the deceased Eulalia Diamse and brother-inlaw of appellant Pioquinto de Joya, was as follows: Q You also testified that before the release of the accused from the municipal jail, you had a conversation with him, is that right? A Yes, air. Q What was this conversation about? A He called for me and took me to his counsel Atty. Aguilar and according to him if only Atty. Aguilar can talk with me, everything will be settled. Q Have you seen and talked to this Atty. Aguilar? A Yes, I went with him to Manila, sir. Q When was this? A The time he was fetched out of jail. Q You are referring to the municipal jail? A Yes, sir. Q What did you and Atty. Aguilar discuss when you finally was able to see Atty. Aguilar? A When I went there, I was introduced to Atty. Aguilar and Atty. Aguilar asked me as to what I liked to happen. Q What did you say? A I said if it will be settled, well and good. Q Anything else that transpired? A He even told me if I might be able to convince both my wife and her sisters. Q Did he tell you he can settle this? A He was very certain that he can settle this, the very reason why he told me because I was very certain as to what happened. Q Was the accused Pioquinto de Joya present when you were discussing this with his lawyer? A Yes, sir

Q He heard what his, lawyer was telling you? A It is possible because he is only one or two meters distance away. Q Did the accused say anything? A None, sir. (Emphasis supplied) We find the above testimony quite impalpable and inconclusive so far as a supposed attempt of appellant, through his counsel, to offer a compromise on the criminal charge is concerned. We are aware of the provision of Section 24 of Rule 130 of the Rules of Court which provides that Sec. 24. Offer to compromise not admission. An offer of compromise is not an admission that anything is due, and is not admissible in evidence against the person making the offer. However, in criminal cases which are not allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. (Emphasis supplied) We do not, however, feel justified in concluding from the above testimony from a member of the (extended) family of the deceased victim that "an offer of compromise" had been made "by the accused" nor that "an implied admission of guilt" on the part of the appellant may be reasonably inferred in the instant case. The trial court itself made no mention of any attempt on the part of appellant to settle the criminal case amicably through the defense counsel; we must assume that the trial court either did not believe that appellant had tried to compromise the criminal case or considered that appellant could not fairly be deemed to have impliedly admitted that he had indeed robbed and killed Eulalia Diamse. A much higher level of explicitness and specific detail is necessary to justify a conclusion that an accused had impliedly admitted his guilt of a crime as serious as robbery with homicide. The totality of the case made out against appellant De Joya thus consists of an incomplete, aborted, dying declaration and a number of circumstances which, singly or collectively, do not necessarily give rise to a compelling inference that appellant had indeed robbed and slain Eulalia Diamse. We consider, after prolonged scrutiny, that the sum total of the evidence in the instant case is insufficient to induce that moral certainty of guilt which characterizes proof beyond reasonable doubt. The conscience of the Court remains uneasy and unsettled after considering the nature and speculative character of the evidence supporting the judgment of conviction. The Court must, accordingly, hold as it hereby holds that appellant's guilt of the crime of robbery and homicide was not shown beyond reasonable doubt. ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby REVERSED and appellant Pioquinto de Joya is hereby ACQUITTED on grounds of reasonable doubt. It is so ordered. Narvasa, CJ., Cruz, Grio-Aquino and Medialdea, JJ., concur

# Footnotes 1 Rollo, p. 42. 2 Rollo, p. 48. 3 Daughters v. Commonwealth of Kentucky, 94 A.L.R., 673 (1934); State v. Patterson, 45 Vt. 308 (1873). See also Connor v. State, 171 A. 2d 699 (1961). 4 Wigmore on Evidence, Vol. V, Section 1448, p. 251 (1940). 5 See cases collected in Annotation: "Admissibility of dying declarations as affected by their incompleteness," 94 A.L.R. 679 (1934). 6 Appellee's Brief, p. 24.

Republic of the PhilippinesSUPREME COURTManila SECOND DIVISION

G.R. No. 118707 February 2, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FERNANDO VIOVICENTE y GONDESA, accused-appellant.

MENDOZA, J.: In an information dated August 8, 1991 accused-appellant Fernando Viovicente y Gondesa, together with John Doe, Peter Doe, and Mike Doe, was charged with murder, as follows: 1 That on or about the 21st day of July, 1991, Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo and an icepick, conspiring together, confederating with and mutually helping one another, did, then and there, willfully, unlawfully and feloniously with intent to kill, with treachery and evident premeditation and by taking advantage of superior strength, attack, assault and employ personal violence upon the person of FERNANDO HOYOHOY Y VENTURA, by then and there, stabbing him on the chest with the use of said bolo and icepick, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of said Fernando Hoyohoy y Ventura, in such amounts as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW.

Fernando Flores testified that while he was on his way to work at 6 a.m. on July 21, 1991, he saw his co-workers Fernando Hoyohoy attacked by four men. Hoyohoy was buying cigarettes at a store located in an alley of Tatalon Street, Quezon City when, according to Flores, two persons emerged from behind the store. Flores identified the two as accused-appellant Fernando Viovicente, alias "Macoy," and one "Balweg." The two approached the victim and seized him by the shoulders (accused-appellant held the victim's right shoulder, while "Balweg" held him by the left). Then, Flores said, two other persons, whom he identified as Maning and Duras, came up to the victim and stabbed him in the left side of the chest. The victim was struck first by Maning with a bolo, followed by Duras who stabbed Hoyohoy with an icepick. 2 The four then fled from the scene. During the whole incident, Fernando Flores was ten steps away from the victim. 3 Flores testified that he knew accused-appellant because both of them had worked in a department store in Sta. Mesa. 4 He said that two weeks after the incident, his sister saw accused-appellant in their neighborhood and told him. The two of them then informed the victim's brother who then tried to apprehend accused-appellant. Accused-appellant resisted and drew his knife, but neighbors joined in subduing him. Later, they turned him over to the barangay captain. 5 On August 6, 1991, Flores gave a statement regarding the incident to the police. 6 Tomas Hoyohoy, the victim's brother, testified 7 that after Fernando had been stabbed he ran to their house and identified Maning Viovicente, Duras Viovicente, accused-appellant Fernando "Macoy" Viovicente, and Romero "Balweg" Obando as his assailants. The four were neighbors of theirs is Tatalon. Fernando Hoyohoy was taken to the National Orthopedic Hospital where he died at 11 a.m. of the same day (July 21, 1991). A death certificate 8 and certificate of postmortem examination 9 were later issued. For the victim's funeral, the family incurred P9,000.00 in expenses. 10 Cpl. Iluminado Combalicer of the Galas Police Sub-Station 4 testified 11 that, upon receipt of the report of the incident, he went to the National Orthopedic Hospital where he was able to talk to the victim. This was at 8 a.m. of July 21, 1991. 12 The pertinent portion of the statement reads:

Tanong: Anong pangalan mo? Sagot: Fernando Hoyohoy y Ventura, 25 taong gulang, binata, empleyado, tubo sa Manila, nakatira sa No. 11, Bicol Brigade, Tatalon, Q.C. 02 T: Bakit ka narito sa hospital? S: Sinaksak po ako ni "Maning" at "Duras" roon ring nakatira sa may likod ng bahay namin. 03 T: Anong dahilan at ikaw ay sinaksak? S: Hindi ko po alam. Accused-appellant's defense was alibi. 13 He claimed that on July 21, 1991, the day of the incident, he was in Bataan. According to him, two weeks later he returned to Manila because he

did not like his job in Bataan. He went to his mother's house and, after eating, went to the house of his cousins, Maning and Duras. It was there where he was arrested. Accused-appellant's mother, Filomena Canlas, corroborated his alibi. 14 The Regional Trial Court of Quezon City (Branch 92) 15 convicted accuse-appellant of murder and sentenced him to 17 years, 4 months, and 1 day of reclusion temporal, as minimum, to 20 years of reclusion temporal, as maximum, and ordered him to pay the heirs P9,000.00 as burial expenses, P50,000.00 moral damages, and the costs. On appeal, the Court of Appeals 16 thought the penalty should be increased to reclusion perpetua because of the absence of mitigating and aggravating circumstances and, in accordance with Rule 124, 13, certified the case to this Court for final review. The Court gave accused-appellant the opportunity of filing an additional appellant's brief but he found it unnecessary to do so. The case was therefore submitted for resolution on the basis of the briefs of the parties in the Court of Appeals and the record of the trial court. Accused-appellant's brief contains the following assignment of errors: I THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE THEORY OF THE DEFENSE. II THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT FERNANDO VIOVICENTE GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED DESPITE OF THE FAILURE OF THE VICTIM FERNANDO HOYOHOY TO IDENTIFY ACCUSED-APPELLANT AS ONE OF THE ASSAILANTS IN HIS ANTE-MORTEM STATEMENT HE HAD GIVEN TO THE POLICE INVESTIGATOR AT THE HOSPITAL. First. Accused-appellant contends that it was error for the trial court to rely on the ante mortem statement of the deceased which he gave to his brother Tomas, in which the deceased pointed to accused-appellant and Balweg as his assailants. He argues that the alleged declaration cannot be considered a dying declaration under Rule 130, 37 of the Rules on Evidence because it was not in writing and it was not immediately reported by Tomas Hoyohoy to the authorities. Instead, according to accused-appellant, the trial court should have considered the statement (Exh. F) given by the victim to Cpl. Combalicer also on the day of the incident, July 21, 1991. In that statement, the victim pointed to the brothers Maning Viovicente and Duras Viovicente as his assailants. The contention is without merit. The Revised Rules on Evidence do not require that a dying declaration must be made in writing to be admissible. Indeed, to impose such a requirement would be to exclude many a statement from a victim in extremis for want of paper and pen at the critical moment. Instead Rule 130, 37 17 simply requires for admissibility of an ante mortem statement that (a) it must concern the crime and the surrounding circumstances of the defendant'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 homicide, murder, or parricide in which the decedent was the victim. 18 These requisites have been met in this case. First, Fernando Hoyohoy's statement to his brother Tomas concerns his death as the same refers to the identity of his assailants. Second, he made the declaration under consciousness of an impending death

considering the gravity of this wounds which in fact caused his death several hours later. Third, Fernando Hoyohoy was competent to testify in court. And fourth, his dying declaration was offered in a criminal prosecution for murder where he himself was the victim. Nor is there merit in the contention that because Tomas Hoyohoy, to whom the alleged ante mortem statement was given, reported it to the police on August 5, 1991, after accusedappellant had been arrested, it should be treated as suspect. Delay in making a criminal accusation however does not necessarily impair a witness' credibility if such delay is satisfactorily explained. 19 Tomas testified that he knew Cpl. Combalicer had talked to his brother Fernando at the hospital 20 implying that he did not then make a statement because the matter was under investigation. Second. Actually, the trial court's decision is anchored mainly on the testimony of Fernando Flores. Flores was an eyewitness to the killing of Fernando Flores. Flores was an eyewitness to the killing of Fernando Hoyohoy. This witness pointed to accused-appellant and to three others (Balweg, Maning Viovicente, and Duras Viovicente) as the assailants, describing the part each played in the slaying of Fernando Hoyohoy, Flores testified: FISCAL REYES: Q While you were along that Alley at Tatalon, Quezon City, what happened if any, Mr. Witness? A I saw Fernando Hoyohoy buying cigarette. Q What happened while he was buying cigarette? A Four (4) persons went near him while he was buying cigarette and two (2) held him by the hand. Q Mr. witness you said that Fernando Hoyohoy at the time was buying cigarette where was he facing at the time? A He was facing the store. Q How far were you from Fernando Hoyohoy? A Ten (10) steps away. Q You said that four (4) persons appeared and two (2) held Fernando Hoyohoy by the shoulder, from where did these two (2) come from? A The two (2) persons came behind the store. Q Who held Hoyohoy by the right shoulder if you know, Mr. witness? A Fernando Viovicente and Alias Balweg. Q Only the right shoulder?

A Yes, Ma'am. Q I am asking you the right shoulder? A Fernando Viovicente. Q And who held Hoyohoy's left shoulder? A Alias Balweg. Q Do you know the complete name of Alias Balweg? A No, Ma'am, I do not know. Q How about the other two (2) what did these two (2) persons do to Fernando Hoyohoy at the time? A They were the ones who stabbed Fernando Hoyohoy. Q What were the names of the two (2) persons who stabbed Fernando Hoyohoy? A Maning and Duras. Q Do you know the full name of these two (2) persons? A No, Ma'am. Q What was Maning holding at the time? A A bolo, Ma'am. Q What was Duras holding? A Icepick. Q Where did Maning stab the victim Fernando Hoyohoy? A At the left chest. Q Who stabbed first, Mr. witness? A Maning. Q And what did Duras do? A He helped stabbed Fernando Hoyohoy. Q With what weapon?

A Icepick. Q You said that Fernando Viovicente was the one who held Fernando Hoyohoy by the right shoulder is that correct? A Yes, Ma'am. Q Is that Viovicente the same Viovicente who is now the accused in this Court? A Yes, Ma'am. Q Will you please look around and if he is around please point at him, Mr. witness? A Witness pointing to a person who identified himself as Fernando Viovicente. Q Mr. witness you mentioned that these Duras and Maning were brothers, is it not? A Yes, Ma'am. Q Do you know at least their family name? A Viovicente. Q Where are they residing if you know, Mr. witness? A They are living with their sisters. Q Is Fernando Viovicente the one whom you pointed in this courtroom a brother of Maning and Duras? A No, Ma'am. Q How many stabs did Fernando Hoyohoy receive from these two persons? A Two (2) stab wounds. Q How many from Maning? A One (1) stab. Q How about from Duras? A One, Ma'am. Q What happened after these two (2) persons Maning and Duras stabbed Fernando Hoyohoy? A They ran away. 20

Accused-appellant claims that Flores was biased, being a neighbor of the deceased. But so were the Viovicentes and Romero Obando his neighbors. No ill motive on his part that would impel Flores to testify falsely against accused-appellant has been shown. Consequently, the trial court's finding as to his testimony is entitled to great respect. Indeed, unless the trial judge plainly overlooked certain facts of substance and value which, of considered, might affect the result of the case, his assessment of the credibility of witnesses must be respected. 21 Flores' positive identification of accused-appellant should be given greater credence than the latter's bare and self-serving denials. 22 Third. The foregoing evidence unequivocally showing accused-appellant as among those who conspired to kill Fernando Hoyohoy is dispositive of his defense that he was in Bataan on the day of the crime. It is settled that alibi cannot prevail against positive identification of the accuse. In addition, accused-appellant's defense is weakened by the inconsistencies between his testimony and his mother's. Accused-appellant testified that he departed for Bataan on a Sunday (July 21, 1991) at past 8:00 in the morning with his cousin Lucring, taking a ride in the car of his employer. 23 But his mother testified that accused-appellant and Lucring left for Bataan at noontime on July 18, 1991 and they left by bus. 24 The Court of Appeals correctly held accused-appellant guilty of murder and since there was neither mitigating nor aggravating circumstance, the penalty should be reclusion perpetua. No reason was really given by the trial court for meting out on accused-appellant the penalty of 17 years, 4 months, and 1 day of reclusion temporal, as minimum, to 20 years of reclusion temporal, as maximum. However, the award of the damages made by the trial court, as affirmed by the Court of Appeals, must be revised. In addition to the amount of P9,000.00 for burial expenses, which should be treated as actual damages, and the amount of P50,000.00 as moral damages, accused-appellant must be made to pay indemnity in the amount of P50,000.00. 25 WHEREFORE, the decision appealed from is AFFIRMED with the modification that accusedappellant is sentenced to suffer the penalty of reclusion perpetua and ordered to pay to the heirs of Fernando Hoyohoy the sum of P9,000.00, as actual damages, P50,000.00, as moral damages, and P50,000, as civil indemnity for the death of Fernando Hoyohoy. SO ORDERED. Regalado, Melo, Puno and Martinez, JJ., concur. Footnotes 1 Records, p. 1. 2 TSN, pp. 3-6, 11-14, Nov. 5, 1991. 3 Id., p. 3. 4 Id., p. 8. 5 Ibid.

6 Exh. A, Folder of Exhibits, pp. 1-2. A detail of the incident contained therein which was not brought out during the testimony of Fernando Flores was that the four assailants of Fernando Hoyohoy were drunk where they ganged up on him. 7 TSN, pp. 3-5, Nov. 12, 1991. 8 Exh. D, Folder of Exhibits, p. 5. 9 Exh. E, id., p. 6. 10 Per receipt dated July 27, 1991 issued by Funeraria Real, Exh. C, id., p. 4. 11 TSN, pp. 10-11, Nov. 21, 1991. 12 Exh. F, Folder of Exhibits, p. 7. 13 TSN, pp. 5-9, Dec. 3, 1991. 14 TSN, p. 3, Dec. 5, 1991. 15 Per Judge Pacita Caizares-Nye. 16 Per Justice Ricardo J. Francisco and concurred in by Justices Ramon A. Barcelona, and Godardo A. Jacinto. 17 This provision reads: "Dying declaration. The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death." 18 People v. Garma, G.R. No. 110872, April 18, 1997. 19 People v. Apongan, G.R. No. 112369, April 4, 1997; People v. Padao, 267 SCRA 64 (1997). 20 TSN, p. 5 Nov. 12, 1991. Tomas testified though that he was outside the room when Cpl. Combalicer conducted the investigation. 20 TSN, pp. 3-6, Nov. 5, 1991. 21 E.g., People v. Apongan, G.R. No. 112369, April 4, 1997. 22 People v. Obzunar, 265 SCRA 547 (1996). 23 TSN, pp. 7-8, Dec. 3, 1991. 24 TSN, p. 5, Dec. 5, 1991. 25 People v. Mendoza, G.R. No. 115809, Jan. 23, 1998.

EN BANC [G.R. No. 142675. July 22, 2005]

VICENTE AGOTE Y MATOL, petitioner, vs. HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES, respondents. DECISION GARCIA, J.: In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of Appeals in CA-G.R. SP No. 2991-UDK, to wit: 1. Resolution dated September 14, 1999,[1] dismissing the Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order filed by the petitioner against the Honorable Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for refusing to retroactively apply in his favor Republic Act No. 8294[2]; and, 2. Resolution dated February 8, 2000,[3] denying petitioners motion for reconsideration. As culled from the pleadings on record, the following are the undisputed factual antecedents: Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 1866[4] and violation of COMELEC Resolution No. 2826[5] (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows: CRIMINAL CASE NO. 96-149820 That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no. with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor. CONTRARY TO LAW. CRIMINAL CASE NO. 96-149821

That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban). CONTRARY TO LAW. On arraignment, petitioner pleaded Not Guilty to both charges. Thereafter, the two (2) cases were tried jointly. Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in both cases, separately sentencing petitioner to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821 (violation of the COMELEC Resolution on gun ban). Meanwhile, on June 6, 1997, Republic Act No. 8294[6] was approved into law. Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court. In its order dated July 15, 1999,[7] however, the trial court denied petitioners motion, saying: While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla vs. CA declared: The trial court and the respondent court are bound to apply the governing law at the time of the appellants commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK. In the herein assailed resolution dated September 14, 1999,[8] the appellate court dismissed petitioners recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court. With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000,[9] petitioner is now with us, submitting for

resolution the following issues: (1) whether the Court of Appeals erred in dismissing his petition for certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application. The petition is partly meritorious. At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said courts legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals:[10] For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Considering that judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law, while appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law[11], petitioner should have appealed the trial courts ruling to this Court by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,[12] pursuant to Rule 41, Section 2 (c) of the same Rules, viz: SEC. 2. Modes of appeal. (a) xxx xxx xxx (b) xxx xxx xxx (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law,[13] the remedies of appeal and certiorari being mutually exclusive and not alternative or successive.[14] As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial courts order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction. Petitioners case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of said case reveals that petitioner received his copy of the trial

courts order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court. Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and hold the bull by its horns, so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. vs. The Metropolitan Manila Authority,[15] we held: Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning pleading, practice and procedure in all courts. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx xxx We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case. Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied) When Rep. Act No. 8294 took effect on July 6, 1997,[16] the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz: xxx xxx

SECTION 1. read as follows:

Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied) Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment,[17] the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People vs. Jayson[18] to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that no other crime was committed must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here. As early as August 1997, the month after Rep. Act No. 8294 took effect,[19] this Court has pronounced in Gonzales vs. Court of Appeals[20] that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.[21] For sure, in People vs. Valdez,[22] where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases.[23] Yet, in other cases,[24] although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was used to commit the crime of murder or homicide, the Court did not appreciate this use of such unlicensed firearm as an aggravating circumstance as provided therein, when the use of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure.

In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not used or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually used and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged. Let us take a look at the jurisprudence once again. In Cupcupin vs. People,[25] the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People vs. Almeida,[26] however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement: Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs. (Emphasis supplied) In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being used in the commission of an offense. Given this Courts aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as in Almeida, the unlicensed firearm was not actually used or discharged in committing the other offense? In People vs. Walpan M. Ladjaalam,[27] this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held: xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx xxx xxx xxx

xxx The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.(Emphasis supplied). The aforementioned ruling was reiterated and applied in the subsequent cases of People vs. Garcia,[28] where the judgment of conviction of the accused-appellants for illegal possession of firearms was set aside there being another crime kidnapping for ransom which they were perpetrating at the same time; People vs. Bernal,[29] where the Court retroactively applied Rep. Act No. 8294 in accused-appellants favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People vs. Bustamante,[30] where, in refusing to convict the accused-appellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms. Guided by the foregoing, the Court cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban. Admittedly, this ruling is not without misgivings considering that it would mean petitioners acquittal of the more serious offense of illegal possession of firearms which carries a much heavier penalty than violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam:[31] xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein. While we understand respondent Peoples contention that the use of the firearm seemed to have been the main consideration during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word use never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The Courts hands are now tied and it cannot supply the perceived deficiency in the final version without contravening the most basic principles in the interpretation of penal laws which had always leaned in favor of the accused. Under our system of government where powers are allocated to the three (3) great branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294. As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not actually used. For sure, there is, in this case, closer relation between possession of unlicensed firearm and violation of the COMELEC gun-ban than the

illegal possession of unlicensed firearm to the crime of illegal possession of prohibited drugs in Almeida. WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED. Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96-149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and ChicoNazario, JJ., concur.

[1] Penned by Associate Justice Eloy R. Bello, Jr. (ret.) and concurred in by Associate Justices Jainal D. Rasul (ret.) and Ruben T. Reyes. [2] An Act Amending the Provisions of Presidential Decree No. 1866, As Amended. [3] Rollo, pp.30-31. [4] Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or Explosives or Instruments Used in the Manufacture of Firearms, Ammunition or Explosives, and Imposing Stiffer Penalties for Certain Violations Thereof, and for Relevant Purposes. [5] Mistakenly referred to as No. 2828 in the Information. [6] Supra. [7] Rollo, p. 25. [8] Rollo, pp. 27-28a. [9] Rollo, pp. 30-31. [10] 297 SCRA 602, 615 [1998]. [11] Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals, supra, at p. 614. [12] Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the

Sandiganbayan, the Regional Trial Court, or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. [13] Section 1, Rule 65, 1997 Rules of Court. [14] Bernardo vs. CA, 275 SCRA 423, 426 [1997]. [15] G.R. No. 102782, Dec. 11, 1991, 204 SCRA 837, 842-843. [16] R.A. 8294 was approved on June 6, 1997 and published on June 21, 1997. [17] Rollo, pp. 54-55. [18] 282 SCRA 166 [1997]. [19] RA 8294 took effect on July 6, 1997. [20] 277 SCRA 518 [1997]. [21] Patrano vs. CA, October 31, 1997; People vs. Bergante, February 27, 1998; People vs. Molina, July 22, 1998. [22] 304 SCRA 611 [1999]. [23] People vs. Narciso, November 21, 2002; People vs. Lopez, January 14, 2003; People vs. Bustamante, February 12, 2003. [24] People vs. Ave, October 18, 2002; People vs. Delim, January 28, 2003; People vs. Sapigao, June 18, 2003; People vs. Lachica, September 3, 2003. [25] 392 SCRA 203 [2002]. [26] 418 SCRA 254 [2003]. [27] 340 SCRA 617, 648-649, 650 [2000]. [28] 373 SCRA 134, 160, January 15, 2002 [29] 388 SCRA 211, 224, September 2, 2002. [30] 397 SCRA 326, 344, February 12, 2003.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 138471 October 10, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PRUNA y RAMIREZ or ERMAN PRUNA y RAMIREZ, accused-appellant. DECISION DAVIDE, JR., C.J.: A rosebud that had been snuffed out of its fragrance long before it could even blossom into a flower. Such is the case of LIZETTE ARABELLE GONZALES (hereafter LIZETTE), who had been defiled at a very tender age. She was at the time voiding her body waste at their neighbors backyard, but that did not deter herein appellant from imposing his lechery on her. Indeed, lust is no respecter of time and place.1 On 27 January 1995, an information2 for rape was filed against accused-appellant Manuel Pruna y Ramirez or Erman Pruna y Ramirez (hereafter PRUNA), the accusatory portion of which reads: That on or about January 3, 1995 at Sitio Tabing-ilog, Brgy. Panilao, Pilar, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, Lizette Arabelle Gonzales, a 3-year-old minor girl, against the will and consent of the latter, to her damage and prejudice. Upon motion of PRUNAs counsel, the Public Attorneys Office (PAO), the Information was amended changing the name of the accused from Manuel Pruna y Ramirez to Erman Pruna y Ramirez, which was the name reflected in his birth certificate. 3 However, when he testified in court, he stated that his name was Manuel Pruna; and in the minutes of the court proceedings, he signed the name Manuel Pruna. On 27 November 1995, upon the Motion to Put the Accused Under Psychiatric or Mental Examination4 filed by PRUNAs counsel on the ground that he could not secure from PRUNA a coherent answer to even simple questions, the trial court ordered that the accused be brought to the National Mental Hospital in Mandaluyong City for psychiatric or mental examination.5 Accordingly, the trial was suspended, and PRUNA was sent to the National Center for Mental Health (NCMH), Mandaluyong City. On 28 June 1996, the trial court received a telegram6 from the NCMH stating that PRUNA was in "fair condition." The NCMH later submitted to the trial court a report7 on the psychiatric evaluation of PRUNA with a recommendation to put him back to jail for the resumption of court proceedings. The report also stated that PRUNA narrated that while he and his friends were under the bridge sniffing rugby and drinking alcohol, they saw a 3-year-old girl defecating in the river bank; that they called her; and, upon the order of his friends he placed her on his lap and attempted to caress her sensitive parts. Said report was not, however, offered in evidence by the prosecution or the defense. The prosecution presented five witnesses, whose testimonies can be summed up as follows: Jacqueline Gonzales, the mother of LIZETTE, testified that on 3 January 1995, at 9:30 a.m., she was fetching water from the artesian well located ten meters away from her house, while LIZETTE was defecating at the back of the house of their neighbor Gloria Tolentino. Jacqueline then carried her pail of water and went back to her house. Since LIZETTE was not home yet, Jacqueline headed toward the place where the former was moving her bowel. She looked for LIZETTE but did not find her. It was when Jacqueline was already returning to her house that she saw LIZETTE from behind -red-faced, crying, and appeared to be very frightened. When asked where she came from, LIZETTE answered that she was brought by a certain "Boy" to the grassy area at the back of Glorias house where she was sexually molested (or "kinantot" in the Tagalog dialect). LIZETTE then pulled her mother and led her to the house of PRUNA, which was about eight meters away from their house. PRUNA, the only one known in their community as "Boy," was not there. Jacqueline forthwith requested her mother-in-law to report the matter to the police, while Jacqueline and LIZETTE went to the Bataan Provincial Hospital.8 Jacqueline further declared that at the time of the alleged rape, LIZETTE was 3 years old, but at the time Jacqueline testified on 17 October 1995, LIZETTE was 4 years old. LIZETTEs last birthday was on 19 April 1995.9 LIZETTE testified that she knew PRUNA whom he called "Boy." She pointed to him inside the courtroom. According to her, PRUNA laid her down in a grassy area and inserted his penis into her vagina. When the presiding judge asked her whether she knew that it is a sin to tell a lie, she answered in the affirmative.10 Dr. Emelita Quiroz, an obstetrician and gynecologist at the Bataan Provincial Hospital, testified that on 3 January 1995, she conducted a complete physical examination on LIZETTE and took wet smear specimen from her vaginal wall through scraping. The specimen was sent to the laboratory for analysis by a medical technologist. Further, she requested a urinalysis for LIZETTE.11 The Medico-Legal Report12 prepared by Dr. Quiroz reveals the following findings: Essentially normal PE-Findings Infantile areola & nipples Flat breasts (-) hematoma (-) pubic hair Labia minora and majora well coaptated

Hymenal ring intact (+) hyperemia (-) laceration (Vaginal Opening) LABORATORY RESULT: WET SMEAR: KOH - Negative for T-Vaginalis NSS- Negative for fungi SPERM ANALYSIS -POSITIVE for sperm cells Gram staining-few, epithelial cells seen, no other microorganism URINALYSIS: RBC-3-7-/hpf epithelial cells few. WBC-0-2 Although not stated in the Medico-Legal Report of Dr. Quiroz, the urinalysis report13 includes a positive finding for "sperm cells." Dr. Quiroz explained that the presence of sperm cells in the vaginal canal signified that sexual intercourse and ejaculation had occurred on the person of the patient. There was no laceration; but there was hyperemia, which means reddening of the tissue around the vaginal opening. Among the causes of hyperemia is the insertion of a hard object like penis and finger.14 Teresita Magtagnob, the medical technologist who conducted the laboratory examinations and prepared the corresponding reports, 15 testified that sperm cells were found in the wet smear specimen and urine taken from LIZETTE.16 SPO2 Romeo D. Bunsoy, a member of the Philippine National Police assigned at the Pilar Municipal Station, testified that on 3 January 1995 the parent of the minor rape victim filed a complaint against PRUNA. He referred the matter to the desk officer to have it blottered. Upon his advise, the minor was brought to the hospital for examination. When they returned from the hospital, he took their statements. Later, he conducted an ocular inspection and investigation at the alleged place of the incident and caused the place to be photographed, which showed that the grasses were flattened. He inquired from the people in the neighborhood, and one of them answered that he saw the minor being brought by PRUNA to the place where the minor was found. When PRUNA was brought to their station by four barangay tanods of Panilao, Pilar, Bataan, SPO2 Bunsoy tried to converse with him, but the former did not give any reply. 17 On the part of the defense, Carlito Bondoc and PRUNA took the witness stand. Carlito testified that on 3 January 1995, he fetched water at the public artesian well together with Jacqueline. After having drawn water from the well, Jacqueline called her daughter, who was then defecating on the road near the river; and they both went home. After a while, the parents of LIZETTE shouted that their daughter was raped, and then they proceeded to the house of PRUNA and accused him of having raped the child. Carlito asserted that PRUNA could not have raped LIZETTE because he (PRUNA) was in his house from the time that LIZETTE was moving her bowel up to the time that her mother went to the house of PRUNA. Carlito knew that PRUNA was at home because the former was also in the latters house to have coffee. Carlito and the Sulit family thereafter brought PRUNA to the barangay hall. Since the barangay captain was not around, they brought PRUNA to the municipal building to prove that he was innocent.18 PRUNA denied having raped LIZETTE. He claimed that in the morning of 3 January 1995, he was in his house preparing coffee for Carlito. After Carlito left, several men arrived and boxed him for reasons not known to him. Carlito and the latters friend then brought him to the barangay hall. There, LIZETTEs father boxed him. He was thereafter brought to the Pilar Municipal Jail. There, the mother of the child threw at him the lid cover of a kettle. He was also asked by the police to take off his clothes and lie flat; then he was mauled. Thereafter, he was told to put his feet between the grills, and he was made to masturbate. Worse, his testes were burned with cigarette butts. Every night, he was asked to kneel on a chair and was hit with a 2"x 2" piece of wood.19 After trial, PRUNA was convicted by the trial court of the crime of rape in its qualified form and sentenced to suffer the supreme penalty of death and to indemnify the victim in the sum of P50,000, plus costs.20 Hence, this automatic review. In his Appellants Brief,21 PRUNA attributed to the trial court the following errors: I IN RELYING ON THE TESTIMONY OF JACQUELINE S. GONZALES, THE MOTHER OF THE CHILD, THAT THE LATTER WAS THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED WHEN THE BEST EVIDENCE THEREFOR IS THE BIRTH CERTIFICATE OF THE CHILD. II IN RELYING ON THE HEARSAY TESTIMONY OF JACQUELINE S. GONZALES AS TO THE ALLEGED RAPE OF HER CHILD.

III IN ADMITTING AND RELYING ON THE TESTIMONY OF COMPLAINANT[ ] CHILD WHO WAS ONLY THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED EVEN AS SHE WAS ONLY FIVE (5) YEARS OLD WHEN SHE TESTIFIED. IV IN CONVICTING THE ACCUSED ON DUBIOUS EVIDENCE. The Office of the Solicitor General (hereafter OSG) seeks the affirmation of the trial courts decision with the modification that an additional award of P50,000 as moral damages be granted in favor of the offended party. As culled from the arguments of the parties, the issues to be resolved in this case are as follows: (1) Whether LIZETTE was a competent and credible witness considering that she was allegedly only 3 years old when the alleged rape occurred and 5 years old when she testified; (2) Whether Jacquelines testimony as to the declarations of LIZETTE is hearsay; (3) Whether the failure of the prosecution to present Gloria Tolentino as a witness is fatal; (4) Whether appellants guilt has been proved beyond reasonable doubt; (5) Whether the qualifying circumstance of minority has been duly proved as to justify the imposition of the death penalty. We shall resolve these issues in seriatim. I. LIZETTEs Competency and Credibility as a Witness Appellant disputes the competency of LIZETTE to testify by reason of her tender age. When LIZETTE was called to testify, his counsel interposed a vigorous objection to the admission of her testimony because of her tender age. The trial court noted the objection and allowed her to testify; thus: DIRECT EXAMINATION BY PROS. LUMABAS: Do you know Manuel Pruna? A Yes, sir. Q How do you call Manuel Pruna? A Boy, sir. Q Where is he? A There, sir. (Witness pointing to a person wearing blue T-shirt, who when asked, gave his name as Manuel Pruna) PROS. LUMABAS: What did Manuel Pruna or Boy do to you? A "Inihiga niya ako" and inserted his penis to my vagina, sir. Q And in what place did he do this to you? A In the grassy area, sir.

Q After he inserted his penis to your vagina, what happened next? ATTY. BALUYOT: The witness for quite sometime could not answer the question. PROS. LUMABAS: I think that will be all for the witness.22 After which, the defense counsel manifested that he would not cross-examine her and that he intended to file a motion for her disqualification as a witness.23 The court then proceeded to ask her a few questions, thus: COURT : Do you know what will happen to a child if she is not telling the truth? A "Sa lupa." Q Do you know that it is a sin to tell a lie? A Yes, sir. Q The witness is excused considering the manifestation of Atty. Baluyot that he will be filing a written motion for the striking out of the testimony of the witness considering her tender age.24 No such motion is extant on the records. At the next hearing, the defense counsel cross-examined LIZETTE, as follows: ATTY. BALUYOT: On January 3, 1995, in the morning where were you? A I was in the grassy area, sir. Q In that grassy area there were other children with you playing? A None, sir. Q You were then removing[sic] your bowel, is it not? A Yes, sir. Q Then while removing your bowel you saw your mother pass[ ] by, is it not? A Yes, sir. Q She was then carrying a pail to fetch some water, is it not? A Yes, sir. Q The water from where she will fetch is [sic] a few meter[s] away from you, is it not? A Near, sir. ATTY. BALUYOT: Considering that the grassy place where you were then discharging your bowel is beside a street?

A Yes, sir. Q And you saw your mother bringing a pail of water towards your house after her pumping from the well, is it not? A Yes, sir. Q When she passed by she likewise saw you, is it not? A Yes, sir. Q Then how far were you from your house when you were discharging your bowel? Please demonstrate the distance? A Up to that door, sir. Q From that position you were at the grass you could see your house, is it not? A Yes, sir. Q Could you tell the Honorable Court how long did it take you to discharge your bowel? A For a short period of time, sir. (Sandali lang po.)25 As a general rule, when a witness takes the witness stand, the law, on ground of public policy, presumes that he is competent. The court cannot reject the witness in the absence of proof of his incompetency. The burden is, therefore, upon the party objecting to the competency of a witness to establish the ground of incompetency.26 Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are disqualified to be witnesses. Among those disqualified are "[c]hildren whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfully."
l aw phil.net

No precise minimum age can be fixed at which children shall be excluded from testifying. The intelligence, not the age, of a young child is the test of the competency as a witness.27 It is settled that a child, regardless of age, can be a competent witness if he can perceive and, in perceiving, can make known his perception to others and that he is capable of relating truthfully the facts for which he is examined.28 In determining the competency of a child witness, the court must consider his capacity (a) at the time the fact to be testified to occurred such that he could receive correct impressions thereof; (b) to comprehend the obligation of an oath; and (c) to relate those facts truly to the court at the time he is offered as a witness.29 The examination should show that the child has some understanding of the punishment which may result from false swearing. The requisite appreciation of consequences is disclosed where the child states that he knows that it is wrong to tell a lie, and that he would be punished if he does so, or that he uses language which is equivalent to saying that he would be sent to hell for false swearing.30 A child can be disqualified only if it can be shown that his mental maturity renders him incapable of perceiving facts respecting which he is being examined and of relating them truthfully.31 The question of competency of a child-witness rests primarily in the sound discretion of the trial court. This is so because the trial judge sees the proposed witness and observes his manner of testifying, his apparent possession or lack of intelligence, as well as his understanding of the obligation of an oath.32 Since many of the witness manners cannot be photographed into the record, the finding of the trial judge will not be disturbed or reversed unless from what is preserved it is clear that such finding was erroneous. 33 In this case, appellant questions the competency of LIZETTE as a witness solely on the ground of her age. He failed to discharge the burden of showing her mental immaturity. From the above-quoted testimony, it can be gleaned that LIZETTE had the capacity of observation, recollection, and communication34 and that she could discern the consequence of telling a lie. We, therefore, sustain the trial court in admitting her testimony and according it great weight. We are not persuaded by appellants assertion that LIZETTE should not be allowed to testify two years after the alleged rape "when the interplay of frail memory combines with the imagination of earlier years." It must be noted that it is a most natural reaction for victims of criminal violence to have a lasting impression of the manner in which the crime was committed and the identity of the person responsible therefor.35 In a string of cases, we have said that the testimony of a rape victim who is of young or tender age is credible and deserves full credit,36 especially where no motive is attributed to the victim that would make her testify falsely against the accused.37 Indeed, a girl of such age as LIZETTE would not concoct a story of defloration; allow the examination of her private parts; and undergo the expense, trouble, inconvenience, and the trauma of a public trial unless she was in fact raped.38

II. The Alleged Hearsay Testimony of Jacqueline Gonzales Contrary to appellants contention, Jacquelines testimony that LIZETTE told her that appellant laid her in the grassy area and inserted his penis into her vagina is not covered by the hearsay evidence rule, which finds application when the declarant does not testify. This rule, as enunciated under Section 36, Rule 130 of the Rules on Evidence, provides that a witness can testify only to those facts which he knows of his personal knowledge except as otherwise provided in the Rules of Court. The term "hearsay" as used in the law on evidence, signifies evidence which is not founded upon the personal knowledge of the witness from whom it is elicited and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him; its value, if any, is measured by the credit to be given to some third person not sworn as a witness to that fact, and consequently not subject to crossexamination.39 If one therefore testifies to facts which he learned from a third person not sworn as a witness to those facts, his testimony is inadmissible as hearsay evidence.40 The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony is presented is deprived of the right or opportunity to cross-examine the person to whom the statements are attributed.41 Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them.42
l avv phil.net

In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact testified to by Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the trial court had the opportunity to observe her manner of testifying. Hence, Jacquelines testimony on the incident related to her by her daughter cannot be disregarded as hearsay evidence. Even assuming that the aforementioned testimony of Jacqueline is hearsay, its non-admission would not save the day for the appellant. Such testimony is not indispensable, as it merely serves to corroborate LIZETTEs testimony that PRUNA laid her down in the grass and inserted his private organ into hers. As discussed earlier, LIZETTEs testimony, which was found to be credible by the trial court, is sufficient basis for conviction. At any rate, Jacquelines testimony is proof of the victims conduct immediately after the rape. It shows that LIZETTE immediately revealed to her mother the rape incident and the identity of her defiler. As will be discussed later, such conduct is one of the earmarks of the truth of the charge of rape. III Non-Presentation of Gloria Tolentino as a Witness Appellant harps on the prosecutions failure to put on the witness stand Gloria Tolentino, who was listed as a witness and executed an affidavit on 4 January 1995 that she saw the appellant carrying and bringing LIZETTE to a grassy area at the back of her house. It is undisputed that at the time the case was called for trial, Gloria had already moved out of her residence in Panilao, Pilar, Bataan, and could not be found anymore. In any event, as opined by the OSG, her intended testimony could be dispensed with, as it would only be corroborative of LIZETTEs testimony that Pruna brought her to a grassy area. IV. Sufficiency of the Prosecutions Evidence Against Appellant When LIZETTE was put in the witness stand, she unhesitatingly identified PRUNA, their neighbor, as the one who defiled her. A rape victim can easily identify her assailant especially if he is known to her because during the rape, she is physically close to her assailant that enables her to have a good look at the latters physical features.43 LIZETTE testified that on 3 January 1995 PRUNA, whom she called Boy, laid her in a grassy area and inserted his penis into her genitalia. When a girl or a woman says that she has been raped she says in effect all that is necessary to show that rape was truly committed. 44 She is not expected to remember all the ugly details of the outrage committed against her. 45 And when her testimony passes the test of credibility, the accused can be convicted on the basis thereof, for in most cases it is the only evidence that can be offered to establish his guilt.46 Likewise, LIZETTEs mother testified that right after the incident LIZETTE disclosed what happened to her and readily identified PRUNA as the culprit. She even led her mother to the house of PRUNA.47 Thereafter, the two went to the police authorities to report the incident, and then to the hospital for LIZETTEs medical examination. By and large, the medical evidence lends credence to LIZETTEs testimony that PRUNA inserted his penis into her vagina. The Medico-Legal Report shows that there was hyperemia or reddening of the vaginal opening of LIZETTE. As opined by Dr. Quiroz, who was presented as an expert witness, hyperemia can be caused by the insertion of a hard object like penis and finger.48 The presence of sperm cells in the vaginal canal and urine of LIZETTE is also a mute testimony of the sexual contact that further strengthens LIZETTEs claim of rape. This Court is not oblivious of the finding that no laceration was found in LIZETTEs organ despite the fact that she was examined immediately after she was raped. We have already ruled, however, that the absence of fresh lacerations does not preclude the finding of rape, 49 especially when the victim is of tender age.50 Well- settled is the rule that rape is consummated by the slightest penile penetration of the labia or pudendum of the female.51 The presence of hyperemia in LIZETTEs vaginal opening and the existence of sperm cells in her vaginal canal and urine are clear indications that PRUNAs organ indeed touched the labia or pudendum of LIZETTE. In a nutshell, the following overwhelmingly establish the truth of the charge of rape: (a) the spontaneity of the identification by LIZETTE of PRUNA as the rapist; (b) her immediate revelation to her mother of the dastard act committed against her; (c) her act of leading her mother to appellants house right after the incident; (d) the prompt filing of the complaint before the authorities; (e) LIZETTEs submission to medical examination; (f) the hyperemia in her private part; and (g) the presence of sperm cells in her vaginal canal and urine.

The trial court correctly disregarded the defense of alibi raised by the accused. We have consistently held that for alibi to prosper, it must be proved that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the crime scene. Just like denial, alibi is an inherently weak defense; and unless supported by clear and convincing evidence, the same cannot prevail over the positive declaration of the victim.52 We have also held that when alibi is established only by the accused, his relatives, or close friends, the same should be treated with strictest scrutiny.53 Carlito, who was admittedly a close friend of appellants parents, corroborated PRUNAs testimony that he (PRUNA) was in his house during the time that LIZETTE was raped. It is, however, an established fact that the place where the rape occurred was just a few meters away from the house of PRUNA. Thus, there was no physical impossibility for PRUNA to be in the grassy area to consummate the crime of rape. The defense, through Carlito, attempted to impute motive to Jacqueline in filing against PRUNA the charge of rape. According to him, LIZETTEs grandparents, the Sulits, wanted to buy the place of the PRUNA family, but the latter refused.54 Aside from the fact that such testimony was not corroborated, said motive, if at all, is too flimsy to be even considered. No mother in her right mind would use her offspring as an engine of malice. She would not subject her child to the humiliation, disgrace, and even the stigma attendant to a prosecution for rape unless she is motivated by the desire to bring to justice the person responsible for her childs defilement.55 V. Sufficiency of Evidence of LIZETTEs Minority and Propriety of the Imposition of the Death Penalty The commission of the crime of rape by PRUNA having been duly established by the prosecution, we now come to the question of the penalty to be meted upon him. Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by Republic Act No. 7659, provides that the death penalty shall be imposed if the crime of rape is committed against a "child below seven (7) years old." We have held that in such a case the minority of the victim must be proved with equal certainty and clearness as the crime itself. The failure to sufficiently establish the victims age is fatal and consequently bars conviction for rape in its qualified form.56 A persons age is best proved by the birth certificate. But is the presentation of the victims birth certificate a sine qua non requirement to prove her age for the appreciation of minority either as an element of the crime or as a qualifying circumstance? Recent jurisprudence has conflicting pronouncements. In the following cases, no birth certificate was presented and this Court ruled that the age of the victim was not duly proved by the prosecution: 1. In People v. Vargas,57 the testimonies of the victim and her aunt that the former was 10 years old at the time of the rape were not considered proof of her age for being hearsay. This Court also observed that the victim could easily be mistaken for a child below 12 years of age, and hence it was not correct to judge the victims age by her appearance. We held: "The difference of two or three years in age may not always be readily apparent by mere physical manifestations or appearance." 2. In People v. Javier,58 the victim was alleged to be 16 years old, and the accused did not contest her age. Ratiocinating that in this age of modernism, there is hardly any difference between a 16-year-old girl and an 18-year-old one insofar as physical features and attributes are concerned, this Court held that an independent proof of the actual age of a rape victim is vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in R.A. No. 7659. 3. In People v. Brigildo,59 aside from the failure of the prosecution to present the offended partys birth certificate or other equally acceptable official document concerning her age, the testimonies on record were not clear as to her exact age. The victim declared that she was 11 years old when she testified in court a year after the incident, while her mother claimed that she was around 15 years old at the time of the commission of the crime. The informations even alleged a different age. Hence, this Court refused to appreciate the qualifying circumstance of minority because of the uncertainty regarding her age. 4. In People v. Tipay,60 the offended party was alleged in the information to be under 16 years of age. No "independent" evidence was presented to prove it. This Court recognized that the minority of a victim who may be below the age of 10 is quite manifest and may be taken judicial notice of by the court. But when the victim is between the crucial years of 15 and 17 where minority may seem to be dubitable due to one's physical appearance, the prosecution should prove the fact of minority with certainty. The lack of objection on the part of the accused concerning the victims age does not excuse the prosecution from discharging its burden. 5. In People v. Cula,61 the victim was alleged in the complaint to be 16 years old when the rape was committed, but no evidence at all was presented to prove her age. We held that the failure of the accused to deny such allegation cannot make up for the failure of the prosecution to prove with certainty the victims minority. Because of the lacuna in the prosecutions evidence, coupled with the trial courts failure to make a categorical finding of minority of the victim, we declined to consider the qualifying circumstance of minority. 6. In People v. Veloso,62 the victim was alleged to be 9 years of age when she was raped. Citing People v. Vargas, 63 this Court refused to consider the testimonies of the victim and her father as sufficient proof of her age. 7. In People v. Pecayo,64 the victim simply stated during the beginning of her direct examination that she was 14 years old and that she was born on 13 January 1983. We held that the victims casual testimony as to her age is not enough, and that the lack of denial on the part of the accused does not excuse the prosecution from proving her age through competent evidence such as a duly certified certificate of live birth, baptismal certificate, or some other authentic document showing her age.

8. In People v. Tundag,65 the victim testified that she was 13 years of age when she was raped, but she did not know exactly when she was born. Unable to secure a copy of her birth certificate, the prosecution moved that judicial notice be taken of the fact that she was below 18 years old at the time of the rape. Despite the admission by the defense of such fact, this Court held that the age of the victim is not a matter of judicial notice, whether mandatory or discretionary. Under Section 3, Rule 129 of the Rules on Evidence, a hearing is required before such fact can be taken judicial notice of by courts. 9. In People v. Geraban,66 the victims testimony was categorical in declaring that she was 15, but her mothers testimony regarding her age was not clear. We thus declared that the prosecution failed to discharge the burden of proving minority. 10. In People v. Liban67 and People v. Llandelar,68 the only evidence adduced to prove the minority of the victims was the victims bare testimony that they were 10 and 16 years old, respectively. This Court held that while the declaration of a victim as to her age, being an exception to the hearsay proscription, would be admissible under the rule on pedigree, the question on the relative weight that may be accorded to it is another matter. The prosecution should present the victims birth certificate or, in lieu thereof, any other documentary evidence, like a baptismal certificate, school records, and documents of similar nature, or credible testimonial evidence that can help establish the age of the victim. Neither the obvious minority of the victim nor the absence any contrary assertion from the defense can exonerate the prosecution from its burden. Judicial notice of the issue of age without the requisite hearing under Section 3 of Rule 129 of the Rules on Evidence would not be sufficient compliance with the law. 11. In People v. Alvarado,69 the victim testified that she was 14 years old at the time of the rape, and this was confirmed by the accused, who was victims father. The victims mother, however, testified as to her date of birth which showed that she was 13 years of age at the time of the commission of the crime. For this doubt as to the victims age, the accused was held guilty of simple rape only and meted the penalty of reclusion perpetua, and not death penalty. On the other hand, in the following cases, we ruled that the age of the rape victim was sufficiently established despite the failure of the prosecution to present the birth certificate of the offended party to prove her age: 1. In People v. Rafales,70 the testimony of the victim and her mother that the former was only 10 years old when she was raped, which was not denied by the accused, was deemed sufficient to prove her age for the purpose of determining whether the accused could be held guilty of statutory rape, which is carnal knowledge of a woman below 12 years of age. 2. In People v. De la Cruz,71 the testimony of the mother alone that her two daughters were both 14 years old at the time of the rape incidents was deemed sufficient because there was no reason to doubt the testimony of the mother, who had personal knowledge of the ages of her children. Moreover, said testimony was never challenged by the accused and stood unrebutted by any other evidence. 3. In People v. Bali-balita,72 the victims testimony as to her age, which was corroborated by her half-sister, was deemed sufficient. We noted that the victim testified in court four months after the rape, and hence it was not difficult for the trial court to take judicial notice that she was under 18 years of age. 4. In People v. Velasco,73 the minority of the victim was deemed established by (a) the complainant herself, who was held to be competent to testify on her age, as it constituted family tradition; (b) the open admission of the accused that the victim was a 12-year-old minor; and (c) the categorical finding of the trial court that she was "a minor of a little over twelve years." 5. In People v. Remudo,74 the trial court appreciated the qualifying circumstance of minority on the strength of (a) the offended partys testimony as to the date of her birth, which showed that she was 13 years old at the time of the rape, and (b) the admission of said date of birth by the accused who was the victims brother. 6. In People v. LLanita75 the only evidence presented by the prosecution to establish that the victim was below 7 years old at the time of the alleged rape was the victims own testimony. Although hearsay because she could not have personal knowledge of the date of her birth but could only acquire knowledge thereof from her parents or relatives, said testimony was held admissible for being an assertion of family tradition regarding pedigree. Her testimony and the accuseds admission that she was 5 years old during the commission of the crime were held sufficient to establish her age. 7. In People v. Agustin,76 the victims testimony that she was 14 years old at the time of the rape incidents, coupled with the express admission of her age by the accused who was her father, sufficiently proved her minority. 8. In People v. Esuela,77 the testimony of the victims mother that the victim was 13 years of age at the time of the rape was held sufficient to establish minority for the reason that as a mother she was in the best position to know when she delivered her child. Also considered were the victims own testimony regarding her age, as well as the observation of the trial court that she could not have been more than 18 years old when she testified. In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused. 78 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. The trial court should always make a categorical finding as to the age of the victim. In the present case, no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age. In imposing the death penalty, the trial court ratiocinated in this wise: In the instant case, the victim, Lizette Arabelle Gonzales, was a 3-year-old minor girl as alleged in the information and the defense did not contest her age and as a matter of fact was questioning her qualification to testify because of her tender age when she testified two (2) years later in Court. The victims Medico-Legal Certificate date[d] January 3, 1995 established the fact that at the time of the commission of the rape on January 3, 1995, the child was only 3 years old.79 It thus appears that the trial courts finding that LIZETTE was 3 years old when she was raped was based on the Medico-Legal Report prepared by Dr. Quiroz, as well as on the fact that the defense did not contest her age and even questioned her qualification to testify because of her tender age. However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was presented to establish LIZETTEs age. Her mother, Jacqueline, testified on 17 October 1995 as follows: Q. Now, on January 3, 1995 at about 9:30 in the morning, do you still recall where you were? A. Yes, sir. Q. Where were you at that particular date and time? A. I was fetching water from an artesian well beside the house of my neighbor, sir. Q. Where was this daughter of yours then when you were fetching water? A. My daughter was discharging her bowel who was then at the back of the house of our neighbor, sir. How old is your daughter Lizette Arabelle Gonzales? A. Three years old, sir. Q. At the time that she was discharging her bowel, how old [was] she? A. Three years old, sir. She is four years old now. Q. When was her last birthday? A. April 19, 1995, sir.80

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 years old. 81 However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not answer.82 For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.83 In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence84 in order that the qualifying circumstance of "below seven (7) years old" is appreciated against the appellant. The lack of objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed on him. However, conformably with no. 3(b) of the foregoing guidelines, the testimony of LIZETTEs mother that she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty. As regards the civil liability of PRUNA, the indemnity in the amount of P50,000 awarded by the trial court is not sufficient. In accordance with recent jurisprudence, LIZETTE should also be awarded moral damages in the amount of P50,000 without need of pleading or proof because the mental, physical and psychological trauma suffered by her is too obvious. 85 WHEREFORE, the decision of the Regional Trial Court, Branch 1, Balanga, Bataan, in Criminal Case No. 6044 is hereby AFFIRMED with the modification that accused Manuel Pruna y Ramirez or Erman Pruna y Ramirez is held guilty beyond reasonable doubt of statutory rape, and not qualified rape, and is sentenced to suffer reclusion perpetua and to pay the victim Lizette Arabelle Gonzales the sum of P50,000 as moral damages in addition to the indemnity of P50,000. Costs de oficio. SO ORDERED. Puno, Vitug, Panganiban, Sandoval-Gutierrez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur. Bellosillo, Mendoza, Quisumbing, Ynarez-Santiago, Carpio, and Austria-Martinez, JJ., on official leave.

Footnotes

People v. Alitagtag, 309 SCRA 325, 337 [1999]; People v. Torio, 318 SCRA 345, 353 [1999]. Original Records (OR), 1-2. OR ,17. Id., 48-49. Id., 89. Id., 106. Id., 115-118. TSN, 17 October 1995, 4-7, 11; TSN, 22 November 1996, 3-8. TSN, 17 October 1995, 4-5. TSN, 20 November 1996, 3-4. TSN, 24 September 1996, 4-5.

10

11

12

Exhibit "B," OR, 241. Exhibit "B-3," OR, 240. TSN, 24 September 1996, 8-13. Exhibits "B-2" and "B-3," OR, 239-240. TSN, 22 October 1996, 3-4. TSN, 29 October 1997, 3-7. TSN, 21 July 1998, 2-4; 1 September 1998, 2-3. TSN, 3 November 1998, 2-4. Rollo, 20-36. OR, 320-336. Per Judge Benjamin T. Vianzon. Rollo, 57-66. TSN, 20 November 1996, 3. Id., 4. Id., 4. TSN, 14 April 1997, 2-5.

13

14

15

16

17

18

19

20

21

22

23

24

25

VII VICENTE J. FRANCISCO, Part I, 234 (1997 Ed.) (hereafter VII FRANCISCO), citing Whartons Criminal Evidence, Section 1152 (11th Ed.)
26 27

VII VICENTE J. FRANCISCO 242, citing 58 AM. JUR. 97. People v. Librando, 335 SCRA 232, 244 [2000].

28

29

2 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 608 (2001 Ed.). See also VII FRANCISCO 243, citing Wheeler v. U.S., 159 U.S. 523.
30

VII FRANCISCO 243, citing 3 Jones on Evidence 1296-1298. People v. Virtucio, 326 SCRA 198, 205 [2000].

31

32

People v. De la Cruz, G.R. No. 135022, 11 July 2002. See also People v. De la Cruz, 276 SCRA 352,357 [1997]; People v. Operaa, 343 SCRA 43, 63[2000].
33

People v. De la Cruz, G.R. No. 135022, 11 July 2002. See People v. Librando, supra note 28. People v. Mendiola, 337 SCRA 418, 432 [2000], citing People v. Cayanan, 245 SCRA 66, 77 [1995].

34

35

36

People v. Padayawon, 351 SCRA 643, 652 [2001]. See also People v. Balgos, 323 SCRA 372, 386 [2000] and People v. Brigildo, 323 SCRA 631, 645 [2000].
37

People v. Pailanco, 322 SCRA 790, 802 [2000]. People v. Tanail, 323 SCRA 667, 676 [2000]; People v. De la Cruz, supra note 33. VII FRANCISCO 513, citing Underhill Evidence 68.

38

39

40

Id. 2 REGALADO 638-639, citing People v. Ola, 152 SCRA 1, 11 [1987]. VII FRANCISCO 518, citing 20 AM. JUR. 400-401. People v. Tipay, 329 SCRA 52, 71 [2000], citing People v. Castaeda, 252 SCRA 247 [1996]

41

42

43

44

People v. Fernandez, 351 SCRA 80, 89 [2001]. See also People v. Rafales, 323 SCRA 13, 26 [2000]; People v. Cabingas, 329 SCRA 21, 31 [2000]; People v. Mendiola, supra note 35, at 426.
45

People v. Pailanco, supra note 37, at 801; People v. Torreja, G.R. No. 132339, 4 February 2002.

46

People v. Dela Concha, G. R. No. 140205, 3 September 2002. See also People v. Tagaylo, 345 SCRA 284, 293 [2000]; People v. Fernandez, supra note 44.
47

TSN, 17 October 1995, 6. TSN, 24 September 1996, 13.

48

49

People v. Geraban, G.R. No. 137048, 24 May 2001. See also People v. Bation, 305 SCRA 253, 268 [1999] and People v. Ayo, 305 SCRA 543, 557-558 [1999]
50

People v. Ayo, supra. People v. Rafales, supra note 44, at 27. See also People v. Bation, supra note 49, at 269.

51

52

People v. Amaguin, 229 SCRA 166, 175 [1994]; People v. Quinao, 269 SCRA 495, 507-508 [1997]; People v. Pontilar, Jr. 275 SCRA 338, 351 [1997]; and People v. Pili, 289 SCRA 118, 140 [1998].
53

People v. Rebato, G. R. No. 139552, 24 May 2001. TSN, 1 September 1995, 8. People v. Geraban, supra note 49. People v. Javier, 311 SCRA 122, 141 [1999]. 257 SCRA 603 [1996]. Supra note 56. Supra note 36. 329 SCRA 52 [2000]. 329 SCRA 101 [2000]. 330 SCRA 602 [2000]. Supra note 57. 348 SCRA 95 [2000]. 342 SCRA 704 [2000]. Supra note 49. 345 SCRA 453 [2000].

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

G.R. Nos. 123138-39, 8 November 2001. G.R. No. 145730, 19 March 2002. Supra note 44. 338 SCRA 582 [2000]. 340 SCRA 450 [2000]. 353 SCRA 138 [2001]. G.R. No. 127905, 31 August 2001. G.R. No. 134101, 5 September 2001. G.R. Nos. 135524-25, 24 September 2001. G.R. Nos. 138720-21, 19 March 2002.

69

70

71

72

73

74

75

76

77

78

People v. Velasco, supra note 73, at 157 [2001]; People v. Remudo, supra note 74; People v. Llanita, supra note 75; People v. Agustin, supra note 76.
79

Decision of the Trial Court, 16-17. TSN, 17 October 1995, 4-5. TSN, 20 November 1996, 2. TSN, 14 April 1997, 2. People v. Liban, supra note 66. People v. Brigildo, supra note 36; People v. Geraban, supra note 49; People v. Alvarado, supra note 69. People v. Ardon, G.R. No. 137753-56, 16 March 2001; People v. Arofo, G.R. No. 139433, 11 April 2002. Republic of the Philippines SUPREME COURT EN BANC

80

81

82

83

84

85

G.R. Nos. 127026-27 May 31, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO ALICANTE y DAVID, accused-appellant.

PER CURIAM: We are again faced with the arduous task of determining whether the accused-appellant is guilty of a crime for which the law mandates the imposition of the extreme penalty of death. The records reveal that fifteen (15) informations for the crime of rape were filed against accused-appellant Armando Alicante y David for having carnal knowledge of his minor daughter Richelle. These cases were filed on 17 July 1995 and raffled to Branch 273 of the Regional Trial Court of Marikina. 1 The information in Criminal Case No. 95-546-MK reads as follows: The undersigned Assistant Provincial Prosecutor upon prior sworn statement of the complainant to form part of the Information charges ARMANDO ALICANTE Y DAVID with the crime of Rape, committed as follows:

That on or about the month of August 1994 in the Municipality of Marikina, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife, with lewd designs and by means of force, threats and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with Richelle C. Alicante, a 13 year old girl, who is his own daughter against the latter's will and consent. 2 The other fourteen informations are virtual reproductions of the above-quoted information; they only differ as to the dates.
3

On 23 August 1995, accused-appellant was arraigned and entered a plea of not guilty to all the charges. 4 On 20 May 1996, the case was transferred to Branch 272 of the Regional Trial Court of Marikina, as said court was designated as a special court to try cases classified as heinous crimes. 5 Joint trial on the merits then ensued. The Office of the Solicitor General's summary of the evidence for the prosecution, 6 with references to the pages of the stenographic notes and exhibits deleted, is as follows: Sometime in August 1994, noontime, Richelle had just finished taking a bath outside their house. Her brother Richard and sister Racquel were still in school at that time. As she entered the house to change her clothes, her father Armando grabbed her breasts. She slapped him. He got a knife, pointed it to her neck, and pushed her down on the bed. He removed her shorts and panty, laid on top of her and inserted his penis into her vagina. She felt pain and saw something whitish coming out of his penis which he later placed on top of her stomach. He threatened to kill her and the other members of her family should she tell anyone of the incident. After ordering her to wash her vagina, he went out of the house. Left alone, she cried in one corner. She did not attend her class at Barangka Elementary School because of the excruciating pain in her sex organ and her headache. Three (3) days thereafter, the incident was repeated. She was outside their house when he called her. After coming in, he locked the door and pushed her against the wall. He took a knife and pointed it to her face. He said: "before anyone else, I should be first." He removed her shorts and panty as he pressed her against the wall. Armando masturbated and inserted his penis into her vagina. She felt pain in her sex organ. After the act, he repeated his threat to kill her and her family. She could not do anything but cry.
1wphi 1.nt

Within the same month, her ordeal continued. One day, while leaving for school to play softball, she was ordered by Armando to stay. Sensing that he was going to rape her again, she started crying. He slapped her. She ran towards the door but he closed it. While he was looking for a knife, Richelle tried to open the door. He then grabbed and pressed her against the wall. While pinning her, he pulled her shorts down and took out his penis. He masturbated and mashed her breasts. A whitish substance came out of his penis which he again placed on her stomach. She was thereafter raped by her father once a week in September 1994. During the first week, she was lying on bed together with her siblings, Richard and Racquel. She was at the edge. Her father was on another bed. Her mother was not home. He then approached her and laid on top of her. He inserted his penis into her vagina. She was frightened and nervous, her body shaking. She tried to shout for help but he covered her mouth and slapped her. He started pushing and pulling and she saw a white substance oozing from his penis. She felt pain in her vagina and was nauseated at the act. In the second week, he summoned her inside the house to wash the dishes. She did not obey. He then humiliated her and she was forced to go inside. He took a knife and pointed it to her. While so doing, he pulled her dress and removed her shorts. He then inserted his penis into her vagina. She felt weak and lost all her strength. Her head was throbbing. During the third and fourth weeks, she was raped again. In October 1994, she was raped three times. In all these instances, he threatened to kill her. She was prevented from shouting because he covered her mouth. She kept these incidents a secret because she feared his threat. In November 1994, she was again raped. Her brother and sister were playing outside the house while her mother was at work. As she was preparing for school, her father called her to their house. She did not obey him. He berated her and forced her to get inside. He locked the door. He started hitting her head with his fists. She fought back. He slapped her twice and grabbed her clothes. While she was being undressed, she pleaded "tama na po!" He ignored her plea and continued removing her shorts and panty. He laid her on the "papag." He then mashed her breasts, kissed her lips, masturbated and inserted his penis into her vagina. She felt pain in her breasts and in her sex organ. Her head was aching. After the act, he put on his shorts and laid down on the bed. Due to shame, she did not inform anyone of the incident. She was raped three times by her father in January 1995. One Thursday morning, he ordered her brother and sister to go outside while she was preparing for school. He then closed the door. He hit her on the nape, pulled her hair and warned her not to cream. Threatening her with a knife, he caressed her and ordered her to undress. She could only cry.

She graduated from Barangka Elementary School on March 24, 1995. As she was attending the commencement exercises, Richelle felt dizzy and fainted. In May of the same year, she and her family transferred residence to No. 16, Blk. 37, Lot 1, Phase 2-A, Katatagan St., Karangalan Village, Pasig City. She was enrolled in secondary school in Pasig City. While attending her classes, Ms. Presto, her teacher noticed her bulging abdomen. When Ms. Presto asked her about it, she told her what her father did to her. She was physically examined on July 6, 1995. Per Medico-Legal Report No. M-846-95, she was found to be on the 26th-27th week of pregnancy. On the same day, she and her mother gave their respective sworn and signed statements to the Criminal Investigation Division of the Eastern Police District. Subsequently, on July 11, 1995, Pacita Alicante executed her "Salaysay ng Pag-uurong ng Demanda." On July 24, 1995, she gave birth to twin boys who later died. The defense put up by accused-appellant is one of denial. Appellant insists that such charges are mere fabrications and that his wife and daughter filed said charges in order to get him out of their lives: . . . that his daughter could have filed the charges against him because they wanted him out of their lives; that this is so because his wife Pacita, has another man in her life whom he only know by the name "Bangkil"; that his wife admitted to him their relationship when he was already detained; that he was so confused when he learned about it; that his wife Pacita and his daughter Richelle visited him in jail on December 25 and January 1 and told him they are withdrawing the case. 7 After trial, the court a quo, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age, and the offender is a parent, ascendant, step-parent guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent of the victim, rendered judgment against accused-appellant, to wit: WHEREFORE, in the light of the foregoing, accused ARMANDO ALICANTE Y DAVID is found guilty beyond reasonable doubt for seven (7) counts of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. 7659 and is sentenced to suffer the extreme penalty of DEATH in each of the case abovementioned. The accused is further ordered to pay the private complainant Richelle Alicante the amount of ONE HUNDRED THOUSAND (P100,00.00) PESOS as moral damages and the amount of TWENTY FIVE THOUSAND (P25,000.00) PESOS as exemplary damages and the costs of the suit. SO ORDERED. 8 Hence, this automatic review, where the accused-appellant through counsel raises the following assignment of errors: FIRST ASSIGNED ERROR: THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONY OF THE PRIVATE COMPLAINANT WHEN IT WAS NEVER OFFERED IN EVIDENCE BY THE PROSECUTION. ASSUMING ARGUENDO NO REVERSIBLE ERROR WAS COMMITTED, STILL THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE UNCORROBORATED TESTIMONY OF THE PRIVATE COMPLAINANT WHICH WAS HIGHLY INCONSISTENT, DUBIOUS, DONE BY ROTE, APPEARED TO BE COACHED. SECOND ASSIGNED ERROR: THE TRIAL COURT ERRED IN APPLYING THE PRESUMPTIONS THAT (1) A YOUNG FILIPINA WILL NOT CHARGE HER FATHER WITH RAPE IF IT IS NOT TRUE AND (2) THAT A MOTHER WILL NOT SACRIFICE HER DAUGHTER TO TELL A STORY OF DEFLORATION AND IN HOLDING THAT THESE PRESUMPTIONS OUTWEIGHED THE CONSTITUTIONAL PRESUMPTIONS OF INNOCENCE. THIRD ASSIGNED ERROR: THE TRIAL COURT ERRED IN REJECTING THE COMPLAINANT'S AFFIDAVITS OF DESISTANCE AS NOT AMOUNTING TO AN EXPRESS PARDON MADE BEFORE THE FILING OF THE INFORMATIONS IN VIOLATION OF ARTICLE 344 OF THE REVISED PENAL CODE. FOURTH ASSIGNED ERROR: THE LACK OF A DEFINITE ALLEGATION OF THE DATE OF THE COMMISSION OF THE OFFENSE IN THE COMPLAINT AND INFORMATIONS FILED, AND THROUGHOUT THE TRIAL PREVENTED THE ACCUSED-APPELLANT FROM PREPARING AN ADEQUATE DEFENSE AND VIOLATED HIS RIGHT TO A FAIR TRIAL AND TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM. FIFTH ASSIGNED ERROR: THE FAILURE OF THE TRIAL COURT TO RULE ON THE OFFERS OF EVIDENCE OF THE PROSECUTION AND THE DEFENSE SUBSTANTIALLY IMPAIRED THE RIGHT OF THE ACCUSEDAPPELLANT TO A FAIR TRIAL SINCE IT ALLOWED THE COURT TO CONSIDER BOTH ADMISSIBLE AND INADMISSIBLE FACTS IN ARRIVING AT ITS DECISION. SIXTH ASSIGNED ERROR: THE DEATH PENALTY LAW INSOFAR AS IT ORDERS THE AUTOMATIC AND MANDATORY JUDICIAL KILLING OF APPELLANT AND OTHERS SIMILARLY SITUATED, AS PUNISHMENTS FOR ACTS WHICH DO NOT INCLUDE THE TAKING OF ANOTHER PERSON'S LIFE, IS REPUGNANT TO THE CONSTITUTION AND AMOUNTS TO A BARBARIC, EXCESSIVE, CRUEL AND UNUSUAL PUNISHMENT. 9

We will deal with these issues in seriatim. Accused-appellant assails the trial court's reliance on the testimony of the private complainant on two grounds: (1) failure on the part of the prosecution to formally offer it in evidence in accord with Rule 132, Sections 34 and 35 of the Revised Rules of Evidence; and (2) said testimony is full of inconsistencies and appears to be coached. 10 On the issue of the prosecution's failure to formally offer in evidence the testimony of the victim, the applicable provisions are Sections 34 and 35 of Rule 132 of the Revised Rules of Evidence: Sec. 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Sec. 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. The above-quoted requirement is explained in Vicente J. Francisco's book on Evidence:
11

. . . The introduction of evidence is intended to inform the court what the party making the offer intends to prove, so that the court may rule intelligently upon the objections to questions which have been asked, and may be necessary in order to preserve an exception to a ruling of the trial court excluding evidence. As a general rule, a party offering evidence must show its relevancy, materiality, and competency, and when he seeks to introduce evidence which does not appear to be relevant or competent, or propounds to his witness an interrogatory which appears to call for an irrelevant or incompetent answer, he should make a formal offer of proof showing what testimony he proposes to adduce, and when necessary, his intention to prove other facts which will render the evidence relevant or competent; the purpose for which apparently irrelevant or incompetent evidence is offered should be disclosed. The Supreme Court has held that any evidence which a party desires to submit for the consideration of the court must formally be offered by him. Such a formal offer is necessary because it is the duty of the judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties at the trial. The offer may be made in any form sufficient to show that the party is ready and willing to submit the evidence to the court. Admittedly, the transcripts of the testimonies reveal that the prosecution failed to declare the purpose for which the testimony of Richelle Alicante was being offered. However, this error will not prevent said testimony from being appreciated and made part of the evidence for the prosecution. This is so because counsel for the accused-appellant failed to seasonably raise an objection thereto. Said objection could have been done at the time when the victim was called to the witness stand, without proper explanation thereof or at anytime before the prosecution rested its case. Thus, this Court has ruled: In People vs. Java, this Court ruled that the testimony of a witness, although not formally offered in evidence, may still be admitted by the courts, if the other party does not object to its presentation. The Court explained: "Section 36 of [Rule 132] requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefor shall become reasonably apparent. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered. In the present case, a cursory reading of the stenographic notes reveals that the counsel for the appellants did not raise any objection when said witnesses testified on the matters now being impugned. Moreover, they repeatedly cross-examined the witnesses, which shows that they had waived their objections to the said testimonies of such witnesses. 12 Moreover, it should be noted that the witness whose testimony is sought by the accused-appellant to be disregarded is that of the victim herself. As explained earlier, the purpose of a formal offer is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. As it is the victim herself who testified, to state the reason for the presentation of said witness is to state the obvious. Hence, even without the formal offer, the judge was assumed to already know the purpose of her testimony. Accused-appellant argues that Richelle's testimony should be rejected since it is highly inconsistent, dubious and appears to be coached as shown by the following inconsistencies: (a) While Richelle Alicante testified that at least seven rapes occurred from August 1994 to April 1995, she only mentioned two in her sworn statement [Exh. "F", par. 6] once in August 1994 and once in April 1995; (b) While Richelle said on direct examination that she was raped twice in August 1994 [TSN, 7/2/96, pp. 7-8, 18], she only mentioned one incident in her statement, Exh, "F"; (c) While Richelle testified that she was raped four times in September 1994 [TSN, 7/3/96, p. 8], she made no mention of such rapes in her statement, Exh. "F"; and later changed her statement regarding the fourth incident in September when she claimed that actual penetration took place [TSN, 7/9/96, p. 17]; (d) While Richelle testified at one point that she was raped four times in September 1994 [id.], she later changed her testimony and said she was raped only three times [TSN, 7/3/96,

p. 12]; and at another point in her testimony alleged that her father did not do anything wrong to her in September 1994 [TSN, 7/2/96, p. 19]; (e) While Richelle claimed when she testified on July 15, 1996 that she did not read the affidavit of desistance that she signed [Exh. "3", TSN, 7/15/96, pp. 15-16], she said the exact opposite when she testified as a hostile witness for the defense on September 9, 1996 [see TSN, 9/9/96, p. 6]; (f) While Richelle testified on direct that the consequences of signing the affidavit of desistance were not explained to her [TSN, 7/15/96, pp. 15-16, 19], when she testified as a hostile witness for the defense she admitted that a lawyer who prepared the affidavit of desistance talked to her in private and explained the consequences of her signing the affidavit [TSN, 9/9/96, p. 7]; (g) While Richelle said that physical violence was repeatedly inflicted on her by appellant, the medico-legal report (Exh. "I"] concluded that no external signs of application of any form of violence were found on Richelle; (h) While Richelle testified that all the rapes occurred while their family was residing in Marikina, she told SPO2 Balitao (as related by the latter on the stand) that she was only raped once in Marikina and the rest of the rapes took place in their new residence Pasig [TSN, 7/30/96, p. 37]; (i) While Richelle said on her first day on the witness stand that after the second rape she could no longer remember the other incidents [TSN, 7/2/96, p. 30], when she took the stand on the subsequent days she was suddenly able to remember the other incidents; (j) While Richelle claimed that she told the police on July 6, 1996 that she was raped in August, September, October, November and December 1994 [TSN, 7/15/96, pp. 10-11], her statement, Exh. "F", only mentioned a rape which allegedly occurred in August 1994 and no others for remainder of 1994; and (k) While Richelle alleged on initial direct that she was raped a total of five times (twice in August 1994, twice in September, 1994 and once around all Saints Day of 1994), when Richelle testified a few days later she said she was also raped thrice in October 1994, thrice in January 1995; and once in February 1995 [TSN, 7/9/96, pp. 20-32]. 13 Basically, accused-appellant attacks Richelle's testimony on the ground that in her sworn statement, the young girl only mentioned a single rape incident that occurred in the month of August, 1994. Such claim is baseless for it is clear in the narration of Richelle in her sworn statement that she was raped by her father several times: "Bandang alas 12:00 ng Tanghali ng nangyari na nasundan pa ng maraming beses sa loob ng dati naming bahay . . . " 14 The other inconsistencies refer to minor details such as how many times she was raped during a certain month. These do not create a reasonable doubt as to whether or not accused-appellant raped his daughter. It must be remembered that the victim is a girl of tender age who was sexually attacked by her father several times during a period of less than a year. It is not expected that Richelle would remember every single detail of every single rape. It is understandable, even anticipated, that there would be minor lapses and inaccuracies when a young girl is made to recount, detail by detail her frightful ordeal under the hands of her father. 15 Considering the age of the victim, she is more prone to error than an adult person. 16 The grueling experience of testifying in public, face to face with her perpetrator and being questioned by hostile lawyers would undoubtedly intimidate and confuse a young girl. Despite these circumstances, Richelle remained steadfast in her claim that her father raped her. In any case, these inconsistencies go into the credibility of Richelle as a witness. Well-settled is the rule that this Court will not disturb the findings of the trial court as to the credibility of a witness. This is so because the trial court has a better vantage point in observing the candor and behavior of the witness. Hence, the trial court's characterization of Richelle as a witness: xxx xxx xxx During the trial, the court observed that the complainant, as a witness, possessed the necessary competence and intelligence of making known her perceptions and had narrated it with sincerity and truthfulness, though interrupted with some temporary emotional breakdowns. Her categorical, spontaneous, candid and straightforward testimonies have sufficiently established her credibility. It is noted, however, that there were inconsistencies and discrepancies, like on the occasions of the commissions of the rapes and on the circumstances as to how they were committed but such would have been caused by the natural fickleness of memory due to the tender age of the complainant-witness which tends to strengthen rather than to weaken her credibility as it erases suspicion of rehearsed testimony. Besides, the precise date when the complainant was sexually abused is not an element of the crime. . . . . 17 The fact that Richelle's testimony is uncorroborated is of no moment. As this Court has held, the accused may be convicted on the basis of the lone uncorroborated testimony of the rape victim, provided that her testimony is clear, positive, convincing and otherwise consistent with human nature and the normal course of things. 18 We agree with the trial court that Richelle's testimony meets this criterion.

Accused-appellant, likewise, has failed to come out with any plausible reason why Richelle would fabricate a story of rape. As we have so held in the past, a young girl would not publicly disclose a humiliating and shameful experience of being sexually abused by her father if such were not the truth, 19 especially so in this case where there has been no showing of bad blood between father and daughter prior to the charges of rape. 20 Accused-appellant, however, argues that the application of the presumption by the trial court that a young Filipina will not charge a person with rape if it is not true goes against the constitutional presumption of innocence. In People vs. Godoy, 21 this Court explained the proper approach of courts when confronted by this situation: The trial court, in holding for conviction relied on the presumptio hominis that a young filipina will not charge a person with rape if it is not true. In the process, however, it totally disregarded the more paramount constitutional presumption that an accused is deemed innocent until proven otherwise. It frequently happens that in a particular case two or more presumptions are involved. Sometimes the presumption of conflict, one tending to demonstrate the guilt of the accused and the other his innocence. In such case, it is necessary to examine the basis for each presumption and determine what logical or social basis exists for each presumption, and then determine which should be regarded as the more important and entitled to prevail over the other. It must, however, be remembered that the existence of a presumption indicating guilt does not destroy the presumption against innocence unless the inculpating evidence, together with all of the evidence, or the lack of any evidence or explanation, is sufficient to overcome the presumption of innocence by proving the defendant's guilt beyond a reasonable doubt until the defendant is shown in this manner, the presumption of innocence continues. xxx xxx xxx In rape cases, especially much credence is accorded the testimony of the complaining witness, on the theory that she will not choose to accuse her attacker at all and subject herself to the stigma and the indignities her accusation will entail unless she is telling the truth. The rape victim who decides to speak up exposes herself as a woman whose virtue has not been not only violated but also irreparably sullied. In the eyes of a narrow-minded society, she becomes a cheapened woman, never mind that she did not submit to her humiliation and has in fact denounced her assailant. At the trial, she will be the object of lascivious curiosity. People will want to be titillated by the intimate details of her violation. She will squirm through her testimony as she described how her honor was defiled, relating every embarrassing movement of the intrusion upon the most private parts of her body. Most frequently, the defense will argue that she was not forced to submit but freely conjoined in the sexual act. Her motives will be impugned. Her chastity will be challenged and maligned. Whatever the outcome of the case, she will remain a tainted woman, a pariah because her purity has been lost, albeit through no fault of hers. This is why in many a rape victim chooses instead to keep quiet, suppressing her helpless indignation rather than denouncing her attacker. This is also the reason why, if a woman decides instead to come out openly and point to her assailant, courts are prone to believe that she is telling the truth regardless of its consequences. . . . 22 The presumption that a young Filipina will not charge a person with rape if it is not true vis-a-vis the application of the presumption of innocence has been explained in this wise: The presumption of innocence, on the otherhand, is founded upon the first principle of justice, and is not a mere form but a substantial part of the law. It is not overcome by mere suspicion or conjecture; a probability that the defendant committed the crime; nor by the fact that he had the opportunity to do so. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. This is in consonance with the rule that conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory of guilt when it is possible to do so. 23 Further, as elaborated by Father Joaquin Bernas, one of the framers of the 1987 Constitution, under the principle of presumption of innocence, it is merely required of the State to establish a prima facie case, after which the burden of proof shifts to the accused. 24 In U.S. v. Luling, 25 the Court said: xxx xxx xxx No rule has been better established in criminal law than that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. In a criminal prosecution, therefore, the burden is upon the State to prove every fact and circumstance constituting the crime charged, for the purpose of showing the guilt of the accused. While that is the rule, many of the States have established a different rule and have provided that certain facts only shall constitute prima facie evidence, and that then the burden is put upon the defendant to show or to explain that such facts or acts are not criminal. It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proof by the State of some material fact or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention. . . . The State having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt,

and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention. 26 In like manner, this Court can adjudge certain evidence, such as a young Filipina's statement that she was raped, in addition to the fact that she gave a premature birth to a twins six or seven months after the commission of one of the rapes, as prima facie proof of the guilt of the accused, as in the case at bar, and if unrebutted is enough to warrant a conviction, without going against the constitutional presumption of innocence. Accused-appellant's assertion that the trial court erred in applying the presumption that a mother will not sacrifice her daughter to tell a story of defloration deserves no consideration. A careful examination of the assailed decision reveals that the trial court never applied this presumption. The third assignment of error raised by the accused-appellant is the rejection by the trial court of the affidavit of desistance executed by the victim and her mother allegedly constitutes an express pardon. The document 27 referred to reads as follows: Salaysay ng Pag-uurong ng Demanda AKO, si PACITA ALICANTE, may sapat na gulang, may asawa at sa kasalukuyan ay naninirahan sa No. 16 Kataragan St., Karangalan Village, Pasig City, matapos manumpa ng ayon sa batas ay malayang nagsasabing mga sumusunod: 1. Na ako ang nagdidimanda ng salang "rape" laban sa aking asawa na si ARMANDO ALICANTE dahil sa panggagahasa niya sa aming anak na si RICHELLE ALICANTE, 13 taong gulang na ngayon ay iniimbestigahan sa Piskalya ng Pasig City na may IS. NO. 95-4739; 2. Na matapos kaming mag-usap-usap ay napagkasunduan naming iurong na ang demanda at patawarin siya sa nagawa niyang kasalanan. . . ginawa namin ang paguurong na ito upang mabuhay kami ng mapayapa at matiwasay; 3. Na ipinaaabot ko sa may kapangyarihan na hindi ko na nais pang ipagpatuloy ang reklamo ko laban sa kanya at iyon ay iniaatras ko na sa pamamagitan ng salaysay na ito at hindi na kami tetestigo sa kasong ito; 4. Na ginawa ko ang salaysay na ito upang patotohanan ang lahat ang nasasaad dito sa itaas. PASIG CITY, July 11, 1995 (sgd) (sgd) RICHELLE ALICANTE PACITA ALICANTE Nagsasalaysay In order to determine the legal effect of the above-quoted document an examination of the following provisions of the Revised Penal Code and the Rules of Court is necessary. Article 344 of the Revised Penal Code states: Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the abovementioned crimes. Sec. 5, Rule 110 of the Rules of Court expounds on the application of Article 344 of Revised Penal Code: Sec. 5. Who must prosecute criminal actions. . . . The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. . . .

The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses, independently of her parents, grandparents or guardians, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to the parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the immediately preceeding paragraph. As pointed out by the Office of the Solicitor General, a careful scrutiny of the Salaysay ng Pag-uurong ng Demanda reveals that while the victim Richelle signed the said document, the intent to pardon the accused-appellant was only on the part of Pacita, the victim's mother and not the victim herself. The actor in the document, as so worded, was Pacita. It involved the sole person of Pacita. This is demonstrated by the personal pronouns she used, pointing to herself as the one who was extending the pardon. Thus, the first paragraph starts with "Na ako ang nagdidimanda . . ." The second paragraph says, "Na matapos kaming nag-usap-usap . . ." indicates that only Pacita and her husband talked, excluding the victim who, at thirteen, could not have intelligently participated in her parents' conversation. The third paragraph of the Salaysay opens with the words "Na ipinaabot ko sa may kapangyarihan, . . .," signifies her personal involvement, not that of her daughter. Finally, the last paragraph goes "Na ginawa ko ang salaysay . . .," demonstrating that it was only Pacita alone that executed the affidavit. Besides, this Court looks with disfavor on affidavits of desistance. The reason for this is enunciated in the case of People vs. Junio: 28 The appellant's submission that the execution of an Affidavit of Desistance by complaint who was assisted by her mother supported the "inherent incredibility of prosecution's evidence" is specious. We have said in so many cases that retractions are generally unreliable and are looked upon with disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having the accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that "a[f]ter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution. Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable. This was reiterated by the Court of late in the case of Alonte vs. Savellano, Jr. 29 where we further ruled that an affidavit of desistance by itself, even when construed as pardon in so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation. In any case, when asked on the witness stand whether or not she wanted the case dismissed, Richelle answered in the negative. She explained that she did not read the contents of the document and only signed it because her aunt, Virginia Alicante, forced her to do so. She further stated in her testimony that she intended to pursue the present case against her father. 30 Thus: It must be stressed that during the trial proceedings of the rape case against the accused-appellant, it appeared that despite the admission made by the victim herself in open court that she had signed the Affidavit of Desistance, she, nevertheless, "strongly pointed out that she is not withdrawing the charge against the accused because the latter might do the same sexual assaults to other women." Thus, this is one occasion where an affidavit of desistance must be regarded with disfavor inasmuch as the victim, in her tender age, manifested in court that she was pursuing the rape charges against the accused-appellant. 31 As to when the pardon is to be made, this Court has long ruled that the pardon must be granted before the criminal case has been instituted: In People vs. Infante, G.R. No. 36270, an adultery case, the first division of this court, interpreting article 344 with reference to that crime, declared in a decision rendered by Justice Malcolm, promulgated on August 31, 1932, that in order that the pardon of the aggrieved party may prevent the prosecution of the adulterers, it must be granted before and not after the penal action has been instituted. In view of the foregoing considerations, we are of the opinion and so hold, that the offended party's pardon of the offender in a seduction case after the criminal action has been instituted does not extinguish said action according to paragraph 3, article 344, of the Revised Penal Code. . . . 32 Likewise in the Junio case, we held: While "[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted, except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be," the pardon to justify the dismissal of the complaint should have been made prior to the institution of the criminal action. Hence the motion to dismiss to which the affidavit of desistance is attached was filed after the institution of the criminal case. And the affiant did not appear to be serious in "signifying (her) intention to refrain from testifying since she still completed her testimony notwithstanding her earlier affidavit of desistance. 33

Accordingly, the prosecution of the case continues even if the offended party pardons the offender after the case has been instituted. While the second affidavit of desistance was signed by Richelle, this was executed only on 5 December 1995, 34 after the criminal information had already been filed in the trial court. No error can then be imputed to the trial court, for continuing on with the trial despite the presentation of these two so-called affidavits of desistance. Accused-appellant also attacks the alleged lack of a definite allegation of the dates of the commission of the offense not only in the complaint and informations filed but also throughout the trial. He argues that this deficiency prevented him from preparing an adequate defense and violated his right to be informed of the nature and cause of the accusation against him. In addition, accused-appellant questions the basis of the informations. According to him, a review of the records will show that the only document in the possession of the investigating prosecutor when he filed the information was the sworn complaint of Richelle Alicante. Nowhere in her sworn complaint did Richelle allege the number of times she was raped except for her declaration that she had been raped "(m)any times." Hence, the filing of fifteen (15) separate Informations was mere speculation on the part of the prosecution without any factual basis. Further, while the offended party could not recall the exact dates of each and every alleged rape, it was incumbent upon the prosecution to file charges only for those rapes in which they were fairly certain of the dates when these sexual assaults occurred. We are not persuaded. Sec. 11, Rule 110 of the Rules of Court is in point: Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time near the actual date at which the offense was committed as the information or complaint will permit. On numerous occasions, this Court has pronounced that the precise time of the commission of the crime is not an essential element of rape: It is settled that even a variance of a few months between the time set out in the indictment and that established by the evidence during trial has been held not to constitute an error so serious as to warrant a reversal of a conviction solely on that score. The failure of the complainant to state the exact date and time of the commission of rape is a minor matter and can be expected when the witness is recounting the details of a humiliating experience which are painful and difficult to recall in open court and in the presence of other people. Moreover, the date of the commission of the rape is not an essential element of the crime. 35 The Court finds that the informations filed against herein accused-appellant state all the facts and ingredients that would, with sufficient definiteness and clarity, fully apprise him of the nature and cause of the accusation against him in compliance with his constitutional right to be informed of the nature and the charges against him. As to the factual basis of the informations, while the records of the prosecution 36 may be sketchy as bases of the other thirteen informations except for those charging rapes for the months of August 1994 and April 1995, it is too late in the day to question such. Accused-appellant had adequate remedies during the investigation and trial but he failed to avail of them. In any case, such seeming defect is not fatal because as has been mentioned earlier, the informations filed comply with the constitutional mandate. We agree with the accused-appellant that there was failure on the part of the trial court judge to rule on the formal offer of evidence and the objections thereto. It should be noted that this failure pertains to the documentary and object evidence only, for as earlier discussed, testimonial evidence is offered, objected to and admissibility ruled on when the witness is called to the stand. However, this deficiency will not result in the reversal of accusedappellant's conviction. The purpose of the requirement is to ensure that the judge will not consider inadmissible evidence in making his decision. After a careful scrutiny of the decision and the records, it is our view that the judge did not consider any inadmissible evidence. As pointed out by the Office of the Solicitor General, the testimony of Richelle, which, as has been discussed, is deemed formally offered without any objections thereto, has been accepted as admissible by the trial court. Said testimony alone, to the mind of this Court, is sufficient to sustain the conviction of the accused-appellant. In a last ditch effort to escape the imposition of the death penalty, accused-appellant asks this Court to re-examine its ruling on the constitutionality of the appreciation of such an extreme penalty. In People v. Echegaray, 37 we have affirmed the constitutionality of the imposition of the death penalty for crimes which are not attended by the circumstance of death on the part of the victim: . . . We have already demonstrated earlier in our discussion of heinous crimes that the forfeiture of life simply because life was taken, never was a defining essence of the death penalty in the context of our legal history and cultural experience; rather, the death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government, they must be permanently prevented from doing so. At any rate, this Court has no doubts as to the innate heinousness of the crime of rape, as we have held in the case of People v. Cristobal: Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and chastity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act . . . an outrage upon decency and dignity that hurts not only the victim but the society itself. 38

We find no cogent reason to reverse our stand on the heinousness of the crime of rape when the perpetrator of such bestial act is the father of the victim. To say that the crime of incestuous rape is not heinous simply because the victim did not die is to ignore the lifelong trauma and stigma of the victim brought about by rape. In this particular case, the psychiatrist who conducted and evaluated the test on Richelle observed that she consistently showed signs of post traumatic stress disorder common to persons who have undergone unusual traumatic events in their lives caused by natural or man-made catastrophes. The social worker from the Department of Social Welfare and Development, likewise, noted that Richelle was greatly traumatized and emotionally injured individual. 39 These findings are consistent with studies on the general effects of rape on a victim: The experience of rape creates a disruption in lifestyle that realistically could last a lifetime. The physical trauma that which is visibly noted and treated quickly heals, creating the illusion of recovery. Unfortunately, the real trauma, because it is not of physical origin frequently goes unnoticed and unattended. The common pattern of public blame and skepticism encourages the victim to harbor emotional injury and pain. This process results in longterm psychological and emotional symptoms . . . . . . Previously common, comfortable situations may become fearful and phobic experiences following an assault. Certain phobias may appear to be very logical, while other may appear to the nonvictim to present little or no association. Some frequently associated phobias include: association with crowds, being left alone, previously ignored sound, poorly lit areas, seeing a man who may even vaguely resemble the rapist, odors associated with the attack, such as the smell of alcohol and gasoline, the feeling that a crowd of people knows of the rape and is talking about it, the occurrence of another disruptive experience, although unrelated, a general fear of people, the thought of sexual relations. It must be remembered that to the victim these phobias are every real and frightening. 40 In sum, we agree with the following findings of the trial court that accused-appellant is guilty beyond reasonable doubt of seven counts of rape since the same is ably supported by the evidence: The record shows that the complainant took the witness stand for three (3) times on July 2, July 3 and July 9, 1996 and each and all of these trials, she consistently testified that the first time she was raped by her father was in August 1994 and the same was repeated three (3) days thereafter. There had been allegations that she was still repeatedly abused by her father but the circumstances as to how they were committed bears repetitious contentions of general tenor which created doubt except those committed in October 1994, near the all Saint's Day and those three (3) rapes committed in January 1995, due to the fact that she gave birth to a 6 to 7 months prematurely born twin baby boys in July 24, 1995, as evidenced by the clinical records of the attending physicians which were taken cognizance as judicial notice by the Court as the same was capable of unquestionable demonstration. The last memorable occasion of the series of incest was in April 1995 just before they transferred to another house from Bonifacio St., Dela Pea, Marikina, to Pasig, Metro Manila. Considerably, therefore, in holding the accused to be liable for the two crimes of rapes in August 1994 which were docketed as Criminal Case Nos. 95-546-MK and 95547-MK, respectively; once in the last week of October 1994; docketed as Criminal Case No. 95-554-MK; three rapes committed in January 1995, docketed as Criminal Cases Nos. 95-555-MK, 95-556-MK, and 95-557 respectively; and the rape committed in April 1995 and docketed as Crim. Case No. 95-560-MK; the Court notes the well settled rule in this jurisdiction in crimes against chastity, that the exacting standard of proof beyond reasonable doubt acquires more relevance cases because such accusation is easily fabricated but hard to prove and harder still to defend on the part of the accused, though innocent. Such that the testimony of the complainant should be scrutinized with extreme caution and the evidence of the prosecution must fall or stand on its own merit and should not draw any strength from the weakness of the evidence of the defense. 41 As the relationship between the accused-appellant and the victim has in the same wise been proven beyond reasonable doubt, the Court affirms the imposition of the death penalty in accordance with Republic Act No. 7659 amending Article 335 of the Revised Penal Code which provides: xxx xxx xxx The death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the patent of the victim. . . . In line with prevailing jurisprudence, the civil indemnity ex delicto for the victim shall be in the amount of P75,000.00 for each count of rape and moral damages of P50,000.00, likewise for each count of rape without the need of pleading or proof of the basis thereof. 42 Four members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. WHEREFORE, premises considered, the Court hereby AFFIRMS the appealed decision sentencing the accused-appellant ARMANDO ALCANTE y DAVID to the extreme penalty of death with the MODIFICATION that the accused-appellant shall be ordered to indemnify the victim Richelle Alicante, in the amount of P75,000.00 as civil indemnity and P50,000.00, respectively, as moral damages for each count of the offense proved. In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of his pardoning power.
1wphi1.nt

SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur. Davide, Jr., on official leave. Panganiban, J., abroad did not participate in the deliberation. Footnotes
1

Rollo, p. 33. Records, p. 2.

Id., at 34-63. The other informations refer to the following crimes: one (1) also in August, 1994 (Case No. 95-547MK); three (3) in September, 1994 (Case Nos. 95-548-551-MK); three (3) in October, 1994 (Case Nos. 95-542-544MK); three (3) in January, 1995 (Case Nos. 95-555-557-MK); one (1) in February 1995 (Case No. 95-558-MK); and two (2) in April 1995 (Case Nos. 95-559-560-MK).
4

Id., at 94. Rollo, p. 34. Id., at 490-495. Id., at 60-61. Id., at 74. Id., at 369-371. Id., at 394-396. THE REVISED RULES OF COURT, Volume VII, p. 393. People vs. Cawaling, et al., 293 SCRA 256 (1998). Rollo, pp. 398-400. Original Records, Folder 2, p. 38. People vs. Mandop, 244 SCRA 457, 464 (1995). People vs. Esquila, 254 SCRA 140, 145 (1996). Original Records, p. 351. People vs. Godoy, 250 SCRA 676, 703 (1995). People vs. Calayca 301 SCRA 192, 205 (1999). People vs. Matamorosa, 231 SCRA 509 (1997). See note 18. Id., at 726-727.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

People of the Philippines vs. Alfredo Ablaneday Peconia. Alias "Kalahupag." G.R. No. 128075, September 14, 1999.

24

The 1987 Constitution of the Republic of the Philippines, A Commentary, (1996), p. 447. 34 Phil. 725 (1916). Id., at 727. Original Records, Folder 2, p. 38. 237 SCRA 826, 834 (1994). 287 SCRA 245, 266 (1998). TSN, Sept. 9, 1996, 5-8, 11-12. People vs. Echegaray, 267 SCRA 682, 691 (1999). People vs. Miranda, 57 Phil., 274, 275-76 (1932-1933). Supra, note 28. Records, Folder 2, p. 39.

25

26

27

28

29

30

31

32

33

34

35

People v. Bernaldez 294 SCRA 317, 327 (1998), citing People v. Bugarin, 273 SCRA 384, 397 (1997) and People v. Quinones, 222 SCRA 249, 254 (1993).
36

The Salaysay of Richelle Alicante (Records, p. 6) reads in part:

T: Kailan, saan at anong oras nangyari ang panggagahasa sa iyo? S: Nangyari po iyong pang-gagahasa sa akin nuong buwan ng August 1994, hindi ko na po matandaan ang petsa, tanghali po iyon at bagong paligo ako dahil papasok ako sa iskwela sa Barangka Elementary School, nakasuot pon ako ng short at sando pagpasok sa aming bahay namin dahil sa likod bahay ang paliguan, nung pumasok ako ng bahay ay nilapitan ako ng Tatay ko at hinawakan ang suso ko, ang ginawa ko ay tinabig ko ang kamay niya at hinampas ko siya sa likd, nagalit siya at kinuha iyong kutsilyo at tinutok sa aking mukha at nagsalita siya nang: "Bago ako maunahan ng iba ay ako muna", sabay patay ng ilaw at hinila ako papunta sa kama nung sumigaw ako ay tinatakpan niya ng kanyang kamay ang bibig ko, hinila niya ang paako kaya napahiga ako sa kama habang pilit niyang hinuhubad ang suot kong short, nanlalaban po ako at sumisigaw per sinampal at kinukutusan niya ako ng kanyang kamao at nakaramdam na po ako ng panghihina at pananlalambot kaya puro iyak na lang po ang nagawa ko, binuksan niya ang zipper ng kanyang pantalon at dumapa sa ibabaw ko habang hawak niya ang dalawa kong kamay pataas at hinawi niya ng kanyang tuhod ang aking dalawang hita pabuka at pilit niyang pinasok sa aking ari at pakiramdam ko nuon ay hilong-hilo. Bandang alas 12:00 ng Tanghali ng nangyan na nasundan pa ng maraming beses sa loob ng dati naming bahay sa No. 190-F Bonifacio Ave., Barangat S. Dela Pena, Marikina, Metro Manila.
37

267 SCRA 682, 730 (1997). Id., at 730. Exhibit "D." Rape and Sexual Assault, Carmen Germaine Warner, 1980, pp. 221-223. Original Records, pp. 357-359. People of the Philippines vs. Ludigario Candelario and Gerry Legarda, G.R No. 125550, July 28, 1999. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

38

39

40

41

42

G.R. No. 156132

October 12, 2006

CITIBANK, N.A. (Formerly First National City Bank) and INVESTORS' FINANCE CORPORATION, doing business under the name and style of FNCB Finance, petitioners, vs. MODESTA R. SABENIANO, respondent.

DECISION

CHICO-NAZARIO, J.: Before this Court is a Petition for Review on Certiorari,1 under Rule 45 of the Revised Rules of Court, of the Decision2 of the Court of Appeals in CAG.R. CV No. 51930, dated 26 March 2002, and the Resolution,3 dated 20 November 2002, of the same court which, although modifying its earlier Decision, still denied for the most part the Motion for Reconsideration of herein petitioners. Petitioner Citibank, N.A. (formerly known as the First National City Bank) is a banking corporation duly authorized and existing under the laws of the United States of America and licensed to do commercial banking activities and perform trust functions in the Philippines. Petitioner Investor's Finance Corporation, which did business under the name and style of FNCB Finance, was an affiliate company of petitioner Citibank, specifically handling money market placements for its clients. It is now, by virtue of a merger, doing business as part of its successor-ininterest, BPI Card Finance Corporation. However, so as to consistently establish its identity in the Petition at bar, the said petitioner shall still be referred to herein as FNCB Finance.4 Respondent Modesta R. Sabeniano was a client of both petitioners Citibank and FNCB Finance. Regrettably, the business relations among the parties subsequently went awry. On 8 August 1985, respondent filed a Complaint5 against petitioners, docketed as Civil Case No. 11336, before the Regional Trial Court (RTC) of Makati City. Respondent claimed to have substantial deposits and money market placements with the petitioners, as well as money market placements with the Ayala Investment and Development Corporation (AIDC), the proceeds of which were supposedly deposited automatically and directly to respondent's accounts with petitioner Citibank. Respondent alleged that petitioners refused to return her deposits and the proceeds of her money market placements despite her repeated demands, thus, compelling respondent to file Civil Case No. 11336 against petitioners for "Accounting, Sum of Money and Damages." Respondent eventually filed an Amended Complaint6 on 9 October 1985 to include additional claims to deposits and money market placements inadvertently left out from her original Complaint. In their joint Answer7 and Answer to Amended Complaint,8 filed on 12 September 1985 and 6 November 1985, respectively, petitioners admitted that respondent had deposits and money market placements with them, including dollar accounts in the Citibank branch in Geneva, Switzerland (CitibankGeneva). Petitioners further alleged that the respondent later obtained several loans from petitioner Citibank, for which she executed Promissory Notes (PNs), and secured by (a) a Declaration of Pledge of her dollar accounts in Citibank-Geneva, and (b) Deeds of Assignment of her money market placements with petitioner FNCB Finance. When respondent failed to pay her loans despite repeated demands by petitioner Citibank, the latter exercised its right to off-set or compensate respondent's outstanding loans with her deposits and money market placements, pursuant to the Declaration of Pledge and the Deeds of Assignment executed by respondent in its favor. Petitioner Citibank supposedly informed respondent Sabeniano of the foregoing compensation through letters, dated 28 September 1979 and 31 October 1979. Petitioners were therefore surprised when six years later, in 1985, respondent and her counsel made repeated requests for the withdrawal of respondent's deposits and money market placements with petitioner Citibank, including her dollar accounts with Citibank-Geneva and her money market placements with petitioner FNCB Finance. Thus, petitioners prayed for the dismissal of the Complaint and for the award of actual, moral, and exemplary damages, and attorney's fees. When the parties failed to reach a compromise during the pre-trial hearing,9 trial proper ensued and the parties proceeded with the presentation of their respective evidence. Ten years after the filing of the Complaint on 8 August 1985, a Decision10 was finally rendered in Civil Case No. 11336 on 24 August 1995 by the fourth Judge11 who handled the said case, Judge Manuel D. Victorio, the dispositive portion of which reads WHEREFORE, in view of all the foregoing, decision is hereby rendered as follows: (1) Declaring as illegal, null and void the setoff effected by the defendant Bank [petitioner Citibank] of plaintiff's [respondent Sabeniano] dollar deposit with Citibank, Switzerland, in the amount of US$149,632.99, and ordering the said defendant [petitioner Citibank] to refund the said amount to the plaintiff with legal interest at the rate of twelve percent (12%) per annum, compounded yearly, from 31 October 1979 until fully paid, or its peso equivalent at the time of payment; (2) Declaring the plaintiff [respondent Sabeniano] indebted to the defendant Bank [petitioner Citibank] in the amount of P1,069,847.40 as of 5 September 1979 and ordering the plaintiff [respondent Sabeniano] to pay said amount, however, there shall be no interest and penalty charges from the time the illegal setoff was effected on 31 October 1979; (3) Dismissing all other claims and counterclaims interposed by the parties against each other. Costs against the defendant Bank.

All the parties appealed the foregoing Decision of the RTC to the Court of Appeals, docketed as CA-G.R. CV No. 51930. Respondent questioned the findings of the RTC that she was still indebted to petitioner Citibank, as well as the failure of the RTC to order petitioners to render an accounting of respondent's deposits and money market placements with them. On the other hand, petitioners argued that petitioner Citibank validly compensated respondent's outstanding loans with her dollar accounts with Citibank-Geneva, in accordance with the Declaration of Pledge she executed in its favor. Petitioners also alleged that the RTC erred in not declaring respondent liable for damages and interest. On 26 March 2002, the Court of Appeals rendered its Decision12 affirming with modification the RTC Decision in Civil Case No. 11336, dated 24 August 1995, and ruling entirely in favor of respondent in this wise Wherefore, premises considered, the assailed 24 August 1995 Decision of the court a quo is hereby AFFIRMED with MODIFICATION, as follows: 1. Declaring as illegal, null and void the set-off effected by the defendant-appellant Bank of the plaintiff-appellant's dollar deposit with Citibank, Switzerland, in the amount of US$149,632.99, and ordering defendant-appellant Citibank to refund the said amount to the plaintiffappellant with legal interest at the rate of twelve percent (12%) per annum, compounded yearly, from 31 October 1979 until fully paid, or its peso equivalent at the time of payment; 2. As defendant-appellant Citibank failed to establish by competent evidence the alleged indebtedness of plaintiff-appellant, the set-off of P1,069,847.40 in the account of Ms. Sabeniano is hereby declared as without legal and factual basis; 3. As defendants-appellants failed to account the following plaintiff-appellant's money market placements, savings account and current accounts, the former is hereby ordered to return the same, in accordance with the terms and conditions agreed upon by the contending parties as evidenced by the certificates of investments, to wit: (i) Citibank NNPN Serial No. 023356 (Cancels and Supersedes NNPN No. 22526) issued on 17 March 1977, P318,897.34 with 14.50% interest p.a.; (ii) Citibank NNPN Serial No. 23357 (Cancels and Supersedes NNPN No. 22528) issued on 17 March 1977, P203,150.00 with 14.50 interest p.a.; (iii) FNCB NNPN Serial No. 05757 (Cancels and Supersedes NNPN No. 04952), issued on 02 June 1977, P500,000.00 with 17% interest p.a.; (iv) FNCB NNPN Serial No. 05758 (Cancels and Supersedes NNPN No. 04962), issued on 02 June 1977, P500,000.00 with 17% interest per annum; (v) The Two Million (P2,000,000.00) money market placements of Ms. Sabeniano with the Ayala Investment & Development Corporation (AIDC) with legal interest at the rate of twelve percent (12%) per annum compounded yearly, from 30 September 1976 until fully paid; 4. Ordering defendants-appellants to jointly and severally pay the plaintiff-appellant the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00) by way of moral damages, FIVE HUNDRED THOUSAND PESOS (P500,000.00) as exemplary damages, and ONE HUNDRED THOUSAND PESOS (P100,000.00) as attorney's fees. Apparently, the parties to the case, namely, the respondent, on one hand, and the petitioners, on the other, made separate attempts to bring the aforementioned Decision of the Court of Appeals, dated 26 March 2002, before this Court for review. G.R. No. 152985 Respondent no longer sought a reconsideration of the Decision of the Court of Appeals in CA-G.R. CV No. 51930, dated 26 March 2002, and instead, filed immediately with this Court on 3 May 2002 a Motion for Extension of Time to File a Petition for Review,13 which, after payment of the docket and other lawful fees, was assigned the docket number G.R. No. 152985. In the said Motion, respondent alleged that she received a copy of the assailed Court of Appeals Decision on 18 April 2002 and, thus, had 15 days therefrom or until 3 May 2002 within which to file her Petition for Review. Since she informed her counsel of her desire to pursue an appeal of the Court of Appeals Decision only on 29 April 2002, her counsel neither had enough time to file a motion for reconsideration of the said Decision with the Court of Appeals, nor a Petition for Certiorari with this Court. Yet, the Motion failed to state the exact extension period respondent was requesting for. Since this Court did not act upon respondent's Motion for Extension of Time to file her Petition for Review, then the period for appeal continued to run and still expired on 3 May 2002.14 Respondent failed to file any Petition for Review within the prescribed period for appeal and, hence, this Court issued a Resolution,15 dated 13 November 2002, in which it pronounced that G.R. No. 152985 (Modesta R. Sabeniano vs. Court of Appeals, et al.). It appearing that petitioner failed to file the intended petition for review on certiorari within the period which expired on May 3, 2002, the Court Resolves to DECLARE THIS CASE TERMINATED and DIRECT the Division Clerk of Court to INFORM the parties that the judgment sought to be reviewed has become final and executory. The said Resolution was duly recorded in the Book of Entries of Judgments on 3 January 2003.

G.R. No. 156132 Meanwhile, petitioners filed with the Court of Appeals a Motion for Reconsideration of its Decision in CA-G.R. CV No. 51930, dated 26 March 2002. Acting upon the said Motion, the Court of Appeals issued the Resolution,16 dated 20 November 2002, modifying its Decision of 26 March 2002, as follows WHEREFORE, premises considered, the instant Motion for Reconsideration is PARTIALLY GRANTED as Sub-paragraph (V) paragraph 3 of the assailed Decision's dispositive portion is hereby ordered DELETED. The challenged 26 March 2002 Decision of the Court is AFFIRMED with MODIFICATION. Assailing the Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 51930, dated 26 March 2002 and 20 November 2002, respectively, petitioners filed the present Petition, docketed as G.R. No. 156132. The Petition was initially denied17 by this Court for failure of the petitioners to attach thereto a Certification against Forum Shopping. However, upon petitioners' Motion and compliance with the requirements, this Court resolved 18 to reinstate the Petition. The Petition presented fourteen (14) assignments of errors allegedly committed by the Court of Appeals in its Decision, dated 26 March 2002, involving both questions of fact and questions of law which this Court, for the sake of expediency, discusses jointly, whenever possible, in the succeeding paragraphs. I The Resolution of this Court, dated 13 November 2002, in G.R. No. 152985, declaring the Decision of the Court of Appeals, dated 26 March 2002, final and executory, pertains to respondent Sabeniano alone. Before proceeding to a discussion of the merits of the instant Petition, this Court wishes to address first the argument, persistently advanced by respondent in her pleadings on record, as well as her numerous personal and unofficial letters to this Court which were no longer made part of the record, that the Decision of the Court of Appeals in CA-G.R. CV No. 51930, dated 26 March 2002, had already become final and executory by virtue of the Resolution of this Court in G.R. No. 152985, dated 13 November 2002. G.R. No. 152985 was the docket number assigned by this Court to respondent's Motion for Extension of Time to File a Petition for Review. Respondent, though, did not file her supposed Petition. Thus, after the lapse of the prescribed period for the filing of the Petition, this Court issued the Resolution, dated 13 November 2002, declaring the Decision of the Court of Appeals, dated 26 March 2002, final and executory. It should be pointed out, however, that the Resolution, dated 13 November 2002, referred only to G.R. No. 152985, respondent's appeal, which she failed to perfect through the filing of a Petition for Review within the prescribed period. The declaration of this Court in the same Resolution would bind respondent solely, and not petitioners which filed their own separate appeal before this Court, docketed as G.R. No. 156132, the Petition at bar. This would mean that respondent, on her part, should be bound by the findings of fact and law of the Court of Appeals, including the monetary amounts consequently awarded to her by the appellate court in its Decision, dated 26 March 2002; and she can no longer refute or assail any part thereof. 19 This Court already explained the matter to respondent when it issued a Resolution20 in G.R. No. 156132, dated 2 February 2004, which addressed her Urgent Motion for the Release of the Decision with the Implementation of the Entry of Judgment in the following manner [A]cting on Citibank's and FNCB Finance's Motion for Reconsideration, we resolved to grant the motion, reinstate the petition and require Sabeniano to file a comment thereto in our Resolution of June 23, 2003. Sabeniano filed a Comment dated July 17, 2003 to which Citibank and FNCB Finance filed a Reply dated August 20, 2003. From the foregoing, it is clear that Sabeniano had knowledge of, and in fact participated in, the proceedings in G.R. No. 156132. She cannot feign ignorance of the proceedings therein and claim that the Decision of the Court of Appeals has become final and executory. More precisely, the Decision became final and executory only with regard to Sabeniano in view of her failure to file a petition for review within the extended period granted by the Court, and not to Citibank and FNCB Finance whose Petition for Review was duly reinstated and is now submitted for decision. Accordingly, the instant Urgent Motion is hereby DENIED. (Emphasis supplied.) To sustain the argument of respondent would result in an unjust and incongruous situation wherein one party may frustrate the efforts of the opposing party to appeal the case by merely filing with this Court a Motion for Extension of Time to File a Petition for Review, ahead of the opposing party, then not actually filing the intended Petition.21 The party who fails to file its intended Petition within the reglementary or extended period should solely bear the consequences of such failure. Respondent Sabeniano did not commit forum shopping. Another issue that does not directly involve the merits of the present Petition, but raised by petitioners, is whether respondent should be held liable for forum shopping. Petitioners contend that respondent committed forum shopping on the basis of the following facts:

While petitioners' Motion for Reconsideration of the Decision in CA-G.R. CV No. 51930, dated 26 March 2002, was still pending before the Court of Appeals, respondent already filed with this Court on 3 May 2002 her Motion for Extension of Time to File a Petition for Review of the same Court of Appeals Decision, docketed as G.R. No. 152985. Thereafter, respondent continued to participate in the proceedings before the Court of Appeals in CAG.R. CV No. 51930 by filing her Comment, dated 17 July 2002, to petitioners' Motion for Reconsideration; and a Rejoinder, dated 23 September 2002, to petitioners' Reply. Thus, petitioners argue that by seeking relief concurrently from this Court and the Court of Appeals, respondent is undeniably guilty of forum shopping, if not indirect contempt. This Court, however, finds no sufficient basis to hold respondent liable for forum shopping. Forum shopping has been defined as the filing of two or more suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.22 The test for determining forum shopping is whether in the two (or more) cases pending, there is an identity of parties, rights or causes of action, and relief sought.23 To guard against this deplorable practice, Rule 7, Section 5 of the revised Rules of Court imposes the following requirement SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as cause for administrative sanctions. Although it may seem at first glance that respondent was simultaneously seeking recourse from the Court of Appeals and this Court, a careful and closer scrutiny of the details of the case at bar would reveal otherwise. It should be recalled that respondent did nothing more in G.R. No. 152985 than to file with this Court a Motion for Extension of Time within which to file her Petition for Review. For unexplained reasons, respondent failed to submit to this Court her intended Petition within the reglementary period. Consequently, this Court was prompted to issue a Resolution, dated 13 November 2002, declaring G.R. No. 152985 terminated, and the therein assailed Court of Appeals Decision final and executory. G.R. No. 152985, therefore, did not progress and respondent's appeal was unperfected. The Petition for Review would constitute the initiatory pleading before this Court, upon the timely filing of which, the case before this Court commences; much in the same way a case is initiated by the filing of a Complaint before the trial court. The Petition for Review establishes the identity of parties, rights or causes of action, and relief sought from this Court, and without such a Petition, there is technically no case before this Court. The Motion filed by respondent seeking extension of time within which to file her Petition for Review does not serve the same purpose as the Petition for Review itself. Such a Motion merely presents the important dates and the justification for the additional time requested for, but it does not go into the details of the appealed case. Without any particular idea as to the assignments of error or the relief respondent intended to seek from this Court, in light of her failure to file her Petition for Review, there is actually no second case involving the same parties, rights or causes of action, and relief sought, as that in CA-G.R. CV No. 51930. It should also be noted that the Certification against Forum Shopping is required to be attached to the initiatory pleading, which, in G.R. No. 152985, should have been respondent's Petition for Review. It is in that Certification wherein respondent certifies, under oath, that: (a) she has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of her knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, that she is presenting a complete statement of the present status thereof; and (c) if she should thereafter learn that the same or similar action or claim has been filed or is pending, she shall report that fact within five days therefrom to this Court. Without her Petition for Review, respondent had no obligation to execute and submit the foregoing Certification against Forum Shopping. Thus, respondent did not violate Rule 7, Section 5 of the Revised Rules of Court; neither did she mislead this Court as to the pendency of another similar case. Lastly, the fact alone that the Decision of the Court of Appeals, dated 26 March 2002, essentially ruled in favor of respondent, does not necessarily preclude her from appealing the same. Granted that such a move is ostensibly irrational, nonetheless, it does not amount to malice, bad faith or abuse of the court processes in the absence of further proof. Again, it should be noted that the respondent did not file her intended Petition for Review. The Petition for Review would have presented before this Court the grounds for respondent's appeal and her arguments in support thereof. Without said Petition, any reason attributed to the respondent for appealing the 26 March 2002 Decision would be grounded on mere speculations, to which this Court cannot give credence. II As an exception to the general rule, this Court takes cognizance of questions of fact raised in the Petition at bar. It is already a well-settled rule that the jurisdiction of this Court in cases brought before it from the Court of Appeals by virtue of Rule 45 of the Revised Rules of Court is limited to reviewing errors of law. Findings of fact of the Court of Appeals are conclusive upon this Court. There are, however,

recognized exceptions to the foregoing rule, namely: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the interference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings, the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.24 Several of the enumerated exceptions pertain to the Petition at bar. It is indubitable that the Court of Appeals made factual findings that are contrary to those of the RTC,25 thus, resulting in its substantial modification of the trial court's Decision, and a ruling entirely in favor of the respondent. In addition, petitioners invoked in the instant Petition for Review several exceptions that would justify this Court's review of the factual findings of the Court of Appeals, i.e., the Court of Appeals made conflicting findings of fact; findings of fact which went beyond the issues raised on appeal before it; as well as findings of fact premised on the supposed absence of evidence and contradicted by the evidence on record. On the basis of the foregoing, this Court shall proceed to reviewing and re-evaluating the evidence on record in order to settle questions of fact raised in the Petition at bar. The fact that the trial judge who rendered the RTC Decision in Civil Case No. 11336, dated 24 August 1995, was not the same judge who heard and tried the case, does not, by itself, render the said Decision erroneous. The Decision in Civil Case No. 11336 was rendered more than 10 years from the institution of the said case. In the course of its trial, the case was presided over by four (4) different RTC judges.26 It was Judge Victorio, the fourth judge assigned to the case, who wrote the RTC Decision, dated 24 August 1995. In his Decision,27 Judge Victorio made the following findings After carefully evaluating the mass of evidence adduced by the parties, this Court is not inclined to believe the plaintiff's assertion that the promissory notes as well as the deeds of assignments of her FNCB Finance money market placements were simulated. The evidence is overwhelming that the plaintiff received the proceeds of the loans evidenced by the various promissory notes she had signed. What is more, there was not an iota of proof save the plaintiff's bare testimony that she had indeed applied for loan with the Development Bank of the Philippines. More importantly, the two deeds of assignment were notarized, hence they partake the nature of a public document. It makes more than preponderant proof to overturn the effect of a notarial attestation. Copies of the deeds of assignments were actually filed with the Records Management and Archives Office. Finally, there were sufficient evidence wherein the plaintiff had admitted the existence of her loans with the defendant Bank in the total amount of P1,920,000.00 exclusive of interests and penalty charges (Exhibits "28", "31", "32", and "33"). In fine, this Court hereby finds that the defendants had established the genuineness and due execution of the various promissory notes heretofore identified as well as the two deeds of assignments of the plaintiff's money market placements with defendant FNCB Finance, on the strength of which the said money market placements were applied to partially pay the plaintiff's past due obligation with the defendant Bank. Thus, the total sum of P1,053,995.80 of the plaintiff's past due obligation was partially offset by the said money market placement leaving a balance of P1,069,847.40 as of 5 September 1979 (Exhibit "34"). Disagreeing in the foregoing findings, the Court of Appeals stressed, in its Decision in CA-G.R. CV No. 51930, dated 26 March 2002, "that the ponente of the herein assailed Decision is not the Presiding Judge who heard and tried the case."28 This brings us to the question of whether the fact alone that the RTC Decision was rendered by a judge other than the judge who actually heard and tried the case is sufficient justification for the appellate court to disregard or set aside the findings in the Decision of the court a quo? This Court rules in the negative. What deserves stressing is that, in this jurisdiction, there exists a disputable presumption that the RTC Decision was rendered by the judge in the regular performance of his official duties. While the said presumption is only disputable, it is satisfactory unless contradicted or overcame by other evidence.29 Encompassed in this presumption of regularity is the presumption that the RTC judge, in resolving the case and drafting his Decision, reviewed, evaluated, and weighed all the evidence on record. That the said RTC judge is not the same judge who heard the case and received the evidence is of little consequence when the records and transcripts of stenographic notes (TSNs) are complete and available for consideration by the former. In People v. Gazmen,30 this Court already elucidated its position on such an issue Accused-appellant makes an issue of the fact that the judge who penned the decision was not the judge who heard and tried the case and concludes therefrom that the findings of the former are erroneous. Accused-appellant's argument does not merit a lengthy discussion. It is well-settled that the decision of a judge who did not try the case is not by that reason alone erroneous. It is true that the judge who ultimately decided the case had not heard the controversy at all, the trial having been conducted by then Judge Emilio L. Polig, who was indefinitely suspended by this Court. Nonetheless, the transcripts of stenographic notes taken during the trial were complete and were presumably examined and studied by Judge Baguilat before he rendered his decision. It is not unusual for a judge who did not try a case to decide it on the basis of the record. The fact that he did not have the opportunity to observe the demeanor of the

witnesses during the trial but merely relied on the transcript of their testimonies does not for that reason alone render the judgment erroneous. (People vs. Jaymalin, 214 SCRA 685, 692 [1992]) Although it is true that the judge who heard the witnesses testify is in a better position to observe the witnesses on the stand and determine by their demeanor whether they are telling the truth or mouthing falsehood, it does not necessarily follow that a judge who was not present during the trial cannot render a valid decision since he can rely on the transcript of stenographic notes taken during the trial as basis of his decision. Accused-appellant's contention that the trial judge did not have the opportunity to observe the conduct and demeanor of the witnesses since he was not the same judge who conducted the hearing is also untenable. While it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth and falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision since the latter can also rely on the transcribed stenographic notes taken during the trial as the basis of his decision. (People vs. De Paz, 212 SCRA 56, 63 [1992]) At any rate, the test to determine the value of the testimony of the witness is whether or not such is in conformity with knowledge and consistent with the experience of mankind (People vs. Morre, 217 SCRA 219 [1993]). Further, the credibility of witnesses can also be assessed on the basis of the substance of their testimony and the surrounding circumstances (People v. Gonzales, 210 SCRA 44 [1992]). A critical evaluation of the testimony of the prosecution witnesses reveals that their testimony accords with the aforementioned tests, and carries with it the ring of truth end perforce, must be given full weight and credit. Irrefragably, by reason alone that the judge who penned the RTC Decision was not the same judge who heard the case and received the evidence therein would not render the findings in the said Decision erroneous and unreliable. While the conduct and demeanor of witnesses may sway a trial court judge in deciding a case, it is not, and should not be, his only consideration. Even more vital for the trial court judge's decision are the contents and substance of the witnesses' testimonies, as borne out by the TSNs, as well as the object and documentary evidence submitted and made part of the records of the case. This Court proceeds to making its own findings of fact. Since the Decision of the Court of Appeals in CA-G.R. CV No. 51930, dated 26 March 2002, has become final and executory as to the respondent, due to her failure to interpose an appeal therefrom within the reglementary period, she is already bound by the factual findings in the said Decision. Likewise, respondent's failure to file, within the reglementary period, a Motion for Reconsideration or an appeal of the Resolution of the Court of Appeals in the same case, dated 20 November 2002, which modified its earlier Decision by deleting paragraph 3(v) of its dispositive portion, ordering petitioners to return to respondent the proceeds of her money market placement with AIDC, shall already bar her from questioning such modification before this Court. Thus, what is for review before this Court is the Decision of the Court of Appeals, dated 26 March 2002, as modified by the Resolution of the same court, dated 20 November 2002. Respondent alleged that she had several deposits and money market placements with petitioners. These deposits and money market placements, as determined by the Court of Appeals in its Decision, dated 26 March 2002, and as modified by its Resolution, dated 20 November 2002, are as follows

Deposit/Placement Dollar deposit with Citibank-Geneva Money market placement with Citibank, evidenced by Promissory Note (PN) No. 23356 (which cancels and supersedes PN No. 22526), earning 14.5% interest per annum (p.a.) Money market placement with Citibank, evidenced by PN No. 23357 (which cancels and supersedes PN No. 22528), earning 14.5% interest p.a. Money market placement with FNCB Finance, evidenced by PN No. 5757 (which cancels and supersedes PN No. 4952), earning 17% interest p.a. Money market placement with FNCB Finance, evidenced by PN No. 5758 (which cancels and supersedes PN No. 2962), earning 17% interest p.a.

Amount $ 149,632.99 P 318,897.34 P 203,150.00 P 500,000.00 P 500,000.00

This Court is tasked to determine whether petitioners are indeed liable to return the foregoing amounts, together with the appropriate interests and penalties, to respondent. It shall trace respondent's transactions with petitioners, from her money market placements with petitioner Citibank and petitioner FNCB Finance, to her savings and current accounts with petitioner Citibank, and to her dollar accounts with Citibank-Geneva. Money market placements with petitioner Citibank The history of respondent's money market placements with petitioner Citibank began on 6 December 1976, when she made a placement of P500,000.00 as principal amount, which was supposed to earn an interest of 16% p.a. and for which PN No. 20773 was issued. Respondent did not yet claim the proceeds of her placement and, instead, rolled-over or re-invested the principal and proceeds several times in the succeeding years for which new PNs were issued by petitioner Citibank to replace the ones which matured. Petitioner Citibank accounted for respondent's original placement and the subsequent roll-overs thereof, as follows

Date (mm/dd/yyyy) 12/06/1976 01/14/1977 02/09/1977 03/17/1977

PN No.

Cancels PN No.

Maturity Date (mm/dd/yyyy)

Amount (P)

Interest (p.a.)

20773 21686 22526 22528 23356 23357

None 20773 21686 21686 22526 22528

01/13/1977 02/08/1977 03/16/1977 03/16/1977 04/20/1977 04/20/1977

500,000.00 16% 508,444.44 15% 313,952.59 15-3/4% 200,000.00 15-3/4% 318,897.34 14-1/2% 203,150.00 14-1/2%

Petitioner Citibank alleged that it had already paid to respondent the principal amounts and proceeds of PNs No. 23356 and 23357, upon their maturity. Petitioner Citibank further averred that respondent used the P500,000.00 from the payment of PNs No. 23356 and 23357, plus P600,000.00 sourced from her other funds, to open two time deposit (TD) accounts with petitioner Citibank, namely, TD Accounts No. 17783 and 17784. Petitioner Citibank did not deny the existence nor questioned the authenticity of PNs No. 23356 and 23357 it issued in favor of respondent for her money market placements. In fact, it admitted the genuineness and due execution of the said PNs, but qualified that they were no longer outstanding.31 In Hibberd v. Rohde and McMillian,32 this Court delineated the consequences of such an admission By the admission of the genuineness and due execution of an instrument, as provided in this section, is meant that the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered; and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. Hence, such defenses as that the signature is a forgery (Puritan Mfg. Co. vs. Toti & Gradi, 14 N. M., 425; Cox vs. Northwestern Stage Co., 1 Idaho, 376; Woollen vs. Whitacre, 73 Ind., 198; Smith vs. Ehnert, 47 Wis., 479; Faelnar vs. Escao, 11 Phil. Rep., 92); or that it was unauthorized, as in the case of an agent signing for his principal, or one signing in behalf of a partnership (Country Bank vs. Greenberg, 127 Cal., 26; Henshaw vs. Root, 60 Inc., 220; Naftzker vs. Lantz, 137 Mich., 441) or of a corporation (Merchant vs. International Banking Corporation, 6 Phil Rep., 314; Wanita vs. Rollins, 75 Miss., 253; Barnes vs. Spencer & Barnes Co., 162 Mich., 509); or that, in the case of the latter, that the corporation was authorized under its charter to sign the instrument (Merchant vs. International Banking Corporation, supra); or that the party charged signed the instrument in some other capacity than that alleged in the pleading setting it out (Payne vs. National Bank, 16 Kan., 147); or that it was never delivered (Hunt vs. Weir, 29 Ill., 83; Elbring vs. Mullen, 4 Idaho, 199; Thorp vs. Keokuk Coal Co., 48 N.Y., 253; Fire Association of Philadelphia vs. Ruby, 60 Neb., 216) are cut off by the admission of its genuineness and due execution. The effect of the admission is such that in the case of a promissory note a prima facie case is made for the plaintiff which dispenses with the necessity of evidence on his part and entitles him to a judgment on the pleadings unless a special defense of new matter, such as payment, is interposed by the defendant (Papa vs. Martinez, 12 Phil. Rep., 613; Chinese Chamber of Commerce vs. Pua To Ching, 14 Phil. Rep., 222; Banco Espaol-Filipino vs. McKay & Zoeller, 27 Phil. Rep., 183). x x x Since the genuineness and due execution of PNs No. 23356 and 23357 are uncontested, respondent was able to establish prima facie that petitioner Citibank is liable to her for the amounts stated therein. The assertion of petitioner Citibank of payment of the said PNs is an affirmative allegation of a new matter, the burden of proof as to such resting on petitioner Citibank. Respondent having proved the existence of the obligation, the burden of proof was upon petitioner Citibank to show that it had been discharged.33 It has already been established by this Court that As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff must allege non-payment, the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment. When the existence of a debt is fully established by the evidence contained in the record, the burden of proving that it has been extinguished by payment devolves upon the debtor who offers such defense to the claim of the creditor. Where the debtor introduces some evidence of payment, the burden of going forward with the evidence as distinct from the general burden of proof shifts to the creditor, who is then under the duty of producing some evidence of non-payment.34 Reviewing the evidence on record, this Court finds that petitioner Citibank failed to satisfactorily prove that PNs No. 23356 and 23357 had already been paid, and that the amount so paid was actually used to open one of respondent's TD accounts with petitioner Citibank. Petitioner Citibank presented the testimonies of two witnesses to support its contention of payment: (1) That of Mr. Herminio Pujeda,35 the officer-incharge of loans and placements at the time when the questioned transactions took place; and (2) that of Mr. Francisco Tan, 36 the former Assistant VicePresident of Citibank, who directly dealt with respondent with regard to her deposits and loans. The relevant portion37 of Mr. Pujeda's testimony as to PNs No. 23356 and 23357 (referred to therein as Exhibits No. "47" and "48," respectively) is reproduced below Atty. Mabasa: Okey [sic]. Now Mr. Witness, you were asked to testify in this case and this case is [sic] consist [sic] of several documents involving transactions between the plaintiff and the defendant. Now, were you able to make your own memorandum regarding all these transactions?

A Yes, based on my recollection of these facts, I did come up of [sic] the outline of the chronological sequence of events. Court: Are you trying to say that you have personal knowledge or participation to these transactions? A Yes, your Honor, I was the officer-in charge of the unit that was processing these transactions. Some of the documents bear my signature. Court: And this resume or summary that you have prepared is based on purely your recollection or documents? A Based on documents, your Honor. Court: Are these documents still available now? A Yes, your honor. Court: Better present the documents. Atty. Mabasa: Yes, your Honor, that is why your Honor. Atty. Mabasa: Q Now, basing on the notes that you prepared, Mr. Witness, and according to you basing also on your personal recollection about all the transactions involved between Modesta Sabeniano and defendant City Bank [sic] in this case. Now, would you tell us what happened to the money market placements of Modesta Sabeniano that you have earlier identified in Exhs. "47" and "48"? A The transactions which I said earlier were terminated and booked to time deposits. Q And you are saying time deposits with what bank? A With First National Citibank. Q Is it the same bank as Citibank, N.A.? A Yes, sir. Q And how much was the amount booked as time deposit with defendant Citibank? A In the amount of P500,000.00. Q And outside this P500,000.00 which you said was booked out of the proceeds of Exhs. "47" and "48", were there other time deposits opened by Mrs. Modesta Sabeniano at that time. A Yes, she also opened another time deposit for P600,000.00. Q So all in all Mr. Witness, sometime in April of 1978 Mrs. Modesta Sabeneano [sic] had time deposit placements with Citibank in the amount of P500,000.00 which is the proceeds of Exh. "47" and "48" and another P600,000.00, is it not? A Yes, sir. Q And would you know where did the other P600,000 placed by Mrs. Sabeneano [sic] in a time deposit with Citibank, N.A. came [sic] from?

A She funded it directly. Q What are you saying Mr. Witness is that the P600,000 is a [sic] fresh money coming from Mrs. Modesta Sabeneano [sic]? A That is right. In his deposition in Hong Kong, Mr. Tan recounted what happened to PNs No. 23356 and 23357 (referred to therein as Exhibits "E" and "F," respectively), as follows Atty. Mabasa : Now from the Exhibits that you have identified Mr. Tan from Exhibits "A" to "F", which are Exhibits of the plaintiff. Now, do I understand from you that the original amount is Five Hundred Thousand and thereafter renewed in the succeeding exhibits? Mr. Tan : Yes, Sir. Atty. Mabasa : Alright, after these Exhibits "E" and "F" matured, what happened thereafter? Mr. Tan : Split into two time deposits. Atty. Mabasa : Exhibits "E" and "F"? Before anything else, it should be noted that when Mr. Pujeda's testimony before the RTC was made on 12 March 1990 and Mr. Tan's deposition in Hong Kong was conducted on 3 September 1990, more than a decade had passed from the time the transactions they were testifying on took place. This Court had previously recognized the frailty and unreliability of human memory with regards to figures after the lapse of five years.38 Taking into consideration the substantial length of time between the transactions and the witnesses' testimonies, as well as the undeniable fact that bank officers deal with multiple clients and process numerous transactions during their tenure, this Court is reluctant to give much weight to the testimonies of Mr. Pujeda and Mr. Tan regarding the payment of PNs No. 23356 and 23357 and the use by respondent of the proceeds thereof for opening TD accounts. This Court finds it implausible that they should remember, after all these years, this particular transaction with respondent involving her PNs No. 23356 and 23357 and TD accounts. Both witnesses did not give any reason as to why, from among all the clients they had dealt with and all the transactions they had processed as officers of petitioner Citibank, they specially remembered respondent and her PNs No. 23356 and 23357. Their testimonies likewise lacked details on the circumstances surrounding the payment of the two PNs and the opening of the time deposit accounts by respondent, such as the date of payment of the two PNs, mode of payment, and the manner and context by which respondent relayed her instructions to the officers of petitioner Citibank to use the proceeds of her two PNs in opening the TD accounts. Moreover, while there are documentary evidences to support and trace respondent's money market placements with petitioner Citibank, from the original PN No. 20773, rolled-over several times to, finally, PNs No. 23356 and 23357, there is an evident absence of any documentary evidence on the payment of these last two PNs and the use of the proceeds thereof by respondent for opening TD accounts. The paper trail seems to have ended with the copies of PNs No. 23356 and 23357. Although both Mr. Pujeda and Mr. Tan said that they based their testimonies, not just on their memories but also on the documents on file, the supposed documents on which they based those portions of their testimony on the payment of PNs No. 23356 and 23357 and the opening of the TD accounts from the proceeds thereof, were never presented before the courts nor made part of the records of the case. Respondent's money market placements were of substantial amounts consisting of the principal amount of P500,000.00, plus the interest it should have earned during the years of placement and it is difficult for this Court to believe that petitioner Citibank would not have had documented the payment thereof. When Mr. Pujeda testified before the RTC on 6 February 1990,39 petitioners' counsel attempted to present in evidence a document that would supposedly support the claim of petitioner Citibank that the proceeds of PNs No. 23356 and 23357 were used by respondent to open one of her two TD accounts in the amount of P500,000.00. Respondent's counsel objected to the presentation of the document since it was a mere "xerox" copy, and was blurred and hardly readable. Petitioners' counsel then asked for a continuance of the hearing so that they can have time to produce a better document, which was granted by the court. However, during the next hearing and continuance of Mr. Pujeda's testimony on 12 March 1990, petitioners' counsel no longer referred to the said document. As respondent had established a prima facie case that petitioner Citibank is obligated to her for the amounts stated in PNs No. 23356 and 23357, and as petitioner Citibank failed to present sufficient proof of payment of the said PNs and the use by the respondent of the proceeds thereof to open her TD accounts, this Court finds that PNs No. 23356 and 23357 are still outstanding and petitioner Citibank is still liable to respondent for the amounts stated therein. The significance of this Court's declaration that PNs No. 23356 and 23357 are still outstanding becomes apparent in the light of petitioners' next contentions that respondent used the proceeds of PNs No. 23356 and 23357, together with additional money, to open TD Accounts No. 17783 and 17784 with petitioner Citibank; and, subsequently, respondent pre-terminated these TD accounts and transferred the proceeds thereof, amounting to P1,100,000.00, to petitioner FNCB Finance for money market placements. While respondent's money market placements with petitioner FNCB Finance may be traced back with definiteness to TD Accounts No. 17783 and 17784, there is only flimsy and unsubstantiated connection between the said TD accounts and the supposed proceeds paid from PNs No. 23356 and 23357. With PNs No. 23356 and 23357 still unpaid, then they represent an obligation of petitioner Citibank separate and distinct from the obligation of petitioner FNCB Finance arising from respondent's money market placements with the latter. Money market placements with petitioner FNCB Finance According to petitioners, respondent's TD Accounts No. 17783 and 17784, in the total amount of P1,100,000.00, were supposed to mature on 15 March 1978. However, respondent, through a letter dated 28 April 1977,40 pre-terminated the said TD accounts and transferred all the proceeds thereof to petitioner FNCB Finance for money market placement. Pursuant to her instructions, TD Accounts No. 17783 and 17784 were pre-terminated and

petitioner Citibank (then still named First National City Bank) issued Manager's Checks (MC) No. 19925341 and 19925142 for the amounts of P500,000.00 and P600,00.00, respectively. Both MCs were payable to Citifinance (which, according to Mr. Pujeda,43 was one with and the same as petitioner FNCB Finance), with the additional notation that "A/C MODESTA R. SABENIANO." Typewritten on MC No. 199253 is the phrase "Ref. Proceeds of TD 17783," and on MC No. 199251 is a similar phrase, "Ref. Proceeds of TD 17784." These phrases purportedly established that the MCs were paid from the proceeds of respondent's pre-terminated TD accounts with petitioner Citibank. Upon receipt of the MCs, petitioner FNCB Finance deposited the same to its account with Feati Bank and Trust Co., as evidenced by the rubber stamp mark of the latter found at the back of both MCs. In exchange, petitioner FNCB Finance booked the amounts received as money market placements, and accordingly issued PNs No. 4952 and 4962, for the amounts of P500,000.00 and P600,000.00, respectively, payable to respondent's savings account with petitioner Citibank, S/A No. 25-13703-4, upon their maturity on 1 June 1977. Once again, respondent rolled-over several times the principal amounts of her money market placements with petitioner FNCB Finance, as follows

Date (mm/dd/yyyy) 04/29/1977 06/02/1977 08/31/1977

PN No.

Cancels PN No.

Maturity Date (mm/dd/yyyy)

Amount (P) 500,000.00 600,000.00 500,000.00 500,000.00 500,000.00 500,000.00

Interest (p.a.) 17% 17% 17% 17% 14% 14%

4952 4962 5757 5758 8167 8169

None None 4952 4962 5757 5752

06/01/1977 06/01/1977 08/31/1977 08/31/1977 08/25/1978 08/25/1978

As presented by the petitioner FNCB Finance, respondent rolled-over only the principal amounts of her money market placements as she chose to receive the interest income therefrom. Petitioner FNCB Finance also pointed out that when PN No. 4962, with principal amount of P600,000.00, matured on 1 June 1977, respondent received a partial payment of the principal which, together with the interest, amounted to P102,633.33;44 thus, only the amount of P500,000.00 from PN No. 4962 was rolled-over to PN No. 5758. Based on the foregoing records, the principal amounts of PNs No. 5757 and 5758, upon their maturity, were rolled over to PNs No. 8167 and 8169, respectively. PN No. 816745 expressly canceled and superseded PN No. 5757, while PN No. 816946 also explicitly canceled and superseded PN No. 5758. Thus, it is patently erroneous for the Court of Appeals to still award to respondent the principal amounts and interests covered by PNs No. 5757 and 5758 when these were already canceled and superseded. It is now incumbent upon this Court to determine what subsequently happened to PNs No. 8167 and 8169. Petitioner FNCB Finance presented four checks as proof of payment of the principal amounts and interests of PNs No. 8167 and 8169 upon their maturity. All the checks were payable to respondent's savings account with petitioner Citibank, with the following details

Date of Issuance (mm/dd/yyyy) 09/01/1978 09/01/1978 09/05/1978 09/05/ 1978

Check No.

Amount (P)

Notation

76962 76961 77035 77034

12,833.34 Interest payment on PN#08167 12,833.34 Interest payment on PN#08169 500,000.00 Full payment of principal on PN#08167 which is hereby cancelled 500,000.00 Full payment of principal on PN#08169 which is hereby cancelled

Then again, Checks No. 77035 and 77034 were later returned to petitioner FNCB Finance together with a memo,47 dated 6 September 1978, from Mr. Tan of petitioner Citibank, to a Mr. Bobby Mendoza of petitioner FNCB Finance. According to the memo, the two checks, in the total amount of P1,000,000.00, were to be returned to respondent's account with instructions to book the said amount in money market placements for one more year. Pursuant to the said memo, Checks No. 77035 and 77034 were invested by petitioner FNCB Finance, on behalf of respondent, in money market placements for which it issued PNs No. 20138 and 20139. The PNs each covered P500,000.00, to earn 11% interest per annum, and to mature on 3 September 1979. On 3 September 1979, petitioner FNCB Finance issued Check No. 100168, pay to the order of "Citibank N.A. A/C Modesta Sabeniano," in the amount of P1,022,916.66, as full payment of the principal amounts and interests of both PNs No. 20138 and 20139 and, resultantly, canceling the said PNs.48 Respondent actually admitted the issuance and existence of Check No. 100168, but with the qualification that the proceeds thereof were turned over to petitioner Citibank.49 Respondent did not clarify the circumstances attending the supposed turn over, but on the basis of the allegations of petitioner Citibank itself, the proceeds of PNs No. 20138 and 20139, amounting to P1,022,916.66, was used by it to liquidate respondent's outstanding loans. Therefore, the determination of whether or not respondent is still entitled to the return of the proceeds of PNs No. 20138 and 20139 shall be dependent on the resolution of the issues raised as to the existence of the loans and the authority of petitioner Citibank to use the proceeds of the said PNs, together with respondent's other deposits and money market placements, to pay for the same. Savings and current accounts with petitioner Citibank Respondent presented and submitted before the RTC deposit slips and bank statements to prove deposits made to several of her accounts with petitioner Citibank, particularly, Accounts No. 00484202, 59091, and 472-751, which would have amounted to a total of P3,812,712.32, had there been no withdrawals or debits from the said accounts from the time the said deposits were made.

Although the RTC and the Court of Appeals did not make any definitive findings as to the status of respondent's savings and current accounts with petitioner Citibank, the Decisions of both the trial and appellate courts effectively recognized only the P31,079.14 coming from respondent's savings account which was used to off-set her alleged outstanding loans with petitioner Citibank.50 Since both the RTC and the Court of Appeals had consistently recognized only the P31,079.14 of respondent's savings account with petitioner Citibank, and that respondent failed to move for reconsideration or to appeal this particular finding of fact by the trial and appellate courts, it is already binding upon this Court. Respondent is already precluded from claiming any greater amount in her savings and current accounts with petitioner Citibank. Thus, this Court shall limit itself to determining whether or not respondent is entitled to the return of the amount of P31,079.14 should the offset thereof by petitioner Citibank against her supposed loans be found invalid. Dollar accounts with Citibank-Geneva Respondent made an effort of preparing and presenting before the RTC her own computations of her money market placements and dollar accounts with Citibank-Geneva, purportedly amounting to a total of United States (US) $343,220.98, as of 23 June 1985.51 In her Memorandum filed with the RTC, she claimed a much bigger amount of deposits and money market placements with Citibank-Geneva, totaling US$1,336,638.65.52 However, respondent herself also submitted as part of her formal offer of evidence the computation of her money market placements and dollar accounts with Citibank-Geneva as determined by the latter.53 Citibank-Geneva accounted for respondent's money market placements and dollar accounts as follows

MODESTA SABENIANO &/OR ================== US$ 30'000.-Principal Fid. Placement

+ US$

339.06

Interest at 3,875% p.a. from 12.07. 25.10.79

- US$

95.--

Commission (minimum)

US$

30'244.06

Total proceeds on 25.10.1979

US$

114'000.--

Principal Fid. Placement

+ US$

1'358.50

Interest at 4,125% p.a. from 12.07. 25.10.79

- US$

41.17

Commission

US$

115'317.33

Total proceeds on 25.10.1979

US$

145'561.39

Total proceeds of both placements on 25.10.1979

+ US$

11'381.31

total of both current accounts

US$

156'942.70

Total funds available

- US$

149'632.99

Transfer to Citibank Manila on 26.10.1979 (counter value of Pesos 1'102'944.78) Balance in current accounts

US$

7'309.71

- US$

6'998.84

Transfer to Citibank Zuerich ac no. 121359 on March 13, 1980

US$

310.87

various charges including closing charges

According to the foregoing computation, by 25 October 1979, respondent had a total of US$156,942.70, from which, US$149,632.99 was transferred by Citibank-Geneva to petitioner Citibank in Manila, and was used by the latter to off-set respondent's outstanding loans. The balance of respondent's accounts with Citibank-Geneva, after the remittance to petitioner Citibank in Manila, amounted to US$7,309.71, which was subsequently expended by

a transfer to another account with Citibank-Zuerich, in the amount of US$6,998.84, and by payment of various bank charges, including closing charges, in the amount of US$310.87. Rightly so, both the RTC and the Court of Appeals gave more credence to the computation of Citibank-Geneva as to the status of respondent's accounts with the said bank, rather than the one prepared by respondent herself, which was evidently self-serving. Once again, this Court shall limit itself to determining whether or not respondent is entitled to the return of the amount of US$149,632.99 should the off-set thereof by petitioner Citibank against her alleged outstanding loans be found invalid. Respondent cannot claim any greater amount since she did not perfect an appeal of the Decision of the Court of Appeals, dated 26 March 2002, which found that she is entitled only to the return of the said amount, as far as her accounts with Citibank-Geneva is concerned. III Petitioner Citibank was able to establish by preponderance of evidence the existence of respondent's loans. Petitioners' version of events In sum, the following amounts were used by petitioner Citibank to liquidate respondent's purported outstanding loans

Description Principal and interests of PNs No. 20138 and 20139 (money market placements with petitioner FNCB Finance) Savings account with petitioner Citibank Dollar remittance from Citibank-Geneva (peso equivalent of US$149,632.99) Total

Amount P 1,022,916.66 31,079.14 1,102,944.78 P 2,156,940.58

According to petitioner Citibank, respondent incurred her loans under the circumstances narrated below. As early as 9 February 1978, respondent obtained her first loan from petitioner Citibank in the principal amount of P200,000.00, for which she executed PN No. 31504.54 Petitioner Citibank extended to her several other loans in the succeeding months. Some of these loans were paid, while others were rolled-over or renewed. Significant to the Petition at bar are the loans which respondent obtained from July 1978 to January 1979, appropriately covered by PNs (first set).55 The aggregate principal amount of these loans was P1,920,000.00, which could be broken down as follows

PN No.

Date of Issuance (mm/dd/yyyy)

Date of Maturity (mm/dd/yyyy) 09/18/1978 12/12/1978 11/03/1978 01/15/1979 01/19/1979 01/18/1979 02/23/1979 03/09/1979 03/19/1979 03/30/1979

Principal Amount P 400,000.00 100,000.00 100,000.00 150,000.00 250,000.00 100,000.00 300,000.00 150,000.00 150,000.00 220,000.00 P 1,920,000.00

Date of Release (mm/dd/yyyy) 07/20/1978 Unrecovered 10/19/1978 11/16/1978 11/21/1978 12/05/1978 12/26/1978 01/09/1979 01/17/1979 01/30/1979

MC No.

32935 33751 33798 34025 34079 34192 34402 34534 34609 34740 Total

07/20/1978 10/13/1978 10/19/1978 11/15/1978 11/21/1978 12/04/1978 12/26/1978 01/09/1979 01/17/1979 01/30/1979

220701 226285 226439 226467 228057 228203 228270 228357 228400

When respondent was unable to pay the first set of PNs upon their maturity, these were rolled-over or renewed several times, necessitating the execution by respondent of new PNs in favor of petitioner Citibank. As of 5 April 1979, respondent had the following outstanding PNs (second set),56 the principal amount of which remained at P1,920,000.00

PN No.

Date of Issuance (mm/dd/yyyy)

Date of Maturity (mm/dd/yyyy) 03/02/1979 03/02/1979 03/09/1979 03/16/1979 03/12/1979 05/29/1979 05/29/1979

Principal Amount

34510 34509 34534 34612 34741 35689 35694

01/01/1979 01/02/1979 01/09/1979 01/19/1979 01/26/1979 02/23/1979 03/19/1979

P 400,000.00 100,000.00 150,000.00 150,000.00 100,000.00 300,000.00 150,000.00

35695 356946 35697 Total

03/19/1979 03/20/1979 03/30/1979

05/29/1979 05/29/1979 05/29/1979

100,000.00 250,000.00 220,000.00 P 1,920,000.00

All the PNs stated that the purpose of the loans covered thereby is "To liquidate existing obligation," except for PN No. 34534, which stated for its purpose "personal investment." Respondent secured her foregoing loans with petitioner Citibank by executing Deeds of Assignment of her money market placements with petitioner FNCB Finance. On 2 March 1978, respondent executed in favor of petitioner Citibank a Deed of Assignment 57 of PN No. 8169, which was issued by petitioner FNCB Finance, to secure payment of the credit and banking facilities extended to her by petitioner Citibank, in the aggregate principal amount of P500,000.00. On 9 March 1978, respondent executed in favor of petitioner Citibank another Deed of Assignment,58 this time, of PN No. 8167, also issued by petitioner FNCB Finance, to secure payment of the credit and banking facilities extended to her by petitioner Citibank, in the aggregate amount of P500,000.00. When PNs No. 8167 and 8169, representing respondent's money market placements with petitioner FNCB Finance, matured and were rolled-over to PNs No. 20138 and 20139, respondent executed new Deeds of Assignment,59 in favor of petitioner Citibank, on 25 August 1978. According to the more recent Deeds, respondent assigned PNs No. 20138 and 20139, representing her rolled-over money market placements with petitioner FNCB Finance, to petitioner Citibank as security for the banking and credit facilities it extended to her, in the aggregate principal amount of P500,000.00 per Deed. In addition to the Deeds of Assignment of her money market placements with petitioner FNCB Finance, respondent also executed a Declaration of Pledge,60 in which she supposedly pledged "[a]ll present and future fiduciary placements held in my personal and/or joint name with Citibank, Switzerland," to secure all claims the petitioner Citibank may have or, in the future, acquire against respondent. The petitioners' copy of the Declaration of Pledge is undated, while that of the respondent, a copy certified by a Citibank-Geneva officer, bore the date 24 September 1979.61 When respondent failed to pay the second set of PNs upon their maturity, an exchange of letters ensued between respondent and/or her representatives, on one hand, and the representatives of petitioners, on the other. The first letter62 was dated 5 April 1979, addressed to respondent and signed by Mr. Tan, as the manager of petitioner Citibank, which stated, in part, that Despite our repeated requests and follow-up, we regret you have not granted us with any response or payment. We, therefore, have no alternative but to call your loan of P1,920,000.00 plus interests and other charges due and demandable. If you still fail to settle this obligation by 4/27/79, we shall have no other alternative but to refer your account to our lawyers for legal action to protect the interest of the bank. Respondent sent a reply letter63 dated 26 April 1979, printed on paper bearing the letterhead of respondent's company, MC Adore International Palace, the body of which reads This is in reply to your letter dated April 5, 1979 inviting my attention to my loan which has become due. Pursuant to our representation with you over the telephone through Mr. F. A. Tan, you allow us to pay the interests due for the meantime. Please accept our Comtrust Check in the amount of P62,683.33. Please bear with us for a little while, at most ninety days. As you know, we have a pending loan with the Development Bank of the Philippines in the amount of P11-M. This loan has already been recommended for approval and would be submitted to the Board of Governors. In fact, to further facilitate the early release of this loan, we have presented and furnished Gov. J. Tengco a xerox copy of your letter. You will be doing our corporation a very viable service, should you grant us our request for a little more time. A week later or on 3 May 1979, a certain C. N. Pugeda, designated as "Executive Secretary," sent a letter64 to petitioner Citibank, on behalf of respondent. The letter was again printed on paper bearing the letterhead of MC Adore International Palace. The pertinent paragraphs of the said letter are reproduced below Per instructions of Mrs. Modesta R. Sabeniano, we would like to request for a re-computation of the interest and penalty charges on her loan in the aggregate amount of P1,920,000.00 with maturity date of all promissory notes at June 30, 1979. As she has personally discussed with you yesterday, this date will more or less assure you of early settlement. In this regard, please entrust to bearer, our Comtrust check for P62,683.33 to be replaced by another check with amount resulting from the new computation. Also, to facilitate the processing of the same, may we request for another set of promissory notes for the signature of Mrs. Sabeniano and to cancel the previous ones she has signed and forwarded to you. This was followed by a telegram,65 dated 5 June 1979, and received by petitioner Citibank the following day. The telegram was sent by a Dewey G. Soriano, Legal Counsel. The telegram acknowledged receipt of the telegram sent by petitioner Citibank regarding the "re-past due obligation" of McAdore International Palace. However, it reported that respondent, the President and Chairman of MC Adore International Palace, was presently

abroad negotiating for a big loan. Thus, he was requesting for an extension of the due date of the obligation until respondent's arrival on or before 31 July 1979. The next letter,66 dated 21 June 1979, was signed by respondent herself and addressed to Mr. Bobby Mendoza, a Manager of petitioner FNCB Finance. Respondent wrote therein Re: PN No. 20138 for P500,000.00 & PN No. 20139 for P500,000.00 totalling P1 Million, both PNs will mature on 9/3/1979. This is to authorize you to release the accrued quarterly interests payment from my captioned placements and forward directly to Citibank, Manila Attention: Mr. F. A. Tan, Manager, to apply to my interest payable on my outstanding loan with Citibank. Please note that the captioned two placements are continuously pledged/hypothecated to Citibank, Manila to support my personal outstanding loan. Therefore, please do not release the captioned placements upon maturity until you have received the instruction from Citibank, Manila. On even date, respondent sent another letter67 to Mr. Tan of petitioner Citibank, stating that Re: S/A No. 25-225928 and C/A No. 484-946 This letter serves as an authority to debit whatever the outstanding balance from my captioned accounts and credit the amount to my loan outstanding account with you. Unlike respondent's earlier letters, both letters, dated 21 June 1979, are printed on plain paper, without the letterhead of her company, MC Adore International Palace. By 5 September 1979, respondent's outstanding and past due obligations to petitioner Citibank totaled P2,123,843.20, representing the principal amounts plus interests. Relying on respondent's Deeds of Assignment, petitioner Citibank applied the proceeds of respondent's money market placements with petitioner FNCB Finance, as well as her deposit account with petitioner Citibank, to partly liquidate respondent's outstanding loan balance,68 as follows

Respondent's outstanding obligation (principal and interest) Less: Proceeds from respondent's money market placements with petitioner FNCB Finance (principal and interest) Deposits in respondent's bank accounts with petitioner Citibank Balance of respondent's obligation

P 2,123,843.20 (1,022,916.66) (31,079.14) P 1,069,847.40

Mr. Tan of petitioner Citibank subsequently sent a letter,69 dated 28 September 1979, notifying respondent of the status of her loans and the foregoing compensation which petitioner Citibank effected. In the letter, Mr. Tan informed respondent that she still had a remaining past-due obligation in the amount of P1,069,847.40, as of 5 September 1979, and should respondent fail to pay the amount by 15 October 1979, then petitioner Citibank shall proceed to off-set the unpaid amount with respondent's other collateral, particularly, a money market placement in Citibank-Hongkong. On 5 October 1979, respondent wrote Mr. Tan of petitioner Citibank, on paper bearing the letterhead of MC Adore International Palace, as regards the P1,920,000.00 loan account supposedly of MC Adore Finance & Investment, Inc., and requested for a statement of account covering the principal and interest of the loan as of 31 October 1979. She stated therein that the loan obligation shall be paid within 60 days from receipt of the statement of account. Almost three weeks later, or on 25 October 1979, a certain Atty. Moises Tolentino dropped by the office of petitioner Citibank, with a letter, dated 9 October 1979, and printed on paper with the letterhead of MC Adore International Palace, which authorized the bearer thereof to represent the respondent in settling the overdue account, this time, purportedly, of MC Adore International Palace Hotel. The letter was signed by respondent as the President and Chairman of the Board. Eventually, Atty. Antonio Agcaoili of Agcaoili & Associates, as counsel of petitioner Citibank, sent a letter to respondent, dated 31 October 1979, informing her that petitioner Citibank had effected an off-set using her account with Citibank-Geneva, in the amount of US$149,632.99, against her "outstanding, overdue, demandable and unpaid obligation" to petitioner Citibank. Atty. Agcaoili claimed therein that the compensation or off-set was made pursuant to and in accordance with the provisions of Articles 1278 through 1290 of the Civil Code. He further declared that respondent's obligation to petitioner Citibank was now fully paid and liquidated. Unfortunately, on 7 October 1987, a fire gutted the 7th floor of petitioner Citibank's building at Paseo de Roxas St., Makati, Metro Manila. Petitioners submitted a Certification70 to this effect, dated 17 January 1991, issued by the Chief of the Arson Investigation Section, Fire District III, Makati Fire Station, Metropolitan Police Force. The 7th floor of petitioner Citibank's building housed its Control Division, which was in charge of keeping the necessary documents for cases in which it was involved. After compiling the documentary evidence for the present case, Atty. Renato J. Fernandez, internal legal counsel of petitioner Citibank, forwarded them to the Control Division. The original copies of the MCs, which supposedly represent the proceeds of the first set of PNs, as well as that of other documentary evidence related to the case, were among those burned in the said fire.71

Respondent's version of events Respondent disputed petitioners' narration of the circumstances surrounding her loans with petitioner Citibank and the alleged authority she gave for the off-set or compensation of her money market placements and deposit accounts with petitioners against her loan obligation. Respondent denied outright executing the first set of PNs, except for one (PN No. 34534 in particular). Although she admitted that she obtained several loans from petitioner Citibank, these only amounted to P1,150,000.00, and she had already paid them. She secured from petitioner Citibank two loans of P500,000.00 each. She executed in favor of petitioner Citibank the corresponding PNs for the loans and the Deeds of Assignment of her money market placements with petitioner FNCB Finance as security.72 To prove payment of these loans, respondent presented two provisional receipts of petitioner Citibank No. 19471,73 dated 11 August 1978, and No. 12723,74 dated 10 November 1978 both signed by Mr. Tan, and acknowledging receipt from respondent of several checks in the total amount of P500,744.00 and P500,000.00, respectively, for "liquidation of loan." She borrowed another P150,000.00 from petitioner Citibank for personal investment, and for which she executed PN No. 34534, on 9 January 1979. Thus, she admitted to receiving the proceeds of this loan via MC No. 228270. She invested the loan amount in another money market placement with petitioner FNCB Finance. In turn, she used the very same money market placement with petitioner FNCB Finance as security for her P150,000.00 loan from petitioner Citibank. When she failed to pay the loan when it became due, petitioner Citibank allegedly forfeited her money market placement with petitioner FNCB Finance and, thus, the loan was already paid.75 Respondent likewise questioned the MCs presented by petitioners, except for one (MC No. 228270 in particular), as proof that she received the proceeds of the loans covered by the first set of PNs. As recounted in the preceding paragraph, respondent admitted to obtaining a loan of P150,000.00, covered by PN No. 34534, and receiving MC No. 228270 representing the proceeds thereof, but claimed that she already paid the same. She denied ever receiving MCs No. 220701 (for the loan of P400,000.00, covered by PN No. 33935) and No. 226467 (for the loan of P250,000.00, covered by PN No. 34079), and pointed out that the checks did not bear her indorsements. She did not deny receiving all other checks but she interposed that she received these checks, not as proceeds of loans, but as payment of the principal amounts and/or interests from her money market placements with petitioner Citibank. She also raised doubts as to the notation on each of the checks that reads "RE: Proceeds of PN#[corresponding PN No.]," saying that such notation did not appear on the MCs when she originally received them and that the notation appears to have been written by a typewriter different from that used in writing all other information on the checks (i.e., date, payee, and amount).76 She even testified that MCs were not supposed to bear notations indicating the purpose for which they were issued. As to the second set of PNs, respondent acknowledged having signed them all. However, she asserted that she only executed these PNs as part of the simulated loans she and Mr. Tan of petitioner Citibank concocted. Respondent explained that she had a pending loan application for a big amount with the Development Bank of the Philippines (DBP), and when Mr. Tan found out about this, he suggested that they could make it appear that the respondent had outstanding loans with petitioner Citibank and the latter was already demanding payment thereof; this might persuade DBP to approve respondent's loan application. Mr. Tan made the respondent sign the second set of PNs, so that he may have something to show the DBP investigator who might inquire with petitioner Citibank as to respondent's loans with the latter. On her own copies of the said PNs, respondent wrote by hand the notation, "This isa (sic) simulated non-negotiable note, signed copy given to Mr. Tan., (sic) per agreement to be shown to DBP representative. itwill (sic) be returned to me if the P11=M (sic) loan for MC Adore Palace Hotel is approved by DBP."77 Findings of this Court as to the existence of the loans After going through the testimonial and documentary evidence presented by both sides to this case, it is this Court's assessment that respondent did indeed have outstanding loans with petitioner Citibank at the time it effected the off-set or compensation on 25 July 1979 (using respondent's savings deposit with petitioner Citibank), 5 September 1979 (using the proceeds of respondent's money market placements with petitioner FNCB Finance) and 26 October 1979 (using respondent's dollar accounts remitted from Citibank-Geneva). The totality of petitioners' evidence as to the existence of the said loans preponderates over respondent's. Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party.78 Respondent's outstanding obligation for P1,920,000.00 had been sufficiently documented by petitioner Citibank. The second set of PNs is a mere renewal of the prior loans originally covered by the first set of PNs, except for PN No. 34534. The first set of PNs is supported, in turn, by the existence of the MCs that represent the proceeds thereof received by the respondent. It bears to emphasize that the proceeds of the loans were paid to respondent in MCs, with the respondent specifically named as payee. MCs checks are drawn by the bank's manager upon the bank itself and regarded to be as good as the money it represents.79 Moreover, the MCs were crossed checks, with the words "Payee's Account Only." In general, a crossed check cannot be presented to the drawee bank for payment in cash. Instead, the check can only be deposited with the payee's bank which, in turn, must present it for payment against the drawee bank in the course of normal banking hours. The crossed check cannot be presented for payment, but it can only be deposited and the drawee bank may only pay to another bank in the payee's or indorser's account. 80 The effect of crossing a check was described by this Court in Philippine Commercial International Bank v. Court of Appeals 81 [T]he crossing of a check with the phrase "Payee's Account Only" is a warning that the check should be deposited in the account of the payee. Thus, it is the duty of the collecting bank PCI Bank to ascertain that the check be deposited in payee's account only. It is bound to scrutinize the check and to know its depositors before it can make the clearing indorsement "all prior indorsements and/or lack of indorsement guaranteed." The crossed MCs presented by petitioner Bank were indeed deposited in several different bank accounts and cleared by the Clearing Office of the Central Bank of the Philippines, as evidenced by the stamp marks and notations on the said checks. The crossed MCs are already in the possession of petitioner Citibank, the drawee bank, which was ultimately responsible for the payment of the amount stated in the checks. Given that a check is more than just an instrument of credit used in commercial transactions for it also serves as a receipt or evidence for the drawee bank of the cancellation of

the said check due to payment,82 then, the possession by petitioner Citibank of the said MCs, duly stamped "Paid" gives rise to the presumption that the said MCs were already paid out to the intended payee, who was in this case, the respondent. This Court finds applicable herein the presumptions that private transactions have been fair and regular,83 and that the ordinary course of business has been followed.84 There is no question that the loan transaction between petitioner Citibank and the respondent is a private transaction. The transactions revolving around the crossed MCs from their issuance by petitioner Citibank to respondent as payment of the proceeds of her loans; to its deposit in respondent's accounts with several different banks; to the clearing of the MCs by an independent clearing house; and finally, to the payment of the MCs by petitioner Citibank as the drawee bank of the said checks are all private transactions which shall be presumed to have been fair and regular to all the parties concerned. In addition, the banks involved in the foregoing transactions are also presumed to have followed the ordinary course of business in the acceptance of the crossed MCs for deposit in respondent's accounts, submitting them for clearing, and their eventual payment and cancellation. The afore-stated presumptions are disputable, meaning, they are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence.85 Respondent, however, was unable to present sufficient and credible evidence to dispute these presumptions. It should be recalled that out of the nine MCs presented by petitioner Citibank, respondent admitted to receiving one as proceeds of a loan (MC No. 228270), denied receiving two (MCs No. 220701 and 226467), and admitted to receiving all the rest, but not as proceeds of her loans, but as return on the principal amounts and interests from her money market placements. Respondent admitted receiving MC No. 228270 representing the proceeds of her loan covered by PN No. 34534. Although the principal amount of the loan is P150,000.00, respondent only received P146,312.50, because the interest and handling fee on the loan transaction were already deducted therefrom.86 Stamps and notations at the back of MC No. 228270 reveal that it was deposited at the Bank of the Philippine Islands (BPI), Cubao Branch, in Account No. 0123-0572-28.87 The check also bore the signature of respondent at the back.88 And, although respondent would later admit that she did sign PN No. 34534 and received MC No. 228270 as proceeds of the loan extended to her by petitioner Citibank, she contradicted herself when, in an earlier testimony, she claimed that PN No. 34534 was among the PNs she executed as simulated loans with petitioner Citibank.89 Respondent denied ever receiving MCs No. 220701 and 226467. However, considering that the said checks were crossed for payee's account only, and that they were actually deposited, cleared, and paid, then the presumption would be that the said checks were properly deposited to the account of respondent, who was clearly named the payee in the checks. Respondent's bare allegations that she did not receive the two checks fail to convince this Court, for to sustain her, would be for this Court to conclude that an irregularity had occurred somewhere from the time of the issuance of the said checks, to their deposit, clearance, and payment, and which would have involved not only petitioner Citibank, but also BPI, which accepted the checks for deposit, and the Central Bank of the Philippines, which cleared the checks. It falls upon the respondent to overcome or dispute the presumption that the crossed checks were issued, accepted for deposit, cleared, and paid for by the banks involved following the ordinary course of their business. The mere fact that MCs No. 220701 and 226467 do not bear respondent's signature at the back does not negate deposit thereof in her account. The liability for the lack of indorsement on the MCs no longer fall on petitioner Citibank, but on the bank who received the same for deposit, in this case, BPI Cubao Branch. Once again, it must be noted that the MCs were crossed, for payee's account only, and the payee named in both checks was none other than respondent. The crossing of the MCs was already a warning to BPI to receive said checks for deposit only in respondent's account. It was up to BPI to verify whether it was receiving the crossed MCs in accordance with the instructions on the face thereof. If, indeed, the MCs were deposited in accounts other than respondent's, then the respondent would have a cause of action against BPI.90 BPI further stamped its guarantee on the back of the checks to the effect that, "All prior endorsement and/or Lack of endorsement guaranteed." Thus, BPI became the indorser of the MCs, and assumed all the warranties of an indorser,91 specifically, that the checks were genuine and in all respects what they purported to be; that it had a good title to the checks; that all prior parties had capacity to contract; and that the checks were, at the time of their indorsement, valid and subsisting.92 So even if the MCs deposited by BPI's client, whether it be by respondent herself or some other person, lacked the necessary indorsement, BPI, as the collecting bank, is bound by its warranties as an indorser and cannot set up the defense of lack of indorsement as against petitioner Citibank, the drawee bank.93 Furthermore, respondent's bare and unsubstantiated denial of receipt of the MCs in question and their deposit in her account is rendered suspect when MC No. 220701 was actually deposited in Account No. 0123-0572-28 of BPI Cubao Branch, the very same account in which MC No. 228270 (which respondent admitted to receiving as proceeds of her loan from petitioner Citibank), and MCs No. 228203, 228357, and 228400 (which respondent admitted to receiving as proceeds from her money market placements) were deposited. Likewise, MC No. 226467 was deposited in Account No. 0121002-43 of BPI Cubao Branch, to which MCs No. 226285 and 226439 (which respondent admitted to receiving as proceeds from her money market placements) were deposited. It is an apparent contradiction for respondent to claim having received the proceeds of checks deposited in an account, and then deny receiving the proceeds of another check deposited in the very same account. Another inconsistency in respondent's denial of receipt of MC No. 226467 and her deposit of the same in her account, is her presentation of Exhibit "HHH," a provisional receipt which was supposed to prove that respondent turned over P500,000.00 to Mr. Tan of petitioner Citibank, that the said amount was split into three money market placements, and that MC No. 226467 represented the return on her investment from one of these placements.94 Because of her Exhibit "HHH," respondent effectively admitted receipt of MC No. 226467, although for reasons other than as proceeds of a loan. Neither can this Court give credence to respondent's contention that the notations on the MCs, stating that they were the proceeds of particular PNs, were not there when she received the checks and that the notations appeared to be written by a typewriter different from that used to write the other information on the checks. Once more, respondent's allegations were uncorroborated by any other evidence. Her and her counsel's observation that the notations on the MCs appear to be written by a typewriter different from that used to write the other information on the checks hardly convinces this Court considering that it constitutes a mere opinion on the appearance of the notation by a witness who does not possess the necessary expertise on the matter. In addition, the notations on the MCs were written using both capital and small letters, while the other information on the checks were written using capital letters only, such difference could easily confuse an untrained eye and lead to a hasty conclusion that they were written by different typewriters.

Respondent's testimony, that based on her experience transacting with banks, the MCs were not supposed to include notations on the purpose for which the checks were issued, also deserves scant consideration. While respondent may have extensive experience dealing with banks, it still does not qualify her as a competent witness on banking procedures and practices. Her testimony on this matter is even belied by the fact that the other MCs issued by petitioner Citibank (when it was still named First National City Bank) and by petitioner FNCB Finance, the existence and validity of which were not disputed by respondent, also bear similar notations that state the reason for which they were issued. Respondent presented several more pieces of evidence to substantiate her claim that she received MCs No. 226285, 226439, 226467, 226057, 228357, and 228400, not as proceeds of her loans from petitioner Citibank, but as the return of the principal amounts and payment of interests from her money market placements with petitioners. Part of respondent's exhibits were personal checks95 drawn by respondent on her account with Feati Bank & Trust Co., which she allegedly invested in separate money market placements with both petitioners, the returns from which were paid to her via MCs No. 226285 and 228400. Yet, to this Court, the personal checks only managed to establish respondent's issuance thereof, but there was nothing on the face of the checks that would reveal the purpose for which they were issued and that they were actually invested in money market placements as respondent claimed. Respondent further submitted handwritten notes that purportedly computed and presented the returns on her money market placements, corresponding to the amount stated in the MCs she received from petitioner Citibank. Exhibit "HHH-1"96 was a handwritten note, which respondent attributed to Mr. Tan of petitioner Citibank, showing the breakdown of her BPI Check for P500,000.00 into three different money market placements with petitioner Citibank. This Court, however, noticed several factors which render the note highly suspect. One, it was written on the reversed side of Provisional Receipt No. 12724 of petitioner Citibank which bore the initials of Mr. Tan acknowledging receipt of respondent's BPI Check No. 120989 for P500,000.00; but the initials on the handwritten note appeared to be that of Mr. Bobby Mendoza of petitioner FNCB Finance.97 Second, according to Provisional Receipt No. 12724, BPI Check No. 120989 for P500,000.00 was supposed to be invested in three money market placements with petitioner Citibank for the period of 60 days. Since all these money market placements were made through one check deposited on the same day, 10 November 1978, it made no sense that the handwritten note at the back of Provisional Receipt No. 12724 provided for different dates of maturity for each of the money market placements (i.e., 16 November 1978, 17 January 1979, and 21 November 1978), and such dates did not correspond to the 60 day placement period stated on the face of the provisional receipt. And third, the principal amounts of the money market placements as stated in the handwritten note P145,000.00, P145,000.00 and P242,000.00 totaled P532,000.00, and was obviously in excess of the P500,000.00 acknowledged on the face of Provisional Receipt No. 12724. Exhibits "III" and "III-1," the front and bank pages of a handwritten note of Mr. Bobby Mendoza of petitioner FNCB Finance, 98 also did not deserve much evidentiary weight, and this Court cannot rely on the truth and accuracy of the computations presented therein. Mr. Mendoza was not presented as a witness during the trial before the RTC, so that the document was not properly authenticated nor its contents sufficiently explained. No one was able to competently identify whether the initials as appearing on the note were actually Mr. Mendoza's. Also, going by the information on the front page of the note, this Court observes that payment of respondent's alleged money market placements with petitioner FNCB Finance were made using Citytrust Checks; the MCs in question, including MC No. 228057, were issued by petitioner Citibank. Although Citytrust (formerly Feati Bank & Trust Co.), petitioner FNCB Finance, and petitioner Citibank may be affiliates of one another, they each remained separate and distinct corporations, each having its own financial system and records. Thus, this Court cannot simply assume that one corporation, such as petitioner Citibank or Citytrust, can issue a check to discharge an obligation of petitioner FNCB Finance. It should be recalled that when petitioner FNCB Finance paid for respondent's money market placements, covered by its PNs No. 8167 and 8169, as well as PNs No. 20138 and 20139, petitioner FNCB Finance issued its own checks. As a last point on this matter, if respondent truly had money market placements with petitioners, then these would have been evidenced by PNs issued by either petitioner Citibank or petitioner FNCB Finance, acknowledging the principal amounts of the investments, and stating the applicable interest rates, as well as the dates of their of issuance and maturity. After respondent had so meticulously reconstructed her other money market placements with petitioners and consolidated the documentary evidence thereon, she came surprisingly short of offering similar details and substantiation for these particular money market placements. Since this Court is satisfied that respondent indeed received the proceeds of the first set of PNs, then it proceeds to analyze her evidence of payment thereof. In support of respondent's assertion that she had already paid whatever loans she may have had with petitioner Citibank, she presented as evidence Provisional Receipts No. 19471, dated 11 August 1978, and No. 12723, dated 10 November 1978, both of petitioner Citibank and signed by Mr. Tan, for the amounts of P500,744.00 and P500,000.00, respectively. While these provisional receipts did state that Mr. Tan, on behalf of petitioner Citibank, received respondent's checks as payment for her loans, they failed to specifically identify which loans were actually paid. Petitioner Citibank was able to present evidence that respondent had executed several PNs in the years 1978 and 1979 to cover the loans she secured from the said bank. Petitioner Citibank did admit that respondent was able to pay for some of these PNs, and what it identified as the first and second sets of PNs were only those which remained unpaid. It thus became incumbent upon respondent to prove that the checks received by Mr. Tan were actually applied to the PNs in either the first or second set; a fact that, unfortunately, cannot be determined from the provisional receipts submitted by respondent since they only generally stated that the checks received by Mr. Tan were payment for respondent's loans. Mr. Tan, in his deposition, further explained that provisional receipts were issued when payment to the bank was made using checks, since the checks would still be subject to clearing. The purpose for the provisional receipts was merely to acknowledge the delivery of the checks to the possession of the bank, but not yet of payment.99 This bank practice finds legitimacy in the pronouncement of this Court that a check, whether an MC or an ordinary check, is not legal tender and, therefore, cannot constitute valid tender of payment. In Philippine Airlines, Inc. v. Court of Appeals, 100 this Court elucidated that: Since a negotiable instrument is only a substitute for money and not money, the delivery of such an instrument does not, by itself, operate as payment (Sec. 189, Act 2031 on Negs. Insts.; Art. 1249, Civil Code; Bryan Landon Co. v. American Bank, 7 Phil. 255; Tan Sunco, v. Santos, 9 Phil. 44; 21 R.C.L. 60, 61). A check, whether a manager's check or ordinary check, is not legal tender, and an offer of a check in payment of a debt is not a valid tender of payment and may be refused receipt by the obligee or creditor. Mere delivery of checks does not discharge the obligation under a judgment. The obligation is not extinguished and remains suspended until the payment by commercial document is actually realized (Art. 1249, Civil Code, par. 3).

In the case at bar, the issuance of an official receipt by petitioner Citibank would have been dependent on whether the checks delivered by respondent were actually cleared and paid for by the drawee banks. As for PN No. 34534, respondent asserted payment thereof at two separate instances by two different means. In her formal offer of exhibits, respondent submitted a deposit slip of petitioner Citibank, dated 11 August 1978, evidencing the deposit of BPI Check No. 5785 for P150,000.00.101 In her Formal Offer of Documentary Exhibits, dated 7 July 1989, respondent stated that the purpose for the presentation of the said deposit slip was to prove that she already paid her loan covered by PN No. 34534.102 In her testimony before the RTC three years later, on 28 November 1991, she changed her story. This time she narrated that the loan covered by PN No. 34534 was secured by her money market placement with petitioner FNCB Finance, and when she failed to pay the said PN when it became due, the security was applied to the loan, therefore, the loan was considered paid.103 Given the foregoing, respondent's assertion of payment of PN No. 34534 is extremely dubious. According to petitioner Citibank, the PNs in the second set, except for PN No. 34534, were mere renewals of the unpaid PNs in the first set, which was why the PNs stated that they were for the purpose of liquidating existing obligations. PN No. 34534, however, which was part of the first set, was still valid and subsisting and so it was included in the second set without need for its renewal, and it still being the original PN for that particular loan, its stated purpose was for personal investment.104 Respondent essentially admitted executing the second set of PNs, but they were only meant to cover simulated loans. Mr. Tan supposedly convinced her that her pending loan application with DBP would have a greater chance of being approved if they made it appear that respondent urgently needed the money because petitioner Citibank was already demanding payment for her simulated loans. Respondent's defense of simulated loans to escape liability for the second set of PNs is truly a novel one. It is regrettable, however, that she was unable to substantiate the same. Yet again, respondent's version of events is totally based on her own uncorroborated testimony. The notations on the second set of PNs, that they were non-negotiable simulated notes, were admittedly made by respondent herself and were, thus, self-serving. Equally self-serving was respondent's letter, written on 7 October 1985, or more than six years after the execution of the second set of PNs, in which she demanded return of the simulated or fictitious PNs, together with the letters relating thereto, which Mr. Tan purportedly asked her to execute. Respondent further failed to present any proof of her alleged loan application with the DBP, and of any circumstance or correspondence wherein the simulated or fictitious PNs were indeed used for their supposed purpose. In contrast, petitioner Citibank, as supported by the testimonies of its officers and available documentation, consistently treated the said PNs as regular loans accepted, approved, and paid in the ordinary course of its business. The PNs executed by the respondent in favor of petitioner Citibank to cover her loans were duly-filled out and signed, including the disclosure statement found at the back of the said PNs, in adherence to the Central Bank requirement to disclose the full finance charges to a loan granted to borrowers. Mr. Tan, then an account officer with the Marketing Department of petitioner Citibank, testified that he dealt directly with respondent; he facilitated the loans; and the PNs, at least in the second set, were signed by respondent in his presence.105 Mr. Pujeda, the officer who was previously in charge of loans and placements, confirmed that the signatures on the PNs were verified against respondent's specimen signature with the bank.106 Ms. Cristina Dondoyano, who worked at petitioner Citibank as a loan processor, was responsible for booking respondent's loans. Booking the loans means recording it in the General Ledger. She explained the procedure for booking loans, as follows: The account officer, in the Marketing Department, deals directly with the clients who wish to borrow money from petitioner Citibank. The Marketing Department will forward a loan booking checklist, together with the borrowing client's PNs and other supporting documents, to the loan pre-processor, who will check whether the details in the loan booking checklist are the same as those in the PNs. The documents are then sent to Signature Control for verification of the client's signature in the PNs, after which, they are returned to the loan pre-processor, to be forwarded finally to the loan processor. The loan processor shall book the loan in the General Ledger, indicating therein the client name, loan amount, interest rate, maturity date, and the corresponding PN number. Since she booked respondent's loans personally, Ms. Dondoyano testified that she saw the original PNs. In 1986, Atty. Fernandez of petitioner Citibank requested her to prepare an accounting of respondent's loans, which she did, and which was presented as Exhibit "120" for the petitioners. The figures from the said exhibit were culled from the bookings in the General Ledger, a fact which respondent's counsel was even willing to stipulate.107 Ms. Teresita Glorioso was an Investigation and Reconcilement Clerk at the Control Department of petitioner Citibank. She was presented by petitioner Citibank to expound on the microfilming procedure at the bank, since most of the copies of the PNs were retrieved from microfilm. Microfilming of the documents are actually done by people at the Operations Department. At the end of the day or during the day, the original copies of all bank documents, not just those pertaining to loans, are microfilmed. She refuted the possibility that insertions could be made in the microfilm because the microfilm is inserted in a cassette; the cassette is placed in the microfilm machine for use; at the end of the day, the cassette is taken out of the microfilm machine and put in a safe vault; and the cassette is returned to the machine only the following day for use, until the spool is full. This is the microfilming procedure followed everyday. When the microfilm spool is already full, the microfilm is developed, then sent to the Control Department, which double checks the contents of the microfilms against the entries in the General Ledger. The Control Department also conducts a random comparison of the contents of the microfilms with the original documents; a random review of the contents is done on every role of microfilm.108 Ms. Renee Rubio worked for petitioner Citibank for 20 years. She rose from the ranks, initially working as a secretary in the Personnel Group; then as a secretary to the Personnel Group Head; a Service Assistant with the Marketing Group, in 1972 to 1974, dealing directly with corporate and individual clients who, among other things, secured loans from petitioner Citibank; the Head of the Collection Group of the Foreign Department in 1974 to 1976; the Head of the Money Transfer Unit in 1976 to 1978; the Head of the Loans and Placements Unit up to the early 1980s; and, thereafter, she established operations training for petitioner Citibank in the Asia-Pacific Region responsible for the training of the officers of the bank. She testified on the standard loan application process at petitioner Citibank. According to Ms. Rubio, the account officer or marketing person submits a proposal to grant a loan to an individual or corporation. Petitioner Citibank has a worldwide policy that requires a credit committee, composed of a minimum of three people, which would approve the loan and amount thereof. There can be no instance when only one officer has the power to approve the loan application. When the loan is approved, the account officer in charge will obtain the corresponding PNs from the client. The PNs are sent to the signature verifier who would validate the signatures therein against those appearing in the signature cards previously submitted by the client to the bank. The Operations Unit will check and review the documents, including the PNs, if it is a clean loan, and securities and deposits, if it is collateralized. The loan is then recorded in the General Ledger. The Loans and Placements Department will not book the loans without the PNs. When the PNs are liquidated, whether they are paid or rolled-over, they are returned to the client.109 Ms. Rubio further explained that she was familiar with

respondent's accounts since, while she was still the Head of the Loan and Placements Unit, she was asked by Mr. Tan to prepare a list of respondent's outstanding obligations.110 She thus calculated respondent's outstanding loans, which was sent as an attachment to Mr. Tan's letter to respondent, dated 28 September 1979, and presented before the RTC as Exhibits "34-B" and "34-C."111 Lastly, the exchange of letters between petitioner Citibank and respondent, as well as the letters sent by other people working for respondent, had consistently recognized that respondent owed petitioner Citibank money. In consideration of the foregoing discussion, this Court finds that the preponderance of evidence supports the existence of the respondent's loans, in the principal sum of P1,920,000.00, as of 5 September 1979. While it is well-settled that the term "preponderance of evidence" should not be wholly dependent on the number of witnesses, there are certain instances when the number of witnesses become the determining factor The preponderance of evidence may be determined, under certain conditions, by the number of witnesses testifying to a particular fact or state of facts. For instance, one or two witnesses may testify to a given state of facts, and six or seven witnesses of equal candor, fairness, intelligence, and truthfulness, and equally well corroborated by all the remaining evidence, who have no greater interest in the result of the suit, testify against such state of facts. Then the preponderance of evidence is determined by the number of witnesses. (Wilcox vs. Hines, 100 Tenn. 524, 66 Am. St. Rep., 761.)112 Best evidence rule This Court disagrees in the pronouncement made by the Court of Appeals summarily dismissing the documentary evidence submitted by petitioners based on its broad and indiscriminate application of the best evidence rule. In general, the best evidence rule requires that the highest available degree of proof must be produced. Accordingly, for documentary evidence, the contents of a document are best proved by the production of the document itself,113 to the exclusion of any secondary or substitutionary evidence.114 The best evidence rule has been made part of the revised Rules of Court, Rule 130, Section 3, which reads SEC. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. As the afore-quoted provision states, the best evidence rule applies only when the subject of the inquiry is the contents of the document. The scope of the rule is more extensively explained thus But even with respect to documentary evidence, the best evidence rule applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible (5 Moran, op. cit., pp. 76-66; 4 Martin, op. cit., p. 78). Any other substitutionary evidence is likewise admissible without need for accounting for the original. Thus, when a document is presented to prove its existence or condition it is offered not as documentary, but as real, evidence. Parol evidence of the fact of execution of the documents is allowed (Hernaez, et al. vs. McGrath, etc., et al., 91 Phil 565). x x x 115 In Estrada v. Desierto,116 this Court had occasion to rule that It is true that the Court relied not upon the original but only copy of the Angara Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that: "Production of the original may be dispensed with, in the trial court's discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.24 "x x x x "In several Canadian provinces, the principle of unavailability has been abandoned, for certain documents in which ordinarily no real dispute arised. This measure is a sensible and progressive one and deserves universal adoption (post, sec. 1233). Its essential feature is that a copy may be used unconditionally, if the opponent has been given an opportunity to inspect it." (Emphasis supplied.)

This Court did not violate the best evidence rule when it considered and weighed in evidence the photocopies and microfilm copies of the PNs, MCs, and letters submitted by the petitioners to establish the existence of respondent's loans. The terms or contents of these documents were never the point of contention in the Petition at bar. It was respondent's position that the PNs in the first set (with the exception of PN No. 34534) never existed, while the PNs in the second set (again, excluding PN No. 34534) were merely executed to cover simulated loan transactions. As for the MCs representing the proceeds of the loans, the respondent either denied receipt of certain MCs or admitted receipt of the other MCs but for another purpose. Respondent further admitted the letters she wrote personally or through her representatives to Mr. Tan of petitioner Citibank acknowledging the loans, except that she claimed that these letters were just meant to keep up the ruse of the simulated loans. Thus, respondent questioned the documents as to their existence or execution, or when the former is admitted, as to the purpose for which the documents were executed, matters which are, undoubtedly, external to the documents, and which had nothing to do with the contents thereof. Alternatively, even if it is granted that the best evidence rule should apply to the evidence presented by petitioners regarding the existence of respondent's loans, it should be borne in mind that the rule admits of the following exceptions under Rule 130, Section 5 of the revised Rules of Court SEC. 5. When the original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. The execution or existence of the original copies of the documents was established through the testimonies of witnesses, such as Mr. Tan, before whom most of the documents were personally executed by respondent. The original PNs also went through the whole loan booking system of petitioner Citibank from the account officer in its Marketing Department, to the pre-processor, to the signature verifier, back to the pre-processor, then to the processor for booking.117 The original PNs were seen by Ms. Dondoyano, the processor, who recorded them in the General Ledger. Mr. Pujeda personally saw the original MCs, proving respondent's receipt of the proceeds of her loans from petitioner Citibank, when he helped Attys. Cleofe and Fernandez, the bank's legal counsels, to reconstruct the records of respondent's loans. The original MCs were presented to Atty. Cleofe who used the same during the preliminary investigation of the case, sometime in years 1986-1987. The original MCs were subsequently turned over to the Control and Investigation Division of petitioner Citibank.118 It was only petitioner FNCB Finance who claimed that they lost the original copies of the PNs when it moved to a new office. Citibank did not make a similar contention; instead, it explained that the original copies of the PNs were returned to the borrower upon liquidation of the loan, either through payment or roll-over. Petitioner Citibank proffered the excuse that they were still looking for the documents in their storage or warehouse to explain the delay and difficulty in the retrieval thereof, but not their absence or loss. The original documents in this case, such as the MCs and letters, were destroyed and, thus, unavailable for presentation before the RTC only on 7 October 1987, when a fire broke out on the 7 th floor of the office building of petitioner Citibank. There is no showing that the fire was intentionally set. The fire destroyed relevant documents, not just of the present case, but also of other cases, since the 7th floor housed the Control and Investigation Division, in charge of keeping the necessary documents for cases in which petitioner Citibank was involved. The foregoing would have been sufficient to allow the presentation of photocopies or microfilm copies of the PNs, MCs, and letters by the petitioners as secondary evidence to establish the existence of respondent's loans, as an exception to the best evidence rule. The impact of the Decision of the Court of Appeals in the Dy case In its assailed Decision, the Court of Appeals made the following pronouncement Besides, We find the declaration and conclusions of this Court in CA-G.R. CV No. 15934 entitled Sps. Dr. Ricardo L. Dy and Rosalind O. Dy vs. City Bank, N.A., et al, promulgated on 15 January 1990, as disturbing taking into consideration the similarities of the fraud, machinations, and deceits employed by the defendant-appellant Citibank and its Account Manager Francisco Tan. Worthy of note is the fact that Our declarations and conclusions against Citibank and the person of Francisco Tan in CA-G.R. CV No. 15934 were affirmed in toto by the Highest Magistrate in a Minute Resolution dated 22 August 1990 entitled Citibank, N.A., vs. Court of Appeals, G.R. 93350. As the factual milieu of the present appeal created reasonable doubts as to whether the nine (9) Promissory Notes were indeed executed with considerations, the doubts, coupled by the findings and conclusions of this Court in CA-G.R. CV No. 15934 and the Supreme Court in G.R. No. 93350. should be construed against herein defendants-appellants Citibank and FNCB Finance. What this Court truly finds disturbing is the significance given by the Court of Appeals in its assailed Decision to the Decision119 of its Third Division in CA-G.R. CV No. 15934 (or the Dy case), when there is an absolute lack of legal basis for doing such. Although petitioner Citibank and its officer, Mr. Tan, were also involved in the Dy case, that is about the only connection between the Dy case and the one at bar. Not only did the Dy case tackle transactions between parties other than the parties presently before this Court, but the transactions are absolutely independent and unrelated to those in the instant Petition. In the Dy case, Severino Chua Caedo managed to obtain loans from herein petitioner Citibank amounting to P7,000,000.00, secured to the extent of P5,000,000.00 by a Third Party Real Estate Mortgage of the properties of Caedo's aunt, Rosalind Dy. It turned out that Rosalind Dy and her husband were unaware of the said loans and the mortgage of their properties. The transactions were carried out exclusively between Caedo and Mr. Tan of petitioner Citibank. The RTC found Mr. Tan guilty of fraud for his participation in the questionable transactions, essentially because he allowed Caedo to take out the signature cards, when these should have been signed by the Dy spouses personally before him. Although the Dy spouses' signatures in the PNs and Third Party Real Estate Mortgage were forged, they were approved by the signature verifier since the signature cards against which they were compared to were also forged. Neither the RTC nor the Court of Appeals, however, categorically declared Mr. Tan personally responsible for the forgeries, which, in the narration of the facts, were more likely committed by Caedo.

In the Petition at bar, respondent dealt with Mr. Tan directly, there was no third party involved who could have perpetrated any fraud or forgery in her loan transactions. Although respondent attempted to raise suspicion as to the authenticity of her signatures on certain documents, these were nothing more than naked allegations with no corroborating evidence; worse, even her own allegations were replete with inconsistencies. She could not even establish in what manner or under what circumstances the fraud or forgery was committed, or how Mr. Tan could have been directly responsible for the same. While the Court of Appeals can take judicial notice of the Decision of its Third Division in the Dy case, it should not have given the said case much weight when it rendered the assailed Decision, since the former does not constitute a precedent. The Court of Appeals, in the challenged Decision, did not apply any legal argument or principle established in the Dy case but, rather, adopted the findings therein of wrongdoing or misconduct on the part of herein petitioner Citibank and Mr. Tan. Any finding of wrongdoing or misconduct as against herein petitioners should be made based on the factual background and pieces of evidence submitted in this case, not those in another case. It is apparent that the Court of Appeals took judicial notice of the Dy case not as a legal precedent for the present case, but rather as evidence of similar acts committed by petitioner Citibank and Mr. Tan. A basic rule of evidence, however, states that, "Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like."120 The rationale for the rule is explained thus The rule is founded upon reason, public policy, justice and judicial convenience. The fact that a person has committed the same or similar acts at some prior time affords, as a general rule, no logical guaranty that he committed the act in question. This is so because, subjectively, a man's mind and even his modes of life may change; and, objectively, the conditions under which he may find himself at a given time may likewise change and thus induce him to act in a different way. Besides, if evidence of similar acts are to be invariably admitted, they will give rise to a multiplicity of collateral issues and will subject the defendant to surprise as well as confuse the court and prolong the trial.121 The factual backgrounds of the two cases are so different and unrelated that the Dy case cannot be used to prove specific intent, knowledge, identity, plan, system, scheme, habit, custom or usage on the part of petitioner Citibank or its officer, Mr. Tan, to defraud respondent in the present case. IV The liquidation of respondent's outstanding loans were valid in so far as petitioner Citibank used respondent's savings account with the bank and her money market placements with petitioner FNCB Finance; but illegal and void in so far as petitioner Citibank used respondent's dollar accounts with Citibank-Geneva. Savings Account with petitioner Citibank Compensation is a recognized mode of extinguishing obligations. Relevant provisions of the Civil Code provides Art. 1278. Compensation shall take place when two persons, in their own right, are creditors and debtors of each other. Art. 1279. In order that compensation may be proper, it is necessary; (1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts be due; (4) That they be liquidated and demandable; (5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor. There is little controversy when it comes to the right of petitioner Citibank to compensate respondent's outstanding loans with her deposit account. As already found by this Court, petitioner Citibank was the creditor of respondent for her outstanding loans. At the same time, respondent was the creditor of petitioner Citibank, as far as her deposit account was concerned, since bank deposits, whether fixed, savings, or current, should be considered as simple loan or mutuum by the depositor to the banking institution.122 Both debts consist in sums of money. By June 1979, all of respondent's PNs in the second set had matured and became demandable, while respondent's savings account was demandable anytime. Neither was there any retention or controversy over the PNs and the deposit account commenced by a third person and communicated in due time to the debtor concerned. Compensation takes place by operation of law,123 therefore, even in the absence of an expressed authority from respondent, petitioner Citibank had the right to effect, on 25 June 1979, the partial compensation or off-set of respondent's outstanding loans with her deposit account, amounting to P31,079.14. Money market placements with FNCB Finance Things though are not as simple and as straightforward as regards to the money market placements and bank account used by petitioner Citibank to complete the compensation or off-set of respondent's outstanding loans, which came from persons other than petitioner Citibank.

Respondent's money market placements were with petitioner FNCB Finance, and after several roll-overs, they were ultimately covered by PNs No. 20138 and 20139, which, by 3 September 1979, the date the check for the proceeds of the said PNs were issued, amounted to P1,022,916.66, inclusive of the principal amounts and interests. As to these money market placements, respondent was the creditor and petitioner FNCB Finance the debtor; while, as to the outstanding loans, petitioner Citibank was the creditor and respondent the debtor. Consequently, legal compensation, under Article 1278 of the Civil Code, would not apply since the first requirement for a valid compensation, that each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other, was not met. What petitioner Citibank actually did was to exercise its rights to the proceeds of respondent's money market placements with petitioner FNCB Finance by virtue of the Deeds of Assignment executed by respondent in its favor. The Court of Appeals did not consider these Deeds of Assignment because of petitioners' failure to produce the original copies thereof in violation of the best evidence rule. This Court again finds itself in disagreement in the application of the best evidence rule by the appellate court. To recall, the best evidence rule, in so far as documentary evidence is concerned, requires the presentation of the original copy of the document only when the context thereof is the subject of inquiry in the case. Respondent does not question the contents of the Deeds of Assignment. While she admitted the existence and execution of the Deeds of Assignment, dated 2 March 1978 and 9 March 1978, covering PNs No. 8169 and 8167 issued by petitioner FNCB Finance, she claimed, as defense, that the loans for which the said Deeds were executed as security, were already paid. She denied ever executing both Deeds of Assignment, dated 25 August 1978, covering PNs No. 20138 and 20139. These are again issues collateral to the contents of the documents involved, which could be proven by evidence other than the original copies of the said documents. Moreover, the Deeds of Assignment of the money market placements with petitioner FNCB Finance were notarized documents, thus, admissible in evidence. Rule 132, Section 30 of the Rules of Court provides that SEC. 30. Proof of notarial documents. Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgement being prima facie evidence of the execution of the instrument or document involved. Significant herein is this Court's elucidation in De Jesus v. Court of Appeals,124 which reads On the evidentiary value of these documents, it should be recalled that the notarization of a private document converts it into a public one and renders it admissible in court without further proof of its authenticity (Joson vs. Baltazar, 194 SCRA 114 [1991]). This is so because a public document duly executed and entered in the proper registry is presumed to be valid and genuine until the contrary is shown by clear and convincing proof (Asido vs. Guzman, 57 Phil. 652 [1918]; U.S. vs. Enriquez, 1 Phil 241 [1902]; Favor vs. Court of Appeals, 194 SCRA 308 [1991]). As such, the party challenging the recital of the document must prove his claim with clear and convincing evidence (Diaz vs. Court of Appeals, 145 SCRA 346 [1986]). The rule on the evidentiary weight that must be accorded a notarized document is clear and unambiguous. The certificate of acknowledgement in the notarized Deeds of Assignment constituted prima facie evidence of the execution thereof. Thus, the burden of refuting this presumption fell on respondent. She could have presented evidence of any defect or irregularity in the execution of the said documents125 or raised questions as to the verity of the notary public's acknowledgment and certificate in the Deeds.126 But again, respondent admitted executing the Deeds of Assignment, dated 2 March 1978 and 9 March 1978, although claiming that the loans for which they were executed as security were already paid. And, she assailed the Deeds of Assignment, dated 25 August 1978, with nothing more than her bare denial of execution thereof, hardly the clear and convincing evidence required to trounce the presumption of due execution of a notarized document. Petitioners not only presented the notarized Deeds of Assignment, but even secured certified literal copies thereof from the National Archives.127 Mr. Renato Medua, an archivist, working at the Records Management and Archives Office of the National Library, testified that the copies of the Deeds presented before the RTC were certified literal copies of those contained in the Notarial Registries of the notary publics concerned, which were already in the possession of the National Archives. He also explained that he could not bring to the RTC the Notarial Registries containing the original copies of the Deeds of Assignment, because the Department of Justice (DOJ) Circular No. 97, dated 8 November 1968, prohibits the bringing of original documents to the courts to prevent the loss of irreplaceable and priceless documents.128 Accordingly, this Court gives the Deeds of Assignment grave importance in establishing the authority given by the respondent to petitioner Citibank to use as security for her loans her money her market placements with petitioner FNCB Finance, represented by PNs No. 8167 and 8169, later to be rolled-over as PNs No. 20138 and 20139. These Deeds of Assignment constitute the law between the parties, and the obligations arising therefrom shall have the force of law between the parties and should be complied with in good faith.129 Standard clauses in all of the Deeds provide that The ASSIGNOR and the ASSIGNEE hereby further agree as follows: xxxx 2. In the event the OBLIGATIONS are not paid at maturity or upon demand, as the case may be, the ASSIGNEE is fully authorized and empowered to collect and receive the PLACEMENT (or so much thereof as may be necessary) and apply the same in payment of the OBLIGATIONS. Furthermore, the ASSIGNOR agrees that at any time, and from time to time, upon request by the ASSIGNEE, the ASSIGNOR will promptly execute and deliver any and all such further instruments and documents as may be necessary to effectuate this Assignment. xxxx

5. This Assignment shall be considered as sufficient authority to FNCB Finance to pay and deliver the PLACEMENT or so much thereof as may be necessary to liquidate the OBLIGATIONS, to the ASSIGNEE in accordance with terms and provisions hereof. 130 Petitioner Citibank was only acting upon the authority granted to it under the foregoing Deeds when it finally used the proceeds of PNs No. 20138 and 20139, paid by petitioner FNCB Finance, to partly pay for respondent's outstanding loans. Strictly speaking, it did not effect a legal compensation or offset under Article 1278 of the Civil Code, but rather, it partly extinguished respondent's obligations through the application of the security given by the respondent for her loans. Although the pertinent documents were entitled Deeds of Assignment, they were, in reality, more of a pledge by respondent to petitioner Citibank of her credit due from petitioner FNCB Finance by virtue of her money market placements with the latter. According to Article 2118 of the Civil Code ART. 2118. If a credit has been pledged becomes due before it is redeemed, the pledgee may collect and receive the amount due. He shall apply the same to the payment of his claim, and deliver the surplus, should there be any, to the pledgor. PNs No. 20138 and 20139 matured on 3 September 1979, without them being redeemed by respondent, so that petitioner Citibank collected from petitioner FNCB Finance the proceeds thereof, which included the principal amounts and interests earned by the money market placements, amounting to P1,022,916.66, and applied the same against respondent's outstanding loans, leaving no surplus to be delivered to respondent. Dollar accounts with Citibank-Geneva Despite the legal compensation of respondent's savings account and the total application of the proceeds of PNs No. 20138 and 20139 to respondent's outstanding loans, there still remained a balance of P1,069,847.40. Petitioner Citibank then proceeded to applying respondent's dollar accounts with Citibank-Geneva against her remaining loan balance, pursuant to a Declaration of Pledge supposedly executed by respondent in its favor. Certain principles of private international law should be considered herein because the property pledged was in the possession of an entity in a foreign country, namely, Citibank-Geneva. In the absence of any allegation and evidence presented by petitioners of the specific rules and laws governing the constitution of a pledge in Geneva, Switzerland, they will be presumed to be the same as Philippine local or domestic laws; this is known as processual presumption.131 Upon closer scrutiny of the Declaration of Pledge, this Court finds the same exceedingly suspicious and irregular. First of all, it escapes this Court why petitioner Citibank took care to have the Deeds of Assignment of the PNs notarized, yet left the Declaration of Pledge unnotarized. This Court would think that petitioner Citibank would take greater cautionary measures with the preparation and execution of the Declaration of Pledge because it involved respondent's "all present and future fiduciary placements" with a Citibank branch in another country, specifically, in Geneva, Switzerland. While there is no express legal requirement that the Declaration of Pledge had to be notarized to be effective, even so, it could not enjoy the same prima facie presumption of due execution that is extended to notarized documents, and petitioner Citibank must discharge the burden of proving due execution and authenticity of the Declaration of Pledge. Second, petitioner Citibank was unable to establish the date when the Declaration of Pledge was actually executed. The photocopy of the Declaration of Pledge submitted by petitioner Citibank before the RTC was undated.132 It presented only a photocopy of the pledge because it already forwarded the original copy thereof to Citibank-Geneva when it requested for the remittance of respondent's dollar accounts pursuant thereto. Respondent, on the other hand, was able to secure a copy of the Declaration of Pledge, certified by an officer of Citibank-Geneva, which bore the date 24 September 1979.133 Respondent, however, presented her passport and plane tickets to prove that she was out of the country on the said date and could not have signed the pledge. Petitioner Citibank insisted that the pledge was signed before 24 September 1979, but could not provide an explanation as to how and why the said date was written on the pledge. Although Mr. Tan testified that the Declaration of Pledge was signed by respondent personally before him, he could not give the exact date when the said signing took place. It is important to note that the copy of the Declaration of Pledge submitted by the respondent to the RTC was certified by an officer of Citibank-Geneva, which had possession of the original copy of the pledge. It is dated 24 September 1979, and this Court shall abide by the presumption that the written document is truly dated. 134 Since it is undeniable that respondent was out of the country on 24 September 1979, then she could not have executed the pledge on the said date. Third, the Declaration of Pledge was irregularly filled-out. The pledge was in a standard printed form. It was constituted in favor of Citibank, N.A., otherwise referred to therein as the Bank. It should be noted, however, that in the space which should have named the pledgor, the name of petitioner Citibank was typewritten, to wit The pledge right herewith constituted shall secure all claims which the Bank now has or in the future acquires against Citibank, N.A., Manila (full name and address of the Debtor), regardless of the legal cause or the transaction (for example current account, securities transactions, collections, credits, payments, documentary credits and collections) which gives rise thereto, and including principal, all contractual and penalty interest, commissions, charges, and costs. The pledge, therefore, made no sense, the pledgor and pledgee being the same entity. Was a mistake made by whoever filled-out the form? Yes, it could be a possibility. Nonetheless, considering the value of such a document, the mistake as to a significant detail in the pledge could only be committed with gross carelessness on the part of petitioner Citibank, and raised serious doubts as to the authenticity and due execution of the same. The Declaration of Pledge had passed through the hands of several bank officers in the country and abroad, yet, surprisingly and implausibly, no one noticed such a glaring mistake. Lastly, respondent denied that it was her signature on the Declaration of Pledge. She claimed that the signature was a forgery. When a document is assailed on the basis of forgery, the best evidence rule applies Basic is the rule of evidence that when the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself except in the instances mentioned in Section 3, Rule 130 of the Revised Rules of Court. Mere photocopies of documents are inadmissible pursuant to the best evidence rule. This is especially true when the issue is that of forgery.

As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. The best evidence of a forged signature in an instrument is the instrument itself reflecting the alleged forged signature. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized upon to have been forged. Without the original document containing the alleged forged signature, one cannot make a definitive comparison which would establish forgery. A comparison based on a mere xerox copy or reproduction of the document under controversy cannot produce reliable results.135 Respondent made several attempts to have the original copy of the pledge produced before the RTC so as to have it examined by experts. Yet, despite several Orders by the RTC,136 petitioner Citibank failed to comply with the production of the original Declaration of Pledge. It is admitted that Citibank-Geneva had possession of the original copy of the pledge. While petitioner Citibank in Manila and its branch in Geneva may be separate and distinct entities, they are still incontestably related, and between petitioner Citibank and respondent, the former had more influence and resources to convince Citibank-Geneva to return, albeit temporarily, the original Declaration of Pledge. Petitioner Citibank did not present any evidence to convince this Court that it had exerted diligent efforts to secure the original copy of the pledge, nor did it proffer the reason why Citibank-Geneva obstinately refused to give it back, when such document would have been very vital to the case of petitioner Citibank. There is thus no justification to allow the presentation of a mere photocopy of the Declaration of Pledge in lieu of the original, and the photocopy of the pledge presented by petitioner Citibank has nil probative value.137 In addition, even if this Court cannot make a categorical finding that respondent's signature on the original copy of the pledge was forged, it is persuaded that petitioner Citibank willfully suppressed the presentation of the original document, and takes into consideration the presumption that the evidence willfully suppressed would be adverse to petitioner Citibank if produced.138 Without the Declaration of Pledge, petitioner Citibank had no authority to demand the remittance of respondent's dollar accounts with Citibank-Geneva and to apply them to her outstanding loans. It cannot effect legal compensation under Article 1278 of the Civil Code since, petitioner Citibank itself admitted that Citibank-Geneva is a distinct and separate entity. As for the dollar accounts, respondent was the creditor and Citibank-Geneva is the debtor; and as for the outstanding loans, petitioner Citibank was the creditor and respondent was the debtor. The parties in these transactions were evidently not the principal creditor of each other. Therefore, this Court declares that the remittance of respondent's dollar accounts from Citibank-Geneva and the application thereof to her outstanding loans with petitioner Citibank was illegal, and null and void. Resultantly, petitioner Citibank is obligated to return to respondent the amount of US$149,632,99 from her Citibank-Geneva accounts, or its present equivalent value in Philippine currency; and, at the same time, respondent continues to be obligated to petitioner Citibank for the balance of her outstanding loans which, as of 5 September 1979, amounted to P1,069,847.40. V The parties shall be liable for interests on their monetary obligations to each other, as determined herein. In summary, petitioner Citibank is ordered by this Court to pay respondent the proceeds of her money market placements, represented by PNs No. 23356 and 23357, amounting to P318,897.34 and P203,150.00, respectively, earning an interest of 14.5% per annum as stipulated in the PNs,139 beginning 17 March 1977, the date of the placements. Petitioner Citibank is also ordered to refund to respondent the amount of US$149,632.99, or its equivalent in Philippine currency, which had been remitted from her Citibank-Geneva accounts. These dollar accounts, consisting of two fiduciary placements and current accounts with Citibank-Geneva shall continue earning their respective stipulated interests from 26 October 1979, the date of their remittance by Citibank-Geneva to petitioner Citibank in Manila and applied against respondent's outstanding loans. As for respondent, she is ordered to pay petitioner Citibank the balance of her outstanding loans, which amounted to P1,069,847.40 as of 5 September 1979. These loans continue to earn interest, as stipulated in the corresponding PNs, from the time of their respective maturity dates, since the supposed payment thereof using respondent's dollar accounts from Citibank-Geneva is deemed illegal, null and void, and, thus, ineffective. VI Petitioner Citibank shall be liable for damages to respondent. Petitioners protest the award by the Court of Appeals of moral damages, exemplary damages, and attorney's fees in favor of respondent. They argued that the RTC did not award any damages, and respondent, in her appeal before the Court of Appeals, did not raise in issue the absence of such. While it is true that the general rule is that only errors which have been stated in the assignment of errors and properly argued in the brief shall be considered, this Court has also recognized exceptions to the general rule, wherein it authorized the review of matters, even those not assigned as errors in the appeal, if the consideration thereof is necessary in arriving at a just decision of the case, and there is a close inter-relation between the omitted assignment of error and those actually assigned and discussed by the appellant.140 Thus, the Court of Appeals did not err in awarding the damages when it already made findings that would justify and support the said award. Although this Court appreciates the right of petitioner Citibank to effect legal compensation of respondent's local deposits, as well as its right to the proceeds of PNs No. 20138 and 20139 by virtue of the notarized Deeds of Assignment, to partly extinguish respondent's outstanding loans, it finds that petitioner Citibank did commit wrong when it failed to pay and properly account for the proceeds of respondent's money market placements, evidenced by PNs No. 23356 and 23357, and when it sought the remittance of respondent's dollar accounts from Citibank-Geneva by virtue of a highly-suspect Declaration of Pledge to be applied to the remaining balance of respondent's outstanding loans. It bears to emphasize that banking is impressed with public interest and its fiduciary character requires high standards of integrity and performance.141 A bank is under the obligation to treat the accounts of its depositors with meticulous care whether such accounts consist only of a few hundred pesos or of millions of pesos.142 The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible.143 Petitioner Citibank evidently failed to exercise the required degree of care and transparency in its transactions with respondent, thus, resulting in the wrongful deprivation of her property.

Respondent had been deprived of substantial amounts of her investments and deposits for more than two decades. During this span of years, respondent had found herself in desperate need of the amounts wrongfully withheld from her. In her testimony144 before the RTC, respondent narrated Q By the way Mrs. Witness will you kindly tell us again, you said before that you are a businesswoman, will you tell us again what are the businesses you are engaged into [sic]? A I am engaged in real estate. I am the owner of the Modesta Village 1 and 2 in San Mateo, Rizal. I am also the President and Chairman of the Board of Macador [sic] Co. and Business Inc. which operates the Macador [sic] International Palace Hotel. I am also the President of the Macador [sic] International Palace Hotel, and also the Treasures Home Industries, Inc. which I am the Chairman and president of the Board and also operating affiliated company in the name of Treasures Motor Sales engaged in car dealers [sic] like Delta Motors, we are the dealers of the whole Northern Luzon and I am the president of the Disto Company, Ltd., based in Hongkong licensed in Honkong [sic] and now operating in Los Angeles, California. Q What is the business of that Disto Company Ltd.? A Disto Company, Ltd., is engaged in real estate and construction. Q Aside from those businesses are you a member of any national or community organization for social and civil activities? A Yes sir. Q What are those? A I am the Vice-President of thes [sic] Subdivision Association of the Philippines in 1976, I am also an officer of the Chamber of Real Estate Business Association; I am also an officer of the Chatholic [sic] Women's League and I am also a member of the CMLI, I forgot the definition. Q How about any political affiliation or government position held if any? A I was also a candidate for Mayo last January 30, 1980. Q Where? A In Dagupan City, Pangasinan. Q What else? A I also ran as an Assemblywoman last May, 1984, Independent party in Regional I, Pangasinan. Q What happened to your businesses you mentioned as a result of your failure to recover you [sic] investments and bank deposits from the defendants? A They are not all operating, in short, I was hampered to push through the businesses that I have. A [sic] Of all the businesses and enterprises that you mentioned what are those that are paralyzed and what remain inactive? A Of all the company [sic] that I have, only the Disto Company that is now operating in California. Q How about your candidacy as Mayor of Dagupan, [sic] City, and later as Assemblywoman of Region I, what happened to this? A I won by voting but when election comes on [sic] the counting I lost and I protested this, it is still pending and because I don't have financial resources I was not able to push through the case. I just have it pending in the Comelec. Q Now, do these things also affect your social and civic activities? A Yes sir, definitely. Q How? A I was embarrassed because being a businesswoman I would like to inform the Honorable Court that I was awarded as the most outstanding businesswoman of the year in 1976 but when this money was not given back to me I was not able to comply with the commitments that I have promised to these associations that I am engaged into [sic], sir.

For the mental anguish, serious anxiety, besmirched reputation, moral shock and social humiliation suffered by the respondent, the award of moral damages is but proper. However, this Court reduces the amount thereof to P300,000.00, for the award of moral damages is meant to compensate for the actual injury suffered by the respondent, not to enrich her.145 Having failed to exercise more care and prudence than a private individual in its dealings with respondent, petitioner Citibank should be liable for exemplary damages, in the amount of P250,000.00, in accordance with Article 2229146 and 2234147 of the Civil Code. With the award of exemplary damages, then respondent shall also be entitled to an award of attorney's fees.148 Additionally, attorney's fees may be awarded when a party is compelled to litigate or to incur expenses to protect his interest by reason of an unjustified act of the other party. 149 In this case, an award of P200,000.00 attorney's fees shall be satisfactory. In contrast, this Court finds no sufficient basis to award damages to petitioners. Respondent was compelled to institute the present case in the exercise of her rights and in the protection of her interests. In fact, although her Complaint before the RTC was not sustained in its entirety, it did raise meritorious points and on which this Court rules in her favor. Any injury resulting from the exercise of one's rights is damnum absque injuria.150 IN VIEW OF THE FOREGOING, the instant Petition is PARTLY GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. No. 51930, dated 26 March 2002, as already modified by its Resolution, dated 20 November 2002, is hereby AFFIRMED WITH MODIFICATION, as follows 1. PNs No. 23356 and 23357 are DECLARED subsisting and outstanding. Petitioner Citibank is ORDERED to return to respondent the principal amounts of the said PNs, amounting to Three Hundred Eighteen Thousand Eight Hundred Ninety-Seven Pesos and Thirty-Four Centavos (P318,897.34) and Two Hundred Three Thousand One Hundred Fifty Pesos (P203,150.00), respectively, plus the stipulated interest of Fourteen and a half percent (14.5%) per annum, beginning 17 March 1977; 2. The remittance of One Hundred Forty-Nine Thousand Six Hundred Thirty Two US Dollars and Ninety-Nine Cents (US$149,632.99) from respondent's Citibank-Geneva accounts to petitioner Citibank in Manila, and the application of the same against respondent's outstanding loans with the latter, is DECLARED illegal, null and void. Petitioner Citibank is ORDERED to refund to respondent the said amount, or its equivalent in Philippine currency using the exchange rate at the time of payment, plus the stipulated interest for each of the fiduciary placements and current accounts involved, beginning 26 October 1979; 3. Petitioner Citibank is ORDERED to pay respondent moral damages in the amount of Three Hundred Thousand Pesos (P300,000.00); exemplary damages in the amount of Two Hundred Fifty Thousand Pesos (P250,000.00); and attorney's fees in the amount of Two Hundred Thousand Pesos (P200,000.00); and 4. Respondent is ORDERED to pay petitioner Citibank the balance of her outstanding loans, which, from the respective dates of their maturity to 5 September 1979, was computed to be in the sum of One Million Sixty-Nine Thousand Eight Hundred Forty-Seven Pesos and Forty Centavos (P1,069,847.40), inclusive of interest. These outstanding loans shall continue to earn interest, at the rates stipulated in the corresponding PNs, from 5 September 1979 until payment thereof. SO ORDERED. Panganiban, C.J. (Chairperson), Ynares-Santiago, Austria-Martinez, and Callejo, Sr., JJ., concur.

Footnotes
1

Rollo, pp. 165-325.

Penned by Associate Justice Andres B. Reyes, Jr. with Associate Justices Conrado M. Vasquez, Jr. and Amelita G. Tolentino, concurring; id. at 327366.
2 3

Id. at 368-374. TSN, Deposition of Mr. Francisco Tan, 3 September 1990, pp. 9-10. Records, Vol. I, pp. 1-8. Id. at 148-157. Id. at 40-51. Id. at 208-227. Order, dated 11 December 1985, penned by Judge Ansberto P. Paredes, Records, Vol. I, p. 346.

10

Penned by Judge Manuel D. Victorio, Records, Vol. III, pp. 1607-1621.

Civil Case No. 11336 was raffled and re-reffled to four different Judges of the Makati RTC before it was finally resolved. It was originally raffled to Makati RTC, Branch 140, presided by Judge Ansberto P. Paredes. On 4 February 1987, before the termination of the re-direct examination of herein respondent (plaintiff before the RTC), the case was transferred to Makati RTC, Branch 57, presided by Judge Francisco X. Velez, for reasons not disclosed in the Records. Judge Velez was able to try and hear the case until the presentation of the evidence by herein petitioners (defendants before the RTC). Respondent again took the stand to present rebuttal evidence, but even before she could finish her testimony, Judge Velez inhibited himself upon petitioners' motion (Order, dated 10 April 1992, penned by Judge Francisco X. Velez, Records, Vol. 11, p. 1085). The case was transferred to Makati RTC, Branch 141, presided by Judge Marcelino F. Bautista, Jr. For reasons not disclosed in the Records, Judge Manuel D. Victorio took over Makati RTC, Branch 141. After the parties submitted their respective Memoranda, Judge Victorio declared the case submitted for decision (Order, dated 9 December 1994, penned by Judge Manuel D. Victorio, Records, Vol. III, p. 1602). Judge Victorio rendered his Decision in Civil Case No. 11336 on 24 August 1995 (Records, Vol. III, pp. 1607-1621).
11 12

Rollo, pp. 365-366. Rollo of G.R. No. 152985, pp. 3-4.

13

The filing of a motion for extension does not automatically suspend the running of the period for appeal, since the purpose of such motion is to merely ask the court to grant an enlargement of the time fixed by law. The movant, therefore, has no right to assume that his motion would be granted, and should check with the court as to the outcome of his motion, so that if the same is denied, he can still perfect his appeal. (Hon. Bello and Ferrer v. Fernando, 114 Phil. 101, 104 [1962].)
14 15

Rollo of G.R. No. 156132, p. 1227. Rollo, p. 374. Resolution, dated 29 January 2003; rollo, pp. 980-A-B. Resolution, dated 23 June 2003; id. at 1311-1312.

16

17

18

Firestone Tire and Rubber Company of the Philippines v. Tempongko, 137 Phil. 239, 244 (1969); Singh v. Liberty Insurance Corp., 118 Phil. 532, 535 (1963).
19 20

Rollo, pp. 1443-1445.

See the case of Borromeo v. Court of Appeals (162 Phil. 430, 438 [1976]) wherein this Court pronounced that a party's right to appeal shall not be affected by the perfection of another appeal from the same decision; otherwise, it would lead to the absurd proposition that one party may be deprived of the right to appeal from the portion of a decision against him just because the other party who had been notified of the decision ahead had already perfected his appeal in so far as the said decision adversely affects him. If the perfection of an appeal by one party would not bar the right of the other party to appeal from the same decision, then an unperfected appeal, as in the case at bar, would have far less effect.
21 22

The Executive Secretary v. Gordon, 359 Phil. 266, 271 (1998). Young v. John Keng Seng, 446 Phil. 823, 833 (2003). Sps. Sta. Maria v. Court of Appeals, 349 Phil. 275, 282-283 (1998).

23

24

The Court of Appeals modified the trial court's findings and conclusions, as follows: (1) By declaring the P1,069,847.40 alleged indebtedness of Ms. Sabeniano as non-existing for failure of Citibank to substantiate its allegations; (2) By declaring that there are unpaid money market placements, current accounts and savings account of Ms. Sabeniano; and (3) The awarding of damages in favor of Ms. Sabeniano and against Citibank.
25 26

Supra note 11. Records, Vol. III, pp. 1612-1613. Penned by Associate Justice Andres B. Reyes with Associate Justices Conrado M. Vasquez, Jr. and Amelita G. Tolentino, concurring; rollo, p. 344.

27

28

29> Section 3(m) of Rule 131 of the Revised Rules of Court reads

SEC. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

xxxx

(m) That official duty has been regularly performed.

30

317 Phil. 495, 501-503 (1995).

31

Records, Vol. I, p. 515.

32

32 Phil. 476, 478-479.

33

Behn, Meyer & Co. v. Rosatzin, 5 Phil. 660, 662 (1906).

34

Jimenez v. National Labor Relations Commission, 326 Phil. 89, 95 (1996).

35

Mr. Herminio Pujeda, at the time he testified before the RTC in 1990, was already the Vice President of petitioner Citibank.

36

Mr. Francisco Tan, at the time of his deposition in 1990, was already working as Assistant General Manager for Dai-Chi Kangyo Bank in Hong Kong.

37

TSN, 12 March 1990, pp. 6-10.

38

Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 330, 346 (1949).

39

TSN, 6 February 1990, Vol. V, pp. 16-24.

40

Exhibit "37," defendants' folder of exhibits, p. 106.

41

Exhibit "37-C," id. at 107.

42

Exhibit "37-F," id. at 108.

43

TSN, 12 March 1990, p. 13.

44

Exhibit "104-C," defendants' folder of exhibits, p. 111.

45

Exhibit "105," id. at 112.

46

Exhibit "106," id. at 114.

47

Exhibit "108," id. at 118.

48

Exhibits "112" and "119," id. at 121-A, 124.

49

Records, Vol. III, p. 1367.

50

Exhibit "34-B," petitioners' folder of exhibits, p. 102.

51

Exhibit "G," plaintiff's folder of exhibits, pp. 4-15.

52

Records, Vol. III, p. 1,562.

53

Exhibit "J," plaintiff's folder of exhibits, p. 49.

54

Exhibit "120-H," defendants' folder of exhibits, pp. 131.

55

Exhibits "1" to "9," id. at 44-52.

56

Exhibits "18" to "26," id. at 83-92.

57

Exhibit "13-E," id. at 65-67.

58

Exhibit "14-G," id. at 72-74.

59

Exhibit "15" and "Exhibit 17-D," id. at 77-78, 81-82.

60

Exhibit "38," id. at 109-110.

61

Exhibit "K-1," plaintiff's folder of exhibits, pp. 54-55

62

Exhibit "27," defendants' folder of exhibits, p. 93.

63

Exhibit "28," id. at 94.

64

Exhibit "29," id. at 95.

65

Exhibit "30," id. at 96.

66

Exhibit "31," id. at 97.

67

Exhibit "32," id. at 98.

68

Exhibits "34-B" and "34-C," id. at 102-103.

69

Exhibit "34," id. at 100.

70

Exhibit "121," id. at 207.

71

TSN, 14 May 1991, Vol. XI , pp. 12-14.

72

TSN, 28 November 1991, Vol. XIII, pp. 5, 15, 23, 28-29.

73

Exhibit "QQQ," plaintiff's folder of exhibits, p. 117.

74

Exhibit "AAAA," id. at 124.

75

TSN, 28 November 1991, Vol. XIII, pp. 7-8, 23.

76

Id. at 16-23.

77

TSN, 7 May 1986, Vol. II, pp. 42-52; TSN, 19 May 1986, Vol. II, pp. 3-28.

78

Sarmiento v. Court of Appeals, 364 Phil. 613, 621 (1999).

79

Bank of the Philippine Islands v. Court of Appeals, 383 Phil. 538, 553 (2000), with reference to Tan v. Court of Appeals, 239 Phil. 310, 322 (1994).

80

Gempesaw v. Court of Appeals, G.R. No. 92244, 9 February 1993, 218 SCRA 682, 695.

81

403 Phil. 361, 383 (2001).

82

Moran v. Court of Appeals, G.R. No. 105836, 7 March 1994, 230 SCRA 799, 311-312.

83

Revised Rules of Court, Rule 131, Section 3(p).

84

Id., Rule 131, Section 3(q).

85

Id., Section 3.

86

Exhibit "19," defendants' folder of exhibits, p. 84.

87

Exhibits "9-D" and "9-G," id. at 52.

88

Exhibit "9-F," id. at 52.

89

TSN, 19 May 1986, Vol. II, p. 10.

90

Associated Bank v. Court of Appeals, G.R. No. 89802, 7 May 1992, 208 SCRA 465, 469-471.

91

Banco de Oro Savings and Mortgage Bank v Equitable Banking Corporation, G.R. No. 74917, 20 January 1988, 157 SCRA 188, 199.

92

Negotiable Instruments Law, Section 66, in connection with Section 65.

93

Associated Bank v. Court of Appeals, 322 Phil. 677, 697 (1996); Associated Bank v. Court of Appeals, G.R. No. 89802, 7 May 1992, 208 SCRA 465, 472.

94

Plaintiff's Formal Offer of Documentary Exhibits, records, Vol. I, pp. 504-505; plaintiff's folder of exhibits, p. 110.

95

Exhibits "GGG" and "JJJ," plaintiff's folder of exhibits, pp. 109, 113.

96

Plaintiff's folder of exhibits, p. 110.

97

See the initials on Exhibit "III-1," plaintiff's folder of exhibits, p. 112.

98

Plaintiff's folder of exhibits, p. 112.

99

TSN, deposition of Mr. Francisco Tan, 3 September 1990, p. 118.

100

G.R. No. 49188, 30 January 1990, 181 SCRA 557, 568.

101

Exhibit "MMM," plaintiff's folder of exhibits, p. 115.

102

Records, Vol. I, p. 507.

103

TSN, 28 November 1991, Vol. XIII, pp. 7-8.

104

TSN, deposition of Mr. Francisco Tan, 3 September 1990, p. 96.

105

TSN, deposition of Mr. Francisco A. Tan, 3 September 1990, pp. 13-16.

106

TSN, 22 May 1990, Vol. V, pp. 31-61.

107

TSN, 7 March 1991, Vol. IX, pp. 15-19; TSN, 13 March 1991, Vol X, pp. 7-9.

108

TSN, 19 March 1991, Vol. X, pp. 17-21; TSN, 8 April 1991, Vol. X, pp. 31-34.

109

TSN, 18 April 1991, Vol. X, pp. 3-13.

110

Id. at 15-23.

111

Folder of defendants' exhibits, pp. 102-103.

112

Municipality of Moncada v. Cajuigan, 21 Phil 184, 190 (1912).

113

J.A.R. Sibal and J.N. Salazar, Jr., Compendium on Evidence 31 (4th ed., 1995).

114

F.D. Regalado, Remedial Law Compendium, Vol. II, p. 571 (8th ed., 2000).

115

F.D. Regalado, Remedial Law Compendium, Vol. II, 571 (8th ed., 2000).

116

G.R. Nos. 146710-15, 3 April 2001, 356 SCRA 108, 137-138.

117

TSN, 13 March 1991, Vol X, pp. 7-9.

118

TSN, 22 May 1990, Vol. V, pp. 14-17.

119

Dr. Ricardo L. Dy and Rosalind O. Dy vs. Citibank, N.A.,CA-G.R. CV No. 15934, 15 January 1990, penned by Associate Justice Nicolas P. Lapea, Jr. with Associate Justices Santiago M. Kapunan and Emeterio C. Cui, concurring.

120

Revised Rules of Court, Rule 130, Section 34.

121

J.A.R. Sibal and J.N. Salazar, Jr., Compendium on Evidence 199-200 (4th ed., 1995).

122

Civil Code, Article 1980; Guingona, Jr. v. City Fiscal of Manila, 213 Phil. 516,523-524 (1984).

123

Civil Code, Article 1286.

124

G.R. No. 57092, 21 January 1993, 217 SCRA 307, 313-314.

125

Anachuelo v. Intermediate Appellate Court, G.R. No. L-71391, 29 January 1987, 147 SCRA 434, 441-442.

126

Antillon v. Barcelon, 37 Phil. 148, 150-151 (1917).

127

See Exhibits "13-E, "14-G," "15-D,"and "17-D," defendants' folder of exhibits, pp. 65-67, 72-74, 77-78, 81-82.

128

TSN, 7 March 1991, Vol. IX, pp. 3-6.

129

Cuizon v. Court of Appeals, 329 Phil. 456, 482 (1996).

130

Exhibits "13-E, "14-G," "15-D," and "17-D," defendants' folder of exhibits, pp. 65-66, 72-73, 77-78, 81-82.

131

Wildvalley Shipping Co., Ltd. v. Court of Appeals, 396 Phil. 383, 396 (2000).

132

Exhibit "38," defendants' folder of exhibits, pp. 109-110.

133

Exhibit "K-1," plaintiff's folder of exhibits, 54-55.

134

Revised Rules of Court, Rule 131, Section 3(u).

135

Heirs of Severa P. Gregorio v. Court of Appeals, 360 Phil. 753, 763 (1998).

136

Order, dated 12 November 1985, penned by Judge Ansberto P. Paredes, records, Vol. I, p. 310; Order, dated 2 September 1988, id. at penned by Judge Francisco X. Velez, records, Vol. I, p. 449; Order, dated 24 November 1988,

penned by Judge Francisco X. Velez, records, Vol. I, p. 458; Order, dated 25 April 1989, penned by Judge Francisco X. Velez, records, Vol. I, pp. 476-477

137

Security Bank & Trust Co. v. Triumph Lumber and Construction Corporation, 361 Phil. 463, 477 (1999).

138

Revised Rules of Court, Rule 131, Section 3(e).

139

The stipulated interest shall apply as indemnity for the damages incurred in the delay of payment as provided in Article 2209 of the Civil Code which reads

ART. 2209. If the obligation consists in the payment of a sum of money, and the debtor incurs delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of a stipulation, the legal interest, which is six percent per annum. [Emphasis supplied.]

Note, however, that the legal interest has been increased from six percent to twelve percent per annum by virtue of Central Bank Circulars No. 416, dated 29 July 1974, and No. 905, dated 10 December 1982.

140

Radio Communications of the Philippines, Inc. v. National Labor Relations Commission, G.R. Nos. 101181-84, 22 June 1992, 210 SCRA 222, 226-227; Ortigas, Jr. v. Lufthansa German Airlines, G.R. No. L-28773, 30 June 1975, 64

SCRA 610, 633-634; Hernandez v. Andal, 78 Phil. 196, 209-210 (1947).

141

The General Banking Law of 2000, Section 2.

142

Philippine National Bank v. Court of Appeals, 373 Phil. 942, 948 (1999).

143

Simex International (Manila), Inc, vs. Court of Appeals, G.R. No. 88013, 19 March 1990, 183 SCRA 360, 367; Bank of Philippine Islands vs. Intermediate Appellate Court, G.R. No. 69162, 21 February 1992, 206 SCRA 408, 412-413.

144

TSN, 28 January 1986, Vol. I, pp. 5-7.

145

Tiongco v. Atty. Deguma, 375 Phil. 978, 994-995 (1999); Zenith Insurance Corporation v. Court of Appeals, G.R. No. 85296, 14 May 1990, 185 SCRA 398, 402-403.

146

Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

147

While the amount of exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary

damages should be awarded. x x x

148

Civil Code, Article 2208(1).

149

Ching Sen Ben vs. Court of Appeals, 373 Phil. 544, 555 (1999).

150

ABS-CBN Broadcasting Corporation v. Court of Appeals, 361 Phil. 498, 531-532 (1999); Tierra International Construction Corp. v. National Labor Relations Commission, G.R. No. 88912, 3 July 1992, 211 SCRA 73, 81; Saba v. Court

of Appeals, G.R. No. 77950, 24 August 1990, 189 SCRA 50, 55.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. R. No. 158149 February 9, 2006

BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF COMMERCE), Petitioner, vs. PERLA P. MANALO and CARLOS MANALO, JR., Respondents. DECISION CALLEJO, SR., J.: Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CAG.R. CV No. 47458 affirming, on appeal, the Decision2 of the Regional Trial Court (RTC) of Quezon City, Branch 98, in Civil Case No. Q-89-3905. The Antecedents The Xavierville Estate, Inc. (XEI) was the owner of parcels of land in Quezon City, known as the Xavierville Estate Subdivision, with an area of 42 hectares. XEI caused the subdivision of the property into residential lots, which was then offered for sale to individual lot buyers.3 On September 8, 1967, XEI, through its General Manager, Antonio Ramos, as vendor, and The Overseas Bank of Manila (OBM), as vendee, executed a "Deed of Sale of Real Estate" over some residential lots in the subdivision, including Lot 1, Block 2, with an area of 907.5 square meters, and Lot 2, Block 2, with an area of 832.80 square meters. The transaction was subject to the approval of the Board of Directors of OBM, and was covered by real estate mortgages in favor of the Philippine National Bank as security for its account amounting to P5,187,000.00, and the Central Bank of the Philippines as security for advances amounting to P22,185,193.74.4 Nevertheless, XEI continued selling the residential lots in the subdivision as agent of OBM.5 Sometime in 1972, then XEI president Emerito Ramos, Jr. contracted the services of Engr. Carlos Manalo, Jr. who was in business of drilling deep water wells and installing pumps under the business name Hurricane Commercial, Inc. For P34,887.66, Manalo, Jr. installed a water pump at Ramos residence at the corner of Aurora Boulevard and Katipunan Avenue, Quezon City. Manalo, Jr. then proposed to XEI, through Ramos, to purchase a lot in the Xavierville subdivision, and offered as part of the downpayment the P34,887.66 Ramos owed him. XEI, through Ramos, agreed. In a letter

dated February 8, 1972, Ramos requested Manalo, Jr. to choose which lots he wanted to buy so that the price of the lots and the terms of payment could be fixed and incorporated in the conditional sale.6 Manalo, Jr. met with Ramos and informed him that he and his wife Perla had chosen Lots 1 and 2 of Block 2 with a total area of 1,740.3 square meters. In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the reservation of the lots. He also pegged the price of the lots at P200.00 per square meter, or a total of P348,060.00, with a 20% down payment of the purchase price amounting to P69,612.00 less the P34,887.66 owing from Ramos, payable on or before December 31, 1972; the corresponding Contract of Conditional Sale would then be signed on or before the same date, but if the selling operations of XEI resumed after December 31, 1972, the balance of the downpayment would fall due then, and the spouses would sign the aforesaid contract within five (5) days from receipt of the notice of resumption of such selling operations. It was also stated in the letter that, in the meantime, the spouses may introduce improvements thereon subject to the rules and regulations imposed by XEI in the subdivision. Perla Manalo conformed to the letter agreement.7 The spouses Manalo took possession of the property on September 2, 1972, constructed a house thereon, and installed a fence around the perimeter of the lots. In the meantime, many of the lot buyers refused to pay their monthly installments until they were assured that they would be issued Torrens titles over the lots they had purchased.8 The spouses Manalo were notified of the resumption of the selling operations of XEI.9 However, they did not pay the balance of the downpayment on the lots because Ramos failed to prepare a contract of conditional sale and transmit the same to Manalo for their signature. On August 14, 1973, Perla Manalo went to the XEI office and requested that the payment of the amount representing the balance of the downpayment be deferred, which, however, XEI rejected. On August 10, 1973, XEI furnished her with a statement of their account as of July 31, 1973, showing that they had a balance of P34,724.34 on the downpayment of the two lots after deducting the account of Ramos, plus P3,819.6810 interest thereon from September 1, 1972 to July 31, 1973, and that the interests on the unpaid balance of the purchase price of P278,448.00 from September 1, 1972 to July 31, 1973 amounted to P30,629.28.11 The spouses were informed that they were being billed for said unpaid interests.12 On January 25, 1974, the spouses Manalo received another statement of account from XEI, inclusive of interests on the purchase price of the lots.13 In a letter dated April 6, 1974 to XEI, Manalo, Jr. stated they had not yet received the notice of resumption of Leis selling operations, and that there had been no arrangement on the payment of interests; hence, they should not be charged with interest on the balance of the downpayment on the property.14 Further, they demanded that a deed of conditional sale over the two lots be transmitted to them for their signatures. However, XEI ignored the demands. Consequently, the spouses refused to pay the balance of the downpayment of the purchase price.15 Sometime in June 1976, Manalo, Jr. constructed a business sign in the sidewalk near his house. In a letter dated June 17, 1976, XEI informed Manalo, Jr. that business signs were not allowed along the sidewalk. It demanded that he remove the same, on the ground, among others, that the sidewalk was not part of the land which he had purchased on installment basis from XEI.16 Manalo, Jr. did not respond. XEI reiterated its demand on September 15, 1977.17 Subsequently, XEI turned over its selling operations to OBM, including the receivables for lots already contracted and those yet to be sold.18 On December 8, 1977, OBM warned Manalo, Jr., that "putting up of a business sign is specifically prohibited by their contract of conditional sale" and that

his failure to comply with its demand would impel it to avail of the remedies as provided in their contract of conditional sale.19 Meanwhile, on December 5, 1979, the Register of Deeds issued Transfer Certificate of Title (TCT) No. T-265822 over Lot 1, Block 2, and TCT No. T-265823 over Lot 2, Block 2, in favor of the OBM.20 The lien in favor of the Central Bank of the Philippines was annotated at the dorsal portion of said title, which was later cancelled on August 4, 1980.21 Subsequently, the Commercial Bank of Manila (CBM) acquired the Xavierville Estate from OBM. CBM wrote Edilberto Ng, the president of Xavierville Homeowners Association that, as of January 31, 1983, Manalo, Jr. was one of the lot buyers in the subdivision.22 CBM reiterated in its letter to Ng that, as of January 24, 1984, Manalo was a homeowner in the subdivision.23 In a letter dated August 5, 1986, the CBM requested Perla Manalo to stop any on-going construction on the property since it (CBM) was the owner of the lot and she had no permission for such construction.24 She agreed to have a conference meeting with CBM officers where she informed them that her husband had a contract with OBM, through XEI, to purchase the property. When asked to prove her claim, she promised to send the documents to CBM. However, she failed to do so.25 On September 5, 1986, CBM reiterated its demand that it be furnished with the documents promised,26 but Perla Manalo did not respond. On July 27, 1987, CBM filed a complaint27 for unlawful detainer against the spouses with the Metropolitan Trial Court of Quezon City. The case was docketed as Civil Case No. 51618. CBM claimed that the spouses had been unlawfully occupying the property without its consent and that despite its demands, they refused to vacate the property. The latter alleged that they, as vendors, and XEI, as vendee, had a contract of sale over the lots which had not yet been rescinded.28 While the case was pending, the spouses Manalo wrote CBM to offer an amicable settlement, promising to abide by the purchase price of the property (P313,172.34), per agreement with XEI, through Ramos. However, on July 28, 1988, CBM wrote the spouses, through counsel, proposing that the price of P1,500.00 per square meter of the property was a reasonable starting point for negotiation of the settlement.29 The spouses rejected the counter proposal,30 emphasizing that they would abide by their original agreement with XEI. CBM moved to withdraw its complaint31 because of the issues raised.32 In the meantime, the CBM was renamed the Boston Bank of the Philippines. After CBM filed its complaint against the spouses Manalo, the latter filed a complaint for specific performance and damages against the bank before the Regional Trial Court (RTC) of Quezon City on October 31, 1989. The plaintiffs alleged therein that they had always been ready, able and willing to pay the installments on the lots sold to them by the defendants remote predecessor-in-interest, as might be or stipulated in the contract of sale, but no contract was forthcoming; they constructed their house worth P2,000,000.00 on the property in good faith; Manalo, Jr., informed the defendant, through its counsel, on October 15, 1988 that he would abide by the terms and conditions of his original agreement with the defendants predecessor-in-interest; during the hearing of the ejectment case on October 16, 1988, they offered to pay P313,172.34 representing the balance on the purchase price of said lots; such tender of payment was rejected, so that the subject lots could be sold at considerably higher prices to third parties. Plaintiffs further alleged that upon payment of the P313,172.34, they were entitled to the execution and delivery of a Deed of Absolute Sale covering the subject lots, sufficient in form and substance to

transfer title thereto free and clear of any and all liens and encumbrances of whatever kind and nature.33 The plaintiffs prayed that, after due hearing, judgment be rendered in their favor, to wit: WHEREFORE, it is respectfully prayed that after due hearing: (a) The defendant should be ordered to execute and deliver a Deed of Absolute Sale over subject lots in favor of the plaintiffs after payment of the sum of P313,172.34, sufficient in form and substance to transfer to them titles thereto free and clear of any and all liens and encumbrances of whatever kind or nature; (b) The defendant should be held liable for moral and exemplary damages in the amounts of P300,000.00 and P30,000.00, respectively, for not promptly executing and delivering to plaintiff the necessary Contract of Sale, notwithstanding repeated demands therefor and for having been constrained to engage the services of undersigned counsel for which they agreed to pay attorneys fees in the sum of P50,000.00 to enforce their rights in the premises and appearance fee of P500.00; (c) And for such other and further relief as may be just and equitable in the premises.34 In its Answer to the complaint, the defendant interposed the following affirmative defenses: (a) plaintiffs had no cause of action against it because the August 22, 1972 letter agreement between XEI and the plaintiffs was not binding on it; and (b) "it had no record of any contract to sell executed by it or its predecessor, or of any statement of accounts from its predecessors, or records of payments of the plaintiffs or of any documents which entitled them to the possession of the lots."35 The defendant, likewise, interposed counterclaims for damages and attorneys fees and prayed for the eviction of the plaintiffs from the property.36 Meanwhile, in a letter dated January 25, 1993, plaintiffs, through counsel, proposed an amicable settlement of the case by paying P942,648.70, representing the balance of the purchase price of the two lots based on the current market value.37 However, the defendant rejected the same and insisted that for the smaller lot, they pay P4,500,000.00, the current market value of the property.38 The defendant insisted that it owned the property since there was no contract or agreement between it and the plaintiffs relative thereto. During the trial, the plaintiffs adduced in evidence the separate Contracts of Conditional Sale executed between XEI and Alberto Soller;39 Alfredo Aguila,40 and Dra. Elena Santos-Roque41 to prove that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had acquired the said lots. For its part, defendant presented in evidence the letter dated August 22, 1972, where XEI proposed to sell the two lots subject to two suspensive conditions: the payment of the balance of the downpayment of the property, and the execution of the corresponding contract of conditional sale. Since plaintiffs failed to pay, OBM consequently refused to execute the corresponding contract of conditional sale and forfeited the P34,877.66 downpayment for the two lots, but did not notify them of said forfeiture.42 It alleged that OBM considered the lots unsold because the titles thereto bore no annotation that they had been sold under a contract of conditional sale, and the plaintiffs were not notified of XEIs resumption of its selling operations. On May 2, 1994, the RTC rendered judgment in favor of the plaintiffs and against the defendant. The fallo of the decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant

(a) Ordering the latter to execute and deliver a Deed of Absolute Sale over Lot 1 and 2, Block 2 of the Xavierville Estate Subdivision after payment of the sum of P942,978.70 sufficient in form and substance to transfer to them titles thereto free from any and all liens and encumbrances of whatever kind and nature. (b) Ordering the defendant to pay moral and exemplary damages in the amount of P150,000.00; and (c) To pay attorneys fees in the sum of P50,000.00 and to pay the costs. SO ORDERED.43 The trial court ruled that under the August 22, 1972 letter agreement of XEI and the plaintiffs, the parties had a "complete contract to sell" over the lots, and that they had already partially consummated the same. It declared that the failure of the defendant to notify the plaintiffs of the resumption of its selling operations and to execute a deed of conditional sale did not prevent the defendants obligation to convey titles to the lots from acquiring binding effect. Consequently, the plaintiffs had a cause of action to compel the defendant to execute a deed of sale over the lots in their favor. Boston Bank appealed the decision to the CA, alleging that the lower court erred in (a) not concluding that the letter of XEI to the spouses Manalo, was at most a mere contract to sell subject to suspensive conditions, i.e., the payment of the balance of the downpayment on the property and the execution of a deed of conditional sale (which were not complied with); and (b) in awarding moral and exemplary damages to the spouses Manalo despite the absence of testimony providing facts to justify such awards.44 On September 30, 2002, the CA rendered a decision affirming that of the RTC with modification. The fallo reads: WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS that (a) the figure "P942,978.70" appearing [in] par. (a) of the dispositive portion thereof is changed to "P313,172.34 plus interest thereon at the rate of 12% per annum from September 1, 1972 until fully paid" and (b) the award of moral and exemplary damages and attorneys fees in favor of plaintiffs-appellees is DELETED. SO ORDERED.45 The appellate court sustained the ruling of the RTC that the appellant and the appellees had executed a Contract to Sell over the two lots but declared that the balance of the purchase price of the property amounting to P278,448.00 was payable in fixed amounts, inclusive of pre-computed interests, from delivery of the possession of the property to the appellees on a monthly basis for 120 months, based on the deeds of conditional sale executed by XEI in favor of other lot buyers.46 The CA also declared that, while XEI must have resumed its selling operations before the end of 1972 and the downpayment on the property remained unpaid as of December 31, 1972, absent a written notice of cancellation of the contract to sell from the bank or notarial demand therefor as required by Republic Act No. 6552, the spouses had, at the very least, a 60-day grace period from January 1, 1973 within which to pay the same. Boston Bank filed a motion for the reconsideration of the decision alleging that there was no perfected contract to sell the two lots, as there was no agreement between XEI and the respondents on the manner of payment as well as the other terms and conditions of the sale. It further averred

that its claim for recovery of possession of the aforesaid lots in its Memorandum dated February 28, 1994 filed before the trial court constituted a judicial demand for rescission that satisfied the requirements of the New Civil Code. However, the appellate court denied the motion. Boston Bank, now petitioner, filed the instant petition for review on certiorari assailing the CA rulings. It maintains that, as held by the CA, the records do not reflect any schedule of payment of the 80% balance of the purchase price, or P278,448.00. Petitioner insists that unless the parties had agreed on the manner of payment of the principal amount, including the other terms and conditions of the contract, there would be no existing contract of sale or contract to sell.47 Petitioner avers that the letter agreement to respondent spouses dated August 22, 1972 merely confirmed their reservation for the purchase of Lot Nos. 1 and 2, consisting of 1,740.3 square meters, more or less, at the price of P200.00 per square meter (or P348,060.00), the amount of the downpayment thereon and the application of the P34,887.00 due from Ramos as part of such downpayment. Petitioner asserts that there is no factual basis for the CA ruling that the terms and conditions relating to the payment of the balance of the purchase price of the property (as agreed upon by XEI and other lot buyers in the same subdivision) were also applicable to the contract entered into between the petitioner and the respondents. It insists that such a ruling is contrary to law, as it is tantamount to compelling the parties to agree to something that was not even discussed, thus, violating their freedom to contract. Besides, the situation of the respondents cannot be equated with those of the other lot buyers, as, for one thing, the respondents made a partial payment on the downpayment for the two lots even before the execution of any contract of conditional sale. Petitioner posits that, even on the assumption that there was a perfected contract to sell between the parties, nevertheless, it cannot be compelled to convey the property to the respondents because the latter failed to pay the balance of the downpayment of the property, as well as the balance of 80% of the purchase price, thus resulting in the extinction of its obligation to convey title to the lots to the respondents. Another egregious error of the CA, petitioner avers, is the application of Republic Act No. 6552. It insists that such law applies only to a perfected agreement or perfected contract to sell, not in this case where the downpayment on the purchase price of the property was not completely paid, and no installment payments were made by the buyers. Petitioner also faults the CA for declaring that petitioner failed to serve a notice on the respondents of cancellation or rescission of the contract to sell, or notarial demand therefor. Petitioner insists that its August 5, 1986 letter requiring respondents to vacate the property and its complaint for ejectment in Civil Case No. 51618 filed in the Metropolitan Trial Court amounted to the requisite demand for a rescission of the contract to sell. Moreover, the action of the respondents below was barred by laches because despite demands, they failed to pay the balance of the purchase price of the lots (let alone the downpayment) for a considerable number of years. For their part, respondents assert that as long as there is a meeting of the minds of the parties to a contract of sale as to the price, the contract is valid despite the parties failure to agree on the manner of payment. In such a situation, the balance of the purchase price would be payable on demand, conformably to Article 1169 of the New Civil Code. They insist that the law does not require a party to agree on the manner of payment of the purchase price as a prerequisite to a valid contract to sell. The respondents cite the ruling of this Court in Buenaventura v. Court of Appeals48 to support their submission. They argue that even if the manner and timeline for the payment of the balance of the purchase price of the property is an essential requisite of a contract to sell, nevertheless, as shown by their

letter agreement of August 22, 1972 with the OBM, through XEI and the other letters to them, an agreement was reached as to the manner of payment of the balance of the purchase price. They point out that such letters referred to the terms of the terms of the deeds of conditional sale executed by XEI in favor of the other lot buyers in the subdivision, which contained uniform terms of 120 equal monthly installments (excluding the downpayment, but inclusive of pre-computed interests). The respondents assert that XEI was a real estate broker and knew that the contracts involving residential lots in the subdivision contained uniform terms as to the manner and timeline of the payment of the purchase price of said lots. Respondents further posit that the terms and conditions to be incorporated in the "corresponding contract of conditional sale" to be executed by the parties would be the same as those contained in the contracts of conditional sale executed by lot buyers in the subdivision. After all, they maintain, the contents of the corresponding contract of conditional sale referred to in the August 22, 1972 letter agreement envisaged those contained in the contracts of conditional sale that XEI and other lot buyers executed. Respondents cite the ruling of this Court in Mitsui Bussan Kaisha v. Manila E.R.R. & L. Co.49 The respondents aver that the issues raised by the petitioner are factual, inappropriate in a petition for review on certiorari under Rule 45 of the Rules of Court. They assert that petitioner adopted a theory in litigating the case in the trial court, but changed the same on appeal before the CA, and again in this Court. They argue that the petitioner is estopped from adopting a new theory contrary to those it had adopted in the trial and appellate courts. Moreover, the existence of a contract of conditional sale was admitted in the letters of XEI and OBM. They aver that they became owners of the lots upon delivery to them by XEI. The issues for resolution are the following: (1) whether the factual issues raised by the petitioner are proper; (2) whether petitioner or its predecessors-in-interest, the XEI or the OBM, as seller, and the respondents, as buyers, forged a perfect contract to sell over the property; (3) whether petitioner is estopped from contending that no such contract was forged by the parties; and (4) whether respondents has a cause of action against the petitioner for specific performance. The rule is that before this Court, only legal issues may be raised in a petition for review on certiorari. The reason is that this Court is not a trier of facts, and is not to review and calibrate the evidence on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the Court of Appeals, are conclusive on this Court unless the case falls under any of the following exceptions: (1) when the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) when the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.50 We have reviewed the records and we find that, indeed, the ruling of the appellate court dismissing petitioners appeal is contrary to law and is not supported by evidence. A careful examination of the factual backdrop of the case, as well as the antecedental proceedings constrains us to hold that

petitioner is not barred from asserting that XEI or OBM, on one hand, and the respondents, on the other, failed to forge a perfected contract to sell the subject lots. It must be stressed that the Court may consider an issue not raised during the trial when there is plain error.51 Although a factual issue was not raised in the trial court, such issue may still be considered and resolved by the Court in the interest of substantial justice, if it finds that to do so is necessary to arrive at a just decision,52 or when an issue is closely related to an issue raised in the trial court and the Court of Appeals and is necessary for a just and complete resolution of the case.53 When the trial court decides a case in favor of a party on certain grounds, the Court may base its decision upon some other points, which the trial court or appellate court ignored or erroneously decided in favor of a party.54 In this case, the issue of whether XEI had agreed to allow the respondents to pay the purchase price of the property was raised by the parties. The trial court ruled that the parties had perfected a contract to sell, as against petitioners claim that no such contract existed. However, in resolving the issue of whether the petitioner was obliged to sell the property to the respondents, while the CA declared that XEI or OBM and the respondents failed to agree on the schedule of payment of the balance of the purchase price of the property, it ruled that XEI and the respondents had forged a contract to sell; hence, petitioner is entitled to ventilate the issue before this Court. We agree with petitioners contention that, for a perfected contract of sale or contract to sell to exist in law, there must be an agreement of the parties, not only on the price of the property sold, but also on the manner the price is to be paid by the vendee. Under Article 1458 of the New Civil Code, in a contract of sale, whether absolute or conditional, one of the contracting parties obliges himself to transfer the ownership of and deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. A contract of sale is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and the price. From the averment of perfection, the parties are bound, not only to the fulfillment of what has been expressly stipulated, but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law.55 On the other hand, when the contract of sale or to sell is not perfected, it cannot, as an independent source of obligation, serve as a binding juridical relation between the parties.56 A definite agreement as to the price is an essential element of a binding agreement to sell personal or real property because it seriously affects the rights and obligations of the parties. Price is an essential element in the formation of a binding and enforceable contract of sale. The fixing of the price can never be left to the decision of one of the contracting parties. But a price fixed by one of the contracting parties, if accepted by the other, gives rise to a perfected sale.57 It is not enough for the parties to agree on the price of the property. The parties must also agree on the manner of payment of the price of the property to give rise to a binding and enforceable contract of sale or contract to sell. This is so because the agreement as to the manner of payment goes into the price, such that a disagreement on the manner of payment is tantamount to a failure to agree on the price.58 In a contract to sell property by installments, it is not enough that the parties agree on the price as well as the amount of downpayment. The parties must, likewise, agree on the manner of payment of the balance of the purchase price and on the other terms and conditions relative to the sale. Even if the buyer makes a downpayment or portion thereof, such payment cannot be considered as sufficient proof of the perfection of any purchase and sale between the parties. Indeed, this Court ruled in Velasco v. Court of Appeals59 that:

It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that they and the respondent still had to meet and agree on how and when the down-payment and the installment payments were to be paid. Such being the situation, it cannot, therefore, be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. Indeed, this Court has already ruled before that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale. The fact, therefore, that the petitioners delivered to the respondent the sum of P10,000.00 as part of the downpayment that they had to pay cannot be considered as sufficient proof of the perfection of any purchase and sale agreement between the parties herein under article 1482 of the New Civil Code, as the petitioners themselves admit that some essential matter the terms of payment still had to be mutually covenanted.60 We agree with the contention of the petitioner that, as held by the CA, there is no showing, in the records, of the schedule of payment of the balance of the purchase price on the property amounting to P278,448.00. We have meticulously reviewed the records, including Ramos February 8, 1972 and August 22, 1972 letters to respondents,61 and find that said parties confined themselves to agreeing on the price of the property (P348,060.00), the 20% downpayment of the purchase price (P69,612.00), and credited respondents for the P34,887.00 owing from Ramos as part of the 20% downpayment. The timeline for the payment of the balance of the downpayment (P34,724.34) was also agreed upon, that is, on or before XEI resumed its selling operations, on or before December 31, 1972, or within five (5) days from written notice of such resumption of selling operations. The parties had also agreed to incorporate all the terms and conditions relating to the sale, inclusive of the terms of payment of the balance of the purchase price and the other substantial terms and conditions in the "corresponding contract of conditional sale," to be later signed by the parties, simultaneously with respondents settlement of the balance of the downpayment. The February 8, 1972 letter of XEI reads: Mr. Carlos T. Manalo, Jr. Hurricane Rotary Well Drilling Rizal Avenue Ext.,Caloocan City Dear Mr. Manalo: We agree with your verbal offer to exchange the proceeds of your contract with us to form as a down payment for a lot in our Xavierville Estate Subdivision. Please let us know your choice lot so that we can fix the price and terms of payment in our conditional sale. Sincerely yours, XAVIERVILLE ESTATE, INC. (Signed) EMERITO B. RAMOS, JR. President CONFORME:

(Signed) CARLOS T. MANALO, JR. Hurricane Rotary Well Drilling62 The August 22, 1972 letter agreement of XEI and the respondents reads: Mrs. Perla P. Manalo 1548 Rizal Avenue Extensionbr>Caloocan City Dear Mrs. Manalo: This is to confirm your reservation of Lot Nos. 1 and 2; Block 2 of our consolidation-subdivision plan as amended, consisting of 1,740.3 square meters more or less, at the price of P200.00 per square meter or a total price of P348,060.00. It is agreed that as soon as we resume selling operations, you must pay a down payment of 20% of the purchase price of the said lots and sign the corresponding Contract of Conditional Sale, on or before December 31, 1972, provided, however, that if we resume selling after December 31, 1972, then you must pay the aforementioned down payment and sign the aforesaid contract within five (5) days from your receipt of our notice of resumption of selling operations. In the meanwhile, you may introduce such improvements on the said lots as you may desire, subject to the rules and regulations of the subdivision. If the above terms and conditions are acceptable to you, please signify your conformity by signing on the space herein below provided. Thank you. Very truly yours, XAVIERVILLE ESTATE, INC. CONFORME: By: (Signed) EMERITO B. RAMOS, JR. President Buyer63 Based on these two letters, the determination of the terms of payment of the P278,448.00 had yet to be agreed upon on or before December 31, 1972, or even afterwards, when the parties sign the corresponding contract of conditional sale. Jurisprudence is that if a material element of a contemplated contract is left for future negotiations, the same is too indefinite to be enforceable.64 And when an essential element of a contract is reserved for future agreement of the parties, no legal obligation arises until such future agreement is concluded.65 (Signed) PERLA P. MANALO

So long as an essential element entering into the proposed obligation of either of the parties remains to be determined by an agreement which they are to make, the contract is incomplete and unenforceable.66 The reason is that such a contract is lacking in the necessary qualities of definiteness, certainty and mutuality.67 There is no evidence on record to prove that XEI or OBM and the respondents had agreed, after December 31, 1972, on the terms of payment of the balance of the purchase price of the property and the other substantial terms and conditions relative to the sale. Indeed, the parties are in agreement that there had been no contract of conditional sale ever executed by XEI, OBM or petitioner, as vendor, and the respondents, as vendees.68 The ruling of this Court in Buenaventura v. Court of Appeals has no bearing in this case because the issue of the manner of payment of the purchase price of the property was not raised therein. We reject the submission of respondents that they and Ramos had intended to incorporate the terms of payment contained in the three contracts of conditional sale executed by XEI and other lot buyers in the "corresponding contract of conditional sale," which would later be signed by them.69 We have meticulously reviewed the respondents complaint and find no such allegation therein.70 Indeed, respondents merely alleged in their complaint that they were bound to pay the balance of the purchase price of the property "in installments." When respondent Manalo, Jr. testified, he was never asked, on direct examination or even on cross-examination, whether the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and other lot buyers would form part of the "corresponding contract of conditional sale" to be signed by them simultaneously with the payment of the balance of the downpayment on the purchase price. We note that, in its letter to the respondents dated June 17, 1976, or almost three years from the execution by the parties of their August 22, 1972 letter agreement, XEI stated, in part, that respondents had purchased the property "on installment basis."71 However, in the said letter, XEI failed to state a specific amount for each installment, and whether such payments were to be made monthly, semi-annually, or annually. Also, respondents, as plaintiffs below, failed to adduce a shred of evidence to prove that they were obliged to pay the P278,448.00 monthly, semi-annually or annually. The allegation that the payment of the P278,448.00 was to be paid in installments is, thus, vague and indefinite. Case law is that, for a contract to be enforceable, its terms must be certain and explicit, not vague or indefinite.72 There is no factual and legal basis for the CA ruling that, based on the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and the other lot buyers, respondents were obliged to pay the P278,448.00 with pre-computed interest of 12% per annum in 120-month installments. As gleaned from the ruling of the appellate court, it failed to justify its use of the terms of payment under the three "contracts of conditional sale" as basis for such ruling, to wit: On the other hand, the records do not disclose the schedule of payment of the purchase price, net of the downpayment. Considering, however, the Contracts of Conditional Sale (Exhs. "N," "O" and "P") entered into by XEI with other lot buyers, it would appear that the subdivision lots sold by XEI, under contracts to sell, were payable in 120 equal monthly installments (exclusive of the downpayment but including pre-computed interests) commencing on delivery of the lot to the buyer.73 By its ruling, the CA unilaterally supplied an essential element to the letter agreement of XEI and the respondents. Courts should not undertake to make a contract for the parties, nor can it enforce one, the terms of which are in doubt.74 Indeed, the Court emphasized in Chua v. Court of Appeals75 that it is not the province of a court to alter a contract by construction or to make a new contract for the

parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly, as the court cannot supply material stipulations or read into contract words which it does not contain. Respondents, as plaintiffs below, failed to allege in their complaint that the terms of payment of the P278,448.00 to be incorporated in the "corresponding contract of conditional sale" were those contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque.76 They likewise failed to prove such allegation in this Court. The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties. Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. However, respondents failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with pre-computed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further failed to prive that the trial court admitted the said deeds77 as part of the testimony of respondent Manalo, Jr.78 Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semi-automatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are adequacy of sampling and uniformity of response. After all, habit means a course of behavior of a person regularly represented in like circumstances.79 It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reaction to situations.80 There are cases where the course of dealings to be followed is defined by the usage of a particular trade or market or profession. As expostulated by Justice Benjamin Cardozo of the United States Supreme Court: "Life casts the moulds of conduct, which will someday become fixed as law. Law

preserves the moulds which have taken form and shape from life."81 Usage furnishes a standard for the measurement of many of the rights and acts of men.82 It is also well-settled that parties who contract on a subject matter concerning which known usage prevail, incorporate such usage by implication into their agreement, if nothing is said to be contrary.83 However, the respondents inexplicably failed to adduce sufficient competent evidence to prove usage, habit or pattern of conduct of XEI to justify the use of the terms of payment in the contracts of the other lot buyers, and thus grant respondents the right to pay the P278,448.00 in 120 months, presumably because of respondents belief that the manner of payment of the said amount is not an essential element of a contract to sell. There is no evidence that XEI or OBM and all the lot buyers in the subdivision, including lot buyers who pay part of the downpayment of the property purchased by them in the form of service, had executed contracts of conditional sale containing uniform terms and conditions. Moreover, under the terms of the contracts of conditional sale executed by XEI and three lot buyers in the subdivision, XEI agreed to grant 120 months within which to pay the balance of the purchase price to two of them, but granted one 180 months to do so.84 There is no evidence on record that XEI granted the same right to buyers of two or more lots. Irrefragably, under Article 1469 of the New Civil Code, the price of the property sold may be considered certain if it be so with reference to another thing certain. It is sufficient if it can be determined by the stipulations of the contract made by the parties thereto85 or by reference to an agreement incorporated in the contract of sale or contract to sell or if it is capable of being ascertained with certainty in said contract;86 or if the contract contains express or implied provisions by which it may be rendered certain;87 or if it provides some method or criterion by which it can be definitely ascertained.88 As this Court held in Villaraza v. Court of Appeals,89 the price is considered certain if, by its terms, the contract furnishes a basis or measure for ascertaining the amount agreed upon. We have carefully reviewed the August 22, 1972 letter agreement of the parties and find no direct or implied reference to the manner and schedule of payment of the balance of the purchase price of the lots covered by the deeds of conditional sale executed by XEI and that of the other lot buyers90 as basis for or mode of determination of the schedule of the payment by the respondents of the P278,448.00. The ruling of this Court in Mitsui Bussan Kaisha v. Manila Electric Railroad and Light Company91 is not applicable in this case because the basic price fixed in the contract was P9.45 per long ton, but it was stipulated that the price was subject to modification "in proportion to variations in calories and ash content, and not otherwise." In this case, the parties did not fix in their letters-agreement, any method or mode of determining the terms of payment of the balance of the purchase price of the property amounting to P278,448.00. It bears stressing that the respondents failed and refused to pay the balance of the downpayment and of the purchase price of the property amounting to P278,448.00 despite notice to them of the resumption by XEI of its selling operations. The respondents enjoyed possession of the property without paying a centavo. On the other hand, XEI and OBM failed and refused to transmit a contract of conditional sale to the respondents. The respondents could have at least consigned the balance of the downpayment after notice of the resumption of the selling operations of XEI and filed an action to compel XEI or OBM to transmit to them the said contract; however, they failed to do so. As a consequence, respondents and XEI (or OBM for that matter) failed to forge a perfected contract to sell the two lots; hence, respondents have no cause of action for specific performance against petitioner. Republic Act No. 6552 applies only to a perfected contract to sell and not to a contract with no binding and enforceable effect.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 47458 is REVERSED and SET ASIDE. The Regional Trial Court of Quezon City, Branch 98 is ordered to dismiss the complaint. Costs against the respondents. SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice Chairperson CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Associate Justice MINITA V. CHICO-NAZARIO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice

Footnotes
1

Penned by Associate Justice Edgardo P. Cruz, with Associate Justices Oswaldo D. Agcaoili (retired) and Amelita G. Tolentino, concurring; rollo, pp. 9-19.
2

Penned by Judge Justo M. Sultan; records, pp. 295-304. Exhibits "N," "O" and "P," folder of exhibits, pp. 37-57. Exhibit "L," id. at 19. Exhibits "N," "O" and "P," id. at 37-57. Exhibit "A," id. at 1. Exhibit "B," id. at 2.

Exhibit "Q-1," id. at 60. TSN, May 21, 1990, p. 11. Exhibit "E-1," id. at 6. Id. Exhibit "E," id. at 5. Exhibit "F," id. at 7. Id. TSN, 20 January 1992, p. 5. Exhibit "G," folder of exhibits, p. 8. Exhibit "H," id. at 9. TSN, July 17, 1992, pp. 14-18. Exhibit "H," folder of exhibits, p. 9. Exhibits "1" and "2," id. at 79-84. Id. Exhibit "I-1," id. at 11. Exhibit "J-1," id. at 13. Exhibit "6," id. at 91. Exhibit "7," id. at 92. Id. Exhibit "S," id. at 68. Exhibit "T," id. at 71. Exhibit "R," id. at 65. Exhibit "R-1," id. at 67. Exhibit "U," id. at 74. Id.

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Records, pp. 3-6. Id. at 6-7. Id. at 35-36. Id. at 36-38. Exhibit "V," folder of exhibits, p. 77. TSN, December 17, 1993, pp. 1-5. Exhibit "N," folder of exhibits, p. 17. Exhibit "O," id. at 44. Exhibit "P," id. at 51. TSN, 17 July 1992, pp. 7-25. Records, p. 304. CA rollo, p. 32. Rollo, p. 85. Exhibits "N," "O" and "P," folder of exhibits, p. 82. Rollo, pp. 46-47. G.R. No. 126376, November 20, 2003, 416 SCRA 263 (2003). 39 Phil. 624 (1919). Siasat v. Court of Appeals, 425 Phil. 139,145 (2002) Del Rosario v. Bonga, G.R. No. 136308, January 23, 2001, 350 SCRA 101, 110.

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52

Abra Valley College, Inc. v. Aquino, G.R. No. L-39086, June 15, 1988, 162 SCRA 106, 116, citing Perez v. Court of Appeals, 127 SCRA 645 (1984).
53

F.F. Maacop Construction Co., Inc. v. Court of Appeals, 334 Phil. 208, 212 (1997), citing Garrido v. CA, 236 SCRA 450 (1994).
54

See Relativo v. Castro, 76 Phil. 563 (1946). GSIS v. Province of Tarlac, G.R. No. 157860, December 1, 2003, 417 SCRA 60. Jovan Land, Inc. v. Court of Appeals, 335 Phil. 626, 629 (1997).

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Article 1473, New Civil Code.

58

Montecillo v. Reynes, 434 Phil. 456 (2002); San Miguel Proprietor Philippines, Inc. v. Huang, 391 Phil. 636 (2000); Co v. Court of Appeals, 349 Phil. 749 (1998); Uraca v. Court of Appeals,344 Phil. 253 (1997); Toyota Car, Inc. v. Court of Appeals,314 Phil. 201 (1995.
59

151-A Phil. 868 (1973). Id. at 887. Infra. Exhibit "A," folder of exhibits, p. 1 (Underscoring supplied) Exhibit "B," id. at 2.

60

61

62

63

64

Ansorge v. Kane, 155 N.E. 683 (1927); A.M. Webb & Co. v. Robert P. Miller Co., 157 F.2d 865 (1946).
65

Boatright v. Steinite Radio Corporation, 46 F. 2d 385 (1931). Williston on Contracts, Volume I, Section 45, 149 (3rd ed. 1957). Weigham v. Kilifer, 215 F. 168. TSN, May 21, 1990, pp. 17-18; TSN, July 17, 1992, p. 25. Exhibits "N," "O" & "P," folder of exhibits, pp. 37-57. Supra, at note 22. Exhibit "G," folder of exhibits, p. 8 Potter v. Leitenberger Mach. Co., 166 Pa. Super 31, 70 A. 2d 390 (1950). Rollo, p. 82. Id.

66

67

68

69

70

71

72

73

74

361 Phil. 308, 317 (1999), citing Bacolod Murcia Milling Co., Inc., v. Bana Nacional Filipino, 74 Phil. 675, 680 (1944).
75 76

Supra, at note 66.

EXHIBIT "N" Conditional Contract of Sale executed by Xavierville Estate, Inc. in favor of Alberto Soller dated December 8, 1969, to prove that after Xavierville Estate sold its lots, it continued to execute sales contracts over same in its name; EXHIBIT "O" Xerox copy of Deed of Absolute Sale executed by Xavierville Estate, Inc. in favor of Alfredo Aguila dated May 20, 1970, to prove that although the lots in said subdivision were already sold by virtue of EXHIBIT "L," Commercial Bank of Manila (COMBANK) the VENDEE still allowed
77

Xavierville Estate to sign contracts in its name; EXHIBIT "P" Xerox copy of Deed of Absolute Sale executed by Xavierville Estate, Inc. in favor of Elena Roque Santos dated June 29, 1970, to prove that although lots in Xavierville Estate were already sold to Combank, the latter still allowed Xavierville Estate to sign contracts in its name;
78

Records, p. 128. Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (1977). Loughan v. Firestone Tire & Rubber Co., 749 F.2d. 1519 (1985).

79

80

81

The Nature of The Judicial Process (The Storrs Lectures Delivered At Yale University), 64 (1963).
82

Tong v. Borstad, 231 N.W. 2d. 795 (1975). Robinson v. United States, 82 U.S. 363; 20 L.ed 653 (1871). Name of the purchasers Majarabas v. Leonardo, 11 Phil. 272 (1908). Kelley v. Creston Buick Sales Co., 34 N.W. 2d. 598 (1948). Hoskins v. Mclaughlin, 161 S.W.2d 395 (1942). Packard Fort Work, Inc. v. Van Zandt, 224 S.W.2d 896 (1949). 334 Phil. 750,760 (1997), citing Mararabas v. Leonardo, supra. See note 66. 39 Phil. 624 (1919).

83

84

85

86

87

88

89

90

91

THIRD DIVISION

[G.R. No. 111244. December 15, 1997]

ARTURO ALANO, petitioner, vs. THE HONORABLE COURT OF APPEALS, HON. ENRICO A. LANZANAS, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Manila, Branch 37, and ROBERTO CARLOS, respondents. DECISION

ROMERO, J.:

Petitioner Arturo Alano has filed this petition for review of the decision i[1] of the Court of Appeals in CA-G.R. SP No. 28150 which affirmed in toto the order of the Regional Trial Court of Manila, Branch 37ii[2] denying petitioners motion for the suspension of proceeding of Criminal Case No. 90-84933, entitled People of the Philippines vs. Arturo Alano as well as his motion for reconsideration. Criminal Case No. 90-84933 is a prosecution for the crime of estafa. The informationiii[3] alleges:
That on or about June 10, 1986, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously defraud Roberto S. Carlos in the following manner, to wit: the said accused, pretending to be still the owner of a parcel of land with an area of 1,172 square meters, more or less, located at Bicutan, Taguig, Metro Manila, covered by Tax Declaration No. 120-004-00398, well knowing that he had previously sold the same to the said Roberto S. Carlos for P30,000.00, sold the aforesaid property for the second time to one Erlinda B. Dandoy for P87,900.00, thereby depriving the said Roberto S. Carlos of his rightful ownership/possession of the said parcel of land, to the damage and prejudice of the said Roberto S. Carlos in the aforesaid amount of P30,000.00, Philippine currency. Contrary to law.

Petitioner moved for the suspension of the criminal case on the ground that there was a prejudicial question pending resolution in another case being tried in the Regional Trial Court, National Capital Region, Pasig, Branch 68. The case, docketed as Civil Case No. 55103 and entitled Roberto Carlos and Trinidad M. Carlos v. Arturo Alano, et al., concerns the nullity of the sale and recovery of possession and damages. In the aforementioned Civil Case, private respondent filed a complaint against the petitioner seeking the annulment of the second sale of said parcel of land made by the petitioner to a certain Erlinda Dandoy on the premise that the said land was previously sold to them. In his answer, petitioner contends that he never sold the property to the private respondents and that his signature appearing in the deed of absolute sale in favor of the latter was a forgery, hence, the alleged sale was fictitious and inexistent. At this juncture, it is worth mentioning that the civil case was filed on March 1, 1985, five years before June 19, 1990 when the criminal case for estafa was instituted. On October 3, 1991, the trial court denied the petitioners motion as well as a subsequent motion for reconsideration. Aggrieved, petitioner filed a petition for certiorari and prohibition before the Court of Appeals seeking the nullification of the assailed order. On July 26, 1993,iv[4] the Court of Appeals dismissed the petition for lack of merit, the decretal portion of which reads:
WHEREFORE, finding no merit to the petition, the same is hereby DISMISSED, with cost against petitioner.

Hence, this petition.

The only issue in this petition is whether the pendency of Civil Case No. 55103, is a prejudicial question justifying the suspension of the proceedings in Criminal Case No. 90-84933 filed against the petitioner. Petitioner alleges that his signature appearing in the first deed of absolute sale in favor of private respondent was a forgery, such that there was no second sale covering the said parcel of land. Otherwise stated, if the Court in the said Civil Case rules that the first sale to herein private respondent was null and void, due to the forgery of petitioners signature in the first deed of sale, it follows that the criminal case for estafa would not prosper. While at first blush there seems to be merit in petitioners claim, we are compelled to affirm the Court of Appeals findings. The doctrine of prejudicial question comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved such resolution would be determinative of the guilt or innocence of the accused in the criminal action.v[5] In other words, if both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied.vi[6] On the basis of the foregoing and a perusal of the facts obtaining in the case at bar, the disposition of the issue raised need not unduly detain us. We have already ruled that a criminal action for estafa (for alleged double sale of property) is a prejudicial question to a civil action for nullity of the alleged deed of sale and the defense of the alleged vendor is the forgery of his signature in the deed.vii[7] Notwithstanding the apparent prejudicial question involved, the Court of Appeals still affirmed the Order of the trial court denying petitioners motion for the suspension of the proceeding on the ground that petitioner, in the stipulation of facts, had already admitted during the pre-trial order dated October 5, 1990 of the criminal case the validity of his signature in the first deed of sale between him and the private respondent, as well as his subsequent acknowledgment of his signature in twenty-three (23) cash vouchers evidencing the payments made by the private respondent. viii[8] Moreover, it was also noted by the Court of Appeals that petitioner even wrote to the private respondent offering to refund whatever sum the latter had paid.ix[9] In this regard, the pre-trial provision on criminal procedure found in Rule 118 of the Rules of Court provides:
Sec. 2. Pre-trial conference; subjects. x x x. consider the following: (a) Plea bargaining (b)Stipulation of facts The pre-trial conference shall

From the foregoing, there is no question that a stipulation of facts by the parties in a criminal case is recognized as declarations constituting judicial admissions, hence, binding upon the partiesx[10] and by virtue of which the prosecution dispensed with the

introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statement contained in the exhibit. xi[11] Accordingly, the stipulation of facts stated in the pre-trial order amounts to an admission by the petitioner resulting in the waiver of his right to present evidence on his behalf. While it is true that the right to present evidence is guaranteed under the Constitution,xii[12] this right may be waived expressly or impliedly. xiii[13] Since the suspension of the criminal case due to a prejudicial question is only a procedural matter, the same is subject to a waiver by virtue of the prior acts of the accused. After all, the doctrine of waiver is made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large. xiv[14] Accordingly, petitioners admission in the stipulation of facts during the pre-trial of the criminal amounts to a waiver of his defense of forgery in the civil case. Hence, we have no reason to nullify such waiver, it being not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law.xv[15] Furthermore, it must be emphasized that the pre-trial order was signed by the petitioner himself. As such, the rule that no proof need be offered as to any facts admitted at a pre-trial hearing applies.xvi[16] WHEREFORE, in view of the foregoing, the appealed decision of the Court of Appeals dated July 26, 1993 is AFFIRMED. Costs against petitioner. SO ORDERED. Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

Penned by Justice Regina G. Ordoez-Benitez and concurred in by Justice Manuel C. Herrera and Bernardo P. Pardo.
i[1] ii[2]

Per Judge Angelina Gutierrez. Rollo, p. 30. Id., pp. 96-101. Flordelis v. Castillo, 58 SCRA 301 (1974); Donato v. Luna, 160 SCRA 441 (1988). Benitez v. Concepcion, Jr., 2 SCRA 178 (1961). Ras v. Rasul, 100 SCRA 125 (1980). Pre-trial Order, Rollo, pp. 134-140.

iii[3]

iv[4]

v[5]

vi[6]

vii[7]

viii[8]

ix[9]

Decision, Rollo, p. 101. People v. Hernandez, 260 SCRA 25 (1996). People v. Bocar, 27 SCRA 512 (1969). Sec. 14, Art. 3, 1987 Constitution. People v. Dichose, 96 SCRA 957 (1980). People v. Donato, 198 SCRA 130 (1991). Article 6, Civil Code.

x[10]

xi[11]

xii[12]

xiii[13]

xiv[14]

xv[15]

Afable, et al. v. Ruiz, et al., 56 O.G. 3767; Permanent Concrete Products, Inc. v. Teodoro, 26 SCRA 339 (1969); Munasque v. Court of Appeals, 139 SCRA 533 (1985).
xvi[16]

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 83377 February 9, 1993 BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented by GLICERIA PAPA-FRANCISCO, et al., petitioners, vs. SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents. Pablo M. Gancayaco for petitioners. De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.: This is a petition for review on certiorari of the decision * of the Court of Appeals dated November 27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of Maria de Vera-Torres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendants-appellants", which reversed the decision ** of the Regional Trial Court of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction of the original deed of sale and of all its duplicate original copies. The undisputed facts are as follows: Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre. The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11, 1956. On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been paying taxes on the land. On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original Certificate of Title No. P-1356(M) was issued in his name.A

On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa Bernabe, they were co-owners of the property and demanded partition thereof on threats that the respondents would be charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to Marcosa Bernabe on April 28, 1959. On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe. True to petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of public document against the respondents for lack of a prima facie case. On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-1356(M). On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered ordering defendants: 1. To reconvey the property in question to the plaintiffs; 2. To pay plaintiffs P10,000.00 as litigation expenses; 3. To pay plaintiffs P5,000.00 as exemplary damages; 4. To pay P10,000.00 as attorney's fees. SO ORDERED. 1 In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents, Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of land for and in consideration of P1,500.00. Not contented with the decision, respondents appealed to the Court of Appeals contending that they never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have been excluded and should not have been accorded any evidentiary value. On the other hand, the petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly established by the testimony of the notary public before whom it was acknowledged and by Luis de Vera who was present during its execution and that the loss of the original document had been proven by the testimony of the representatives of the offices of the National Archives and the Provincial Assessor of Bulacan. On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's decision. It found that the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible. Hence this petition. The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same. We rule in the negative. Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence states: Sec. 4. Secondary evidence when original is lost or destroyed. When the original writing has been lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses. Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 2 A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale. In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of a xeroxed copy of the alleged deed of absolute sale. In establishing the execution of a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. 3 We agree with the trial court's findings that petitioners have sufficiently established the due execution of the alleged deed of sale through the testimony of the notary public to wit:

Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and Ismael Estela, in his capacity as Notary Public who ratified the document. 4 After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. 5 However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like). 6 In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies. 7 Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies. In reversing the trial court, the respondent Court of Appeals considered the following points: Asked on the witness stand where the original of the document (Exhibit A) was, plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question propounded to the same witness at the next hearing, he replied that in the early part of 1976 his sister Maria borrowed from him the original document and a certified true copy thereof and brought them to the Office of the Register of Deeds in Malolos "for the purpose of having it registered;" and that when she returned she told him that the original copy of the document was submitted to that office "and it (the property) was transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta). Indeed, upon the appellees' own evidence the original of the deed of sale in question, a purported xerox copy and certified true copy of which are marked as Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the Register of Deeds of Malolos for registration. The appellees, therefore, should have asked the office to produce it in court and if it could not be produced for one reason or another should have called the Register of Deeds or his representative to explain why. That they failed to do. The loss or destruction of the original of the document in question has not, therefore, been established. Hence, secondary evidence of it is inadmissible . . . . Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the deed of sale in question because his files were burned when his office at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno, Crisostomo) establish the loss or destruction of the original document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the testimony of Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that he failed to see the deed of absolute sale annotated on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that his office had no copy of the document in question because the notary public might not have submitted a copy thereof; or that it was lost or destroyed during the transmittal; and that most of the record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno, Tecson), prove loss or destruction of the original and of all the duplicate original copies of the document in question. 8 We find no cogent reason to rule otherwise. WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby AFFIRMED. SO ORDERED. Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

# Footnotes * Penned by Associate Justice Pedro A. Ramirez and concurred in by Associate Justices Luis A. Javellana and Minerva P. Gonzales-Reyes. ** Penned by Judge Felipe N. Villajuan, Jr. *** Branch XIV, Regional Trial Court, Malolos, Bulacan. 1 Rollo, pp. 32-33. 2 Lazatin vs. Campos, 92 SCRA 250, 262 (1979) 3 Michael & Co. vs. Enriquez, 33 Phil. 87, 89-90 (1915). 4 Rollo, p. 32. 5 Supra, note 3. 6 WIGMORE ON EVIDENCE, Sec. 1233, pp. 443-444.

7 Rollo, p. 13. 8 Rollo, pp. 55-56.

Republic of the Philippines SUPREME COURT Manila SPECIAL THIRD DIVISION G.R. No. 170583 September 12, 2007

ERNESTO M. FULLERO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Ernesto M. Fullero seeks to set aside the Decision dated 19 October 2005 of the Court of Appeals in CA-G.R. CR. No. 28072, affirming in toto the Decision dated 9 October 2003 of the Legazpi City Regional Trial Court (RTC), Branch 6, in Criminal Case No. 7712, finding petitioner guilty of falsification of public document as defined and penalized in paragraph 4, Article 171 of the Revised Penal Code.
1 2 3

In an Amended Information dated 14 October 1997, petitioner was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, allegedly committed as follows:
4

That sometime in 1988, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice and defraud, being then the Acting Chief Operator of Iriga City Telecommunications Office, while acting in said capacity and taking advantage of his official function, did then and there willfully, unlawfully and feloniously falsify and/or caused to be falsified a genuine public document, that is when he prepared his CSC 212 (Personal Data Sheet) for submission to Bureau of Telecommunication Regional Office No. 5, Legazpi City, he made it appear that he passed the Civil Engineering Board Examinations given by Professional Regulation Commission on May 30 and 31, 1985 with a rating of 75.8%; however, upon verification issued by PRC, said accused took the examination in May 1984 and another one [in] May, 1985 with general ratings of 56.75% and 56.10% respectively. When arraigned on 5 January 1998, petitioner, with the assistance of counsel de parte, pleaded "Not Guilty" to the charge. Thereafter, trial on the merits ensued.
5

Culled from the records are the following facts:

In 1977, petitioner was employed as a telegraph operator at the Bureau of Telecommunications Office in Iriga City (BTO, Iriga City). In 1982, he became the Acting Chief Operator of the same office until 1994.
6

A Personal Data Sheet (PDS) [Civil Service Form 212] dated 8 January 1988, purportedly accomplished and signed by petitioner, states that he passed the Civil Engineering Board Examination given on 30-31 May 1985 in Manila with a rating of 75.8%. It appears that he submitted the PDS to the Bureau of Telecommunications Regional Office, Legazpi City (BTO, Legazpi City).
7 8

A letter dated 7 March 1988 and signed by petitioner shows that he applied for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor with the Regional Director of the Civil Service Commission (CSC), Region 5, Legazpi City.
9

Upon inquiry made by Florenda B. Magistrado (Magistrado), a subordinate of petitioner in the BTO, Iriga City, with the Professional Regulation Commission (PRC), it was verified that petitioner never passed the board examination for civil engineering and that petitioners name does not appear in the book of registration for civil engineers.
10

Petitioner denied executing and submitting the subject PDS containing the statement that he passed the 30-31 May 1985 board examination for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He claimed that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature. He added that the letters contained in the PDS he accomplished and submitted were typewritten in capital letters since his typewriter does not have small letters. As such, the subject PDS could not be his because it had both small and capital typewritten letters.
11

Moreover, petitioner claimed that Magistrado had an ill motive in filing the instant case against him because he issued a memorandum against her for misbehavior in the BTO, Iriga City. He further argued that the RTC had no jurisdiction to try him there being no evidence that the alleged falsification took place in Legazpi City.
12 13

After trial, the Legazpi City RTC rendered a Decision dated 9 October 2003 finding petitioner guilty of the crime of falsification. Thus: WHEREFORE, premises considered, the accused Ernesto M. Fullero is hereby found guilty beyond reasonable doubt of the crime of Falsification defined and penalized under Art. 171 (4) of the Revised Penal Code, and hereby sentences him to suffer the penalty of imprisonment of six (6) years of prision correccional maximum to ten (10) years of prision mayor medium as the maximum and to pay a fine of three thousand P3,000.00 Pesos. Costs against the accused.
14

Petitioner appealed to the Court of Appeals. On 19 October 2005, the appellate court promulgated its Decision affirming in toto the assailed Legazpi City RTC Decision. The appellate court decreed:

In sum, the Court finds that the prosecution has successfully established all the elements of the offense of falsification of a public document and that the trial court correctly rendered a judgment of conviction against appellant. WHEREFORE, the appeal at bench is DISMISSED for lack of merit and the appealed 09 October 2003 decision is affirmed.
15

On 21 November 2005, petitioner lodged the instant petition before us citing as errors the following: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID LOWER COURT CONVICTED THE ACCUSED IN THE ABSENCE OF SUFFICIENT EVIDENCE I.E., PROOF TO SHOW THAT THE ACCUSED ACTUALLY PERFORMED THE ACT OF FALSIFICATION HE IS ACCUSED OF; II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT, EVEN ON THE ASSUMPTION THAT ACCUSED FILLED UP THE PERSONAL DATA SHEET (PDS) INCLUDING THE STATEMENT THAT HE IS A LICENSED ENGINEER, ACCUSED WAS UNDER NO OBLIGATION TO STATE SAID DATA AND NO CRIMINAL INTENT WAS SHOWN. III. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID RTC ADMITTED EVIDENCES NOT PROPERLY IDENTIFIED AND THEREAFTER CONSIDERED THE SAME IN DETERMINING THE ALLEGED GUILT OF THE ACCUSED; IV. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT THE LOWER COURT HAD NO JURISDICTION BECAUSE THE VENUE SHOULD HAVE BEEN IN THE REGIONAL TRIAL COURT OF IRIGA CITY, WHERE THE ALLEGED PERSONAL DATA SHEET WAS ACCOMPLISHED NOT IN THE RTC OF LEGAZPI CITY. Apropos the first issue, petitioner maintained that none of the prosecution witnesses actually saw him accomplish and sign the PDS; that the prosecution failed to establish that he took advantage of his position in falsifying the PDS; that a person need not be an Acting Chief Operator to be able to falsify a PDS; that he never became the custodian of the PDS nor did he have any special access to it by reason of his office; and that the identity of the person who falsified the PDS has not been established by the prosecution.
16

In establishing its charge of falsification against petitioner, the prosecution presented the following witnesses, namely: Magistrado, Joaquin C. Atayza (Atayza), Romeo Brizo (Brizo), Emma Francisco (Francisco) and Edith C. Avenir (Avenir). Magistrado, a subordinate of petitioner at the BTO, Iriga City, testified that prior to the filing of the instant case against petitioner, she sued the petitioner for unjust vexation as the latter kissed her on one occasion. While the case for unjust vexation was pending, her lawyer, Atty. Mariano Baranda, Jr. (Atty. Baranda), asked her if petitioner was indeed a licensed civil engineer since some persons simply referred to petitioner as "Mr. Fullero" whereas in the BTO, Iriga City, petitioner was known as "Engineer Fullero." Suspicious of the true status of petitioner, she went to the Records Office of the BTO, Legazpi City, and requested therein if she can see petitioners PDS. Upon being shown petitioners PDS, she observed that, under Item No. 18 thereof, petitioner appears to be a licensed civil engineer having passed the board examination for civil engineering given on 30-31 May 1985. Unconvinced of the veracity of petitioners statement in the PDS that he is a licensed civil engineer, she sought the advice of Atty. Baranda. Atty. Baranda then proceeded to the main office of the PRC in Manila to check the records of petitioner. Subsequently, Atty. Baranda obtained a certification from the PRC attesting that petitioner never passed the board examination for civil engineering. Atty. Baranda showed the said certification to her. Thereafter, she instituted the instant case against petitioner.
17

Atayza, Regional Director of the PRC in Legazpi City, testified that petitioner is not registered as a board passer for the civil engineering examination given on 30-31 May 1985.
18

Brizo, Human Resource Management Officer and Acting Records Officer of the BTO, Legazpi City, testified that his duty as acting records officer was to safeguard the records and files of the BTO, Iriga City, and BTO, Legazpi City. He said he personally knows the petitioner and is familiar with the latters signature because he regularly received petitioners daily time records and other documents bearing petitioners signature. He confirmed that the signature appearing in petitioners PDS was the signature of petitioner.
19

Francisco was the Officer-In-Charge of the Records Section of the PRC, Manila. She declared that petitioners name was included in the master list of examinees in the May 1984 civil engineering licensure examination where petitioner obtained a failing grade of 56.75%. She affirmed that petitioners name also appears in the list of examinees for the 30-31 May 1985 and May 1990 civil engineering licensure examinations where he got failing marks.
20

Avenir was the Special Investigator III in the Legal Affairs Division of the CSC, Regional Office No. 5, Legazpi City. As the duly authorized representative of the Regional Director of the said office, Avenir brought to the court the letter of petitioner applying for the position of either Junior Telecommunications Engineer or Telecommunications Traffic Supervisor, and a certification submitted by the petitioner stating that the latter is a licensed civil engineer. Avenir stated that the letter and the certification were taken from the records of their office and that these documents were being kept as part of the records of an administrative case of petitioner with the said office.
21

The prosecution also presented documentary evidence to bolster the foregoing testimonies of the prosecution witnesses, to wit: (1) a certification issued by Jose A. Arriola, Director II, PRC, Manila, attesting that petitioners name is not registered in the book of registry for licensed civil engineers; (2) certifications issued by Francisco affirming that petitioner failed in the 30-31 May 1985 board examination for civil engineering; (3) the PDS where petitioner stated that he passed the 30-31 May 1985 board examination for civil engineering with a rating of 75.8% and which was signed by him; (4) certifications issued by Francisco attesting that petitioner failed the May 1990 board examination for civil engineering; (5) transcript of stenographic notes in the perjury case filed by petitioner against Magistrado which states that, during the trial thereof, petitioner affirmed before the court hearing the case that he is a licensed civil engineer; (6) a letter signed and submitted by petitioner to the Regional Director of the CSC, Regional Office No. 5, Legazpi City, claiming to be a licensed civil engineer and applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; (7) an Order dated 20 December 2001 of the CSC, Regional Office No. 5, finding petitioner administratively liable for conduct prejudicial to the best interest of the service and imposing upon him a penalty of six months suspension for falsifying his PDS which is also the subject matter of the instant case; (8) a certification submitted by the petitioner to the CSC, Regional Office No. 5, Legazpi City, showing that he is a licensed civil engineer; (9) the daily time records of Magistrado signed by petitioner as the formers superior; and (10) other documents bearing the signature of petitioner in blue ballpen.
22 23 24 25 26 27 28 29 30

On the other hand, the defense presented petitioner as its sole witness. No documentary evidence was proffered. Petitioner interposed denials and alibi to support his contentions. Petitioner denied that he executed and submitted the subject PDS containing the statement that he passed the board examinations for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He averred that the PDS he accomplished and submitted was typewritten in capital letters since his typewriter does not have small letters; thus, the subject PDS could not be his since the letters were typewritten in small and capital letters; that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature; that Magistrado had an ill motive in filing the instant case against him since he issued a memorandum against her for the latters misbehavior in the BTO, Iriga City; that he is not a licensed civil engineer; and that he accomplished a different PDS in the BTO, Iriga City. Petitioner testified that he cannot recall the exact date when he issued the alleged memorandum against Magistrado and when during the trial of his perjury case against Magistrado, he claimed that he is a licensed civil engineer. He cannot also remember if he submitted a letter to the CSC, Regional Office No. 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor and the fact that he submitted therein a certification that he is a licensed civil engineer.
31 32 33 34

The initial query to be resolved is whose evidence between the prosecution and defense is credible.

Case law dictates that an accused can be convicted even if no eyewitness is available as long as sufficient circumstantial evidence had been presented by the prosecution. Circumstantial evidence is sufficient if:
35

(a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
36

Although none of the prosecution witnesses actually saw the petitioner falsifying the PDS, they, nonetheless, testified that that they are very familiar with the petitioners handwriting and signature. Magistrado testified that, being a subordinate of petitioner, she is very familiar with petitioners signature and actually witnessed petitioner affixing his signature on her daily time records for September 1987 to May 1988. Brizo testified that he is also familiar with petitioners signature because he personally knows petitioner and that he regularly received petitioners daily time records and other documents bearing petitioners signature. Both Magistrado and Brizo opined that the signature in the PDS belongs to petitioner.
37 38

The foregoing testimonies are consistent with the documentary evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Magistrado and Brizo as trustworthy and believable. More significant are the documentary evidence consisting of petitioners signature in certain authentic instruments which are apparently similar to the signature in the PDS. The RTC and the Court of Appeals have compared petitioners signatures in Magistrados daily time records and petitioners signature in his application letter to the CSC, Regional Office No. 5, Legazpi City, with that of petitioners alleged signature in the PDS. They observed that the slant position of the writing, as well as the stroke and the last rounding loop of the signature in the PDS, does not differ from petitioners signatures in Magistrados daily time records and in petitioners application letter. They noted that petitioners signatures in the said documents are "strikingly similar, such that through the naked eye alone, it is patent that the signatures therein were written by one and the same person." The observation of the Court of Appeals is worth noting, viz:
39

Appellants allegation that he did not execute the subject PDS is unavailing. First, the informations entered in the PDS, such as his accurate personal data and precise employment history, are matters which only the accused could have known. Second, a visual analysis of appellants signatures in the Certificate of Arraignment and Notice of Hearing, vis-a-vis his signature in the PDS would show no significant disparity, leading to the conclusion that appellant himself prepared the PDS and affixed his signature therein. Third, the signature of appellant in the PDS and in the Daily Time Records (Exhibits "J" to "Q") of prosecution witness Florenda Magistrado, were glaringly identical. x x x.
40

The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings,

are accorded high respect if not conclusive effect. This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court.
41 42

In absolute disparity, the evidence for the defense is comprised of denials. Petitioner denied having accomplished and signed the PDS. He tried to impart that someone else had filled it up. However, aside from this self-serving and negative claim, he did not adduce any convincing proof to effectively refute the evidence for the prosecution. It is a hornbook doctrine that as between bare denials and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight.
43

The subsequent matter to be determined is whether the elements of falsification for which petitioner is charged were proven beyond reasonable doubt. Article 171, paragraph (4) of the Revised Penal Code, provides: ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxxx 4. Making untruthful statements in a narration of facts. The elements of falsification in the above provision are as follows: a) the offender makes in a public document untruthful statements in a narration of facts; b) he has a legal obligation to disclose the truth of the facts narrated by him; and c) the facts narrated by him are absolutely false.
44

In addition to the aforecited elements, it must also be proven that the public officer or employee had taken advantage of his official position in making the falsification. In falsification of public document, the offender is considered to have taken advantage of his official position when (1) he has the duty to make or prepare or otherwise to intervene in the preparation of a document; or (2) he has the official custody of the document which he falsifies.
45

All of the foregoing elements of falsification of public documents under paragraph 4, Article 171 of the Revised Penal Code, have been sufficiently established. First, petitioner was a public officer, being then the Acting Chief Operator of the BTO, Iriga City, when he accomplished and submitted his PDS on 4 January 1988 at the BTO, Legazpi City. It is settled that a PDS is a public document. He stated under Item No. 18 of his PDS that he passed the civil engineering board
46

examination given on 30-31 May 1985 in Manila with a rating of 75.8%. Thereafter, petitioner submitted his PDS to the BTO, Legazpi City. Second, in Inting v. Tanodbayan, we ruled that the accomplishment of the PDS being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful statement therein was, therefore, intimately connected with such employment. Hence, the filing of a PDS is required in connection with promotion to a higher position and contenders for promotion have the legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will prejudice other qualified aspirants to the same position.
47 48

Petitioner was legally obliged to disclose in the PDS that he is not a licensed civil engineer since, as evidenced by his application letter, he was applying for positions to be occupied only by licensed civil engineers. Further, petitioner was also legally obliged to make truthful statements in his PDS since he affirmed therein "under the penalty of perjury" that his answers to the queries are "true and correct to the best of [his] knowledge and belief."
49

Third, petitioners statement in the PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8% is absolutely false. As Officer-in-Charge of the Records Section of the PRC, Manila, Francisco declared that petitioner was included in the master list of examinees in the May 1984 civil engineering licensure examination wherein petitioner obtained a failing grade. She affirmed that petitioners name also appears in the list of examinees for the May 1985 and May 1990 civil engineering licensure examinations where petitioner also got failing marks. She also submitted certifications and authentic documents in support of her statements. Further, petitioner admitted that he never passed the board examination for civil engineering.
50

Finally, as a public officer, petitioner is duty-bound to prepare, accomplish and submit his PDS pursuant to the Civil Service Rules and Regulations. Were it not for his position and employment in the government, he could not have accomplished the PDS. In People v. Uy, Santiago Uy, a field agent of the National Bureau of Investigation, was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, for making false statements in his Personal Information Sheet. We ruled therein: "[T]hat the defendant (Santiago Uy) took advantage of his position may be gathered from the fact that he himself filled the information sheet which obviously was to be submitted by each and every officer or employee of the NBI." In the same vein, petitioner also had the responsibility to prepare, accomplish and submit his PDS at the time he made a false statement therein that he is a licensed civil engineer. Hence, it is clear that petitioner took advantage of his position as Acting Chief Operator of BTO, Iriga City when he falsified his PDS.
51 52

Anent the second issue, petitioner posited that being a licensed civil engineer is not a qualification for him to hold office and such is not a requirement for his promotion; that the false statement caused no prejudice to any private person as he did not have any competitor in his position nor was the government damaged by such false statement; that the false statement would not in any way redound

to his benefit and, as such, no criminal intent could have impelled him to make such false claim; and that no evidence was produced showing that he had intent to cause injury. The law is clear that wrongful intent on the part of the accused to injure a third person is not an essential element of the crime of falsification of public document. It is jurisprudentially settled that in the falsification of public or official documents, whether by public officers or private persons, it is not necessary that there be present the idea of gain or the intent to injure a third person for the reason that, in contradistinction to private documents, the principal thing punished is the violation of the public faith and the destruction of truth as therein solemnly proclaimed. In falsification of public documents, therefore, the controlling consideration is the public character of a document; and the existence of any prejudice caused to third persons or, at least, the intent to cause such damage becomes immaterial.
53 54 55

The fact that the petitioners false statement in the PDS did not redound to his benefit, and that the government or any private individual was not thereby prejudiced, is inconsequential. What is clear and decisive in this case is that petitioner made an entry in his PDS that he passed the 30-31 May 1985 board examination for civil engineering despite his full awareness that such is not true. Regarding the third issue, petitioner contended that the prosecutions documentary evidence, consisting of Exhibits A, C, F, G, H, I, J, K, L, M, N, O, P, Q and R and their sub-markings, are inadmissible in evidence based on the following reasons: (1) Exhibit A, which is the Certification of the PRC dated 17 January 1998, confirming that petitioners name does not appear in the registry books of licensed civil engineers, was not properly identified during the trial. The proper person to identify the certification should have been the signatory therein which was PRC Director II Jose A. Arriola, or in his absence, a person who actually witnessed the execution of the certification. Prosecution witness Atayza, who was not present when the certification was executed, had identified the certification during the trial. Thus, the contents of the certification are mere hearsay; (2) Exhibit C, which is, according to petitioner, a machine copy of the PDS, does not show that it was the petitioner who prepared and submitted the PDS to BTO, Legazpi City. There was nothing in the PDS which requires a periodic submission of an updated PDS. Prosecution witness Brizo does not know whether petitioners PDS was personally delivered or mailed. Hence, the identification and subsequent testimonies of the prosecution witnesses on the PDS are mere hearsay; (3) Exhibit F, which is the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado where petitioner allegedly admitted that he is a civil engineer, lacks proper identification as the stenographer or records officer was not presented in court; (4) Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is a machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are merely machine copies and the loss and unavailability of their original were not proven; and (5) Exhibits J, K, L, M, N, O, P, Q and R, which are the daily time records of Magistrado signed by petitioner and

which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are devoid of factual basis. Petitioners signatures in the said exhibits are, "with the use of naked eye," not the same as his signature in the PDS. The Legazpi City RTC should have submitted these documents to a handwriting expert for examination instead of relying on the testimony of Magistrado.
56

Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify only to those facts which he knows of or comes from his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as to what he merely learned from others either because he was told, or he read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. This is known as the hearsay rule.
57

The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer. In other words, official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein. Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the officials attendance as a witness to testify to innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a public officer.
58 59

Exhibit A, or the Certification of the PRC dated 17 January 1998, was signed by Arriola, Director II of the PRC, Manila. Although Arriola was not presented in court or did not testify during the trial to verify the said certification, such certification is considered as prima facie evidence of the facts stated therein and is therefore presumed to be truthful, because petitioner did not present any plausible proof to rebut its truthfulness. Exhibit A is therefore admissible in evidence.
60

Section 3, Rule 128 of the Revised Rules on Evidence, provides that an evidence is admissible when it is relevant to the issue and is not excluded by the law or rules. Exhibit C, which according to petitioner is the machine copy of the PDS, is very relevant to the charge of falsification and is not excluded by the law or rules. It was offered precisely to prove that petitioner committed the crime of falsification by making false statements in the PDS. Further, the information specifically accuses petitioner of falsifying such PDS. A scrutiny of Exhibit C would show that it is the very PDS which petitioner falsified and not a mere machine copy as alleged by petitioner. Being the original falsified document, it is the best evidence of its contents and is therefore not excluded by the law or rules.
61

Section 2, Rule 132 of the Revised Rules on Evidence, explicitly provides that a transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. Petitioner failed to introduce proof that Exhibit F, or the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado in which petitioner allegedly admitted that he is a civil engineer, is not what it purports to be. Thus, it is prima facie correct.

Moreover, as earlier elucidated, one of the exceptions to the hearsay rule is the entries in official records made in the performance of duty by a public officer. Exhibit F, being an official entry in the courts records, is admissible in evidence and there is no necessity to produce the concerned stenographer as a witness.
62

Section 7, Rule 130 of the Revised Rules on Evidence, provides that when the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is the machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are certified true copies of their original documents recorded or kept in the CSC, Regional Office No. 5, Legazpi City and, thus, admissible to prove the contents of their originals.
63

Exhibits J to R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are admissible in evidence since they are relevant and material to the charge of falsification against petitioner. The signatures of petitioner in the said exhibits, the authenticity of which were not denied by petitioner, were presented to prove that these signatures were similar to petitioners signature in the PDS where he made the alleged falsification. Well-entrenched is the rule that resort to handwriting experts is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwritings or signatures. This is so since under Section 22, Rule 132 of the Revised Rules on Evidence, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write; or has seen writing purporting to be his upon which the witness has acted or has been charged, and has thus acquired knowledge of the handwriting of such person. Moreover, the opinion of a non-expert witness, for which proper basis is given, may be received in evidence regarding the handwriting or signature of a person with which he has sufficient familiarity.
64 65

The Legazpi City RTC was, therefore, not obliged to put a handwriting expert on the witness stand and direct the latter to examine petitioners signatures in the foregoing exhibits before ruling on their admissibility. It can, as it did, rely on the testimonies of the prosecution witnesses who are familiar with petitioners handwriting/signature in determining the admissibility of the aforesaid exhibits. It can, by itself, also compare petitioners signature in the PDS with the petitioners signatures in the subject exhibits with or without the aid of an expert witness and thereafter rule on the admissibility of such exhibits based on its own observation. In short, it can exercise independent judgment as regards the admissibility of said exhibits.

As to the fourth issue, petitioner argued that since none of the prosecution witnesses testified that they actually saw him fill up the PDS, then there is no evidence showing that the alleged falsification took place in Legazpi City; that when the PDS was allegedly falsified, he was stationed at BTO, Iriga City, and was a resident of Iriga City; that, even assuming without admitting that he filled up the PDS, the same was, "in all probability," filled up in Iriga City and, as such, the crime of falsification was consummated therein; that, consequently, the instant case should have been tried in the Iriga City RTC and not in the Legazpi City RTC.
66

There are three important requisites which must be present before a court can acquire jurisdiction over criminal cases. First, the court must have jurisdiction over the offense or the subject matter. Second, the court must have jurisdiction over the territory where the offense was committed. And third, the court must have jurisdiction over the person of the accused. There is no dispute that the Legazpi City RTC has jurisdiction over the offense and over the person of petitioner. It is the territorial jurisdiction of the Legazpi City RTC which the petitioner impugns.
67

The territorial jurisdiction of a court is determined by the facts alleged in the complaint or information as regards the place where the offense charged was committed. It should also be emphasized that where some acts material and essential to the crime and requisite to its consummation occur in one province or city and some in another, the court of either province or city has jurisdiction to try the case, it being understood that the court first taking cognizance of the case will exclude the others.
68 69

In the case at bar, the information specifically and positively alleges that the falsification was committed in Legazpi City. Moreover, as heretofore discussed, the testimonies and documentary evidence for the prosecution have sufficiently established that petitioner accomplished and thereafter submitted the PDS to the BTO, Legazpi City. The foregoing circumstances clearly placed the locus criminis in Legazpi City and not in Iriga City. We find no reason to disturb the prison term and fine imposed on petitioner by the Legazpi City RTC and the Court of Appeals, as they are in accord with law and jurisprudence. WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals, dated 19 October 2005, in CA-G.R. CR. No. 28072, is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED. Ynares-Santiago, Chairperson, Austria-Martinez, Corona, Nachura, JJ., concur.

Footnotes
1

Rollo, pp. 3-20.

Penned by Associate Justice Rebecca de Guia-Salvador with Associate Justices Ruben T. Reyes (now a member of this Court) and Aurora Santiago-Lagman concurring; rollo, pp. 24-35.
2

Penned by Presiding Judge Vladimir B. Brusola; rollo, pp. 36-42. Records, p. 40. Id. at 31. TSN, 17 September 2002, p. 4. Records, p. 256. TSN, 30 March 1998, p. 14. Records, p. 361. TSN, 30 March 1998, pp. 21-24. TSN, 17 September 2002, pp. 4-6. Id. at 7-10. Records, p. 264. Rollo, pp. 41-42. Id. at 34. Id. at 15-17. TSN, 30 March 1998, pp. 18-24. Id. at 2-10. Id. at 12-18. TSN, 1 March 2002, pp. 5-13. TSN, 3 February 2003, pp. 3-10. Exhibit B and its sub-markings, Records, pp. 254-255. Exhibit C, id. at 256. Exhibit E and its sub-markings, id. at 258-260. Exhibit F, id. at 323-360. Exhibit G and its sub-markings, id. at 361. Exhibit F, id. at 362-368.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Exhibit I, id. at 367. Exhibits J-R, id. at 370. Exhibits S-V, id. at 371-375. TSN, 17 September 2002, p. 12. Id. at 17. Id. at 18. Id. at 20.
People v. Yatar,

29

30

31

32

33

34

35

G.R. No. 150224, 19 May 2004, 428 SCRA 504, 513; People v. Lagao, Jr., 337 Phil. 497, 510

(1997).
36

Section 4, Rule 133, Rules of Court. TSN, 8 May 2003, p. 6. TSN, 30 March 1998, p. 16. Rollo, p. 41. Id. at 32.
People v. Aguila,

37

38

39

40

41

G.R. No. 171017, 6 December 2006, 510 SCRA 642, 661.

42

Id.

People v. Comiling, 468 Phil. 869, 890 (2004); Olivarez v. Court of Appeals, G.R. No. 163866, 29 July 2005, 465 SCRA 465, 483; People v. Gusmo, 467 Phil. 199, 219 (2004).
43 44

Santos v. Sandiganbayan,

G.R. Nos. 71523-25, 8 December 2000, 347 SCRA 386, 424.

Luis B. Reyes, The Revised Penal Code, Criminal Law (Fourteenth Edition, Revised 1998), Book Two, Arts. 114-367, p. 216, citing People v. Uy, 101 Phil. 159, 163 (1957) and United States v. Inosanto, 20 Phil 376, 378 (1911); Adaza v. Sandiganbayan, G.R. No. 154886, 28 July 2005, 464 SCRA 460, 478-479.
45 46

Lumancas v. Intas,

G.R. No. 133472, 5 December 2000, 347 SCRA 22, 34. 15 May 1980, 97 SCRA 494, 499.

47

G.R. Nos. 52446-48,

48

People v. Aguila, supra note 41. At the back page of Exhibit C, Records, p. 256.

49

50

TSN, 17 September 2002, p. 6. People v. Aguila, supra note 41. Supra note 45. People v. Po Giok To, 96 Phil. 913, 917 (1955).
Lastrilla v. Granda,

51

52

53

54

G.R. No. 160257, 31 January 2006, 481 SCRA 324, 345. G.R. No. 82197, 13 March 1989, 171 SCRA 223, 233.

55

Syquian v. People,

56

Rollo, pp. 13-15.

D.M. Consunji, Inc. v. Court of Appeals,

57

G.R.No. 137873, 20 April 2001, 357 SCRA 249, 253-254.

58

Section 44, Rule 130 of the Revised Rules on Evidence.

VI Herrera, REMEDIAL LAW REVISED RULES ON EVIDENCE, Rules 131-133 (1999 ed.), p. 290, citing Antilon v. Barcelona, 37 Phil. 148, 151 (1917).
59 60

Records, p. 46. Section 3, Rule 130 of the Revised Rules on Evidence. Section 2, Rule 132 of the Revised Rules on Evidence. Records, p. 361 and p. 367. Bautista v. Castro, G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312. Section 50(b), Rule 130 of the Revised Rules on Evidence. Rollo, pp. 11-13. Cruz v. Court of Appeals, 436 Phil. 641, 654 (2002). People v. Olermo, 454 Phil. 147, 164 (2003). Id.

61

62

63

64

65

66

67

68

69

FIRST DIVISION [G.R. No. 123906. March 27, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROWENA HERMOSO BENEDICTUS, accused-appellant.

DECISION
DAVIDE, JR., J.:

In an informationxvi[1]

1 filed on 20 October 1993 before the Regional Trial Court of Malolos, Bulacan, and assigned to Branch 76 thereof, the accused-appellant was charged with the crime of illegal recruitment under Article 38 in relation to Articles 34 and 39 of the Labor Code of the Philippines, as amended, allegedly committed as follows:
That in or about the month of December, 1992, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a non-licensee or non-holder of authority from the Department of Labor and Employment to recruit and/or place workers under local or overseas employment, did then and there wilfully, unlawfully and feloniously, with false pretenses, undertake illegal recruitment activities, placement or deployment for a fee of Napoleon dela Cruz, Ernesto Vasquez, Evangeline Magpayo, Crisanta Vasquez, Evelyn de Dios and Mercy Magpayo for overseas employment. Contrary to law.

Upon arraignment, the appellant entered a plea of not guilty. At the trial on the merits, the prosecution presented as witnesses the complaining victims Napoleon de la Cruz, Crisanta Vasquez, Evelyn de Dios, Mercy Magpayo, and Evangeline Magpayo, as well as Barangay Captain Emerlito Calara. The defense had only the appellant as its witness. The Office of the Solicitor General summarized in the Appellees Briefxvi[2] the evidence for the prosecution as follows:
On December 15, 1992, complainants Napoleon de la Cruz, Crisanta Vasquez, Evelyn de Dios, Mercy [Magpayo] and Evangeline Magpayo met appellant in the house of Crisanta Vasquez located at Bambang, Bulacan. There, appellant told them that she was recruiting workers for deployment in Taiwan. She promised them that they would be sent to Taiwan on January 15, 1993. Napoleon dela Cruz gave the amount of P2,700.00 as placement fees. He also submitted the requirements like marriage contract, employment certificate and six (6) copies of 2x2 ID pictures (TSN, August 4, 1994, pp. 2-11). Crisanta Vasquez gave the amount of P1,500.00 as processing fee since she already had a passport (TSN, November 29, 1994, p. 6). Evelyn de Dios gave the total amount of P4,400.00 representing P3,000.00 as her and her husbands placement fees and P1,400.00 for their passports (TSN, November 29, 1994, pp. 2021). Mercy [Magpayo] gave P2,600.00 representing placement fee, passport and others (TSN,

November 29, 1994, pp. 29-30). Evangeline Magpayo gave P2,350 (Ibid. p. 37). When appellant failed to send complainants to Taiwan on the promised date, January 15, 1993, complainants, together with appellant, went to the Barangay Hall and in front of the Barangay Captain, appellant signed a document (Exhs. C and 1) and promised to return the money to them.

Complainants, on March 29, 1993, signed a Magkakasamang Salaysay (Exhs. B to B-2) and filed a complaint before the Fiscals office (TSN, August 11, 1994, p. 3). In support of their complaint, they submitted a certification from the POEA dated July 21, 1994 (Exh. A) to the effect that appellant, in her personal capacity, was neither licensed nor authorized to recruit workers for overseas employment (TSN, August 4, 1997, pp. 11-12).xvi[3] We adopt this summary as our own, as it is fully supported by the transcripts of the stenographic notes of the testimonies of the witnesses for the prosecution. Upon the other hand, the appellant denied having recruited the complainants. She claimed that she had only borrowed money from them. In support of her claim, she presented the Affidavit of Desistancexvi[4] executed by the complainants when she and her sister had paid them her debt. The trial court gave full credit to the version of the prosecution and found unmeritorious appellants defense. It noted that in appellants statement before Barangay Captain Emerlito Calara,xvi[5] she had promised to return to the complainants the money she had taken from them. There was nothing in said statement that showed that such money was a debt. As to the Affidavit of Desistance, the trial court rejected the same, for it was signed by the complainants after all of them testified in court and were paid by the appellant. The trial court likewise observed that the appellant had failed to refute the statement in the certification issued by the POEA that she was not licensed to recruit workers for overseas employment, and that she had even admitted in open court that she was not licensed to do so. Accordingly, in its decision of 7 February 1996,xvi[6] the trial court convicted the appellant of the crime of illegal recruitment in large scale and sentenced her to suffer life imprisonment and to pay a fine of P100,000. The appellant seasonably filed her notice of appeal. In her Appellants Brief,xvi[7] she imputes upon the trial court the commission of this single error, to wit:

THE TRIAL COURT GRAVELY ERRED IN FINDING [HER] GUILTY OF THE CRIME OF ILLEGAL RECRUITMENT IN A LARGE SCALE DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.

She anchors her appeal chiefly on the Affidavit of Desistance executed by the complainants. She claims that it creates serious doubts as to her liability and proves that she was not engaged in recruitment activities. Finally, she alleges that the POEA certification is a mere fabrication and should not have been given any probative value; and, in any event, the prosecution failed to prove that she had no license or authority to recruit workers. The Office of the Solicitor General supports the trial courts decision and prays that the assailed decision be affirmed in toto. The appeal is without merit. The Affidavit of Desistance deserves scant consideration. In the first place, it was executed after the complainants testified under oath and in open court that they were offered job placements abroad and were made to pay placement or processing fees. In the second place, the affidavit did not expressly repudiate their testimony in court on the recruitment activities of the appellant. In fact, the appellant admitted that the complaining witnesses executed it after she had paid them back the amounts they had given her.xvi[8] The affidavit was more of an afterthought arising from personal consideration of pity. We have said before that courts should not attach persuasive value to affidavits of desistance, especially when executed as an afterthought.xvi[9] Moreover, it would be a dangerous rule for courts to reject testimonies solemnly taken before the courts of justice simply because the witnesses who had given them later on changed their mind for one reason or another, for such rule would make solemn trial a mockery and place the investigation of truth at the mercy of unscrupulous witnesses.xvi[10] It must always be remembered that a criminal offense is an outrage to the sovereign State. To the State belongs the power to prosecute and punish crimes. While there may be a compromise upon the civil liability arising from an offense, such compromise shall not extinguish the public action for the imposition of the legal penalty.xvi[11
]

Finally, the appellant failed to refute the testimony of Barangay Captain Calara that the complainants filed the case against her because she recruited them and later reneged on her assurances.

The challenge against the POEA certification (Exh. A) that the appellant was neither licensed nor authorized to recruit workers for overseas employment must likewise fail. The trial court correctly ruled that the said certification is a public document issued by a public officer in the performance of an official duty; hence, it is a prima facie evidence of the facts therein stated pursuant to Section 23 of Rule 132 of the Rules of Court. In any event, as said court noted, the appellant admitted in open court that she was not licensed or authorized to recruit workers.xvi[12] Recruitment is defined in Article 13(b) of the Labor Code as follows:
Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.

Illegal recruitment is defined in Article 38 of the Labor Code as follows:

ART. 38. Illegal Recruitment. -- (a) Any recruitment activities including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officers may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

It can be gleaned from the foregoing that there is illegal recruitment in large scale when a person (a) undertakes any recruitment activity defined under Article 13(b) or any prohibited practice enumerated under Article 34 of the Labor Code; (b) does not have a license or authority to lawfully engage in the recruitment and placement of workers; and (c) commits the same against three or more persons, individually or as a group.xvi[13] Paragraph (b) of Article 38, explicitly provides that illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Under Article 39 of the Labor Code the penalty of life imprisonment and a fine of P100,000 shall be imposed if illegal recruitment constitutes economic sabotage.

The appellant promised the five complainants that there were jobs available for them in Taiwan. She exacted money from them for alleged passports, as well as for placement fees. There was a certification from the POEA that the appellant was not licensed to recruit workers for overseas job placements, which she likewise admitted in her testimony. All these point to the inescapable conclusion that she was engaged in illegal recruitment in large scale. Thus, the trial court correctly found the appellant guilty beyond reasonable doubt of the crime of illegal recruitment in large scale. The penalty imposed upon her is in accordance with Article 39 of the Labor Code. WHEREFORE, the instant appeal is DISMISSED and the decision of the Regional Trial Court of Malolos, Bulacan, Branch 76, in Criminal Case No. 3363-M-93 is hereby AFFIRMED in toto. SO ORDERED. Bellosillo, Vitug, Panganiban and Quisumbing, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 142295 May 31, 2001

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PARDO, J.: Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of Appeals1 affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20, Malolos, and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as amended, by Republic Act No. 8294 (illegal possession of firearms), sentencing him to four (4) years, nine (9) months and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum, and to pay a fine of P30,000.00.
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On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the Regional Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario y Nicolas with violation of P. D. No. 1866, as follows: "That on or about the 15th day of June 1996, in the municipality of Norzagaray, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession under his custody and control, the following, to wit: "a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license) "b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license) "c) Twenty Seven (27) rds live ammos. For cal. .45 "d) Five (5) pcs. Magazines for cal. .45 "e) Eight (8) rds live ammunitions for cal. 22 "f) Five (5) pcs. Magazines short for cal. 5.56 (M16) "g) Twenty (20) rds live ammunitions for cal 5.56.

"without first having obtained" a proper license therefor. "Contrary to law."2 On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty. 3 Trial ensued. The facts, as found by the Court of Appeals, are as follows: "Sometime in May 1996, the police received a report that accused-appellant Vicente del Rosario was in possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation Group at Camp Olivas, Pampanga inquired from the PNP Firearms and Explosive Division "whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin C. Roque of the PNP Firearms and Explosives Division issued a certification (Exhibit L) stating that per records in his office, the appellant is not a licensed/registered firearm holder of any kind and caliber. Armed with the said certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of appellant.
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"On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Femandez, Sr. of the Regional Trial Court of Quezon City, Branch 217, authorizing the search of the residence of appellant at Barangay Tigbe, Norzagaray, Bulacan. 4 On June 15, 1996, at about 7:00 o'clock in the morning, a team led by P/Sr. Insp. Adique went to Norzagaray to serve the warrant. Before proceeding to the residence of the appellant, the police officers requested Barangay Chairman Rogelio de Silva and Barangay Councilman Aurelio Panteleon to accompany them in the implementation of the warrant. Upon arrival at the house of appellant, the police officers introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp. Adique informed him that they had a search warrant and that they were authorized to search his house. After appellant gave his permission, the police officers conducted a search of the house. The search yielded the following items: (a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45 (Exhibits B and H) found at the master's bedroom; (b) five magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4) found in the room of appellant's daughter; and (c) a caliber .22 revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of live ammunition (Exhibit M) found in the kitchen of the house. When asked about his license to possess the firearms, the appellant failed to produce any. This prompted the police officers to seize the subject firearms. "SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of the seized items (Exhibits H, M and N). The inventories were signed by P/Sr. Insp. Adique, the appellant and the barangay officials who witnessed the search. Thereafter SPO2 Montezon prepared a certification of orderly search (Exhibit I) which was signed by the appellant and the barangay officials attesting to the orderly conduct of the search. "For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in his bedroom and that the other items seized during the search including the caliber .22 revolver, were merely planted by the police officers. Appellant likewise assails the manner in which the search was carried out, claiming that the police officers just barged into his house without asking permission. Furthermore, he claimed that the barangay officials arrived only after the police already had finished the search. "After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the dispositive portion of which reads: "WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO y NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 as charged under the Information dated June 17, 1996. "Conformably with the provisions of said law, as amended by Republic Act No. 8294, and pursuant to the provisions, of the Indeterminate Sentence Law, the Court hereby sentences the accused to suffer imprisonment of six (6) months of arresto mayor, as minimum, to six (6) years of prision correctional, as maximum, and to pay a fine of Fifteen. Thousand Pesos (P15,000.00). On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary to facts and the law.6 On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision of the trial court as set out in the opening paragraph of this decision. 7 On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration and/or new trial.8 He contended that the certification issued by the Chief, Firearms and Explosives Division, Philippine National Police stating that the person named therein had not been issued a firearm license referred to a certain Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan, not to him. He comes from barangay Tigbe, Norzagaray, Bulacan, and that he has a valid firearm license. On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of merit. 9 Hence, this appeal.10 Petitioner submits that the search conducted at his residence was illegal the search warrant was issued in violation of the Constitution11 and consequently, the evidence seized was inadmissible. He also submits that he had a license for the .45 caliber firearm and ammunition seized in his bedroom. The other firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2-way radios found in his daughter's bedroom, were either planted by the police or illegally seized, as they were not mentioned in the search warrant. We find the petition impressed with merit. We define the issues as follows: First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his bedroom; and Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughter's bedroom, were planted by the police or were illegally seized. We shall resolve the issues in seriatim. First: The .45 cal. Colt pistol in question was duly licensed. Normally, we do not review the factual findings of the Court of Appeals and the trial courts. 12 However, this case comes within the exceptions.13 The "findings of fact by the Court of Appeals will not be disturbed by the Court unless these findings are not supported by evidence." 14 In this case, the findings of the lower courts even directly contradict the evidence. Hence, we review the evidence. The trial court held that the copy of the license presented was blurred, and that in any event, the court could rely on the certification dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives Division, Philippine National Police stating that Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber. 15 As against this, petitioner submitted that he was not the person referred to in the said certification because he is Vicente del Rosario y Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of the existence of both barangay Tigbe and barangay Bigte, in Norzagaray, Bulacan.16 In fact, the trial court erred grievously in not taking judicial notice of the barangays within its territorial jurisdiction, believing the prosecution's submission that there was only barangay Tigbe, and that barangay Bigte in the certification was a typographical error.17 Petitioner presented to the head of the raiding team, Police Senior Inspector Jerito A. Adique, Chief, Operations Branch, PNP Criminal Investigation Command, a valid firearm license. The court is duty bound to examine the evidence assiduously to determine the guilt or innocence of the accused. It is true that the court may rely on the certification of the Chief, Firearms and Explosives Division, PNP on the absence of a firearm license. 18 However, such certification referred to another individual and thus, cannot prevail over a valid firearm license duly issued to petitioner. In this case, petitioner presented the printed computerized copy of License No. RCL 1614021915 issued to him on July 13, 1993, expiring in

January 1995, by the Chief, Firearms and Explosives Division, PNP under the signature of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP, Chief, FEO. 19 On the dorsal side of the printed computerized license, there is stamped the words "Validity of computerized license is extended until renewed license is printed" dated January 17, 1995, signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch, FEO. 20 Coupled with this indefinite extension, petitioner paid the license fees for the extension of the license for the next two-year period.21 Consequently, we find that petitioner was the holder of a valid firearm license for the .45 caliber Colt pistol seized in the bedroom of his house on June 15, 1996. 22 As required, petitioner presented the license to the head of the raiding team, Police Senior Inspector Jerito A. Adique of the Criminal Investigation Division Group, PNP. 23 As a senior police officer, Senior Inspector Adique could easily determine the genuineness and authenticity of the computerized printed license presented. He must know the computerized license printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police organization. Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it was expired. However, assuming that the license presented was expired during the period January 1995 to January 1997, still, possession of the firearm in question, a .45 caliber Colt pistol with serial No. 70G23792, during that period was not illegal. The firearm was kept at home, not carried outside residence. On June 15, 1996, at the time of the seizure of the firearm in question, possession of firearm with an expired license was not considered unlawful, provided that the license had not been cancelled or revoked. Republic Act No. 8294, providing that possession of a firearm with an expired license was unlawful took effect only on July 7, 1997. 24 It could not be given retroactive effect.25 According to firearm licensing regulations, the renewal of a firearm license was automatically applied for upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked. It served as temporary authority to possess the firearm until the renewed license was issued. Meantime, the applicant may keep the gun at home pending renewal of the firearm license and issuance of a printed computerized license. He was not obliged to surrender the weapon. Printed at the dorsal side of the computerized license is a notice reading: "IMPORTANT 1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by proper authority. 2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this license. Under any of the following instances, your license shall be revoked for which reason your firearm/s is/are subject to confiscation and its/their forfeiture in favor of the government. a. Failure to notify the Chief of PNP in writing of your change of address, and/or qualification. b. Failure to renew this license by paying annual license, fees, within six (6) months from your birth month. Renewal of your license can be made within your birth month or month preceding your birth month. Late renewal shall be penalized with 50% surcharge for the first month (from the first day to the last day of this month) followed by an additional 25% surcharge for all of the succeeding five (5) months compounded monthly. c. Loss of firearm/s through negligence. d. Carrying of firearm/s outside of residence without appropriate permit and/or carrying firearm/s in prohibited places. e. Conviction by competent court for a crime involving moral turpitude or for any offense where the penalty carries an imprisonment of more than six (6) months or fine of at least Pl,000.00. f. Dismissal for cause from, the service. g. Failure to sign license, or sign ID picture or affix right thumb mark. 3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification and forfeiture of the firearm in favor of the government. 4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest PNP Unit. For those within Metro, Manila, surrender should be made with FEO, Camp Crame. 5. When firearms become permanently unserviceable, they should be deposited with the nearest PNP Unit and ownership should be relinquished in writing so that firearms may be disposed of in accordance with law. 6. Application for the purchase of ammunition should be made in case of a resident of Metro Manila direct to the Chief, FEO and for residents of a Province to secure recommendation letter to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF, FEO for issuance of the permit. License must be presented before an authority to purchase ammo could be obtained."26 Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the firearm license for the next two years upon expiration of the license in January, 1995, as evidenced by official receipt No. 7615186, dated January 17, 1995. 27 The license would be renewed, as it was, because petitioner still possessed the required qualifications. Meantime, the validity of the license was extended until the renewed computerized license was printed. In fact, a renewed license was issued on January 17, 1997, for the succeeding two-year period.28 Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief, Philippine National Police issued to him a permit to carry firearm outside residence valid until January 25, 1996, for the firearm in question. 29 The Chief, Philippine National Police would not issue a permit to carry firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the permit to carry firearm outside residence was valid for only one year, and expired on January 25, 1996, such permit is proof that the regular firearm license was renewed and subsisting within the two-year term up to January 1997." A Permit to Carry Firearm Outside Residence presupposes that the party to whom it is issued is duly licensed to possess the firearm in question."30 Unquestionably, on January 17, 1997, the Chief, Firearms and Explosives Division, PNP renewed petitioner's license for the .45 cal. Colt pistol in question.31 Clearly then; petitioner had a valid firearm license during the interregnum between January 17, 1995, to the issuance of his renewed license on January 17, 1997. Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque,32 Chief, Records Branch, Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered by computerized license issued dated June 15, 1995, with an expiry date January 1997.33 Reinforcing the aforementioned certification, petitioner submitted another certification dated August 27, 1999, stating that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued f irearm license No. RL-C1614021915, for caliber .45 Pistol with Serial Number 70G23792, for the years covering the period from July 13, 1993 to January 1995, and the extension appearing at the back thereof for the years 1995 to 1997.34 Had the lower courts given full probative value to these official issuances, petitioner would have been correctly acquitted, thus sparing this Court of valuable time and effort. "In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz.: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or permit to possess the same. 35 The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession. After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm."36 "Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also, to prove beyond reasonable doubt." 37 "To convict an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must

be indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive." x x x We stress that the essence of the crime penalized under P. D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law."38 Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved.39 To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm.40 In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the trial court relied on the presumption of regularity in the performance of official duties by the police officers.41 This is a flagrant error because his testimony is directly contradictory to the official records of the Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity can not prevail over the Constitutional presumption of innocence. 42 Right from the start, P/Sr. Insp. Jerito A. Adigue was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in question. Despite this fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with illegal possession of firearms. We quote pertinent portions of the testimony of petitioner: Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged cal. .22 found in a drawer in your kitchen?

A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed firearm, sir. Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: How did he say about the ten thousand pesos? He said "palit kalabaw na lang tayo" sir. And what did you answer him? I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir, because he was just trying to squeeze something from me. How about the unlicensed firearms in your barangay which he asked, from you? I said I do not know any unlicensed firearm in our barangay, sir. About the .22 cal. pistol, what was your answer to him? I told him that it was not mine, they planted it, sir. What did he say next? He said that it is your word against mine, the Court will believe me because I am a police officer, sir. What was your comment to what he said? I said my firearm is licensed and we have Courts of law who do not conform with officials like you and then he laughed and laughed, sir."43

The trial court was obviously misguided when it held that "it is a matter of judicial notice that a caliber .45 firearm can not be licensed to a private individual." 44 This ruling has no basis either in law or in jurisprudence.45 Second issue. The seizure of items not mentioned in the search warrant was illegal. With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a drawer at the kitchen of petitioner's house, suffice it to say that the firearm was not mentioned in the search warrant applied for and issued for the search of petitioner's house. "Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes 'unreasonable' within the meaning of said constitutional provision."46 "Supporting jurisprudence thus outlined the following requisites for a search warrant's validity, the absence of even one will cause" its downright nullification: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized." 47 Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what articles they shall seize. 48 Evidence seized on the occasion of such an unreasonable search and seizure is tainted and excluded for being the proverbial "fruit of a poisonous tree." In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.49 In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in the search warrant. Hence, the seizure was illegal.50 The seizure without the requisite search warrant was in plain violation of the law and the Constitution. 51 True that as an exception, the police may seize without warrant illegally possessed firearm or any contraband for that matter, inadvertently found in plain view. However, "[t]he seizure of evidence in 'plain view' applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object."52 Specifically, seizure of evidence in "plain view" is justified when there is: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are. (c) the evidence must be immediately apparent, and (d) "plain view" justified mere seizure of evidence without further search. 53 Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution was not able to prove that the firearm was in the effective possession or control of the petitioner without a license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in his possession or control. "In People v. de Gracia, 54 we clarified the meaning of possession for the purpose of convicting a person under P. D. No.1866, thus: x x x 'In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused.' x x x x Hence, the kind of possession punishable under P. D. No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same."55 That is the meaning of animus possidendi. In the absence of animus possidendi, the possessor of a firearm incurs no criminal liability.

The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioner's daughter. The seizure was invalid and the seized items were inadmissible in evidence. As explained in People v. Doria,56 the "plain view" doctrine applies when the following requisites concur: (1) the law if enforcement officer is in a position where he has a clear view of a particular area or alias prior justification for an intrusion; (2) said officer inadvertently comes across (or sees in plain view) a piece of incriminating evidence; and (3) it is, immediately apparent to such officer that the item he sees may be evidence of a crime or a contraband or is otherwise subject to seizure." With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom of petitioner's daughter, there was absolutely no reason for the seizure. The if radios were not contraband per se. The National Telecommunications Commission may license two-way radios at its discretion.57 The burden is on the prosecution to show that the two-way radios were not licensed. The National Telecommunication Commission is the sole agency authorized to seize unlicensed two-way radios. More importantly, admittedly, the two-way radios were not mentioned in the search warrant. We condemn the seizure as illegal and a plain violation of a citizen's right. Worse, the petitioner was not charged with illegal possession of the two-way radios.
1wphi 1.nt

Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such radios is not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as amended) alleged in the Information. WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CA-G. R. CR No. 22255, promulgated on July 09, 1999. The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No. 1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos. Costs de oficio. The Chief; Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol, with Serial Number No. 70023792, the five (5) extra magazines and twenty seven (27) rounds of live ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine National Police, or his duly authorized representative shall show to this Court proof of compliance herewith within fifteen (15) days from notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the magazine for 5.56 mm. caliber Armalite rifle are confiscated in favor of the government.
1wphi 1.nt

SO ORDERED. Davide, Jr., Puno, Kapunan, Ynares-Santiago, JJ., concur.

Footnotes:
1

In CA-G. R. CR No. 22255, promulgated on July 09,1999. Aquino, J., ponente, Mabutas, Jr. and Agnir, Jr., JJ., concurring. Petition, Annex "A", Rollo, pp. 21-28. Regional Trial Court Records, pp. 2-3. Ibid., p. 21.

Note well that petitioner is a resident of Barangay Tigbe, Norzagaray, Bulacan. The certification issued by P/Sr. Insp. Edwin C. Roque referred to Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray, Bulacan.
5

Petition, Annex "A", Rollo, pp. 22-28, at pp. 23-24; CA Rollo, pp. 87-93, at pp. 88-89. Promulgated on July 13, 1998, Regional Trial Court Records, p. 173. Notice of Appeal, dated July 17, 1998, Regional Trial Court Records, p. 175. Docketed as CA-G. R. CR No. 22255. Rollo, pp. 22-28. CA Rollo, pp. 94-116. Resolution, Rollo, pp. 60-61.

10

Petition, filed on April 24, 2000. Rollo, pp. 9-20. On June 14,2000, we required respondent to comment on the petition (Rollo, p. 129). On October 26, 2000, respondent filed its comment (Rollo, pp. 143-156). On December 6, 2000, we gave due course to the petition (Temp. Rollo, pp. 1-2).
11

On the ground that the judge who issued the search warrant did not personally ask searching questions to the applicant and his witnesses (Prudente v. Dayrit, 180 SCRA 69 [1989]; Pendon v. Court of Appeals, 191 SCRA 429 [1990]; Silva v. RTC Negros Oriental, 203 SCRA 140 [1991].
12

Siguan v. Lim, 318 SCRA 725, 734 [1999]; de los Reyes v. Court of Appeals, 313 SCRA 632, 645 [1999]; American Express International, Inc. v. Court of Appeals, 308 SCRA 65, 69 [1999]; Pimentel v. Court of Appeals, 307 SCRA 38, 43 [1999].
13

Sta. Maria v. Court of Appeals, 349 Phil. 275, 282-283 [1998]. Guerrero v. Court of Appeals, 349 Phil. 605, 614 [1998]. See Exhibit "L", Folder of Exhibits, Regional Trial Court Records, p. 6. See Petition, Annex "C", Supplement to the Motion for Reconsideration, Annex "B", Rollo, p. 57. We also checked these data from the records of the Commission on Elections.

14

15

16

17

But the trial court and the Court of Appeals ignored the sworn certification dated August 16, 1999, to the effect that Barangay Tigbe and Barangay Bigte, Norzagaray, Bulacan are two different and distinct barangays.
18

People v. Lazaro, 317 SCRA 435,446 [1999]. Exh. "1", Folder of Exhibits, Regional Trial Court Records, p. 10; See also p. 21.

19

20

See reverse side of Exhibit "1", back of p. 10 and p. 21. Exh. "3-A", Folder of Exhibits, Regional Trial Court Records, p. 14; See also Exh. "1", ibid., p. 21.

21

22

The trial court, by taking judicial notice, ruled that a .45 cal. pistol can not be licensed; The trial court committed two errors here. One, for taking judicial notice of a disputed fact without hearing and receiving evidence thereon (Salamera v. Sandiganbayan, 303 SCRA 217 [1999]). Second, no law prohibits the licensing of a .45 cal pistol; the power to issue license is vested in the discretion of the Chief of Constabulary, now the Chief, Philippine National Police (Rules and Regulations Implementing P. D. No. 1866, Section 2).
23

TSN, November 26, 1996, p. 3. People v. Mendoza, 301 SCRA 66, 82 [1999]. People v. de Vera, Sr., 308 SCRA 75, 100 [1999]. Exh. "1", dorsal side, Folder of Exhibits, Regional Trial Court Records, back of p. 21; see also Annex "5.2", CA Rollo, p. 112. Exh. "3-A", Folder of Exhibits, Regional Trial Court Records, p. 14. Motion for Reconsideration and/or new trial, Annex "5.1", Rollo, pp. 29-51, at p. 46; See also CA Rollo, pp. 94-116, at p. 111. Exh. "3-b", Folder of Exhibits, Regional Trial Court Records, p. 15. See also Exhibit "1-Motion", ibid., p. 21. Pastrano v. Court of Appeals, 346 Phil. 277,284 [1997]. Supra, Note 28.

24

25

26

27

28

29

30

31

32

He is the same P/Sr. Insp. Edwin C. Roque who certified on May 10, 1996, that one Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber, basis of the issuance of a search warrant. Supra, Note 15.
33

Exh. "2", Folder of Exhibits, Regional Trial Court Records, p. II. See also Exhibit "5", ibid., p. 18. Supplement to the motion for reconsideration and/or new trial, Annex "C", CA Rollo, pp. 118-124, at p. 124.

34

35

People v. Castillo, 325 SCRA 613, 620 [2000]; People v. Dorimon, 321 SCRA 43, 48 [1999]; People v. Cerveto, 315 SCRA 611, 624 [1999]; Cadua v. Court of Appeals, 312 SCRA 703, 722 [1999]; People v. Khor, 307 SCRA 295, 311 [1999].
36

People v. Bansil, 304 SCRA 384, 394 [1999]. People v. Khor, supra, Note 35, at p. 310. People v. Cortez, 324 SCRA 335, 344 [2000]. People v. Lubo, 101 Phil. 179 [1957], citing U. S. v. Go Chico, 14 Phil. 128 [1909]; People v. Bayona, 61 Phil. 181 [1935]; People v. Cava, G. R. No. L-9416, August 31, 1956 [unpublished]. People v. Lubo, supra, Note 39. People v. Jubilag, 331 Phil. 897, 910 [1996]. People v. Figueroa, G. R. No.134056, July 6, 2000. TSN, November 26, 1996, pp. 7-9. Decision, Regional Trial Court Records, pp. 147-171, at p. 168. Supra, Note 22. People v. Montilla, 349 Phil. 640, 656 [1998]. Republic v. Sandiganbayan, 325 Phil. 762, 821-822 [1996].

37

38

39

40

41

42

43

44

45

46

47

48

Uy Kheytin v. Villareal, 42 Phil. 886 [1933]. In Roan v. Gonzales, 145 SCRA 687, there was a search warrant but it was declared invalid because of failure to conduct proper examination. The seizure of guns not described in the warrant was held illegal because there was no valid search warrant, and the articles seized were not in plain view but deliberately sought (taken from A Handbook on Arrest, Search and Seizure and Custodial Investigation, by Justice Oscar M. Herrera, 1994 ed., p. 178).
49

People v. Valdez, G. R. No. 129296, September 25, 2000. People v., Doria, 301 SCRA 668 [1999]. Cf. Veroy v. Layaque, 210 SCRA 97 [1992], the seizure of a gun found inside an unlocked drawer was rejected because there was no valid search. Ibid., at p. 716, citing Section 2, Bill of Rights, 1987 Constitution. People v. Valdez, supra, Note 49. People v. Aruta, 351 Phil. 868, 879 [1998].

50

51

52

53

54

233 SCRA 716, 725, 727 [1994]. People v. de la Rosa, 348 Phil. 173, 184-185 [1998], citing People v. Soyang, 110 Phil. 565 [1960]. Supra, Note 50, concurring opinion of Justice Artemio V. Panganiban, pp. 726-727, citing People v. Musa, 217 SCRA 597, 611 [1993]. Rep. Act No. 3846, as amended.

55

56

57

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18661 November 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ALTO, ET AL., defendants-appellants. Office of the Solicitor General Arturo A. Alafriz Assistant Solicitor General Antonio G. Ibarra and Solicitor Raul I. Goco for plaintiff-appellee. Alfonso G. Espinosa, Ricardo Paras and Celso Jamora for defendants-appellants. CASTRO, J.: On December 7, 1956 an indictment for multiple murder (criminal case 4167) and another for frustrated multiple murder (criminal case 4181) were filed with the Court of First Instance of Nueva Ecija. In criminal case 4167, Jose Alto, Bienvenido Almuete, Melencio Gregorio, Melchor de Leon, Melencio Marcos, Pedro Paras and Ismael Dungao were charged with multiple murder, committed, in the language of the information, as follows: That on or about the 15th day of December, 1951, in the Municipality of Quezon, Province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the abovenamed defendants, Jose Alto, alias "Alonso", Bienvenido Almuete alias "Almo", Melencio Gregorio alias "Melencio", Melchor de Leon alias "Commander Melchor", alias "Melchor", Melencio Marcos alias "Commander Rodil", Pedro Paras alias "Golong" and several others whose names and identities are still unknown, all armed members of the HMB Organization, conspiring together and mutually helping one another, with intent to kill, treachery and evident premeditation, night time purposely sought to facilitate the commission of the crime with impunity and in consideration of the reward of P2,000.00 made by the accused Jose Alto, did then and there wilfully, unlawfully, criminally, feloniously and illegally waylay and ambush Mayor Eduardo Joson, Cayetano Tangunan, Pedro Elvinia, Simplicio Siazon, and their other companions while on their way to reinforce the TPs at Barrio Bertese, Quezon, Nueva Ecija, and fire and shoot at said Mayor Eduardo L. Joson and his companions as a result of which, Cayetano Tangunan, Pedro Elvinia and Simplicio Siazon received various fatal and serious gunsho t wounds in different parts of their bodies which caused their instantaneous death. Of the above-named accused only Jose Alto, Bienvenido Almuete, Melencio Marcos, Melencio Gregorio and Ismael Dungao stood trial. The rest were either at large or already dead. In criminal case 4181, Jose Alto, Melchor de Leon, Pedro Paras, Ismael Dungao, Melencio Gregorio and others were charged with multiple frustrated murder. The information recites: That on or about November 12, 1950, in the Municipality of Sto. Domingo, Province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said defendants, Jose Alto alias "Alonso", Melchor de Leon alias "Melchor", John Doe alias "Johnny", Pedro Paras alias "Golong", Ismael Dungao alias "Maeng", Melencio Gregorio alias "Melencio", and several others whose names and identities are still unknown, all armed members of the Huk Organization, conspiring together and mutually helping one another, with intent to kill, evident premeditation and at the instigation of the accused Jose Alto alias "Alonso", who paid P2,000.00 to his co-accused as a reward for the killing of Mayor Eduardo L. Jocson, of Quezon, Nueva Ecija, did then and there wilfully, unlawfully, feloniously, criminal and illegally waylay and ambush said Mayor Eduardo L. Joson while riding in a jeep accompanied by Araceli N. Joson, Consuelo L. Joson, Vicente Bautista, and Tomas N. Joson on their way from Sto. Domingo to Quezon and fire and shoot at said Mayor Eduardo L. Joson and his companions, said accused having performed all the acts of execution which should have produced the crime of multiple murder as a consequence but which nevertheless did not produce it by reason of causes independent of the will of the said accused and as a result of which serious physical injuries were inflicted upon the bodies of Eduardo L. Joson, Araceli N. Joson and Consuelo L. Joson, necessitating their hospitalization for quite sometime. Of the above-named accused only Jose Alto, Ismael Dungao and Melencio Gregorio stood trial. The others were either at large or already dead. After a protracted trial at which the prosecution presented separate evidence for each of the two cases while the defense introduced joint evidence for both cases, the trial court, on May 3, 1961, or almost five years after the filing of the two informations, rendered judgment as follows: WHEREFORE, in Criminal Case No. 4167, the accused Jose Alto, Bienvenido Almuete, Melencio Gregorio, and Melencio Marcos are each sentenced to three reclusion perpetua for the death of Cayetano Tangunan, Pedro Elvina and Simplicio Siazon, and to pay the heirs of each of the said victims P6,000.00 and the costs of the suit. Ismael Dungao is acquitted for lack of evidence. In Criminal Case No. 4181, the accused Jose Alto, Ismael Dungao, and Melencio Gregorio are each sentenced to four (4) indeterminate penalties, each of four years, two months and one day of prision correccional, as minimum, to twelve years five months and eleven days of reclusion temporal, as maximum, to indemnify the offended parties in the total amount of P10,000.00, for the frustrated murder of Eduardo Joson, Consuelo Noriel, Tomas Joson and Vicente Bautista, and to pay the costs of the suit; provided, however, that the maximum penalty to be served by the accused Jose Alto, Melencio Gregorio, Melencio Marcos, and Bienvenido Almuete shall not exceed threefold of the severest penalty and in no case shall it exceed 40 years. The accused shall pay the costs. The accused should be credited with one-half of their preventive imprisonment. From this decision, all the defendants except Bienvenido Almuete, appealed directly and separately to this Court. The appeals of Melencio Gregorio, 1 Melencio Marcos2 and Ismael Dungao3 were subsequently withdrawn by them. We are here therefore concerned solely with the appeal of Jose Alto. The following are the uncontroverted salient facts: (1) In the years 1949, 1950, and 1951 Nueva Ecija was a Huk-infested province. Frequent clashes took place during that period between the dissidents and the temporary police (T.P.) and the "civilian guards" of the various municipalities. In the municipality of Quezon, in particular, the then incumbent Mayor Eduardo L. Joson, the principal complainant in both cases, led a vigorous and unrelenting campaign against the Huks. (2) In the local elections of 1947 and 1951 Eduardo Joson and Jose Alto were the major candidates for the mayoralty of Quezon, Nueva Ecija. Joson won over Alto in both elections. The latter admitted that after the 1947 election he chanced to remark that he had been cheated because "the civilian guards of Mayor Joson had carried away the ballot boxes." However, he never filed any formal protest. (3) On November 12, 1950, at the junction of Sto. Domingo and Quezon, Nueva Ecija, dissidents ambushed Joson who was returning to Quezon in a jeep with an aide and members of his family. Mayor Joson, Vicente Bautista, Consuelo L. Joson, Arcaceli Joson and Tomas Joson sustained serious physical injuries. (4) On December 15, 1951, at Curva, Quezon, the Huks ambushed Mayor Joson and some regular and temporary policemen of Quezon while these were on their way to reinforce the temporary detachment detailed at barrio Bartese. As a result, policemen Cayetano Tangunan, Pedro Alvinia and Simplicio Siazon of Quezon were slain.

The appellant Alto was linked to the two offenses solely on the basis of the price or reward of P2,000 he allegedly had given to the Huks for the liquidation of Mayor Joson. The complete measure of the evidence on record inculpating the appellant as principal inducement is the totality of the declarations of prosecution witnesses Laureano Salvador, Toribio Garcia and Dominador Pineda and a sworn statement of Melencio Marcos, one of the accused. In adjudging the appellant guilty, the trial court almost wholly relied upon the testimony of Laureano Salvador. What is Salvador's story? He testified that he was "in charge" of the Tanggulang Bayan4 in barrio Parukot, Quezon, Nueva Ecija from 1946 to 1952. (In this latter year he surrendered to the authorities and severed his connections with the Huks. In such capacity, he operated under the command of Isaac Francisco who was the supreme leader of the various Tanggulang Bayan units in Quezon and the neighboring localities. At the behest of Francisco, he attended a meeting at the house of Carlos Gabriel around the middle of August, 1950. Present at the meeting, aside from Francisco and Salvador, were commanders Marcial, Melchor and Reyes. Francisco informed them that Jose Alto had offered P2,000 for the liquidation of Mayor Joson, and those present unanimously agreed to the proposal. More than two months later, or more specifically on the day following All Saints' Day (November 2, 1950), Salvador went with Francisco to the house of Jose Alto in the poblacion of Quezon where they conveyed to the latter the acceptance by the Huk commanders of the appellant's proposition. Alto then gave to Francisco the promised P2,000, with the explicit instructions that the money be delivered to commander Marcial and that the ambush of Mayor Joson be effected. Forthwith, the two emissaries left. On the afternoon of the same day they proceeded to Pantok in barrio Parukot, a part of the land owned by Alto, where Francisco delivered the P2,000 to commander Marcial in the presence of commanders Melchor and Reyes and another person whom Salvador could not identify. Francisco informed the Huk commanders about Alto's instructions. The commanders then issued a receipt for P2,000, and swore by raising their hands that, they had received the money. After this occasion, he never again saw Marcial, Melchor and Reyes. He admitted that he did not witness the two ambushes in question. Because the principal foundation of the entire case against the appellant is Salvador's testimony, it behooved us to scrutinize and examine it with painstaking care. Even after three readings of the entire transcript, we must confess that we are unable to shake off nagging doubt as to the veracity of Salvador's declarations. 1. To begin with, his testimony is utterly uncorroborated in its vital points. As far as the record goes and we have repeatedly probed the four corners of the record Salvador was the only eyewitness to the handing by Alto of the amount of P2,000 to Francisco and the subsequent delivery by the latter to Marcial. The two other witnesses, Toribio Garcia and Dominador Pineda, were not privy to the passing of the money from hand to hand. The sworn statement of Melencio Marcos speaks of knowledge supposedly acquired by him after the money had been delivered. On top of this, Francisco, who was allegedly with Salvador when the money was given by Alto is already dead and therefore cannot be cross-examined. This uncorroborated testimony of Salvador is considerably enfeebled by his own admission that he was an accomplice. Although the law does not exclude evidence given by an accomplice, our jurisprudence has consistently enjoined courts, in the appreciation of such evidence, to exercise the greatest degree of caution and circumspection. In People vs. Asinas,5 this Court emphasized "that a defendant in a criminal case cannot be convicted on the evidence of an accomplice only, and to sustain such conviction, there must be other evidence corroborating that of the accomplice which tends to show the guilt of the defendant." In an earlier case, this Court stated that the testimony of an accomplice "must be assayed and weighed with scrupulous care," and that "the corroborating testimony must be strong and convincing." 6 And the proper test to determine whether there is sufficient corroboration of the testimony of an accomplice is to "examine the evidence or evidences of the other witness or witnesses with a view to ascertaining if there be inculpatory evidence evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him."7 2. The intrinsic and basic inverisimilitude of Salvador's testimony is underscored by his repetitious invocation of dead persons like Francisco and Marcial who can never be confronted by the accused. The defense proved the fact of death of Francisco and Marcial by presenting their respective death certificates (exh. 3-A and exh. 3-E, respectively). Salvador himself, in his affidavit, owned that he knew at the time he was testifying in court that Francisco was already dead, as was Carlos Gabriel in whose house the alleged initial meeting took place (exh. C). 3. Not only is the testimony of Salvador uncorroborated in its essential points; it is gravely flawed by a plethora of material contradictions. To mention only a glaring few. (a) During the trial Salvador declared that he and Francisco went to the house of Alto on the day following All Saints' Day (November 2, 1950) in order to convey to the appellant the adherence of the Huk commanders to his proposal and to receive the promised reward. Thus Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Now, sometime in November, 1950, did you have occasion of seeing the accused Jose Alto? I saw him sir. Can you give the precise time and date when you saw him in that month of November, 1950? I could. Please state it. The next day after All Saints' Day of November. What time of the day did you see him? At about 8:00 more or less. Day or night? In the morning. Where? In his house, sir. Were you alone or in company? I was in company. Who was your companion? Isaac Francisco. Were you able to see him that morning, and will you please state to the court what transpired between you and the accused Jose Alto?

A. Q. A. Q. A. Q. A.

We met in his house, sir, and Isaac Francisco and I told Jose Alto about our agreement with the Huks. What was that agreement with the Huks which you told Jose Alto? The agreement we have had was that for Jose Alto to give P2,000 for the ambush of Mayor Joson. After you have conveyed to the accused Jose Alto that agreement of the Huk commanders that you have mentioned, what did the accused Jose Alto say? The answer he made to me and to Isaac Francisco was "If they would agree, I will give P2,000.00," and it was then when he invited us to go upstairs in his house. You stated that the accused Jose Alto gave P2,000.00. To whom did he give the P2,000.00? To Isaac Francisco.

The above declarations contradict his previous statement made at the preliminary investigation to the effect that he and Francisco went to the house of Jose Alto to get the money after only a few days had passed from the time the meeting was allegedly held, which was around the middle of August 1950 or still within the month of August! We quote the pertinent portion of the transcript: T. S. T. S. T. S. T. Anong buan noon ng kayo ay kapulungin ni Isaac Francisco? Buan po ng Agosto taong 1950. Nagpunta ba kayo doun sa bahay ni Carlos Gabriel?. Nagpunta po. Ano and nangyari doon sa bahay ni Carlos Gabriel? Nagpulong po kami nila Isaac Francisco, Commander Melchor, Commander Marcial, Commander Reyes, at saka isa pang hindi ko kilala. Ano ang inyong pinagpulungan?

S. Nagpahayag po si Isaac Francisco na ang ating pagpupulungan ay tungkol po kay Mayor Joson ng magbibigay raw po si Jose Alto ng dalawang libong piso para liquidahin si Mayor Joson. Ang sagot po nila Commander Melchor, Commander Marcial, Commander Reyes ng ayos. T. S. T. S. T. S. T. Pagkatapos noung pulong na iyon ay ano ang nangyari? Umowi na po kame at nagpaliban kami ng ilang araw at nagpunta kami sa bahay ni Jose Alto. Sino ang kasama ninyo? Si Isaac Francisco po. Napunta ba kayo sa bahay ni Jose Alto? Napunta po kami. Ano ang nangyari sa bahay ni Jose Alto?

S. Dinaanan po namin sa lupa at niyaya po kami sa itaas at ng kami po ay nasa itaas ay itinanong ni Isaac Francisco kay Jose Alto na papano ba young ating pinag-usapan. Ang sagot po ni Mr. Jose Alto ay ibibigay ko ang halagang dalawang libong piso, isagawa lamang ang pagtambang kay Mayor Joson. T. S. Naibigay ba noung araw ang halagang dalawang libong piso? Naibigay po. (Preliminary investigation conducted by Judge Ignacio Lustre of the Justice of the Peace Court of Quezon on July 1, 1955.).

(b) In a previous testimony (exh. N) Salvador categorically stated that he did not know the real name of Commander Melchor. At the trial, however, he testified that he knew Melchor because they were "in-laws" (magbilas). It stands to reason that Salvador should have known the real name of Melchor, especially so when both resided in the same community and belonged to the same subversive organization. (c) Salvador declared that after he and Francisco delivered the money to Marcial, at no occasion did he again see Marcial, Reyes and Melchor. This contradicts his previous affirmation that he saw Melchor in December, 1951 when the latter told him about the plot to ambush Mayor Joson at Curva (exh. N). 4. Furthermore, the long continued silence of Salvador for a duration of almost four years before he suddenly volunteered to testify for the prosecution, engenders serious doubt as to his motives and renders his testimony suspect. Of course he tried to justify his long silence by saying that he feared reprisal f rom the Huks. To our mind, this is preposterous for did he in 1952 have any apprehensions about incurring the animosity of his comrades when he deserted them and jumped over to the side of the law and the duly constituted authorities? If indeed he had knowledge of the events, as he professed he had, why did he not make report of them earlier, or in 1952 when he abandoned his arrant ways and retraced his steps to the path of the law? In People vs. Marcos, et al,8 a witness for the prosecution claimed to have been present in the various stages of a conspiracy and to have participated in the commission of the offense. Nevertheless he remained silent for approximately three years. This Court took a dim view of the witness' "long continued silence" and his motives for breaking his silence, saying, in no uncertain terms, that the change of attitude "could have not been due to a desirable impulse to serve the interest of justice and proves, if it proves anything at all, the tardy revival of stultified civic consciousness." 5. Finally, the testimony of Salvador was traversed to his very core not only by the appellant Alto but more importantly by Lucia Vda. de Gabriel, the widow of Carlos Gabriel in whose house the alleged initial meeting in the middle of August, 1950 took place. The transcript speaks for itself. Testimony of Alta:

Q. A. Q. A. Q. A. Q. A. Q. A.

You said you had seen the person of Laureano Salvador this morning in the provincial jail. Was this morning your first time to see him? No, sir. When did you see him before today? The first time when he testified against me. In these cases at bar? Yes, sir. Do you know Commander Marcial? No, sir, I do not know him. Do you know Commander Reyes? No, sir, I do not know him.

Q. According to this Laureano Salvador, he and Isaac Francisco went to see you at your house in Quezon, Nueva Ecija, somewhere in 1950 and during that occasion you delivered P2,000.00 to Isaac Francisco to be delivered to commander Marcial, is that true or not? A. Q. A. Q. A. That is not true. In November, 1950, that is after All Saints' Day where were you? I was at home in Quezon, Nueva Ecija. In your drugstore? Yes, sir.

Q. According to Laureano Salvador testifying before this Honorable Court on May 3, 1957, this Laureano Salvador and Isaac Francisco talked with you in your house at Quezon and the subject matter of your conversation was your agreement with the huks. Is it true you talked with Isaac Francisco and Laureano Salvador on the day after All Saints' Day of November, 1950 at your house in Quezon? A. No, sir, that is not true.

Q. He also stated that there was an agreement between you and the Huks that you would give P2,000.00 for the ambush of Mayor Joson on the same occasion he testified before this Honorable Court on May 3, 1957, also regarding the agreement between you and the Huks that you would give P2,000.00 for the ambush of Mayor Joson? A. There was no such agreement.

The appellant likewise denied knowing Carlos Gabriel and Isaac Francisco. Thus: Q. A. Q. A. Do you know Carlos Gabriel? I do not know him. But do you know Isaac Francisco? Neither I know.

Testimony of Lucia Vda. de Gabriel: Q. A. Q. A. Q. A. Q. A. Q. Do you know Carlos Gabriel? He was my husband, sir. Where is Carlos Gabriel now? He is already dead. Where did he die? In Parukot, sir. When did he die? Long time ago already, about eight years ago, sir. When your husband died about eight years ago where were you residing?

A. Q. A. Q. A.

At Parukot, sir. Do you have a house in Parukot? Yes, sir. In 1950 you had a house in Parukot? Yes, sir.

Q. According to the declaration of Laureano Salvador before this Honorable Court, he declared that in the month of August, 1950, during the night thereof, Isaac Francisco, Carlos Gabriel, Commander Melchor, Commander Marcial, Commander Reyes and one he could not identify in name gathered in your house in Parukot, Quezon, Nueva Ecija, and on that occasion Jose Alto offered to give P2,000.00 and in fact gave P2,000.00 to Isaac Francisco after the meeting in your house in Parukot, Quezon, Nueva Ecija, in 1950, is that correct? A. Q. A. Q. A. Q. A. No, sir. Have your house been the meeting place of the Huks during the period, that year 1950? No, sir. In 1951 to 1953 had there been any meeting of the Huks in your house? No, sir. Had the premises around your house been the meeting place of Huks from 1949 to 1953? No, sir.

Of incalculable import is the fact that Lucia's disavowal of any meeting in her house attended by Francisco, Salvador and Alto was never rebutted by the prosecution. II. The second witness for the prosecution, Toribio Garcia, testified at length on Alto's alleged cabals with the Huks in furtherance of the conspiracy to liquidate Joson. At the outset, it bears emphasis that Garcia does not lay claim to any personal knowledge that Alto gave P2,000 to the Huks, or more particularly to Isaac Francisco, not that the said amount was in fact delivered by the latter to Marcial. Let us examine Garcia's story. Since 1946, so he declared, he had been a member of the Hukbong Mapagpalaya ng Bayan, otherwise known as the HMB. He abandoned this organization in September, 1951 when he surrendered at Camp Murphy to General Duque. In 1950 Ramson was in command of the HMB military forces in Nueva Ecija, Estrada of the 12th field unit which embraced Quezon and Sto. Domingo in its area of operations. Upon instructions of Ramson and Estrada, Garcia used to procure medicines and rice from Alto. In the year 1950 he saw and met Alto thrice: in barrio Osmea around the middle of October, in Pantok (Parukot) toward the end of October, and in Malayok about the end of December. When he met Alto in Osmea, the latter was looking for Estrada in order to inquire why the agreement regarding Joson had not yet been implemented. He told Alto that he would relay the inquiry to Estrada. Before he left, Alto said that the Huks must send for him the moment they were in the vicinity. When he later met Alto in Pantok, the latter was accompanied by Laureano Salvador and Isaac Francisco. Also present at this meeting were Estrada and himself. Alto remarked that "Ding" referring to Joson could already be ambushed because he used to commute between Sto. Domingo and Quezon. Estrada told Alto that although he could no longer direct the ambush because he had been assigned to Laguna, he would nevertheless assign Marcial and Melchor to effect it, and added that money should be given to Marcial. Garcia did not witness the ambush staged on November 12, 1950, although he later learned about it from Marcial. Subsequently, he met Alto in Malayok, toward the end of December, 1950. Alto was then with Paulino Santiago while he (Garcia) was with Estrada. At this meeting Alto remarked that "Ding" could not be ambushed anymore because he was always "ready," and that they should wait a few months. Estrada agreed, adding that a new plan was necessary. 1. We are of the view that Garcia's version is not entitled to credence. Of the array of prosecution witnesses, only Garcia testified on the alleged meetings had by Alto with the Huks concerning the liquidation of Joson. Not even the principal witness, Laureano Salvador, made any advertence to the meetings allegedly had at Osmea, Parukot and Malayok. Garcia was categorical on the presence of Salvador at the meeting between the appellant and Estrada in Parukot. But Salvador never even as much as hinted at this conference, and as a matter of fact he denied having had any conversation with Alto prior to November 2, 1950. The drift of Garcia's declarations is that the conspiracy to liquidate Joson was originally conceived by Estrada and Alto, and that Marcial and Melchor learned of the plot only after the meeting in Parukot had toward the end of October, 1950, at which time Estrada informed Alto that he could not anymore direct the ambush as he had been assigned to Laguna. This belies the asseveration of Salvador that the conspiracy was forged in the middle of August, 1950, when Francisco for the first time relayed to Marcial, Melchor and Reyes the appellant's offer. Salvador testified thus: COURT: Q. The Court understands that you and Isaac Francisco had entered into the agreement with Commanders Reyes and Melchor and two other parties to ambush Mayor Joson for P2,000.00. Is that correct? A. Q. A. Q. A. Yes, sir. When did you enter into that agreement? In the month of August, 1950, sir. What date in August? v More or less about the middle of the month.

The inconsistencies between Garcia's narration and Salvador's story are so patent and so palpably irreconcilable, that this Court is inclined to agree with the contention of the defense that the charges against Alto were fabricated.

2. The improbability of both the story of Salvador and the narration of Garcia is heightened when we consider that they in effect picture Alto as so naive and utterly reckless as to conspire with numerous persons of divergent and heterogeneous backgrounds and persuasions regarding an evil and dangerous mission. It stands to reason that one who plots evil hides in the cloak of secrecy, if not anonymity. The prosecution has projected Alto's image as that of a man who scuttled all precaution and discretion, and not only called and attended meetings with Huk commanders to discuss the alleged conspiracy, and but as well even went to the extent of divulging his design to mere dissident followers. Against this cumulation of facts imputed to Alto is the defense's unembellished recitation of the life of a respected man in society, a pre-war mayor of Quezon, a family man with eight children, all of whom were then studying at the University of Santo Tomas (four in the college of medicine, one in the college of law, one in school of architecture, and two in high school), a progressive businessman who owned a pharmacy, sari-sari store and a gasoline station, and operated a thriving transportation system, "The Angelita Transit." For such a man to risk his entire future and that of his family in one pitch and toss by confederating openly with the Huks, he must be driven by an overriding compelling motive. No such motive appears on record. True it is that Alto was embittered by his defeat to Joson in 1947 and that he made the remark that he had lost because Joson's "civilian guards" ran away with the ballot boxes. But remarks of this nature are ordinary woof and warp of the lives of politicians who must make excuses for their defeats. It could be said, too, that Alto probably did not mean what he said because he did not even a file a formal protest. Furthermore, this remark was made shortly after the elections in 1947 and Alto is charged with conspiring in 1950 to have Joson killed, that is, after a lapse of three years! In the oft-cited case of Daggers vs. Van Dyke,9 New Jersey Vice Chancellor Van Fleet quite aptly stated: Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself - such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony; except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance. (emphasis supplied) 3. Like Salvador, Garcia repeatedly referred to Alto's alleged criminal alliance with persons whom he knew at the time he gave his testimony in court to be already dead, and who could not therefore be cross-examined. The following admissions are revealing: Q. A. Q. A. On that occasion when you were being investigated by Sgt. Malubag, you knew already that Major Estrada was already dead? I already know. You knew also then that Commander Marcial whom you mentioned in this affidavit Exhibit 2-impeachment is also dead? I know it already, sir.

4. Again, like Salvador, Garcia said that he was privy to the conspiracy to liquidate Mayor Joson, but kept silent for more then five years, only to emerge in unexplained suddenness to narrate his tale. 5. Finally, when Garcia testified for the prosecution, he was already a tenant of the principal complainant Joson, who admitted their landlord-tenant relationship after some hesitation: Q. A. Q. Is it not a fact that Toribio Garcia is one of your tenants in your farm at Parukot? No, he is not a tenant. I have no farm in Parukot. Where is your farm?

COURT: Q. A. Q. A. Is he your tenant? No, your Honor. Has he ever been your tenant? Only this year, your Honor.

Obviously Garcia's motives in testifying against Alto are suspect. III. The third witness, Dominador Pineda, implicated Alto with the second ambush staged on December 15, 1951 at Curva. 1. The only relevant declaration of Pineda with respect to the alleged complicity of the appellant is his statement that he saw Alto in his house talking with Commander Rodil (Melencio Marcos) about Mayor Joson. He did not, however, elaborate nor give details of the conversation, although he stated that he overheard Rodil say to Alto that the "scales" (kaliskis) of Joson are of high quality and that he (Alto) must not be impatient. However, on cross-examination, Pineda gravely contradicted himself by admitting that this alleged statement was addressed to him by Rodil. Thus: Q. A. Q. A. Q. Are you sure that, that you did not have any conversation with the companions of Melchor de Leon that night? I was able to talk to Rodil then, sir. What did Rodil or Melencio Marcos tell you? He said that the Mayor is of a high quality (mataas ang kaliskis). That is all you heard from Melencio Marcos?

A. That was the only thing Melencio Marcos told me, sir. 2. Pineda's testimony is impeached by the manifest improbability of his assertions.

First. He testified that the Huks frequently gathered and ate at his house, and that on the night of the ambush at Curva, Rodil and his companions met at his house before proceeding to the ambuscade. However, Pineda admitted that his house was only 300 meters away from the municipal building, and that the temporary police were in constant patrol in that vicinity. In fact on the night he allegedly saw Rodil and Alto talking, he brought his family to his parents' house because he feared that the Huks and the temporary police might meet in armed encounter. It would seem then unusual that the Huks frequently gathered at his house and more unnatural that they made it their precise rendezvous point on the night of the attack at Curva despite its proximity to the municipal building and the patrol activities thereabouts of the temporary police. Second. Despite Pineda's supposed closeness to the Huks, he admitted that on the night of the ambush at Curva, Rodil, before leaving, had him guarded on surveillance by a Huk soldier. Third. Pineda testified that Bertese is about three kilometers distant from his house, but when asked, upon cross-examination, to calculate the time which transpired from the moment the Huks left his house to the time he heard the first volley of shots at Bertese, and also to approximate the time which elapsed from the moment Rodil and his companions left his house to the time they returned for the Huk soldier, he (Pineda) made patently ridiculous estimates: Q. A. Q. A. Q. A. Q. A. IV. The prosecution sought to bolster its case against the appellant by introducing in evidence a sworn statement of Melencio Marcos, a co-accused, made by the latter while he was a detention prisoner in the provincial jail of Nueva Ecija. This sworn statement, to which the trial court accorded inordinate credence, recites that Melencio Marcos was the representative or "kinatawan" of the commander of the FC-12, a military unit of the HMB; that on August 12, 1950 he saw Alto, Apolinario Ocol, Blas Angeles and Isaac Francisco in the house of Carlos Gabriel in barrio Parukot at a meeting attended by himself, Marcial, Melchor, Commander Golong and Telmo; that Alto said that the meeting was called in connection with the liquidation of Mayor Joson as to which he was offering a reward of P2,000; that Alto added that if the Huks wanted they could send someone to get the money from him the next day; that the money was received from Alto the following month (September), but of the amount of P2,000, only P1,800 was delivered by Francisco to Marcial and Melchor before November 10, 1950 because Francisco retained the sum of P200; that subsequently Joson was ambushed at Mambarao, Quezon, Nueva Ecija; that more than a year later, or on December 12, 1951, Marcos again saw Alto, Ocol, Angeles and Francisco at Dulong Bayan in Quezon together with Colonel Aleman, commander Melchor and Golong; that at this meeting Alto, Ocol, Angeles and Francisco suggested that the best way to kill Joson was to attack barrio Bertese and to ambush him at Curva on his way to aid the detachment at Bertese; and that scheme was carried out and on December 15, 1951 Mayor Joson was ambushed at Curva. Is this sworn statement entitled to credence, assuming that it is admissible as against appellant? We do not believe so. 1. We underscore the fact that this sworn statement was unequivocally retracted by Melencio Marcos. But before delving into the whys and wherefores of the said retraction, let us first analyze Marcos' declarations. The impression that immediately comes to the fore is that his story is completely at variance with the already conflicting accounts made by Salvador and Garcia. In fact it contradicts the testimony of Salvador on the matter of the price of P2,000 which Alto allegedly gave to the Huks. Marcos declared that he knew that the money was taken from Alto during the month following their meeting in August, 1950, that is, in September, 1950. His declaration to this effect is as follows: T. Nalaman mo ba kung nakuha iyong kualta kay Jose Alto ni Isaac Francisco? If you smoke a cigarette from the time these people you said ate in your house up to the time the first volley of shots occurred in Bertese how many could you have consumed? Are you referring to the occasion beginning the time when they left? Yes, from the time they left to the first volley of shots? More or less one cigarette. How many cigarettes would you have consumed if you smoked from the time the guard guarded you up to the time they took him away? About after smoking a cigarette. That is the time from the time they left you with a guard up to the time they passed by the guard? Yes, sir.

S. Opo, nakuha po, nuong susunod na buan na iyon pero hindi ko lang matandaan kung anong petsa ng intrego ni Isaac Francisco kay Kumander Marcial. Pero natitiyak ko po na bago dumating and Nobiembre 10, 1950. Whereas, Salvador testified that Francisco and he got the money from Alto on the day following All Saints' Day (November 2, 1950). Marcos also declared that of the P2,000, Francisco delivered to Marcial only P1,800, because Francisco retained P200. Thus: T. Magkano iyong kualtang iniyabot?

S. Ang nakita ko pong iniyabot ni Ronquillo kay Kumander Marcial, Melchor ay pagkakabilang ay P1,800.00 at nuong iniyabot iyong ay sinabi ni Ronquillo na iyon ay P2,000.00 at hiniram lang niya ang P200.00. On the contrary Salvador categorically declared that on the afternoon of the day following All Saints' Day Francisco delivered the P2,000 to Marcial and in fact a receipt for such amount was issued, attesting that they had received the full promised reward of P2,000. 2. Surprisingly, Garcia who testified on the conferences allegedly attended by Alto in Osmea, Parukot and Malayok never mentioned the presence of Marcos, and Marcos himself did not mention the presence of Garcia in any of the said conferences. Neither did Salvador mention the presence of Marcos in the said conclaves. And although they were unanimous that Francisco, Estrada and Marcial were present at the various meetings which they attended, the cold undeniable fact is that all these Huk leaders are dead and could not be confronted by the appellant. 3. Moreover, the statement of Marcos deserves no credit, not only because it was recanted, but also because it was given upon the repeated indictments of Joson while Marcos was a detention prisoner in the provincial jail of Nueva Ecija. The following declarations of Marcos during the trial are especially significant: Q. Will you please tell us why you signed this Exhibit E for the prosecution, and according to you have not seen Jose Alto in the month of August, 1950, in the house of Carlos Gabriel pertaining whom you stated a while ago you did not know that fellow? A. The reasons why I signed that document, sir are: first, because I was intimidated by the policemen of Mr. Joson; second, because Mayor Joson promised me that he would help me in my two other cases that I have besides these ones; and third, that he would procure my release by the filing of a bond. Q. Any other reason for your signing this document Exhibit E?

A. Q.

Yes sir, there are some more. Will you please tell us?

A. Other reasons for my having signed the said document was that Mayor Joson together with Jose Corpuz promised that after I would be released upon the filing of a bond, I would live in any place in Quezon, Nueva Ecija, and that he would lend me three hectares of land which I could farm for my own benefit and that the produce will be exclusively mine until the cases are finished. Q. Did you know that when you signed this Exhibit E that you were declaring against Jose Alto, Ismael Dungao, and Melencio Gregorio in this case?

A. It was only against Jose Alto that I knew that I was testifying, sir, but with respect to Ismael Dungao and Melencio Gregorio and Bienvenido Almuete I did not know that I was testifying against them. Q. A. Q. A. Had you talked about Jose Alto with Mayor Joson concerning this Exhibit E, the statement of yours? Yes, sir. What did he tell you about Alto? He told me to sign that document in order to send to jail Jose Alto after which he would do me every favor if he would succeed.

Verily, Marcos executed the said sworn statement, not to uphold public interest, but to obtain concessions from the authorities. In People vs. Capadocia,10 this Court in debunking the credibility of a vital prosecution witness, observed that. The inherent weakness, from the objective viewpoint, of the evidence given by Ternura is compounded by the existence of subjective reasons for him to implicate appellant. He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. The testimony of Marcos regarding his reasons for making the sworn statement was corroborated by Bartolome Bernardo whose pertinent testimony is summarized by the trial court in its decision, as follows: Sometime during the middle of October, 1954, Mayor Joson went to the house of Bartolome Bernardo and requested the latter to help Mayor Joson by testifying in his favor, and Mayor Joson promised that he would take care of the cases of Melencio Marcos and secure his release on bail. Mayor Joson and Bernardo went to the provincial jail where Melencio Marcos was and is still presently confined, and Bernardo informed him of the wishes of Mayor Joson. Melencio Marcos refused to testify in favor of Mayor Joson because, according to him, he did not know anything about the matter and that was the same answer that he gave to Mayor Joson when the latter talked with him. Mayor Joson and Bartolome Bernardo again returned to the provincial jail about the end of October with the same request and with the same promises, but again Melencio Marcos refused. It must be noted that in the original informations for multiple frustrated murder (criminal case 3672) and multiple murder (criminal case 3671) filed on February 10, 1955, which were subsequently provisionally dismissed11 for insufficiency of evidence, Melencio Marcos, Melencio Gregorio and Bienvenido Almuete were listed as witnesses for the prosecution. It was only after the retractions of Gregorio and Almuete and the desistance of Marcos from testifying for the prosecution that these three were included as defendants in the informations subject of the present appeal. When the threat or promise was made by, or in the presence of, a person in authority, who has, or is supposed by the accused to have power or authority to fulfill the threat or promise, the confession of the accused will be presumed inadmissible.12 A confession made under the influence of threat or promise of reward or leniency is inadmissible. 13 It is thus that the sworn statement of Marcos does not deserve a modicum of credence. V. In according credit to the prosecution witnesses, the trial court observed that "these witnesses for the prosecution had demonstrated a fair knowledge of the Huk organization and the functions of each of the branches thereof. It is not denied for example, that in any given section or command the military branch could not do anything without consulting the civilian branch of the organization." But it is precisely because of their intimate knowledge of the organizational set-up and operations of the Huk organization that any fabricated charge against the appellant could be given the semblance of verity. It is also obvious that these confessed Huks would with alacrity ally with the authorities just to purchase their security, knowing that the said authorities could at will revive charges against them. As a salutary proposition, this Court usually desists from disturbing the conclusions of the trial court on the credibility of witnesses, in deference to the rule that the lower court, having seen and heard the witnesses and observed their demeanor and manner of testifying, is in a better position to appreciate the evidence. 14 But this doctrine must bow to the superior and immutable rule that the guilt of the accused must be proved beyond a reasonable doubt, because the law presumes that a defendant is innocent, and this presumption must prevail unless overturned by competent and credible proof. We find the record wanting of competent and credible proof to sustain a moral certainty as to the guilt of the appellant. Viewing the record in its entirety, we are not prepared to say that the evidence adduced precludes the possibility that the charges against Alto were politically motivated and contrived. Nor is the evidence incompatible with the suggested probability that the ambushes in question were integral parts of a determined campaign by the Huks to eliminate Mayor Joson who was an avowed mortal foe -- of which campaign Alto may have been completely unaware, or if he was aware thereof he had no complicity therein. ACCORDINGLY, the appellant Jose Alto is hereby acquitted, with costs de officio. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando and Capistrano, JJ., concur.

Footnotes
1

Resolution of March 6, 1962. Resolution of June 27, 1966. Resolution of October 7, 1966.

Civilian unit of the HMB or the Huk Organization. 53 Phil. 59; see also People vs. Dizon and Dizon, 76 Phil. 265; People vs. De Otero, 51 Phil. 203. U.S. vs. Remigio, 37 Phil. 599, 610-611. See also People vs. Lanas, L-5086, March 25, 1953. Weldon vs. State, 16 Tex. App. 400, cited in People vs. and Bagos and Bagos, L-6808, L-6809 and L-6810, October 29, 1954. 70 Phil. 468. 37 N.J. Eg. 130, 132; see also People vs. Dino, 46 Phil. 396; U.S. vs. Sta. Cruz, 1 Phil. 726.. L-5796, August 29, 1966. Order of April 29, 1955 of the CFI of Nueva Ecija. Early vs. Com., 86 Va. 921, 927, 928, 11 S.E. 795; Searcy vs. State, 28 Tex. App. 513, 14 S.W. 782. See U.S. vs. Caballeros, 4 Phil. 350; U.S. vs. Lamadrid, 27 Phil. 76; U.S. vs. Jose, 6 Phil. 211. People vs. Dayday, L-20806-07, Aug. 14, 1965; People vs. Pasiona, L-18295, April 30, 1966.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 75028 November 8, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PIOQUINTO DE JOYA y CRUZ, defendant-appellant. The Solicitor General for plaintiff-appellee. Rodolfo P. Liwanag for accused-appellant.

FELICIANO, J.:p In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was charged before the Regional Trial Court, 3rd Judicial Region, Branch 14, Malolos, Bulacan with the crime of robbery with homicide committed as follows: That on or about the 31st day of January, 1978, in the municipality of Baliuag, province of Bulacan, Philippines and within the jurisdiction of this Honorable Court, the said accused Pioquinto de Joya y Cruz, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and without the knowledge and consent of the owner and, by means of violence and intimidation, take, carry and cart away two (2) rings, one (1) necklace, one (1) piece of earring, belonging to Arnedo Valencia y Angeles and Eulalia Diamse Vda. de Salac, to their damage and prejudice in the sum of FIVE HUNDRED FIFTY PESOS (P550.00); and that on the occasion of the said robbery and for the purpose of enabling him to take the said properties, the accused did then and there wilfully, unlawfully and feloniously with treachery, evident premeditation and great advantage of superior strength, with intent to kill, attack, assault and use personal violence upon the person of Eulalia Diamse Vda. de Salac by stabbing and hitting the latter on her neck and other parts of her body with pointed instrument causing injuries which directly caused the death of the said Eulalia Diamse Vda. de Salac. That in the commission of the offense, the following aggravating circumstances were present (1) abuse of superior strength; (2) committed in the dwelling of the offended party; (3) disregard of age and sex; (4) abuse of confidence.

Contrary to law.

At arraignment, appellant De Joya pleaded not guilty. After trial, the court a quo rendered a decision dated 16 May 1986 convicting De Joya of the crime charged. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable doubt of the crime of Robbery with Homicide, committed with the aggravating circumstances of: abuse of superior strength, old age, disregard of sex the victim a woman 88 years old, the crime was committed in the dwelling of the victim. The accused being 72 years old death penalty cannot be imposed against him as provided in Article 47 of the Revised Penal Code. The Court therefore, sentences the accused to LIFE IMPRISONMENT; to indemnify the heirs of the victim in the amount of P20,000.00 and to pay damages in the amount of P550.00. The bond of the accused is ordered cancelled and the accused to be confined immediately in the National Penitentiary pending review of his case by the Supreme Court. The Clerk of Court is ordered to immediately forward the record of this case to the Supreme Court for review.

SO ORDERED. 2 In this appeal, appellant raises a number of issues all of which, however, amount to one basic assertion: that the lower court erred in concluding that appellant was guilty beyond reasonable doubt of the crime charged. The facts have been summarized in the brief of the Solicitor General in the following manner: The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their ten (10) year old son Alvin Valencia and Herminia Valencia's 88-year old mother, Eulalia Diamse, are residents of Balagtas St., Baliuag, Bulacan. (TSN, June 11, 1981, p. 2). Both spouses are teachers by profession. Arnedo Valencia teaches at the Tiaong Elementary School at Barrio Tiaong, Baliuag, Bulacan whereas Herminia Valencia teaches in an intermediate school at Baliuag, Bulacan. (TSN, March 11, 1980, p. 7). In the afternoon of January 31, 1978, Herminia Salac-Valencia left for school to teach. Her mother Eulalia Diamse was then [sitting] at their sofa watching the television set. (TSN, October 12, 1978, p. 3). Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the afternoon, his classes were dismissed and he proceeded home. (TSN, March 11, 1980, p. 8). At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's neighbor by the name of Gloria Capulong, together with a friend, went out of the former's house to visit a friend. While at her yard, Gloria Capulong looked back to the direction of the Valencia's house. She noticed appellant Pioquinto de Joya standing and holding a bicycle at the yard of the Valencia's. (TSN, June 11, 1981, pp. 2-4). When Alvin reached home, he saw his grandmother Eulalia Diamse lying down prostrate and drenched with her own blood. He immediately threw his bag and ran towards her. He then held her hands and asked her: "Apo, Apo, what happened?". (TSN, March 11, 1980, p. 10). . . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After saying these words, she let go of Alvin's hand and passed away. (TSN, Ibid., pp. 14 and 17). Alvin then called for his Nana Edeng and told her to see his lola because she was drenched with her own blood. His Nana Edeng told him to immediately see his mother Herminia SalacValencia to inform her of what happened. (TSN, Id). Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is drenched in her own blood." (TSN, March 11, 1980, p. 20). Herminia immediately ran outside the school, flagged down a tricycle and went home. Alvin followed, riding his bicycle (TSN, Id., p. 21). When she reached their house, she found her mother lying prostrate in her own blood at their sala in front of the television. Her mother's hands were stretched open and her feet were wide apart. Blood was oozing out of her mother's ears. She then embraced her mother and placed her on the sofa. She asked Alvin and the tricycle driver to call Dr. Delfin Tolentino. (TSN, October 12,1978, pp. 25-26). Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the body of Eulalia Diamse. Said doctor declared that said Eulalia Diamse had a heart attack which caused her death. When asked by Herminia Valencia why her mother's ears were punctured, no reply was given by said doctor. Herminia requested for a death certificate, but Dr. Tolentino did not issue one and instead immediately left. (TSN, Ibid., pp. 27-29). Herminia found out that the two (2) gold rings worn by her mother were missing. The right earring of her mother was likewise missing. All of these were valued [at] P300.00 (TSN, Id., p. 15). That same afternoon, Herminia saw the room of the groundfloor ransacked. The contents of the wardrobe closet (aparador) were taken out. Its secret compartment/box was missing. And the lock of the aparador was destroyed. (TSN, October 12, 1978, pp. 15-17). When she went upstairs after putting her mother on a bed at the ground floor, she found the two (2) rooms thereat in disarray. She then caused the rooms and things photographed by a certain Ricardo Ileto (Exhibits "A" to "A-11"; TSN, October 12, 1978, p. 17). Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to issue a death certificate so that her mother could be embalmed. (TSN, Id., pp. 33-34). On the same night, Herminia found a beach walk step-in (Exhibit "B") by the side of the cabinet near the door of their room downstairs, more or less one meter from where the victim was lying prostrate. (TSN, October 12,1978, pp. 24-25). Herminia was able to recognize the said step-in because of its color and size, as the other half of the pair she bought for her husband Arnedo but which she gave to Socorro de Joya, the wife of herein appellant, before Christmas of 1977 when she saw the old and wornout pair of slippers of the latter. (TSN, Ibid.). Appellant Pioquinto de Joya visited the wake only once. During the second day of the four-day wake, Herminia saw herein appellant Pioquinto de Joya enter the kitchen and peep under the cabinet of the (Valencia's) house. (TSN, Id.). On February 3, 1978, a post-mortem examination was conducted by Dr. Romulo Madrid, a medico-legal officer of the National Bureau of Investigation. Per examination, the cause of the death arrived by Dr. Madrid was "shock, secondary to punctured wound neck" (Exhibit "D-1") situated at the right side of the neck, just below the right ear wherein it went out thru and thru, opposite, almost in the same location, from one side of the neck to the opposite side. (Exhibit "D-2"). In its decision, the trial court became quite clear as to the factors which led to the judgment of conviction against appellant. These factors, as set out in the decision of the trial court, were the following: In the case at bar, the prosecution relied heavily on the circumstances surrounding the death of the victim as testified to by the witnesses and proven during the trial, also the dying statement of the deceased, which are: Herminia testified that two weeks before the incident the accused and the deceased quarreled over a bicycle which the former took from their house without the consent of the latter; that Exhibit "B" (step-in beach walk type) which was found near the cabinet one meter away from the body of the victim was identified by Herminia as the step-in that she gave to the wife of the accused and which she saw accused wearing on January 29, 1978 when she visited them in their house; the testimony of Gloria Capulong that she saw the accused in the afternoon of January 31, 1978 at around 3:00 p.m. in the yard of Herminia standing and holding a bicycle; the accused admitted, although his wife is the sister of the husband of Herminia he never visited the deceased during the four days that it was lying in state without any justifiable reason and contrary to the ordinary experience of man; last but most convincing is the dying statement of the deceased when her grandson Alvin asked her "Apo, Apo, what happened?" and she answered, "Si Paki", then she expired. When Alvin was asked during his testimony who is this Paki, he identified the accused. The accused during his testimony never denied that he is called Paki. The foregoing circumstances established during the trial plus the dying statement of the deceased leads only to one fair and reasonable conclusion, that the accused is the author of the crime.

Analyzing the above portion of the decision, the elements taken into account by the court in convicting appellant De Joya of robbery with homicide may be listed as follows: 1. The dying statement made by the deceased victim to her grandson Alvin Valencia a 10-year old boy: "Si Paqui"; 2. The quarrel, which, according to Herminia Valencia, daughter of the deceased victim, took place two weeks before the robbery and homicide, between the appellant and the deceased over the use of a bicycle which appellant allegedly took from the Valencia's house without the consent of the victim; 3. The rubber slipper, one of a pair, ("step-in beach walk type") which according to Herminia, she found near a cabinet in their house one (1) meter away from the body of the victim, and which Herminia identified as one of the pair that she had given to the wife of the accused the previous Christmas Season; 4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the afternoon of 31 January 1978 in the yard of the Valencias, standing and holding a bicycle and doing nothing; 5. The statement of appellant that he did not visit the deceased during the four-day wake. We turn first to the dying statement made by the victim when the 10-year old Alvin Valencia asked his grandmother who was sprawled on the floor of their house drenched with blood: "Apo, Apo, what happened?" The deceased victim said: "Si Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of appellant Pioquinto de Joya. It must be noted at once, however, that the words "Si Paqui" do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b) the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designed to designate the object of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?" It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's classic work:

3 The

The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely apart of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell.

4 (Emphasis

supplied)

The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received.

It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the deceased had intended to name the person who had thrust some sharp instrument through and through her neck just below her ears. But Eulalia herself did not say so and we cannot speculate what the rest of her communication might have been had death not interrupted her. We are unable to regard the dying statement as a dying declaration naming the appellant as the doer of the bloody deed. The other elements taken into account by the trial court are purely circumstantial in nature. When these circumstances are examined one by one, none of them can be said to lead clearly and necessarily to the conclusion that appellant had robbed and killed the deceased Eulalia Diamse. The quarrel over the use of the bicycle which was supposed to have taken place two weeks before Eulalia's death does not, in our view, constitute adequate proof of a motive capable of moving a person to slay another in such a violent and gory manner. Failure to prove a credible motive where no identification was shown at all, certainly weakens the case of the prosecution. The testimony of Herminia Valencia about the single slipper that she found near or under the cabinet in the living room where Eulalia Diamse was slain, can scarcely be regarded as conclusive evidence that such slipper was indeed one of the very same pair of slippers that she had given to appellant's wife, who was also the sister of Herminia's husband. Rubber or beach, walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife. And even if conclusive identification of the slippers had been offered, and it is assumed that appellant (rather than his wife) had worn those very slippers on that fatal afternoon, still the presence of that singular slipper did not clearly and directly connect the appellant to the robbery or the slaying. At most, under that assumption, the presence of that slipper in the house of the Valencias showed that the accused had gone to the house of the Valencias and there mislaid that slipper. We note in this connection, that appellant himself had testified that he did enter the house of the Valencias that afternoon, but after the killing of Eulalia Diamse had been perpetrated, and there had found many persons in the house viewing the body. The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a bicycle and doing nothing is, by itself, not proof of any act or circumstance that would show that appellant had perpetrated the slaying or the robbery. The behaviour of the appellant, as testified to by Gloria Capulong, offers no basis for supposing that appellant, himself 72 years of age, had just slain an 88-year old woman by skewering her through the neck and had ransacked both floors of the Valencia house. Appellant's failure to present himself to pay his respects to the deceased or her immediate family during the four-day wake, does not give rise to any inference that appellant was the slayer of Eulalia Diamse. Appellant had explained that he had been busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted, had dropped in the Valencias' house in the afternoon Eulalia Diamse was killed and had viewed the body (before it was lying in state) along with several other persons. His reluctance or inability to participate in the formal wake is not necessarily a sign of guilt. We are unable to agree with the trial judge that such behaviour was "contrary to the ordinary experience of man" although respect for the dead is a common cultural trait of the Filipinos. In the Solicitor-General's brief, it is casually contended that the circumstantial evidence against appellant included: "the attempt on the part of appellant Pioquinto de Joya through his counsel to settle the case amicably." 6 We have examined the testimony that the Solicitor General pointed to in referring to a supposed attempt to settle the criminal charge amicably. That testimony, given by Arnedo Valencia, son-in-law of the deceased Eulalia Diamse and brother-in-law of appellant Pioquinto de Joya, was as follows: Q You also testified that before the release of the accused from the municipal jail, you had a conversation with him, is that right? A Yes, air. Q What was this conversation about? A He called for me and took me to his counsel Atty. Aguilar and according to him if only Atty. Aguilar can talk with me, everything will be settled. Q Have you seen and talked to this Atty. Aguilar?

A Yes, I went with him to Manila, sir. Q When was this? A The time he was fetched out of jail. Q You are referring to the municipal jail? A Yes, sir. Q What did you and Atty. Aguilar discuss when you finally was able to see Atty. Aguilar? A When I went there, I was introduced to Atty. Aguilar and Atty. Aguilar asked me as to what I liked to happen. Q What did you say? A I said if it will be settled, well and good. Q Anything else that transpired? A He even told me if I might be able to convince both my wife and her sisters. Q Did he tell you he can settle this? A He was very certain that he can settle this, the very reason why he told me because I was very certain as to what happened. Q Was the accused Pioquinto de Joya present when you were discussing this with his lawyer? A Yes, sir Q He heard what his, lawyer was telling you? A It is possible because he is only one or two meters distance away. Q Did the accused say anything? A None, sir. (Emphasis supplied) We find the above testimony quite impalpable and inconclusive so far as a supposed attempt of appellant, through his counsel, to offer a compromise on the criminal charge is concerned. We are aware of the provision of Section 24 of Rule 130 of the Rules of Court which provides that Sec. 24. Offer to compromise not admission. An offer of compromise is not an admission that anything is due, and is not admissible in evidence against the person making the offer. However, in criminal cases which are not allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. (Emphasis supplied) We do not, however, feel justified in concluding from the above testimony from a member of the (extended) family of the deceased victim that "an offer of compromise" had been made "by the accused" nor that "an implied admission of guilt" on the part of the appellant may be reasonably inferred in the instant case. The trial court itself made no mention of any attempt on the part of appellant to settle the criminal case amicably through the defense counsel; we must assume that the trial court either did not believe that appellant had tried to compromise the criminal case or considered that appellant could not fairly be deemed to have impliedly admitted that he had indeed robbed and killed Eulalia Diamse. A much higher level of explicitness and specific detail is necessary to justify a conclusion that an accused had impliedly admitted his guilt of a crime as serious as robbery with homicide. The totality of the case made out against appellant De Joya thus consists of an incomplete, aborted, dying declaration and a number of circumstances which, singly or collectively, do not necessarily give rise to a compelling inference that appellant had indeed robbed and slain Eulalia Diamse. We consider, after prolonged scrutiny, that the sum total of the evidence in the instant case is insufficient to induce that moral certainty of guilt which characterizes proof beyond reasonable doubt. The conscience of the Court remains uneasy and unsettled after considering the nature and speculative character of the evidence supporting the judgment of conviction. The Court must, accordingly, hold as it hereby holds that appellant's guilt of the crime of robbery and homicide was not shown beyond reasonable doubt. ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby REVERSED and appellant Pioquinto de Joya is hereby ACQUITTED on grounds of reasonable doubt. It is so ordered. Narvasa, CJ., Cruz, Grio-Aquino and Medialdea, JJ., concur

# Footnotes 1 Rollo, p. 42. 2 Rollo, p. 48. 3 Daughters v. Commonwealth of Kentucky, 94 A.L.R., 673 (1934); State v. Patterson, 45 Vt. 308 (1873). See also Connor v. State, 171 A. 2d 699 (1961). 4 Wigmore on Evidence, Vol. V, Section 1448, p. 251 (1940).

5 See cases collected in Annotation: "Admissibility of dying declarations as affected by their incompleteness," 94 A.L.R. 679 (1934). 6 Appellee's Brief, p. 24. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 81561 January 18, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. ANDRE MARTI, accused-appellant. The Solicitor General for plaintiff-appellee. Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:p This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act. The facts as summarized in the brief of the prosecution are as follows: On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6) Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8). Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied). Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987). He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987). Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied). The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987). The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987). Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134). Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act. After trial, the court a quo rendered the assailed decision. In this appeal, accused/appellant assigns the following errors, to wit: THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS. THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55) 1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III). Sections 2 and 3, Article III of the Constitution provide: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III) was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction. Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution. In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990). It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the medium of its law enforcers or other authorized government agencies. On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State? We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]: 1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . . . . . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied). In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that: (t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served. The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics. And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957). Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said: The search of which appellant complains, however, was made by a private citizen the owner of a motel in which appellant stayed overnight and in which he left behind a travel case

complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities.
containing the evidence*** The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged. Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case which resulted in his conviction. The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or the lack of it. First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168). It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant. Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]). In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the constitutional meaning of the term. That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows: First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied) The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62). The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else. Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution. Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication. 2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights under the constitution while under custodial investigation were not observed. Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus: Fiscal Formoso: You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together with the girl? WITNESS: Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240) The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10). Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]). Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93). Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise. Premises considered, we see no error committed by the trial court in rendering the assailed judgment. WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs. SO ORDERED. Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes * Penned by Judge Romeo J. Callejo. ** It reads: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." *** Forged checks Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 84951 November 14, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SUSANA NAPAT-A y MACABIO, accused-appellant. The Office of the Solicitor General for plaintiff-appellee. Jimmy R. Pablito for accused-appellant.

GRIO-AQUINO, J.: The accused-appellant, Susana Napat-a, was convicted of drug-pushing by the Regional Trial Court, Branch VI, Baguio City, and sentenced "to LIFE IMPRISONMENT and to pay a fine of TWENTY THOUSAND (P20,000) PESOS without subsidiary imprisonment in case of insolvency and to pay the costs." On February 3, 1985, the Narcotics Regional Unit in Baguio City received information that a certain Susana Napat-a was looking for a buyer of marijuana leaves. Acting on this report, Captain Emmanuel Manzano formed a group composed of CIC Leo Quevedo, A2C Serafin Artizona and Pat. Maximiano Peralta, to conduct a buy-bust operation. The group proceeded to the public market on Magsaysay Avenue. There, the informer introduced to the appellant his companion, CIC Leo Quevedo, as an interested buyer of marijuana. Pat. Peralta, who was then posted at a strategic distance, heard Quevedo order three (3) kilos of dried marijuana leaves for the price of P800 per kilo set by Napat-a. Having closed the deal, the appellant, accompanied by Quevedo and the informer, rode on a jeep to Brookside, Baguio City, Artizona and Peralta took a taxi and followed them. Upon reaching Brookside, Peralta and Artizona posted themselves near a store. They observed Quevedo and the informer standing at the junction of lower and upper Brookside waiting for Susana Napat-a The latter soon reappeared carrying a brown carton box which she handed to Quevedo who thereupon made the pre-arranged signal. On seeing Quevedo's signal, Peralta and Artizona rushed to the scene. CIC Quevedo held Susana by the arm and placed her under arrest. The three narcotics agents brought her to their office for investigation. Quevedo, Artizona and Peralta, executed a joint affidavit (Exh. H) narrating the circumstances leading to the arrest of the appellant. The contents of the brown carton box were referred to Lt. Carlos Figueroa, a forensic chemist of the PC Crime Laboratory in Camp Bado Dangwa, for examination. In his Chemistry Report No. D-019-85 (Exh. G), Lt. Figueroa affirmed that a qualitative examination of the specimens taken from the brown carton box showed them to be marijuana.

In her defense, the appellant claimed that she was a vegetable vendor in the market; that on February 3, 1985 at about 10:30 A.M. she went home to Brookside to cook food for her children. On her way back to the city market, she met Naty Doguiwen, who was also a vegetable vendor. Naty Doguiwen was holding a small box. While they were waiting for a ride, a man approached Naty. The two talked (which appellant could not hear), then Naty handed to the man the box she was holding. Suddenly two men approached Naty who speedily ran way. The two men gave chase but were unable to catch her. To Susana's surprise, the two men came back and arrested her. She was brought to headquarters where she was investigated. She submitted her counteraffidavit to the City Fiscal (Exh. 1). On cross-examination, appellant admitted she signed Exhibit "I" for the prosecution which shows that her rights were read to her before the investigation. She was informed of her right to remain silent and to have counsel. All this took place on February 3, 1985 in the presence of her counsel, Atty. Ricardo Tangalin, of the IBP Legal Aid Office. During the investigation, she signed a receipt for the property that was seized from her and marked as Exhibit "J". She admitted that the brown carton box containing four bundles of dried marijuana leaves weighing about three (3) kilos, were seized from her at M. Roxas, Brookside, Baguio City on February 3, 1985, at 2:30 P.M. During the custodial investigation, she waived her rights under Article 125 of the Revised Penal Code, so the investigation could continue (Exh. K). In this appeal, appellant impugns the receipt (Exh. J) she signed. She alleges that the receipt is inadmissible as evidence against her because her constitutional right against self-incrimination was violated when she was made to sign it without being informed of her rights to counsel and to remain silent. This contention has no merit. Appellant admitted at the trial that she was assisted by counsel when she signed Exhibit "J" (t.s.n. March 7, 1988, p. 17). She also signed the Investigation Report dated February 3, 1985 (Exh. I) which states that during the custodial investigation, she was informed of her right to remain silent and to counsel, and that she was assisted by Atty. Ricardo Tangalin of the IBP Legal Aid Office (t.s.n. March 7, 1988, p. 15). Appellant questions the non-presentation of the poseur-buyer (Quevedo) who died before the trial, and the informer, as witnesses at the trial. But, as the trial court pointed out, the death of Quevedo did not destroy the case of the prosecution, for the sale and actual delivery of the marijuana by appellant to Quevedo were witnessed by Pat. Peralta and A2C Artizona, who testified at the trial (t.s.n. Nov. 7, 1986, pp. 3-4). In support of her denial, appellant cited the testimony of A2C Artizona that he did not see her handing the brown carton box to Quevedo (t.s.n. August 27, 1987, p. 9). However, Peralta testified that he saw her give the illegal package to the poseur-buyer (t.s.n. November 7, 1 986, p. 5). The positive Identification of the accused as the seller of the marijuana prevails over her denials. Her defense that she was framed up by the NARCOM team is the usual story of drug pushers or sellers, which does not impress us (People vs. Agapito, 154 SCRA 694). The law enforcers are presumed to have performed their duties regularly in the absence of proof to the contrary (People vs. Natipravat, 145 SCRA 483; People vs. Asio, G.R. No. 84960, September 1, 1989). Appellant's contention that the trial court erred in convicting her in view of the prosecution's failure to present to the Court the brown carton box (Exh. B) and its contents (dried marijuana leaves) (Exhs. C, D, E and F) is not well taken. Carlos V. Figueroa, Forensic Chemist of the PC Crime Laboratory, testified that the box and its contents were presented, Identified and marked as exhibits in court (t.s.n. November 6, 1985, pp. 3-8). The subsequent loss of these exhibits did not affect the case for the trial court had described the evidence in the records (t.s.n. April 13, 1988, p. 2). In People vs. Mate, 103 SCRA 484, we ruled that "(e)ven without the exhibits which have been incorporated into the records of the case, the prosecution can still establish the case because the witnesses properly Identified those exhibits and their testimonies are recorded." Furthermore, in this case, appellant's counsel had cross- examined the prosecution witnesses who testified on those exhibits (t.s.n. November 6, 1985, pp. 8-9). WHEREFORE, we affirm the decision of the trial court finding appellant Susana Napta-a guilty beyond reasonable doubt of having violated Section 21(b), Article IV, in relation to Section 4, Article 11 of R.A. No. 6425, as amended, sentencing her to suffer the penalty of reclusion perpetua, and to pay a fine of Twenty Thousand Pesos (P20,000) without subsidiary imprisonment in case of insolvency. The effects of the crime are forfeited in favor of the State and referred to the Dangerous Drugs Board for immediate destruction. Costs against the appellant. SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 132081 November 26, 2002

JOEL M. SANVICENTE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: Petitioner was charged with homicide for the killing of one Dennis Wong y Chua. On June 11, 1995, at around 5:30 p.m., petitioner fatally shot the victim outside the Far East Bank along Katipunan Avenue, Loyola Heights, Quezon City after the latter allegedly attempted to rob him of a large amount of cash which he had just withdrawn from the automatic teller machine.
1

Responding policemen found the lifeless body of the victim at the parking space in front of the Far East Bank and Trust Company Branch along Katipunan Road, Loyola Heights, Quezon City. Recovered at the scene were five empty caliber .45 shells, two live caliber .45 bullets and an ATM card in the name of Violeta Sanvicente.
2

On June 13, 1995, police authorities located petitioners car in Barrio Malapit, San Isidro, Nueva Ecija and took custody thereof. Petitioners counsel, Atty. Leonardo A. Valmonte, turned over to Police Station 9 petitioners .45 caliber Mark IV pistol bearing Serial No. 5504095. He also wrote a letter addressed to P/Major Antonio Diaz, Station Commander of PNP Station 9, CPDC, Anonas Road, Quezon City which reads as follows: This is in connection with the alleged death of one Dennis Wong that occurred in Katipunan Ave., Q.C., in the afternoon of June 11, 1995. According to my client, Joel Sanvicente, on said date, place and hour above he just withdrew from the Far East Bank and Trust Co., Katipunan branch a large amount of cash. On his way out of the bank, said victim immediately attacked him to grab the money he has just withdrew (sic). My said client pulled out his gun (duly licensed with Permit to Carry) and fired a warning shot upwards. Still the deceased continued his attack and grabbed his gun. After a brief struggle, my client was forced to shoot the deceased in the defense of his person and money. My client will submit a formal statement during the proper preliminary investigation, if needed. On June 13, 1995, my clients car (Mercedes Benz with plate no. TFU 736) was taken by your operatives led by Capt. Alejandro Casanova and [is] now in your custody. In view of the untoward incident, my client suffered serious anxiety and depression and was advised to undergo medical treatment and confinement at the Delos Santos Hospital in Rodriguez Ave., Q. C. My client would have no objection if you assigned police escort/guard under your supervision pending his confinement. For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client.
3

At his arraignment, petitioner pleaded not guilty.

During the trial, the prosecution presented Ballistics Report No. B-046-95, stating that slugs recovered from the crime scene, on the one hand, and cartridge cases fired from petitioners caliber .45 Mark IV pistol, on the other hand, were fired from the same firearm. The Medico-Legal Officer who conducted the autopsy on the deceased failed to appear at the trial. In order to dispense with her testimony, petitioner admitted the due execution and genuineness of the medico-legal report. After trial, the prosecution filed its Formal Offer of Exhibits, which included the above-quoted letter of petitioners counsel to P/Maj. Antonio Diaz, marked as Exhibit LL. The trial court admitted all the prosecutions exhibits in its Order dated August 27, 1996.
5 6 7

Meanwhile, petitioner begged leave to file a demurrer to evidence, which was granted by the trial court. Hence, on August 29, 1996, petitioner filed a Motion To Dismiss (On Demurrer to Evidence), based on the following grounds: (1) the lack of positive identification of the accused is a fatal omission warranting dismissal; (2) prosecutions evidence are totally hearsay/incompetent, hence, inadmissible and the guilt of the accused was not proven by positive evidence beyond reasonable doubt.
8 9

On October 7, 1996, the trial court issued an Order dismissing the case together with the civil aspect thereof for insufficiency of evidence.
10

The prosecution filed a motion for reconsideration, which was denied on the ground, among others, that with the dismissal of the case double jeopardy had set in.
11 12

The prosecution filed a petition for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 43697. In a Decision dated July 25, 1997, the appellate court nullified the October 7, 1996 Order of the trial court. Petitioners motion for reconsideration was likewise denied in a Resolution dated January 2, 1998.
13 14 15

Hence, the instant petition. In reversing the trial courts Order dismissing the criminal case against petitioner, the Court of Appeals found that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of Exhibit LL which, it claimed, "positively identified petitioner as the perpetrator of the crime charged."
16

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt.
17

The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule was stressed thus in People v. Velasco:
18 19 20 21

The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the "humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State xxx." Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to
22

live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty."
23

It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose", a desire to know the exact extent of ones liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding.
24 25 26

Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case, or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.
27 28 29 30

In the instant case, petitioner filed a demurrer to evidence after the prosecution adduced its evidence and rested its case. The trial court subsequently dismissed the case after finding that the evidence presented by the prosecution was insufficient to support the charge against petitioner. The prosecution, which relied primarily on Exhibit LL as the basis for the indictment against petitioner, however, contested the dismissal of the case allegedly because the trial court prevented it from further identifying the genuineness and due execution of said document "in the manner that it wanted."
31

The crux of the problem lies in the confusion between the due execution of a piece of documentary evidence vis--vis the truth of its contents. Likewise at the core of the dilemma is the fundamental distinction between an admission and a confession. The prosecution maintains that the letter, Exhibit LL, constituted a confession and argues thus: "What better evidence is there to positively identify the perpetrator of the crime than the confession of the petitioner himself, freely and voluntarily given, assisted by counsel?" According to the prosecution, this "extrajudicial confession constitutes the strongest evidence of guilt."
32 33

An admission is defined under Rule 130, Section 26 of the Rules of Court as the act, declaration or omission of a party as to a relevant fact. A confession, on the other hand, under Rule 130, Section 33 is the declaration of an accused acknowledging his guilt of the offense charged or any offense necessarily included therein. More particularly, a confession "is a declaration made at any time by a person, voluntarily and without compulsion or inducement stating or acknowledging that he had committed or participated in the commission of a crime. The term admission, on the other hand, is usually applied in criminal cases to

statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged."
34

In short, in a confession, an accused acknowledges his guilt; while there is no such acknowledgment of guilt in an admission. Only recently in People v. Licayan, the Court distinguished "confession" and "admission" in this wise:
35 36

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. (Emphasis ours)
37

There is no question that the letter dated June 14, 1995 is an admission, not a confession, because of the unmistakable qualification in its last paragraph that For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client. . . (Emphasis and italics supplied). With the foregoing distinctions in mind, the trial court correctly rejected the prosecutions motion to have Exhibit LL further identified "in the manner that it wanted," i.e., through the proposed testimony of petitioners counsel, Atty. Valmonte, who incidentally refused to testify. Aside from covering a subject which squarely falls within the scope of "privileged communication", it would, more importantly, be tantamount to converting the admission into a confession.
38

It can not be denied that the contents of Exhibit LL, particularly with regard to the details of the shooting communicated by petitioner to Atty. Valmonte, is privileged because it is connected with the business for which petitioner retained the services of the latter. More specifically, said communication was relayed by petitioner to Atty. Valmonte in order to seek his professional advice or assistance in relation to the subject matter of the employment, or to explain something in connection with it, so as to enable him to better advice his client or manage the litigation.
39 40

Pertinent to this is Section 24 (b) of Rule 130 of the Rules of Court, to wit: SEC. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: xxxxxxxxx (b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment nor can an attorneys secretary, stenographer, or clerk be examined, without the consent

of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; x x x. It is worthy to note that the prosecution did not summon petitioner himself to testify although he too was a signatory of Exhibit LL. Apparently, it was aware that petitioner could well invoke his right against self-incrimination and refuse to answer its questions. The prosecution then attempted to draw out what it could not constitutionally extract from his lawyer. Yet, and as stated previously, said Exhibit LL had earlier been admitted in evidence by the trial court in its Order dated August 27, 1996. What was objectionable was the prosecutions sole reliance on the document without proof of other facts to establish its case against petitioner because of its mistaken assumption that the same was a confession. Significantly, the prosecution was neither barred nor prevented by the trial court from establishing the genuineness and due execution of the document through other means. Rule 132, Section 20of the Rules of Court provides the following means of authenticating the document: SEC. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. Thus, the due execution of a document can be proved through the testimony of: (1) the person/s who executed it; (2) the person before whom its execution was acknowledged; or (3) any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures therein or by a person to whom the parties to the instrument previously confirmed the execution thereof.
41

Thus, respondent could have called to the witness stand P/Maj. Antonio Diaz, the addressee of Exhibit LL, to identify the said document since it was supposedly delivered to him personally. Samples of the signatures appearing on the document which can be readily obtained or witnesses who are familiar with them could have also been presented. The prosecution did not. Neither did it subpoena P/Senior Inspector Alejandro M. Casanova, who prepared the detailed Police Report of the incident used as the basis of the inquest proceedings, nor were any eyewitnesses presented, notwithstanding that there appeared to be at least two eyewitnesses to the incident. It must be borne in mind that in a criminal trial, it is the prosecution that determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information. Stated differently, the determination of what evidence to adduce to bolster a successful prosecution of a criminal offense is the exclusive domain of prosecutorial discretion. Indeed, courts generally can not interfere with the prosecutors discretion as to control over criminal prosecutions. However, it is the court which ultimately determines whether such evidence is sufficient to sustain an
42 43

indictment, thus, the care with which the prosecution must build up its case against the accused can not be gainsaid because, as has been stated time and again, in any criminal prosecution, the State must rely on the strength of its own evidence and not on the weakness of the evidence of the defense.
44

Viewed vis-a-vis the foregoing lapses detailed above, the prosecutions insistence to have Exhibit LL admitted "in the manner it wanted" shows only too clearly a subtle but shrewd scheme to cover up for the foregoing procedural missteps and to cut evidentiary corners to build its case at the expense of the defense. This cannot be countenanced. An accused should not be prejudiced for the failure of the prosecution to discharge its burden of overcoming the constitutional presumption of innocence and to establish the guilt of the accused beyond reasonable doubt. Indeed, if the prosecution fails to discharge the burden, then it is not only the accuseds right to be freed, it is even more the courts constitutional duty to acquit him.
45 46

If at all, the foregoing acts of the prosecution underscores just how careless and haphazard it had been in building up a case against the petitioner. For such, it has nothing but itself to blame if the trial court in assaying the proof it adduced found the same wanting. It will neither be allowed to sweep its procedural miscues under the rug, so to speak, on the pretext that it was denied due process when the trial court supposedly prevented it from presenting Exhibit LL. To be more precise, the trial court had admitted Exhibit LL in evidence but rejected the further admission of the document "in the manner that it wanted." Verily, the prosecution can not have its cake and eat it too. Moreover, we agree with the trial court that the letter marked as Exhibit LL is hearsay inasmuch as its probative force depends in whole or in part on the competency and credibility of some person other than the witness by whom it is sought to produce it. The term as used in the law of evidence "signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him. Its value, if any, is measured by the credit to be given to some third persons not sworn as witnesses to that fact and consequently not subject to cross-examination." In short, it is "the evidence not of what the witness knows himself but of what he has heard from others." Thus, in one case we stated that "[w]hen evidence is based on what was supposedly told the witness, the same is without any evidentiary weight being patently hearsay." In the case at bar, it is noteworthy that the statements in the letter were made by petitioners counsel, who even began his narration of the events with the phrase: "According to my client."
47 48 50 51

49

In holding that petitioner was identified as the person who committed the offense, the appellate court relied on the following circumstances: (1) he admitted responsibility therefor through Exhibit LL, which was signed by him and his counsel; (2) he surrendered even before the issuance of the warrant of arrest; (3) his gun was also surrendered to the police authorities by his counsel; (4) empty shells recovered at the scene of the crime matched his gun; and (5) the letter-referral of P/Senior Inspector Alejandro Casanova to Quezon City Prosecutor indicated that petitioner was under the custody of the policeman on detail supposedly to guard him at the hospital.
52

With regard to the first circumstance, suffice it to state that, as has lengthily been discussed earlier, Exhibit LL is merely an admission and not a confession. In fact, petitioner specifically denied criminal intent therein. By and of itself it is insufficient to support a conviction unless it is considered in connection with other proof to establish the ultimate fact of guilt. The second and third incidents actually support petitioners innocence because were he indeed guilty of the felony, he would not likely have surrendered even before the warrant was issued for his arrest. Courts go by the biblical truism that the "the wicked flee when no man pursueth but the righteous are as bold as a lion."
53

The fourth event merely proves the fact that the empty shells recovered from the crime scene were fired from the surrendered gun. It, however, does not answer the penultimate question of who actually pulled the trigger of the firearm. Lastly, the appellate courts reading of the letter-referral, mentioning that petitioner had been placed under the custody of a policeman, was inaccurate. As explained by Atty. Valmonte in Exhibit LL, the policeman was actually requested for petitioners personal safety owing to the untoward incident which caused petitioner serious anxiety and depression, and for which he had to undergo treatment and confinement.
54 55

All told, we find no grave abuse on the part of the trial court in dismissing the charges against petitioner. WHEREFORE, in view of all the foregoing, the petition is GRANTED. The decision of the Court of Appeals dated July 25, 1997 and the Resolution dated January 2, 1998 in CA-G.R. SP No. 43697 are REVERSED and SET ASIDE. SO ORDERED. Vitug, (Acting Chairman), Carpio, and Azcuna, JJ., concur. Davide, Jr., C.J., (Chairman), on official leave.

Footnotes

Record, p. 11. Ibid., pp. 20 - 20-A. Id., p. 21. Id., p. 40. Id., p. 228.

Id., pp. 217-259. Id., p. 284. Id., p. 292. Id., pp. 286-291. Id., pp. 308-310. Id., pp. 311-332. Id., pp. 361-362. Rollo, pp. 107-119. Ibid., pp. 120-141. Id., pp. 150-151. Id., p. 183; Comment, p. 11.
Gutib v. Court of Appeals,

10

11

12

13

14

15

16

17

312 SCRA 365 [1999].

18

Te v. Court of Appeals, 346 SCRA 327 [2000]. Ong v. People, 342 SCRA 372, 387 [2000]; People v. City Court of Silay, 74 SCRA 247 [1976].
Almario v. Court of Appeals, G.R. No. 127772,

19

March 22, 2001; People v. Bans, 239 SCRA 48, 55 [1994]; People v. Gines, 197 SCRA 481 [1991]; People v. Quizada, 160 SCRA 516 (1988).
20 21

340 SCRA 207, 242 [2000]. Citing U.S. v. Sanges, 144 U.S. 310. Citing 355 U.S. 1842, L Ed. 2d 199, 61 A.L.R. 2d 1119.

22

23

Citing Stern, Government Appeals of Sentences: a Constitutional Response to Arbitrary and Unreasonable Sentences, 18 Am. Crim. L. Rev. 51, 69 [1980].
24

Citing Paul Western, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1018, 1022 [1980].
25

Comments, Tulane Law Review, The Proposed Federal Criminal Code and the Governments Right to Appeal Sentences: After the Supreme Courts Green Light Dare We Proceed? [Vol. 56, No. 2, Feb. 1982, at p. 702].
26 27

Palu-ay v. Court of Appeals,

293 SCRA 358 [1998]; People v. Velasco, supra.

Gorion v. RTC of Cebu, Br. 17, 213 SCRA 138 [1992]; People v. Bocar, 138 SCRA 166 [1985]; Portugal v. Reantaso, 167 SCRA 712 [1988]; People v. Albano, 163 SCRA 511 [1988]; Saldaa v. CA, 190 SCRA 396 [1990]; People v. CA, 101 SCRA 450 [1980].
28 29

Galman v. Sandiganbayan, 144 SCRA 43 [1986].

People v. Sandiganbayan, et al., G.R. No. 140633, February 4, 2002, citing People v. Court of Appeals, 308 SCRA 687 [1999].
30 31

Comment, pp. 12-13; Rollo, pp. 184-185. Comment, p. 20, Rollo, p. 192. Ibid., p. 20; p. 194, citing People v. Lachica, 132 SCRA 230 [1984].

32

33

Francisco V.J., Revised Rules of Court, Vol. VII, Part I, 1997 ed., p. 303, citing U.S. v. Corrales, 23 Phil. 362, 365-366 [1912].
34 35

People v. Sevilla, 339 SCRA 625, 652 [2000]. G.R. No. 144422, February 28, 2002. Citing Whartons Criminal Evidence 337 (12th ed. 1955). Comment, pp. 12-13, Rollo, pp. 184-185. Francisco V.J., Revised Rules of Court, supra, p. 274. Ibid., citing 58 Am. Jur. 270-271. Republic v. Court of Appeals, 73 SCRA 148, 158 [1976]. People v. Pajo, 348 SCRA 492, 522 [2000], citing People v. Perez, 296 SCRA 17, 35 [1998]. Venus v. Desierto, 298 SCRA 196, 214 [1998], citing Crespo v. Mogul, 151 SCRA 462, 468 [1987].
People v. Clemente,

36

37

38

39

40

41

42

43

44

316 SCRA 789 [1999]; People v. Paloma, 279 SCRA 352 [1997]. 306 SCRA 400 [1999].

45

People v. Comesario, People v. Muleta,

46

309 SCRA 148 [1999].

47

Francisco V.J., Revised Rules of Court, supra, p. 513, citing 31 C.J.S. 919. Ibid., citing Underhill Evidence, p. 68. Id., citing Woodroffes Law on Evidence, 9th ed. 512.

48

49

50

People v. Villaran, 269 SCRA 630, 637 [1997], citing People v. Del Rosario, 234 SCRA 246 [1994]. Record, p. 21. CA-G.R. SP No. 43697 Decision, p. 9; Rollo, p. 115.
People v. Caedo,

51

52

53

335 SCRA 81, 97 [2000].

54

Record, pp. 5-9. Ibid., p. 21.

55

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 122656 September 5, 1997 SYLVIA S. TY, in her capacity as Administratrix of the Intestate Estate of ALEXANDER T. TY, petitioner, vs. COURT OF APPEALS and ALEJANDRO B. TY, respondents.

BELLOSILLO, J.: ALEJANDRO B. TY, respondent, instituted on 16 December 1992 an action before the Regional Trial Court of Pasig against his daughter-in-law, petitioner Sylvia S. Ty, for recovery of certain properties allegedly owned by him. He claimed that the properties were only placed in the name of his son Alexander T. Ty, husband of petitioner, without any consideration, or were only acquired by Alexander through the money of his father Alejandro thereby creating an implied trust in favor of the latter. Yet petitioner included them in the proceedings concerning the settlement of the estate of Alexander T. Ty pending in the RTC-Br. 105, Quezon City. Subsequently, she filed therein a motion to sell and/or mortgage the properties in order to

raise money for estate taxes. Thus respondent prayed that petitioner be enjoined from selling, mortgaging or otherwise disposing of the properties in question before final judgment. On 26 February 1993 the trial court granted the prayer of respondent herein and held that . . . . the status quo must be preserved and maintained, i.e., the subject propert(ies) must not be sold, mortgaged or disposed of, pending final determination of the main issue raised regarding the ownership of the subject properties, otherwise, plaintiff would probably suffer an injustice and whatever judgment that will be rendered would be ineffectual. 1 On 11 June 1993 the motion to reconsider the above order was denied. Thereafter, respondent Alejandro, in reply to petitioner's amended answer, attached the income tax returns of his son Alexander from 1980 to 1984 to show that he did not have the financial capacity to acquire the properties. But petitioner moved to strike out the returns as violative of the rule on confidentiality and the constitutional right to privacy of communication and correspondence. On 8 February 1994 the motion was denied since the trial court did not find any factual and/or legal justification. The court however did not elaborate thereon. 2 On 27 April 1994 reconsideration of the order was denied. In the meantime, Angelina Piguing-Ty sought to intervene in the case. She claimed to be the legal wife of respondent Alejandro B. Ty and as such has an interest in the properties which are all allegedly acquired during the subsistence of their marriage. In the Order of 27 April 1994 intervention was allowed. On 10 February 1995 respondent Court of Appeals affirmed the aforementioned orders of the trial court except as regards that which granted the intervention. Respondent court was of the view that the pendency of the action for separation of property between Angelina Piguing-Ty and respondent Alejandro B. Ty 3 effectively barred her intervention. 4 On 5 October 1995 reconsideration was denied.

Petitioner confines the issue as to whether respondent Alejandro's disclosure of the income tax returns of his son Alexander constitutes a violation of Sec. 3, pars. (1) and (2), Art. III, of the Constitution, 5 as well as Revenue Regulation No. 33 6 and Sec. 277 of the National Internal Revenue Code (NIRC) 7 when he attached the income tax returns of Alexander to his reply and pre-trial brief. Respondent Alejandro B. Ty contends that the right to privacy of communication and correspondence regulates only the relationship between individuals and the State hence it cannot be invoked against private individuals. Moreover, the act, utterance or document protected must constitute part of an exchange of ideas, thoughts or opinions, so that, clearly, these terms do not contemplate an income tax return. Alejandro likewise contends that Revenue Regulation No. 33 is not applicable because he never went to the Bureau of Internal Revenue to examine or obtain copies of the returns as in fact he already had them in his possession as payer of the taxes of Alexander; neither is Sec. 277 of the NIRC applicable since it merely imposes liability on one who prints or publishes certain information appearing in an income tax return. Most importantly, according to respondent, the objection to the admissibility of the returns is premature because they have not even been offered in evidence. Respondent appellate court, in sustaining the order of the trial court denying petitioner's motion to strike out the income tax returns, explained that all the legal provisions invoked by petitioner were inapplicable because respondent Alejandro appeared to have been in possession of the duplicate original copies thereof and there was no adequate proof that he obtained them illegally. We likewise sustain the court a quo although based on a different ground, i.e., premature filing of the motion. Our rules of procedure are explicit. During the trial on the merits, evidence must be formally offered by the parties otherwise the trial court will not consider it. 8 To be precise, insofar as pertinent to this case, documentary and object evidence are offered

after the presentation of a party's testimonial evidence; such offer is done orally unless allowed by the court to be done in writing. 9 An objection to evidence offered orally must be made immediately after the offer is made. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. 10 In the instant case, respondent Alejandro has not offered his evidence and, understandably so, because the proceedings were still at the pre-trial stage. It follows that the opportunity to object to the returns had not yet come. At the trial on the merits, respondent Alejandro may decide to formally offer the returns if he believes they will advance his cause. Petitioner may then object. Or, respondent Alejandro may decide not to offer them at all. In the latter event, such documents cannot be considered evidence nor can they be given any evidentiary value, in which case, there can be no occasion for petitioner to interpose an objection. The rationale of the rule is that it is the duty of the judge to rest his findings of facts and judgment only and strictly upon the evidence offered by the parties at the trial. 11

People v. Teodoro, 12 a witness was still testifying on a certain piece of evidence, identifying it, when upon objection that the original must be produced the trial court ordered the whole testimony stricken out. This Court annulled the order thus It must be noted that the Fiscal was only identifying the official records of service of the defendant preparatory to introducing them (the said records) as evidence . . . . The time for the presentation of the records had not yet come; presentation was to be made after their identification . . . . The objection of counsel for the defendant was, therefore, premature . . . . So was the ruling of the respondent judge sustaining the objection; both were premature and beside the point . . . . Furthermore, whether respondent Alejandro violated certain legal provisions when he cited the income tax returns of Alexander to bolster his

claim is an issue which requires trial on the merits and cannot be decided based merely on the allegations in the pleadings. 13 The objective of our rules of procedure is to ensure order in the conduct of litigations. The parties therefore are bound to observe them. In light of the foregoing, it becomes unnecessary to discuss the other arguments raised by petitioner. WHEREFORE, the petition is DENIED. The decision and resolution of respondent Court of Appeals granting the prayer for preliminary, injunction, denying the motion to strike out the income tax returns of Alexander T. Ty and disallowing the intervention of Angelina Piguing-Ty, are AFFIRMED. Costs against petitioner. SO ORDERED. Vitug, Kapunan and Hermosisima, Jr., JJ., concur. Footnotes 1 Order issued by Judge Jesus G. Bersamira, RTC-Br. 166; CA Rollo, pp. 53-54. 2 Id., p. 56. 3 Before the RTC-Br. 89, Quezon City. 4 Decision penned by Justice Ruben T. Reyes, concurred in by Justices Oscar M. Herrera and Angelina Sandoval Gutierrez, Rollo, pp. 49-50. 5 Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. 6 Re Inspection of Income Tax Returns.

7 . . . any person who publishes or prints in any manner whatever, not provided by law, any income, profits, losses, or expenditures appearing in any income tax return, shall be fined in a sum of not more than two thousand pesos or imprisoned for a term of not less than six (6) months nor more than five (5) years, or both (as amended by PD 1994). 8 Sec. 34, Rule 132, Rules of Court. 9 Sec. 35, id. 10 Sec. 36, id. 11 Tabuena v. Court of Appeals, G.R. No. 85423, 6 May 1991, 196 SCRA 650. 12 98 Phil. 569 (1956). 13 See Jao and Company, Inc. v. Court of Appeals, G.R. No. 93233, 19 December 1995, 251 SCRA 391. THIRD DIVISION
[G.R. Nos. 136149-51. September 19, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias WARPAN, appellant. DECISION
PANGANIBAN, J.:

Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed no other crime. Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault.
The Case

Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decisionxvi[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him. Filed against appellant were four Informations,xvi[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Informationxvi[3] was for maintaining a den for the use of regulated drugs. It reads as follows:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo,xvi[4] this City, conspiring and confederating together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was] used in any form.xvi[5]

The second Informationxvi[6] charged appellant with illegal possession of firearms and ammunition. We quote it below:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another, without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their possession and under their custody and control, the following weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permit therefor from authorities concerned, in flagrant violation of the aforementioned law.xvi[7]

The third Information,xvi[8] for multiple attempted murder with direct assault, was worded thus:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named police officers, well

known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the occasion when said officers were about to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencing the commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of the fact that all the above-named police officers were able to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-large.xvi[9]

In the fourth Information, appellant was charged with illegal possession of drugs.xvi[10] On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused were consequently released from jail. The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not guilty.xvi[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads:
WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN 1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs; 2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs de oficio; 3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs;

4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00) and to pay the costs. (emphasis in the original)

Hence, this appeal.xvi[12]

The Facts Prosecutions Version

In its Brief,xvi[13] the Office of the Solicitor General presents the facts in this wise:
At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36). After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid, raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16). SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group of policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51). In front of the house was an extension building connected to the concrete fence (Ibid., pp. 4546, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old women were in the sala together with a young girl and three (3) children.

One of the old women took the children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21). Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through the window. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and shouted to the policemen outside not to fire in the direction of the second floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23). At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57). After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut followed and entered the house. After identifying themselves as members of the PNP AntiVice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Pea and Rivera then searched appellants room on the ground floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or shabu. Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 3032). Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table. There were six (6) persons already smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They asked Locson to smoke shabu and Locson obliged. He placed the three (3) decks of shabu he bought on the table (Ibid., pp. 8-15).

While they were smoking shabu, Locson heard gunfire coming from appellants house. They all stood and entered appellants compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told them to escape because the police are already here. They scampered and ran away because there were already shots. Locson jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and went home (Ibid., pp. 17-19). The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997. After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12). An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21). With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L). The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant had not applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh. X)xvi[14]
Defenses Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court. xvi[15] Hence, we quote the pertinent parts of the assailed Decision:

Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went out of the house and that was the time that he was arrested. He said he was arrested xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested me does not have nameplate. He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he second floor of his house. He said the policemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he fired a gun at the policemen for sure they [would] die [b]ecause the door is very near x x x the vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1 to G-2), the two (2) M14 magazines with live ammunition (Exh. G-3; G-4); the two (2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J-50) placed inside a pencil case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the white crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced those things as their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp. 15-24, id.) Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he knows for a fact that there are plenty of person who are engaged in selling shabu in that place, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id). After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day. While he was at the police

station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998). During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw that it was the policeman who shot them[,] only I do not know his name. They were killed at the back of his house. He said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998). Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls Hadji Id at the time the police raided the house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a helper when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said that it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken from Walpan Ladjaalams house (tsn, pp. 9-12, id). Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon of September 24, 1997, ha was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to the City Proper to buy articles he was intending to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The policemen told him to lie down in prone position and a policeman searched his back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was not treated. He was taken to the police station where he was detained for one day and one night. He was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998). Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her parents lying together with her husband Sikkal Usma. There is only one house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went downstairs. A policeman was looking for her husband. The policeman called her husband. When her husband went down, he was instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The policeman had two other companions who also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).

Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked a gun at her and there was a shot. As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998). Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan. The search was already over and things were already taken inside the house. When he went inside the house, he saw the things that they (policemen) searched, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to him were the things recovered during the search which were being listed. They were being counted and placed on a table. Upon seeing the things that were recovered during the search, I just signed the receipt (Exh. P; P-1) of the things x x x taken during the search (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of the fence when he went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).xvi[16]
The Trial Courts Ruling

The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more than one specific offense,xvi[17] in violation of Section 3, Rule 126 of the Rules of Court.xvi[18] The court a quo ruled:
It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant shall not issue but upon probable cause in connection with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a search warrant for more than one offense - a scatter shot warrant violates Section 3, Rule 126 of the [R]evised Rules of Court and is totally null and void.xvi[19]
(emphasis in the original)

Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at the officers who were trying to serve the void search warrant. This fact was established by the testimonies of several police officers,xvi[20] who were participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and appellant.xvi[21] Additionally, the judge noted that Appellant Ladjaalam,

based on his statements in his Counter Affidavit, impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid.xvi[22] The trial court concluded that the testimonies of these officers must prevail over appellants narration that he was not in his house when the raid was conducted. Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:
Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused was engaged in the commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who were about to serve the Search Warrant.xvi[23]

As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine containing seventeen live ammunition)xvi[24] used by appellant against the police elements, two M14 magazines, and three other M16 rifle magazines.xvi[25] The trial court observed that these items were in plain view of the pursuing police officers. Moreover, it added that these same items were evidence [of] the commission of a crime and/or contraband and therefore, subject to seizure xvi[26] since appellant had not applied for a license to possess firearm and had not been given authority to carry firearm outside his residence.xvi[27] For being incredible and unsupported by evidence, appellants claim that the items that were seized by the police officers had been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him, they could have done so during the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence, when they were accompanied by the barangay chairman and a radio reporter who might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an inherently weak defense.xvi[28] The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows:

The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or methamphetamine hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers. The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4) occupants who rented that extension house. He knew the name of only one of the four occupants who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans testimony was not elaborated by evidence as to when or for how long was the extension house rented, the amount of rental paid, or by any other document showing that the extension house was in fact rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak defense. Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, the former deserve more credence.xvi[29]

In conclusion, the trial court explained appellants liability in this manner:

x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to qualify the attempted killing to attempted murder. The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one offense, and were not found in plain view of the police officers who seized them. Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and

two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition did not testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. Warpan because according to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned over to the National Treasury.xvi[30]
The Issues

In his Brief, appellant submits the following Assignment of Errors:

I

The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police officer.
II

The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the firefight and where the house of the appellant [was] located.
III

The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.xvi[31]

In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.
The Courts Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court a better perspective and an idea with respect to the scene of the crime.xvi[32] We do not agree. We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the prosecution witnesses.xvi[33] We note in particular that the

defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly good idea of appellants house.xvi[34] Viewing the site of the raid would have only delayed the proceedings.xvi[35] Moreover, the question whether to view the setting of a relevant event has long been recognized to be within the discretion of the trial judge.xvi[36] Here, there is no reason to disturb the exercise of that discretion.xvi[37]
Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses.xvi[38] Suffice it to state that the trial courts assessment of their credibility is generally accorded respect, even finality.xvi[39] After carefully examining the records and finding no material inconsistencies to support appellants claim, we cannot exempt this case from the general rule.xvi[40] Quite the contrary, the testimonies of these witnesses positively showed that appellant had fired upon the approaching police elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr.xvi[41] testified thus:
PROSECUTOR NUVAL: Q: A: Q: A: And, this trail is towards the front of the house of the accused? Yes. And its there where you were met by a volley of fire? Yes, Your Honor.

COURT: Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon? A: More or less, five (5) meters.

xxx xxx xxx

PROSECUTOR NUVAL: Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will reform that question. Q: A: Q: Who opened the gate Mr. Witness? SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut. And, at that time you were hiding at the concrete fence?

A: Q: A: Q:

Yes. Now, when this gate was opened, you said you went inside the house, right? Yes. What did you see inside the house?

A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I saw two old woman.

xxx xxx xxx

PROSECUTOR NUVAL: Q: Now, what did you do with these two old women?

A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house. Q: A: Q: Were you able to go to the second floor of the house? Yes. What happened when you were already on the second floor?

A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the roof of the neighbors house.

xxx xxx xxx

COURT: Reform. That is leading Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan Ladjaalam.

xxx xxx xxx

PROSECUTOR NUVAL:

Q: A: Q:

Were you able to go down? Yes. What happened when you were there?

A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam.xvi[42] What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,xvi[43] as follows:
Q: What did you notice [o]n the second floor?

A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do not fire at the second floor because there [are] a lot of children here. Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Now, that rifle you said [was an] M14, where did you find this? At the sala set. This sala set where is this located? Located [on] the second floor of the house. Is there a sala [o]n the second floor? Yes. Can you still identify that M14 rifle which you said you recovered from the sale set? Yes. Why can you identify that? The Serial No. of M14 is 1555225 and I marked it with my initial. Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this? 1555225 and I put my initial, RJL.

FISCAL NUVAL: This is already marked as our Exhibit B-3 with magazine, one magazine and seven round [ammunition]. Q: After recovering this, what did you do with this firearm?

A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the investigator. Q: A: Q: A: Q: A: Where did you turn it over? At the crime scene. Now, that magazine, can you still identify this? Yes. Why? I put x x x markings.

xxx xxx xxx

COURT: So, a[si]de from the magazine attached to the M14 rifle you found six more magazines? A: Q: A: Q: A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14. The M16 magazines [were] empty? Empty. How about the M14? Found with [ammunition].

xxx xxx xxx

Q: A: Q: A: Q: A: Q: A: Q: So, where are the three M16 magazines? In the corner. What did you do with [these] three magazines of M16? I turned [them] over to the investigator. Can you identify them? Yes, because of my initials[.] Where are your initials? On the magazines. RJL?

A:

RJL.xvi[44]

These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro explained in open court:
Q: Okay. Now, what was the result of your examination, Madam Witness?

A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates. Q: A: Q: What do you mean Madam Witness, what does that indicate? It indicates there is presence of powder nitrates. Can we conclude that he fired a gun?

A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his hands for gun powder nitrates. Q: A: But, most likely, he fired a gun? Yes.

xxx xxx xxx

PROSECUTOR NUVAL: Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with this? A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown residue on the bolt, chamber and in the barrel. Q: A: Q: And, that indicates Madam Witness...? It indicates that the gun was fired. Recently?

A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x. COURT: Q: A: There is also black residue? Yes.

Q: A: Q: A:

What does it indicate? It indicates that the firearm was recently fired. And, where is this swab used at the time of the swabbing of this Exhibit? This one.

PROSECUTOR NUVAL: May we ask that this be marked as Exhibit B-3-A. COURT: Q: A: Q: A: The firing there indicates that the gun was recently fired, during the incident? Yes. And also before the incident it was fired because of the brown residue? Yes, Your Honor.xvi[45] (emphasis supplied)

Duly proven from the foregoing were the two elementsxvi[46] of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecutions Certificationxvi[47] stating that he had not filed any application for license to possess a firearm, and that he had not been given authority to carry any outside his residence.xvi[48] Further, it should be pointed out that his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual.xvi[49]
Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frame-up. He claims that the items seized from his house were planted, and that the entire Zamboanga police force was out to get him at all cost. This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly difficult to disprove.xvi[50] Absent any showing of an improper motive on the part of the police officers,xvi[51] coupled with the presumption of regularity in the performance of their duty, such defense cannot be given much credence. xvi[52] Indeed, after examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his statements in his Counter Affidavit are inconsistent with his testimony during the trial.xvi[53] He testified thus:

Q A

Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit? I could not remember.

Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us whose signature is this appearing above the typewritten name FISCAL NUVAL: Q . . . . Walpan Ladjaalam, whose signature is this?

(Showing) A Yes, Sir. This is mine.

Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: that I was resting and sleeping when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house; [the] house you are referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or the house of your neighbors [from] which you said you heard gunshots? A Our house.

Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my children, is this correct? A They were not there.

Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your neighbors[] house at that time when you heard gunshots? A I was in the house near my house.

Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct? A Yes, Sir. This is not correct.xvi[54]

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension house of appellant as a drug den on several occasions, including the time of the raid. The formers testimony was corroborated by all the raiding police officers who testified before the court. That appellant did not deny ownership of the house and its extension lent credence to the prosecutions story.
Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assaultxvi[55] with multiple counts of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve a search warrant x x x constituted such complex crime.xvi[56] We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and maximum periods, while attempted homicide carries the penalty of prision correccional.xvi[57] Hence, for the present complex crime, the penalty for direct assault, which constitutes the most serious crime, should be imposed and applied in its maximum period.xvi[58]
Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor. The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by RA 8294. The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

Citing People v. Jayson,xvi[59] the OSG argues that the foregoing provision does not cover the specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing in this case, illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of the provision. Based on these premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime is committed at the same time.xvi[60]

Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it could not have been ignorant of the provisoxvi[61] in the second paragraph, it seemed to have construed no other crime as referring only to homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the other crime committed was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty of illegal possession of firearms. We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused.xvi[62] In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused.xvi[63] Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance. We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. When the crime was committed on September 24, 1997, the original language of PD 1866 had already been expressly superseded by RA 8294 which took effect on July 6, 1997.xvi[64] In other words, no longer in existence was the earlier provision of PD 1866, which justified a conviction for illegal possession of firearms separate from any other crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the specific proviso that no other crime was committed. Furthermore, the OSGs reliance on People v. Jaysonxvi[65] is misplaced. True, this Court sustained the conviction of appellant for illegal possession of firearms, although he had also committed homicide. We explained, however, that the criminal case for homicide [was] not before us for consideration.

Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense,xvi[66] like alarm and scandalxvi[67] or slight physical injuries,xvi[68] both of which are punishable by arresto menor.xvi[69] This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudencexvi[70] to the proven facts, and we have done so in this case. WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion perpetua. Costs against appellant. Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA 8294. SO ORDERED. Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

SECOND DIVISION
[G.R. NO. 117913. February 1, 2002]

CHARLES LEE, CHUA SIOK SUY, MARIANO SIO, ALFONSO YAP, RICHARD VELASCO and ALFONSO CO, petitioners, vs. COURT OF APPEALS and PHILIPPINE BANK OF COMMUNICATIONS, respondents.
[G.R. NO. 117914. February 1, 2002]

MICO METALS CORPORATION, petitioner, vs. COURT OF APPEALS and PHILIPPINE BANK OF COMMUNICATIONS, respondents. DECISION
DE LEON, JR., J:

Before us is the joint and consolidated petition for review of the Decisionxvi[1] dated June 15, 1994 of the Court of Appeals in CA-G.R. CV No. 27480 entitled, Philippine Bank of Communications vs. Mico Metals Corporation, Charles Lee, Chua Siok Suy, Mariano Sio, Alfonso Yap, Richard Velasco and Alfonso Co, which reversed the decision of the Regional Trial Court (RTC) of Manila, Branch 55 dismissing the complaint for a sum of money filed by private respondent Philippine Bank of Communications against herein petitioners, Mico Metals Corporation (MICO, for brevity), Charles Lee, Chua Siok Suy, xvi[2] Mariano Sio, Alfonso Yap, Richard Velasco and Alfonso Co.xvi[3] The dispositive portion of the said Decision of the Court of Appeals, reads:
WHEREFORE, the decision of the Regional Trial Court is hereby reversed and in lieu thereof, a new one is entered: a) Ordering the defendants-appellees jointly and severally to pay plaintiff PBCom the sum of Five million four hundred fifty-one thousand six hundred sixty-three pesos and ninety centavos (P5,451,663.90) representing defendants-appellees unpaid obligations arising from ordinary loans granted by the plaintiff plus legal interest until fully paid. b) Ordering defendants-appellees jointly and severally to pay PBCom the sum of Four hundred sixty-one thousand six hundred pesos and sixty-six centavos (P46 1,600.66) representing defendants-appellees unpaid obligations arising from their letters of credit and trust receipt transactions with plaintiff PBCom plus legal interest until fully paid. c) Ordering defendants-appellees jointly and severally to pay PBCom the sum of P50,000.00 as attorneys fees. No pronouncement as to costs. The facts of the case are as follows:

On March 2, 1979, Charles Lee, as President of MICO wrote private respondent Philippine Bank of Communications (PBCom) requesting for a grant of a discounting loan/credit line in the sum of Three Million Pesos (P3,000,000.00) for the purpose of carrying out MICOs line of business as well as to maintain its volume of business. On the same day, Charles Lee requested for another discounting loan/credit line of Three Million Pesos (P3,000,000.00) from PBCom for the purpose of opening letters of credit and trust receipts. In connection with the requests for discounting loan/credit lines, PBCom was furnished by MICO the following resolution which was adopted unanimously by MICOs Board of Directors:
RESOLVED, that the President, Mr. Charles Lee, and the Vice-President and General Manager, Mr. Mariano A. Sio, singly or jointly, be and they are duly authorized and empowered for and in behalf of this Corporation to apply for, negotiate and secure the approval of commercial loans and other banking facilities and accommodations, such as, but not limited to discount loans, letters of credit, trust receipts, lines for marginal deposits on foreign and domestic letters of credit, negotiate out-of-town checks, etc. from the Philippine Bank of Communications, 216 Juan Luna, Manila in such sums as they shall deem advantageous, the principal of all of which shall not exceed the total amount of TEN MILLION PESOS (P10,000,000.00), Philippine Currency, plus any interests that may be agreed upon with said Bank in such loans and other credit lines of the same kind and such further terms and conditions as may, upon granting of said loans and other banking facilities, be imposed by the Bank; and to make, execute, sign and deliver any contracts of mortgage, pledge or sale of one, some or all of the properties of the Company, or any other agreements or documents of whatever nature or kind, including the signing, indorsing, cashing, negotiation and execution of promissory notes, checks, money orders or other negotiable instruments, which may be necessary and proper in connection with said loans and other banking facilities, or with their amendments, renewals and extensions of payment of the whole or any part thereof.xvi[4]

On March 26, 1979, MICO availed of the first loan of One Million Pesos (P1,000,000.00) from PBCom. Upon maturity of the loan, MICO caused the same to be renewed, the last renewal of which was made on May 21, 1982 under Promissory Note BNA No. 26218.xvi[5] Another loan of One Million Pesos (P1,000,000.00) was availed of by MICO from PBCom which was likewise later on renewed, the last renewal of which was made on May 21, 1982 under Promissory Note BNA No. 26219.xvi[6] To complete MICOs availment of Three Million Pesos (P3,000,000.00) discounting loan/credit line with PBCom, MICO availed of another loan from PBCom in the sum of One Million Pesos (P1,000,000.00) on May 24, 1979. As in previous loans, this was rolled over or renewed, the last renewal of which was made on May 25, 1982 under Promissory Note BNA No. 26253.xvi[7]

As security for the loans, MICO through its Vice-President and General Manager, Mariano Sio, executed on May 16, 1979 a Deed of Real Estate Mortgage over its properties situated in Pasig, Metro Manila covered by Transfer Certificates of Title (TCT) Nos. 11248 and 11250. On March 26, 1979 Charles Lee, Chua Siok Suy, Mariano Sio, Alfonso Yap and Richard Velasco, in their personal capacities executed a Surety Agreementxvi[8] in favor of PBCom whereby the petitioners jointly and severally, guaranteed the prompt payment on due dates or at maturity of overdrafts, promissory notes, discounts, drafts, letters of credit, bills of exchange, trust receipts, and other obligations of every kind and nature, for which MICO may be held accountable by PBCom. It was provided, however, that the liability of the sureties shall not at any one time exceed the principal amount of Three Million Pesos (P3,000,000.00) plus interest, costs, losses, charges and expenses including attorneys fees incurred by PBCom in connection therewith. On July 14, 1980, petitioner Charles Lee, in his capacity as president of MICO, wrote PBCom and applied for an additional loan in the sum of Four Million Pesos (P4,000,000.00). The loan was intended for the expansion and modernization of the companys machineries. Upon approval of the said application for loan, MICO availed of the additional loan of Four Million Pesos (P4,000,000.00) as evidenced by Promissory Note TA No. 094.xvi[9] As per agreement, the proceeds of all the loan availments were credited to MICOs current checking account with PBCom. To induce the PBCom to increase the credit line of MICO, Charles Lee, Chua Siok Suy, Mariano Sio, Alfonso Yap, Richard Velasco and Alfonso Co (hereinafter referred to as petitioners-sureties), executed another surety agreementxvi[10] in favor of PBCom on July 28, 1980, whereby they jointly and severally guaranteed the prompt payment on due dates or at maturity of overdrafts, promissory notes, discounts, drafts, letters of credit, bills of exchange, trust receipts and all other obligations of any kind and nature for which MICO may be held accountable by PBCom. It was provided, however, that their liability shall not at any one time exceed the sum of Seven Million Five Hundred Thousand Pesos (P7,500,000.00) including interest, costs, charges, expenses and attorneys fees incurred by MICO in connection therewith. On July 29, 1980, MICO furnished PBCom with a notarized certification issued by its corporate secretary, Atty. P.B. Barrera, that Chua Siok Suy was duly authorized by the Board of Directors to negotiate on behalf of MICO for loans and other credit availments from PBCom. Indicated in the certification was the following resolution unanimously approved by the Board of Directors:
RESOLVED, AS IT IS HEREBY RESOLVED, That Mr. Chua Siok Suy be, as he is hereby authorized and empowered, on behalf of MICO METALS CORPORATION from time to time, to

borrow money and obtain other credit facilities, with or without security, from the PHILIPPINE BANK OF COMMUNICATIONS in such amount(s) and under such terms and conditions as he may determine, with full power and authority to execute, sign and deliver such contracts, instruments and papers in connection therewith, including real estate and chattel mortgages, pledges and assignments over the properties of the Corporation; and to renew and/or extend and/or roll-over and/or reavail of the credit facilities granted thereunder, either for lesser or for greater amount(s), the intention being that such credit facilities and all securities of whatever kind given as collaterals therefor shall be a continuing security. RESOLVED FURTHER, That said bank is hereby authorized, empowered and directed to rely on the authority given hereunder, the same to continue in full force and effect until written notice of its revocation shall be received by said Bank.xvi[11]

On July 2, 1981, MICO filed with PBCom an application for a domestic letter of credit in the sum of Three Hundred Forty-Eight Thousand Pesos (P348,000.00).xvi[12] The corresponding irrevocable letter of credit was approved and opened under LC No. L16060.xvi[13] Thereafter, the domestic letter of credit was negotiated and accepted by MICO as evidenced by the corresponding bank draft issued for the purpose.xvi[14] After the supplier of the merchandise was paid, a trust receipt upon MICOs own initiative, was executed in favor of PBCom.xvi[15] On September 14, 1981, MICO applied for another domestic letter of credit with PBCom in the sum of Two Hundred Ninety Thousand Pesos (P290,000.00).xvi[16] The corresponding irrevocable letter of credit was issued on September 22, 1981 under LC No. L-16334.xvi[17] After the beneficiary of the said letter of credit was paid by PBCom for the price of the merchandise, the goods were delivered to MICO which executed a corresponding trust receiptxvi[18] in favor of PBCom. On November 10, 1981, MICO applied for authority to open a foreign letter of credit in favor of Ta Jih Enterprises Co., Ltd.,xvi[19] and thus, the corresponding letter of creditxvi[20] was then issued by PBCom with a cable sent to the beneficiary, Ta Jih Enterprises Co., Ltd. advising that said beneficiary may draw funds from the account of PBCom in its correspondent banks New York Office.xvi[21] PBCom also informed its corresponding bank in Taiwan, the Irving Trust Company, of the approved letter of credit. The correspondent bank acknowledged PBComs advice through a confirmation letterxvi[22] and by debiting from PBComs account with the said correspondent bank the sum of Eleven Thousand Nine Hundred Sixty US Dollars ($11 ,960.00).xvi[23] As in past transactions, MICO executed in favor of PBCom a corresponding trust receipt.xvi[24] On January 4, 1982, MICO applied, for authority to open a foreign letter of credit in the sum of One Thousand Nine Hundred US Dollars ($1,900.00), with PBCom.xvi[25] Upon approval, the corresponding letter of credit denominated as LC No. 62293xvi[26] was

issued whereupon PBCom advised its correspondent bank and MICOxvi[27] of the same. Negotiation and proper acceptance of the letter of credit were then made by MICO. Again, a corresponding trust receiptxvi[28] was executed by MICO in favor of PBCom. In all the transactions involving foreign letters of credit, PBCom turned over to MICO the necessary documents such as the bills of lading and commercial invoices to enable the latter to withdraw the goods from the port of Manila. On May 21, 1982 MICO obtained from PBCom another loan in the sum of Three Hundred Seventy-Seven Thousand Pesos (P377,000.00) covered by Promissory Note BA No. 7458.xvi[29] Upon maturity of all credit availments obtained by MICO from PBCom, the latter made a demand for payment.xvi[30] For failure of petitioner MICO to pay the obligations incurred despite repeated demands, private respondent PBCom extrajudicially foreclosed MICOs real estate mortgage and sold the said mortgaged properties in a public auction sale held on November 23, 1982. Private respondent PBCom which emerged as the highest bidder in the auction sale, applied the proceeds of the purchase price at public auction of Three Million Pesos (P3,000,000.00) to the expenses of the foreclosure, interest and charges and part of the principal of the loans, leaving an unpaid balance of Five Million Four Hundred Forty-One Thousand Six Hundred Sixty-Three Pesos and Ninety Centavos (P5,441,663.90) exclusive of penalty and interest charges. Aside from the unpaid balance of Five Million Four Hundred Forty-One Thousand Six Hundred Sixty-Three Pesos and Ninety Centavos (P5,441,663.90), MICO likewise had another standing obligation in the sum of Four Hundred Sixty-One Thousand Six Hundred Pesos and Six Centavos (P461,600.06) representing its trust receipts liabilities to private respondent. PBCom then demanded the settlement of the aforesaid obligations from herein petitioners-sureties who, however, refused to acknowledge their obligations to PBCom under the surety agreements. Hence, PBCom filed a complaint with prayer for writ of preliminary attachment before the Regional Trial Court of Manila, which was raffled to Branch 55, alleging that MICO was no longer in operation and had no properties to answer for its obligations. PBCom further alleged that petitioner Charles Lee has disposed or concealed his properties with intent to defraud his creditors. Except for MICO and Charles Lee, the sheriff of the RTC failed to serve the summons on herein petitioners-sureties since they were all reportedly abroad at the time. An alias summons was later issued but the sheriff was not able to serve the same to petitioners Alfonso Co and Chua Siok Suy who was already sickly at the time and reportedly in Taiwan where he later died. Petitioners (MICO and herein petitioners-sureties) denied all the allegations of the complaint filed by respondent PBCom, and alleged that: a) MICO was not granted the

alleged loans and neither did it receive the proceeds of the aforesaid loans; b) Chua Siok Suy was never granted any valid Board Resolution to sign for and in behalf of MICO; c) PBCom acted in bad faith in granting the alleged loans and in releasing the proceeds thereof; d) petitioners were never advised of the alleged grant of loans and the subsequent releases therefor, if any; e) since no loan was ever released to or received by MICO, the corresponding real estate mortgage and the surety agreements signed concededly by the petitioners-sureties are null and void. The trial court gave credence to the testimonies of herein petitioners and dismissed the complaint filed by PBCom. The trial court likewise declared the real estate mortgage and its foreclosure null and void. In ruling for herein petitioners, the trial court said that PBCom failed to adequately prove that the proceeds of the loans were ever delivered to MICO. The trial court pointed out, among others, that while PBCom claimed that the proceeds of the Four Million Pesos (P4,000,000.00) loan covered by promissory note TA 094 were deposited to the current account of petitioner MICO, PBCom failed to produce the ledger account showing such deposit. The trial court added that while PBCom may have loaned to MICO the other sums of Three Hundred Forty-Eight Thousand Pesos (P348,000.00) and Two Hundred Ninety Thousand Pesos (P290,000.00), no proof has been adduced as to the existence of the goods covered and paid by the said amounts. Hence, inasmuch as no consideration ever passed from PBCom to MICO, all the documents involved therein, such as the promissory notes, real estate mortgage including the surety agreements were all void or nonexistent for lack of cause or consideration. The trial court said that the lack of proof as regards the existence of the merchandise covered by the letters of credit bolstered the claim of herein petitioners that no purchases of the goods were really made and that the letters of credit transactions were simply resorted to by the PBCom and Chua Siok Suy to accommodate the latter in his financial requirements. The Court of Appeals reversed the ruling of the trial court, saying that the latter committed an erroneous application and appreciation of the rules governing the burden of proof. Citing Section 24 of the Negotiable Instruments Law which provides that Every negotiable instrument is deemed prima facie to have been issued for valuable consideration and every person whose signature appears thereon to have become a party thereto for value, the Court of Appeals said that while the subject promissory notes and letters of credit issued by the PBCom made no mention of delivery of cash, it is presumed that said negotiable instruments were issued for valuable consideration. The Court of Appeals also cited the case of Gatmaitan vs. Court of Appealsxvi[31] which holds that "there is a presumption that an instrument sets out the true agreement of the parties thereto and that it was executed for valuable consideration. The appellate court noted and found that a notarized Certification was

issued by MICOs corporate secretary, P.B. Barrera, that Chua Siok Suy, was duly authorized by the Board of Directors of MICO to borrow money and obtain credit facilities from PBCom. Petitioners filed a motion for reconsideration of the challenged decision of the Court of Appeals but this was denied in a Resolution dated November 7, 1994 issued by its Former Second Division. Petitioners-sureties then filed a petition for review on certiorari with this Court, docketed as G.R. No. 117913, assailing the decision of the Court of Appeals. MICO likewise filed a separate petition for review on certiorari, docketed as G.R. No. 117914, with this Court assailing the same decision rendered by the Court of Appeals. Upon motion filed by petitioners, the two (2) petitions were consolidated on January 11, 1995.xvi[32] Petitioners contend that there was no proof that the proceeds of the loans or the goods under the trust receipts were ever delivered to and received by MICO. But the record shows otherwise. Petitioners-sureties further contend that assuming that there was delivery by PBCom of the proceeds of the loans and the goods, the contracts were executed by an unauthorized person, more specifically Chua Siok Suy who acted fraudulently and in collusion with PBCom to defraud MICO. The pertinent issues raised in the consolidated cases at bar are: a) whether or not the proceeds of the loans and letters of credit transactions were ever delivered to MICO, and b) whether or not the individual petitioners, as sureties, may be held liable under the two (2) Surety Agreements executed on March 26, 1979 and July 28, 1980. In civil cases, the party having the burden of proof must establish his case by preponderance of evidence.xvi[33] Preponderance of evidence means evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Petitioners contend that the alleged promissory notes, trust receipts and surety agreements attached to the complaint filed by PBCom did not ripen into valid and binding contracts inasmuch as there is no evidence of the delivery of money or loan proceeds to MICO or to any of the petitioners-sureties. Petitioners claim that under normal banking practice, borrowers are required to accomplish promissory notes in blank even before the grant of the loans applied for and such documents become valid written contracts only when the loans are actually released to the borrower. We are not convinced. During the trial of an action, the party who has the burden of proof upon an issue may be aided in establishing his claim or defense by the operation of a presumption, or, expressed differently, by the probative value which the law attaches to a specific state of facts. A presumption may operate against his adversary who has not introduced proof

to rebut the presumption. The effect of a legal presumption upon a burden of proof is to create the necessity of presenting evidence to meet the legal presumption or the prima facie case created thereby, and which if no proof to the contrary is presented and offered, will prevail. The burden of proof remains where it is, but by the presumption the one who has that burden is relieved for the time being from introducing evidence in support of his averment, because the presumption stands in the place of evidence unless rebutted. Under Section 3, Rule 131 of the Rules of Court the following presumptions, among others, are satisfactory if uncontradicted: a) That there was a sufficient consideration for a contract and b) That a negotiable instrument was given or indorsed for sufficient consideration. As observed by the Court of Appeals, a similar presumption is found in Section 24 of the Negotiable Instruments Law which provides that every negotiable instrument is deemed prima facie to have been issued for valuable consideration and every person whose signature appears thereon to have become a party for value. Negotiable instruments which are meant to be substitutes for money, must conform to the following requisites to be considered as such a) it must be in writing; b) it must be signed by the maker or drawer; c) it must contain an unconditional promise or order to pay a sum certain in money; d) it must be payable on demand or at a fixed or determinable future time; e) it must be payable to order or bearer; and f) where it is a bill of exchange, the drawee must be named or otherwise indicated with reasonable certainty. Negotiable instruments include promissory notes, bills of exchange and checks. Letters of credit and trust receipts are, however, not negotiable instruments. But drafts issued in connection with letters of credit are negotiable instruments. Private respondent PBCom presented the following documentary evidence to prove petitioners credit availments and liabilities:
1) Promissory Note No. BNA 26218 dated May 21, 1982 in the sum of P1,000,000.00 executed by MICO in favor of PBCom. 2) Promissory Note No. BNA 26219 dated May 21, 1982 in the sum of P1,000,000.00 executed by MICO in favor of PBCom. 3) Promissory Note No. BNA 26253 dated May 25, 1982 in the sum of P1,000,000.00 executed by MICO in favor of PBCom. 4) Promissory Note No. BNA 7458 dated May 21, 1982 in the sum of P377,000.00 executed by MICO in favor of PBCom. 5) Promissory Note No. TA 094 dated July 29, 1980 in the sum of P4,000.000.00 executed by MICO in favor of PBCom.

6) Irrevocable letter of credit No. L-16060 dated July 2,1981 issued in favor of Perez Battery Center for account of Mico Metals Corp. 7) Draft dated July 2, 1981 in the sum of P348,000.00 issued by Perez Battery Center, beneficiary of irrevocable Letter of Credit No. No. L-16060 and accepted by MICO Metals corporation. 8) Letter dated July 2, 1981 from Perez Battery Center addressed to private respondent PBCom showing that proceeds of the irrevocable letter of credit No. L- 16060 was received by Mr. Moises Rosete, representative of Perez Battery Center. 9) Trust receipt dated July 2, 1981 executed by MICO in favor of PBCom covering the merchandise purchased under Letter of Credit No. 16060. 10) Irrevocable letter of credit No. L-16334 dated September 22, 1981 issued in favor of Perez Battery Center for account of MICO Metals Corp. 11) Draft dated September 22, 1981 in the sum of P290,000.00 issued by Perez Battery Center and accepted by MICO. 12) Letter dated September 17, 1981 from Perez Battery addressed to PBCom showing that the proceeds of credit no. L-16344 was received by Mr. Moises Rosete, a representative of Perez Battery Center. 13) Trust Receipt dated September 22, 1981 executed by MICO in favor of PBCom covering the merchandise under Letter of Credit No. L-16334. 14) Irrevocable Letter of Credit no. 61873 dated November 10, 1981 for US$11,960.00 issued by PBCom in favor of TA JIH Enterprises Co. Ltd., through its correspondent bank, Irving Trust Company of Taipei, Taiwan. 15) Trust Receipt dated December 15, 9181 executed by MICO in favor of PBCom showing that possession of the merchandise covered by Irrevocable Letter of Credit no. 61873 was released by PBCom to MICO. 16) Letters dated March 2, 1979 from MICO signed by its president, Charles Lee, showing that MICO sought credit line from PBCom in the form of loans, letters of credit and trust receipt in the sum of P7,500,000.00. 17) Letter dated July 14, 1980 from MICO signed by its president, Charles Lee, showing that MICO requested for additional financial assistance in the sum of P4,000,000.00. 18) Board resolution dated March 6, 1979 of MICO authorizing Charles Lee and Mariano Sio singly or jointly to act and sign for and in behalf of MICO relative to the obtention of credit facilities from PBCom.

19) Duly notarized Deed of Mortgage dated May 16, 1979 executed by MICO in favor of PBCom over MICO s real properties covered by TCT Nos. 11248 and 11250 located in Pasig. 20) Duly notarized Surety Agreement dated March 26, 1979 executed by herein petitioners Charles Lee, Mariano Sio, Alfonso Yap, Richard Velasco and Chua Siok Suy in favor of PBCom. 21) Duly notarized Surety Agreement dated July 28, 1980 executed by herein petitioners Charles Lee, Mariano Sio, Alfonso Yap, Richard Velasco and Chua Siok Suy in favor of PBCom. 22) Duly notarized certification dated July 28, 1980 issued by MICO s corporate secretary, Mr. P.B. Barrera, attesting to the adoption of a board resolution authorizing Chua Siok Suy to sign, for and in behalf of MICO, all the necessary documents including contracts, loan instruments and mortgages relative to the obtention of various credit facilities from PBCom.

The above-cited documents presented have not merely created a prima facie case but have actually proved the solidary obligation of MICO and the petitioners, as sureties of MICO, in favor of respondent PBCom. While the presumption found under the Negotiable Instruments Law may not necessarily be applicable to trust receipts and letters of credit, the presumption that the drafts drawn in connection with the letters of credit have sufficient consideration. Under Section 3(r), Rule 131 of the Rules of Court there is also a presumption that sufficient consideration was given in a contract. Hence, petitioners should have presented credible evidence to rebut that presumption as well as the evidence presented by private respondent PBCom. The letters of credit show that the pertinent materials/merchandise have been received by MICO. The drafts signed by the beneficiary/suppliers in connection with the corresponding letters of credit proved that said suppliers were paid by PBCom for the account of MICO. On the other hand, aside from their bare denials petitioners did not present sufficient and competent evidence to rebut the evidence of private respondent PBCom. Petitioner MICO did not proffer a single piece of evidence, apart from its bare denials, to support its allegation that the loan transactions, real estate mortgage, letters of credit and trust receipts were issued allegedly without any consideration. Petitioners-sureties, for their part, presented the By-Lawsxvi[34] of Mico Metals Corporation (MICO) to prove that only the president of MICO is authorized to borrow money, arrange letters of credit, execute trust receipts, and promissory notes and consequently, that the loan transactions, letters of credit, promissory notes and trust receipts, most of which were executed by Chua Siok Suy in representation of MICO were not allegedly authorized and hence, are not binding upon MICO. A perusal of the By-Laws of MICO, however, shows that the power to borrow money for the company and issue mortgages, bonds, deeds of trust and negotiable instruments or securities, secured by mortgages or

pledges of property belonging to the company is not confined solely to the president of the corporation. The Board of Directors of MICO can also borrow money, arrange letters of credit, execute trust receipts and promissory notes on behalf of the corporation.xvi[35] Significantly, this power of the Board of Directors according to the by-laws of MICO, may be delegated to any of its standing committee, officer or agent.xvi[36] Hence, PBCom had every right to rely on the Certification issued by MICO's corporate secretary, P.B. Barrera, that Chua Siok Suy was duly authorized by its Board of Directors to borrow money and obtain credit facilities in behalf of MICO from PBCom. Petitioners-sureties also presented a letter of their counsel dated October 9, 1982, addressed to private respondent PBCom purportedly to show that PBCom knew that Chua Siok Suy allegedly used the credit and good names of the petitioner-sureties for his benefit, and that petitioner-sureties were made to sign blank documents and were furnished copies of the same. The letter, however, is in fact merely a reply of petitioners-sureties counsel to PBComs demand for payment of MICOs obligations, and appears to be an inconsequential piece of self-serving evidence. In addition to the foregoing, MICO and petitioners-sureties cited the decision of the trial court which stated that there was no proof that the proceeds of the loans were ever delivered to MICO. Although the private respondents witness, Mr. Gardiola, testified that the proceeds of the loans were deposited in MICOs current account with PBCom, his testimony was allegedly not supported by any bank record, note or memorandum. A careful scrutiny of the record including the transcript of stenographic notes reveals, however, that although private respondent PBCom was willing to produce the corresponding account ledger showing that the proceeds of the loans were credited to MICOs current account with PBCom, MICO in fact vigorously objected to the presentation of said document. That point is shown in the testimony of PBComs witness, Gardiola, thus:
Q: Now, all of these promissory note Exhibits I and J which as you have said previously (sic) availed originally by defendant Mico Metals Corp. sometime in 1979, my question now is, do you know what happened to the proceeds of the original availment? A: Q: A: Well, it was credited to the current account of Mico Metals Corp. Why did it was credited to the proceeds to the account of Mico Metals Corp? (sic) Well, that is our understanding.

ATTY. DURAN: Your honor, may we be given a chance to object, the best evidence is the so-called current account...

COURT: Can you produce the ledger account? A: Yes, Your Honor, I will bring.

COURT: The ledger or record of the current account of Mico Metals Corp. A: Yes, Your Honor.

ATTY. ACEJAS: Your Honor, these are a confidential record, and they might not be disclosed without the consent of the person concerned. (sic) ATTY. SANTOS: Well, you are the one who is asking that. ATTY. DURAN: Your Honor, Im precisely want to show for the ... (sic) COURT: But the amount covered by the current account of defendant Mico Metals Corp. is the subject matter of this case.

xxx
Q: A: Q: A:

xxx

xxx

Are those availments were release? (sic) Yes, Your Honor, to the defendant corporation. By what means? By the credit to their current account.

ATTY. ACEJAS: We object to that, your Honor, because the disclose is the secrecy of the bank deposit. (sic)

xxx

xxx

xxx

Q: Before the recess Mr. Gardiola, you stated that the proceeds of the three (3) promissory notes were credited to the accounts of Mico Metals Corporation, now do you know what kind of current account was that which you are referring to?

ATTY. ACEJAS: Objection your Honor, that is the disclose of the deposit of defendant Mico Metals Corporation and it cannot disclosed without the authority of the depositor. (sic)xvi[37]

That proceeds of the loans which were originally availed of in 1979 were delivered to MICO is bolstered by the fact that more than a year later, specifically on July 14, 1980, MICO through its president, petitioner-surety Charles Lee, requested for an additional loan of Four Million Pesos (P4,000,000.00) from PBCom. The fact that MICO was requesting for an additional loan implied that it has already availed of earlier loans from PBCom. Petitioners allege that PBCom presented no evidence that it remitted payments to cover the domestic and foreign letters of credit. Petitioners placed much reliance on the erroneous decision of the trial court which stated that private respondent PBCom allegedly failed to prove that it actually made payments under the letters of credit since the bank drafts presented as evidence show that they were made in favor of the Bank of Taiwan and First Commercial Bank. Petitioners allegations are untenable. Modern letters of credit are usually not made between natural persons. They involve bank to bank transactions. Historically, the letter of credit was developed to facilitate the sale of goods between, distant and unfamiliar buyers and sellers. It was an arrangement under which a bank, whose credit was acceptable to the seller, would at the instance of the buyer agree to pay drafts drawn on it by the seller, provided that certain documents are presented such as bills of lading accompanied the corresponding drafts. Expansion in the use of letters of credit was a natural development in commercial banking.xvi[38] Parties to a commercial letter of credit include (a) the buyer or the importer, (b) the seller, also referred to as beneficiary, (c) the opening bank which is usually the buyers bank which actually issues the letter of credit, (d) the notifying bank which is the correspondent bank of the opening bank through which it advises the beneficiary of the letter of credit, (e) negotiating bank which is usually any bank in the city of the beneficiary. The services of the notifying bank must always be utilized if the letter of credit is to be advised to the beneficiary through cable, (f) the paying bank which buys or discounts the drafts contemplated by the letter of credit, if such draft is to be drawn on the opening bank or on another designated bank not in the city of the beneficiary. As a rule, whenever the facilities of the opening bank are used, the beneficiary is supposed to present his drafts to the notifying bank for negotiation and (g) the confirming bank which, upon the request of the beneficiary, confirms the letter of credit issued by the opening bank.

From the foregoing, it is clear that letters of credit, being usually bank to bank transactions, involve more than just one bank. Consequently, there is nothing unusual in the fact that the drafts presented in evidence by respondent bank were not made payable to PBCom. As explained by respondent bank, a draft was drawn on the Bank of Taiwan by Ta Jih Enterprises Co., Ltd. of Taiwan, supplier of the goods covered by the foreign letter of credit. Having paid the supplier, the Bank of Taiwan then presented the bank draft for reimbursement by PBComs correspondent bank in Taiwan, the Irving Trust Company which explains the reason why on its face, the draft was made payable to the Bank of Taiwan. Irving Trust Company accepted and endorsed the draft to PBCom. The draft was later transmitted to PBCom to support the latters claim for payment from MICO. MICO accepted the draft upon presentment and negotiated it to PBCom. Petitioners further aver that MICO never requested that legal possession of the merchandise be transferred to PBCom by way of trust receipts. Petitioners insist that assuming that MICO transferred possession of the merchandise to PBCom by way of trust receipts, the same would be illegal since PBCom, being a banking institution, is not authorized by law to engage in the business of importing and selling goods. A trust receipt is considered as a security transaction intended to aid in financing importers and retail dealers who do not have sufficient funds or resources to finance the importation or purchase of merchandise, and who may not be able to acquire credit except through utilization, as collateral of the merchandise imported or purchased.xvi[39] A trust receipt, therefor, is a document of security pursuant to which a bank acquires a security interest in the goods under trust receipt. Under a letter of credit-trust receipt arrangement, a bank extends a loan covered by a letter of credit, with the trust receipt as a security for the loan. The transaction involves a loan feature represented by a letter of credit, and a security feature which is in the covering trust receipt which secures an indebtedness. Petitioners averments with regard to the second issue are no less incredulous. Petitioners contend that the letters of credit, surety agreements and loan transactions did not ripen into valid and binding contracts since no part of the proceeds of the loan transactions were delivered to MICO or to any of the petitioners-sureties. Petitionerssureties allege that Chua Siok Suy was the beneficiary of the proceeds of the loans and that the latter made them sign the surety agreements in blank. Thus, they maintain that they should not be held accountable for any liability that might arise therefrom. It has not escaped our notice that it was petitioner-surety Charles Lee, as president of MICO Metals Corporation, who first requested for a discounting loan of Three Million Pesos (P3,000,000.00) from PBCom as evidenced by his letter dated March 2, 1979.xvi[40]

On the same day, Charles Lee, as President of MICO, requested for a Letter of Credit and Trust Receipt line in the sum of Three Million Pesos (P3,000,000.00).xvi[41] Still, on the same day, Charles Lee again as President of MICO, wrote another letter to PBCOM requesting for a financing line in the sum of One Million Five Hundred Thousand Pesos (P1,500,000.00) to be used exclusively as marginal deposit for the opening of MICOs foreign and local letters of credit with PBCom.xvi[42] More than a year later, it was also Charles Lee, again in his capacity as president of MICO, who asked for an additional loan in the sum of Four Million Pesos (P4,000,000.00). The claim therefore of petitioners that it was Chua Siok Suy, in connivance with the respondent PBCom, who applied for and obtained the loan transactions and letters of credit strains credulity considering that even the Deed of the Real Estate Mortgage in favor of PBCom was executed by petitioner-surety Mariano Sio in his capacity as general manager of MICOxvi[43] to secure the loan accommodations obtained by MICO from PBCom. Petitioners-sureties allege that they were made to sign the surety agreements in blank by Chua Siok Suy. Petitioner Alfonso Yap, the corporate treasurer, for his part testified that he signed booklets of checks, surety agreements and promissory notes in blank; that he signed the documents in blank despite his misgivings since Chua Siok Suy assured him that the transaction can easily be taken cared of since Chua Siok Suy personally knew the Chairman of the Board of PBCom; that he was not receiving salary as treasurer of Mico Metals and since Chua Siok Suy had a direct hand in the management of Malayan Sales Corporation, of which Yap is an employee, he (Yap) signed the documents in blank as consideration for his continued employment in Malayan Sales Corporation. Petitioner Antonio Co testified that he worked as office manager for MICO from 1978-1982. As office manager, he was the one in charge of transacting business like purchasing, selling and paying the salary of the employees. He was also in charge of the handling of documents pertaining to surety agreements, trust receipts and promissory notes;xvi[44] that when he first joined MICO Metals Corporation, he was able to read the by-laws of the corporation and he came to know that only the chairman and the president can borrow money in behalf of the corporation; that Chua Siok Suy once called him up and told him to secure an invoice so that a credit line can be opened in the bank with a local letter of credit; that when the invoice was secured, he (Co) brought it together with the application for a credit line to Chua Siok Suy, and that he questioned the authority of Chua Siok Suy pointing out that he (Co) is not empowered to sign the document inasmuch as only the latter, as president, was authorized to do so. However, Chua Siok Suy allegedly just said that he had already talked with the Chairman of the Board of PBCom; and that Chua Siok Suy reportedly said that he needed the money to finance a project that he had with the Taipei government. Co also testified that he knew of the application for domestic letter of credit in the sum of Three Hundred Forty-Eight Thousand Pesos (P348,000.00); and that a

certain Moises Rosete was authorized to claim the check covering the Three Hundred Forty-Eight Thousand Pesos (P348,000.00) from PBCom; and that after claiming the check Rosete brought it to Perez Battery Center for indorsement after which the same was deposited to the personal account of Chua Siok Suy.xvi[45] We consider as incredible and unacceptable the claim of petitioners-sureties that the Board of Directors of MICO was so careless about the business affairs of MICO as well as about their own personal reputation and money that they simply relied on the say so of Chua Siok Suy on matters involving millions of pesos. Under Section 3 (d), Rule 131 of the Rules of Court, it is presumed that a person takes ordinary care of his concerns. Hence, the natural presumption is that one does not sign a document without first informing himself of its contents and consequences. Said presumption acquires greater force in the case at bar where not only one but several documents were executed at different times and at different places by the petitioner sureties and Chua Siok Suy as president of MICO. MICO and herein petitioners-sureties insist that Chua Siok Suy was not duly authorized to negotiate for loans in behalf of MICO from PBCom. Petitioners allegation, however, is belied by the July 28, 1980 Certification issued by the corporate secretary of PBCom, Atty. P.B. Barrera, that MICO's Board of Directors gave Chua Siok Suy full authority to negotiate for loans in behalf of MICO with PBCom. In fact, the Certification even provided that Chua Siok Suys authority continues until and unless PBCom is notified in writing of the withdrawal thereof by the said Board. Notably, petitioners failed to contest the genuineness of the said Certification which is notarized and to show any written proof of any alleged withdrawal of the said authority given by the Board of Directors to Chua Siok Suy to negotiate for loans in behalf of MICO. There was no need for PBCom to personally inform the petitioners-sureties individually about the terms of the loans, letters of credit and other loan documents. The petitionerssureties themselves happen to comprise the Board of Directors of MICO, which gave full authority to Chua Siok Suy to negotiate for loans in behalf of MICO. Notice to MICOs authorized representative, Chua Siok Suy, was notice to MICO. The Certification issued by PBComs corporate secretary, Atty. P.B. Barrera, indicated that Chua Siok Suy had full authority to negotiate and sign the necessary documents, in behalf of MICO for loans from PBCom. Respondent PBCom therefore had the right to rely on the said notarized Certification of MICOs Corporate Secretary. Anent petitioners-sureties contention that they obtained no consideration whatsoever on the surety agreements, we need only point out that the consideration for the sureties is the very consideration for the principal obligor, MICO, in the contracts of loan. In the case of Willex Plastic Industries Corporation vs. Court of Appeals,xvi[46] we ruled that the

consideration necessary to support a surety obligation need not pass directly to the surety, a consideration moving to the principal alone being sufficient. For a guarantor or surety is bound by the same consideration that makes the contract effective between the parties thereto. It is not necessary that a guarantor or surety should receive any part or benefit, if such there be, accruing to his principal. Petitioners placed too much reliance on the rule in evidence that the burden of proof does not shift whereas the burden of going forward with the evidence does pass from party to party. It is true that said rule is not changed by the fact that the party having the burden of proof has introduced evidence which established prima facie his assertion because such evidence does not shift the burden of proof; it merely puts the adversary to the necessity of producing evidence to meet the prima facie case. Where the defendant merely denies, either generally or otherwise, the allegations of the plaintiffs pleadings, the burden of proof continues to rest on the plaintiff throughout the trial and does not shift to the defendant until the plaintiffs evidence has been presented and duly offered. The defendant has then no burden except to produce evidence sufficient to create a state of equipoise between his proof and that of the plaintiff to defeat the latter, whereas the plaintiff has the burden, as in the beginning, of establishing his case by a preponderance of evidence.xvi[47] But where the defendant has failed to present and marshall evidence sufficient to create a state of equipoise between his proof and that of plaintiff, the prima facie case presented by the plaintiff will prevail. In the case at bar, respondent PBCom, as plaintiff in the trial court, has in fact presented sufficient documentary and testimonial evidence that proved by preponderance of evidence its subject collection case against the defendants who are the petitioners herein. In view of all the foregoing, the Court of Appeals committed no reversible error in its appealed Decision. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CV No. 27480 entitled, Philippine Bank of Communications vs. Mico Metals Corporation, Charles Lee, Chua Siok Suy, Mariano Sio, Alfonso Yap, Richard Velasco and Alfonso Co, is AFFIRMED in toto. Costs against the petitioners. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

FIRST DIVISION [G.R. Nos. 140067-71. August 29, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NENITA MARIA OLIVIA GALLARDO (at large), and REMEDIOS MALAPIT, accused, REMEDIOS MALAPIT, accused-appellant. DECISION YNARES-SANTIAGO, J.: Remedios Malapit and Nenita Maria Olivia Gallardo were charged with one (1) count of illegal recruitment committed in large-scale, three (3) counts of estafa, and one (1) count of simple illegal recruitment before the Regional Trial Court of Baguio City, Branch 3.xvi[1] The Informations read as follows: Criminal Case No. 15320-R (Illegal Recruitment Committed in Large Scale)xvi[2] The undersigned (Public Prosecutor) accuses NENITA MARIA OLIVIA GALLARDO and REMEDIOS MALAPIT of the crime of ILLEGAL RECRUITMENT COMMITTED IN LARGE SCALE, defined and penalized under Article 13(b) in relation to Article 38(b), 34, and 39 of P.D. No. 442, otherwise known as the New Labor Code of the Philippines, as amended by P.D. No. 1693, 1920, 2018 and R.A. No. 8042, committed as follows: That during the period from January 1997 to June, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously for a fee, recruit and promise employment as contract workers in Canada, to the herein complainants, namely: Rommel Suni, Myrna Castro, Marilyn Mariano, Bryna Paul Wong, Mary Grace Lanozo, Ana Liza Aquino, Marie Purificacion Abenoja, Florence Bacoco and Lorna Domingo, without said accused having first secured the necessary license or authority from the Department of Labor and Employment. Criminal Case No. 15323-R (Estafa)xvi[3] That in March 1997 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another did then and there willfully, unlawfully and feloniously defraud one MARILYN MARIANO by way of false pretenses, which are executed prior to or simultaneously with the commission of the fraud, as follows; to wit: the accused knowing fully well that he/she they is/are not authorized job recruiters for persons intending to secure work abroad convinced said Marilyn Mariano and pretended that he/she/they could secure a job for him/her abroad, for and in consideration of the sum of P36,500.00, when in truth and in fact they could not; the said Marilyn Mariano deceived and convinced by the false pretenses employed by the accused parted away the total sum of P36,500.00, in favor of the accused, to the damage and prejudice

of the said Marilyn Mariano in the aforementioned amount of THIRTY SIX THOUSAND FIVE HUNDRED PESOS (P36,500.00), Philippine Currency. Criminal Case No. 15327-R (Estafa)xvi[4] That on June 6, 1997 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously defraud one MARIE PURIFICACION ABENOJA by way of false pretenses, which are executed prior to or simultaneously with the commission of the fraud, as follows, to wit: the accused knowing fully well that he/she they is/are not authorized job recruiters for persons intending to secure work abroad convinced said Marie Purificacion Abenoja and pretended that he/she/they could secure a job for him/her abroad, for and in consideration of the sum of P36,500.00, when in truth and in fact they could not; the said Marie Purificacion Abenoja deceived and convinced by the false pretenses employed by the accused parted away the total sum of P36,500.00 in favor of the accused, to the damage and prejudice of the said Marie Purificacion Abenoja in the aforementioned amount of THIRTY SIX THOUSAND FIVE HUNDRED PESOS (P36,500.00), Philippine currency. Criminal Case No. 15570-R (Illegal Recruitment)xvi[5] The under signed (Public Prosecutor) accuses NENITA MARIA OLIVIA-GALLARDO and REMEDIOS MALAPIT of the crime of ILLEGAL RECRUITMENT, defined and penalized under Article 13(b) in relation to Article 38(b), 34, and 39 of Presidential Decree No. 442, otherwise known as the New Labor Code of the Philippines, as amended by R.A. No. 8042, committed as follows: That on or about the 6th day of June, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously for a fee, recruit and promise employment as contract worker in Canada, to the herein complainant ARACELI D. ABENOJA, without said accused having first secured the necessary license or authority from the Department of Labor and Employment. Criminal Case No. 15571-R (Estafa)xvi[6] That on or about the 11th day of June, 1997 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating & mutually aiding one another, did then and there willfully, unlawfully and feloniously defraud one ARACELI D. ABENOJA by way of false pretenses, which are executed prior to or simultaneously with the commission of the fraud, as follows; to wit: the accused knowing fully well that he/she/they is/are not authorized job recruiters for persons intending to secure work abroad convinced said Araceli D. Abenoja and pretended that he/she/they could secure a job for him/her abroad, for and in consideration of the sum of P35,000.00, when in truth and in fact they could not; the said Araceli D. Abenoja deceived and convinced by the false pretenses employed by the accused parted away the total sum of P35,000.00 in favor of the accused, to

the damage and prejudice of the said Araceli D. Abenoja in the aforementioned amount of THIRTY FIVE THOUSAND PESOS (P35,000.00), Philippine currency. Only accused-appellant Remedios Malapit was brought to the jurisdiction of the trial court. Her coaccused, Nenita Maria Olivia Gallardo, remained at large. Upon arraignment, accused-appellant pleaded not guilty to all charges. The five (5) cases were consolidated and tried jointly. Marie Purificacion Abenoja and Marilyn Mariano met accused-appellant at her beauty parlor in Lopez Building, Session Road, Baguio City. Marie met accused-appellant sometime in January 1997 through her friend, Florence Bacoco. A month later, Marilyn was introduced to accused-appellant by Grace Lanozo, a fellow nurse at the PMA Hospital. Marie claims that accused-appellant enticed her to apply for work as a caregiver in Canada. Accusedappellant showed her a piece of paper containing a job order saying that Canada was in need of ten (10) caregivers and some messengers. Accused-appellant also promised her that she will be receiving a salary of CN$2,700.00 (Canadian Dollars) and will be able to leave for Canada in a months time. Heeding accused-appellants guaranty, Marie eventually applied for the overseas job opportunity. On June 6, 1997, accused-appellant introduced Marie to co-accused Nenita Maria Olivia-Gallardo in Tandang Sora, Quezon City. On the same day, Marie submitted herself to a physical examination and personally handed to Gallardo a partial payment of P18,000.00, for which the latter issued a receipt.xvi[7] Marie made another payment in the amount of P52,000.00, for which accused-appellant issued a provisional receipt.xvi[8] This amount included the placement fee of her sister, Araceli Abenoja, who became interested in the opportunity to work abroad. Accused-appellant issued to Marie the receiptxvi[9] for Araceli in the amount of P35,000.00, signed by Gallardo. Three months lapsed without any news on Maries deployment to Canada. Her sister, Araceli, had already left for work abroad through the efforts of their other town-mate. The weekly follow-ups made by Marie to accused-appellant pertaining to her application and that of Aracelis were to no avail. Accused-appellant just promised Marie that she will return her money. Realizing that she had been hoodwinked, Marie decided to file a complaint against the accused-appellant and Gallardo with the National Bureau of Investigation. She no longer verified the authority of both accused-appellant and Gallardo in recruiting workers overseas because she was told by Gallardo that she is a direct recruiter.xvi[10] Marilyn Mariano, on the other hand, was told by accused-appellant that she was recruiting nurses from Baguio City and was looking for one more applicant to complete the first batch to fly to Canada. After giving her all the information about the job opportunity in Canada, accused-appellant encouraged her to meet Gallardo. Not long after, Grace Lanozo accompanied her to meet Gallardo at the latters house in Quezon City.

Gallardo required her to undergo a medical check-up, to complete her application papers within the soonest possible time and to prepare money to defray the expenses for her deployment to Canada. Upon the instruction of accused-appellant, Marilyn paid a total amount of P36,000.00 to Gallardo, which was evidenced by a receipt. Of this amount, the P1,500.00xvi[11] was for her medical check-up, P20,000.00xvi[12] for processing of papers and P15,000.00xvi[13] for her visa. Marilyn was further made to accomplish a form, prepared by both accused-appellant and Gallardo, at the residence of accused-appellant in Baguio City. Thereafter, she was informed that the processing of her papers abroad shall commence within the next three months. She was also made to attend a meeting conducted by both accused-appellant and Gallardo at the formers house in Baguio City, together with other interested applicants. After three months of waiting with no forthcoming employment abroad, Marilyn and the other applicants proceeded to the Philippine Overseas Employment Agency, Regional Administrative Unit, of the Cordillera Administrative Region in Baguio City, where they learned that accused-appellant and Gallardo were not authorized recruiters.xvi[14] Marilyn confronted accused-appellant about this, whereupon the latter assured her that it was a direct hiring scheme. Thereafter, Marilyn reported accused-appellant and Gallardo to the NBI. xvi[15] After trial on the merits, accused-appellant was found guilty of the crimes of Illegal Recruitment in Large Scale and Estafa on three (3) counts. The dispositive portion of the decision reads: WHEREFORE, the Court finds accused Remedios Malapit GUILTY beyond reasonable doubt with the crimes of Illegal Recruitment in Large Scale, and Estafa in three (3) counts, and she is hereby sentenced as follows: 1. To suffer Life Imprisonment at the Correctional Institution for Women, Mandaluyong City in Criminal Cases Nos. 15320-R and 15770-R for Illegal Recruitment in Large Scale; to pay a Fine to the Government in the amount of One Hundred Thousand (P100,000.00) Pesos; and to pay private complainants, Marie Purificacion Abenoja, the amount of Thirty Five Thousand (P35,000.00) Pesos; Araceli Abenoja also the amount of Thirty Five Thousand (P35,000.00) Pesos; and Marilyn Mariano, the amount of Thirty Six Thousand Five Hundred (P36,500.00) Pesos, all amounts with legal interest. 2. To suffer Imprisonment at the same Institution from Six (6) Years, Five (5) Months, and Eleven (11) Days as Minimum to Seven (7) Years, Eight (8) Months, and Twenty (20) Days as Maximum of Prision Mayor for each Estafa case in Criminal Cases Nos. 15323-R, 15327-R, and 15571-R. 3. To pay costs of suit.xvi[16]

Accused-appellant is now before us on the following assignment of errors: I

THE TRIAL COURT ERRED IN CONCLUDING THAT THE PROSECUTION SUCCEEDED IN PROVING THE GUILT OF ACCUSED-APPELLANT BEYOND REASONABLE DOUBT FOR THE CRIME OF ILLEGAL RECRUITMENT. II THE TRIAL COURT ERRED IN CONCLUDING THAT THE PROSECUTION SUCCEEDED IN PROVING THE GUILT OF ACCUSED-APPELLANT BEYOND REASONABLE DOUBT FOR THREE COUNTS OF ESTAFA. III THE TRIAL COURT ERRED IN NOT DISMISSING CRIMINAL CASES NOS. 15570-R AND 15571-R FOR ABSENCE OF EVIDENCE RESULTING FROM THE FAILURE OF THE COMPLAINING WITNESS TO APPEAR AND SUBSTANTIATE HER COMPLAINT. IV GRANTING ARGUENDO THAT ACCUSED-APPELLANT COMMITTED ILLEGAL RECRUITMENT, THE TRIAL COURT ERRED IN CONVICTING HER OF ILLEGAL RECRUITMENT IN LARGE SCALE. Accused-appellant maintains that she did not commit any of the activities enumerated in the Labor Code on illegal recruitment in connection with the applications of the private complainants. It was Nenita Maria Olivia Gallardo who convinced and promised private complainants employment overseas. It was also Gallardo who received and misappropriated the money of private complainants. Accordingly, she cannot be convicted of estafa. We do not agree. Illegal recruitment is committed when two (2) essential elements concur: (1) that the offender has no valid license or authority required by law to enable him to lawfully engage in the recruitment and placement of workers, and (2) that the offender undertakes any activity within the meaning of recruitment and placement defined under Article 13(b), or any prohibited practices enumerated under Article 34 of the Labor Code.xvi[17] Article 13(b) of the Labor Code defines recruitment and placement as: Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. In the case at bar, the first element is present. Nonette Legaspi-Villanueva, the Overall Supervisor of the Regional Office of the POEA in Baguio City, testified that per records, neither accused-appellant nor

Gallardo were licensed or authorized to recruit workers for overseas employment in the City of Baguio or in any part of the Cordillera Region. The second essential element is likewise present. Accused-appellant purported to have the ability to send Marie Purificacion Abenoja, Araceli Abenoja and Marilyn Mariano for employment abroad through the help of her co-accused Gallardo, although without any authority or license to do so. Accusedappellant was the one who persuaded them to apply for work as a caregiver in Canada by making representations that there was a job market therefor.xvi[18] She was also the one who helped them meet Gallardo in order to process their working papers and personally assisted Marie, Araceli and Marilyn in the completion of the alleged requirements.xvi[19] Accused-appellant even provided her house in Baguio City as venue for a meeting with other applicants that she and Gallardo conducted in connection with the purported overseas employment in Canada.xvi[20] Accused-appellant, therefore, acted as an indispensable participant and effective collaborator of co-accused Gallardo, who at one time received placement feesxvi[21] on behalf of the latter from both Marie and Araceli Abenoja. The totality of the evidence shows that accused-appellant was engaged in the recruitment and placement of workers for overseas employment under the above-quoted Article 13 (b) of the Labor Code. Hence, she cannot now feign ignorance on the consequences of her unlawful acts. Accused-appellants claim that the other private complainants in Criminal Case No. 15320-R, for illegal recruitment in large scale, have executed their individual affidavits of desistance pointing to Gallardo as the actual recruiter, deserves scant consideration. The several Ordersxvi[22] issued by the trial court show that the dismissal of the complaints of the other private complainants were based on their failure to substantiate and prosecute their individual complaints despite due notice.* The foregoing notwithstanding, the existence of the adverted affidavits of desistance does not appear in the records of this case and, thus, may not be given any probative weight by this Court. Any evidence that a party desires to submit for the consideration of the court must be formally offered by him, otherwise, it is excluded and rejected.xvi[23] Evidence not formally offered before the trial court cannot be considered on appeal, for to consider them at such stage will deny the other parties their right to rebut them.xvi[24] By opting not to present them in court, such affidavits of desistance are generally hearsay and have no probative value since the affiants thereof were not placed on the witness stand to testify thereon.xvi[25] The reason for the rule prohibiting the admission of evidence that has not been formally offered is to afford the other party the chance to object to their admissibility.xvi[26] All told, the evidence against accused-appellant has established beyond a shadow of doubt that she actively collaborated with co-accused Gallardo in illegally recruiting the complainants in this case. As correctly pointed out by the trial court, the private complainants in this case would not have been induced to apply for a job in Canada were it not for accused-appellants information, recruitment, and introduction of the private complainants to her co-accused Gallardo. Likewise untenable are accused-appellants claims that she did not represent herself as a licensed recruiter,xvi[27] and that she merely helped complainants avail of the job opportunity. It is enough that she

gave the impression of having had the authority to recruit workers for deployment abroad. In fact, even without consideration for accused-appellants services, she will still be deemed as having engaged in recruitment activities, since it was sufficiently demonstrated that she promised overseas employment to private complainants.xvi[28] Illegal recruitment is committed when it is shown that the accused-appellant gave the private complainants the distinct impression that she had the power or ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be employed.xvi[29] To be engaged in the practice and placement, it is plain that there must at least be a promise or offer of an employment from the person posing as a recruiter whether locally or abroad.xvi[30] Undoubtedly, the acts of accused-appellant showed unity of purpose with those of co-accused Gallardo. All these acts establish a common criminal design mutually deliberated upon and accomplished through coordinated moves. There being conspiracy, accused-appellant shall be equally liable for the acts of her co-accused even if she herself did not personally reap the fruits of their execution. While accused-appellant is guilty of illegal recruitment, we do not agree with the trial court that the same qualifies as large scale. Accused-appellants conviction of the illegal recruitment in large scale was based on her recruitment of Marie Purificacion Abenoja and Marilyn Mariano, private complainants in Criminal Case No. 15320-R, and Araceli Abenoja, private complainant in Criminal Case No. 15570-R. It was error for the trial court to consider the three private complainants in the two criminal cases when it convicted accused-appellant of illegal recruitment committed in large scale. The conviction of illegal recruitment in large scale must be based on a finding in each case of illegal recruitment of three or more persons, whether individually or as a group. In People v. Reichl, et al.,xvi[31] we reiterated the rule we laid down in People v. Reyesxvi[32] that: x x x When the Labor Code speaks of illegal recruitment committed against three (3) or more persons individually or as a group, it must be understood as referring to the number of complainants in each case who are complainants therein, otherwise, prosecutions for single crimes of illegal recruitment can be cumulated to make out a case of large scale illegal recruitment. In other words, a conviction for large-scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group. (Underscoring ours) Accused-appellant likewise assails the decision of the trial court in Criminal Cases Nos. 15570-R and 15571-R for simple illegal recruitment and estafa, respectively, saying that these two criminal cases should have been dismissed for lack of evidence. The only evidence presented in these cases was the testimony of Marie Purificacion Abenoja, Araceli Abenojas sister, on her alleged payment of the placement fees for Aracelis application. By Aracelis failure to testify, she failed to prove the facts and circumstances surrounding her alleged recruitment and the person accountable therefor. We are not persuaded. In People v. Gallarde,xvi[33] we held:

Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The prosecution is not always tasked to present direct evidence to sustain a judgment of conviction; the absence of direct evidence does not necessarily absolve an accused from any criminal liability. Even in the absence of direct evidence, conviction can be had on the basis of circumstantial evidence, provided that the established circumstances constitute an unbroken chain which leads one to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. The rules on evidence and precedents sustain the conviction of an accused through circumstantial evidence, as long as the following requisites are present: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused. The circumstantial evidence in the case at bar, when scrutinized and taken together, leads to no other conclusion than that accused-appellant and co-accused Gallardo conspired in recruiting and promising a job overseas to Araceli Abenoja. Moreover, Marie Purificacion Abenoja had personal knowledge of the facts and circumstances surrounding the charges filed by her sister, Araceli, for simple illegal recruitment and estafa. Marie was privy to the recruitment of Araceli as she was with her when both accused-appellant and Gallardo required Araceli to undergo physical examination to find out whether the latter was fit for the job abroad.xvi[34] Accused-appellant even admitted that she was the one who introduced Marie and Araceli to Gallardo when they went to the latters house.xvi[35] Marie was the one who shouldered the placement fee of her sister Araceli.xvi[36] Furthermore, the private complainants in this case did not harbor any ill motive to testify falsely against accused-appellant and Gallardo. Accused-appellant failed to show any animosity or ill-feeling on the part of the prosecution witnesses which could have motivated them to falsely accuse her and Gallardo. It would be against human nature and experience for strangers to conspire and accuse another stranger of a most serious crime just to mollify their hurt feelings.xvi[37] As such, the testimony of private complainants that accused-appellant was the person who transacted with them, promised them jobs and received money therefor, was correctly given credence and regarded as trustworthy by the trial court. In sum, accused-appellant is only guilty of two (2) counts of illegal recruitment. Under Section 7 of Republic Act No. 8042xvi[38] otherwise known as the Migrant Workers Act of 1995, any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00). The provisions of the Indeterminate Sentence Law are applicable, as held in People v. Simon:xvi[39]

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the offense is punished under that law. Guided by the foregoing principle, accused-appellant shall be made to suffer a prison term of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P200,000.00, for each count of illegal recruitment. The Court likewise affirms the conviction of accused-appellant for estafa on three (3) counts. It is settled that a person may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under the Revised Penal Code, Article 315, paragraph 2(a). As we held in People v. Yabut:xvi[40] In this jurisdiction, it is settled that a person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under par. 2 (a) of Art. 315 of the Revised Penal Code. The offense of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws. Conversely, conviction for estafa under par. 2 (a) of Art. 315 of the Revised Penal Code does not bar a conviction for illegal recruitment under the Labor Code. It follows that ones acquittal of the crime of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and vice versa. The prosecution has proven beyond reasonable doubt that accused-appellant was guilty of estafa under the Revised Penal Code, Article 315 paragraph (2) (a), which provides that estafa is committed: 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of fraud: (a) By using fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. The evidence is clear that in falsely pretending to possess the power to deploy persons for overseas placement, accused-appellant deceived Marie, Araceli and Marilyn into believing that the recruitment would give them greener opportunities as caregivers in Canada. Accused-appellants assurance constrained the private complainants to part with their hard-earned money in exchange for a slot in the overseas job in Canada. The elements of deceit and damage for this form of estafa are indisputably present. Hence, the conviction of accused-appellant for three (3) counts of estafa in Criminal Cases Nos. 15323-R, 15327-R and 15571-R should be upheld.

Under the Revised Penal Code, an accused found guilty of estafa shall be sentenced to: x x x The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; x x x. In applying the provisions of the Indeterminate Sentence Law, we had occasion to reiterate our ruling in

People v. Ordonoxvi[41] in the very recent case of People v. Angeles,xvi[42] to wit:

Under the Indeterminate Sentence Law, the maximum term of the penalty shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum shall be within the range of the penalty next lower to that prescribed for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstances attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. Similarly, in People v. Saulo,xvi[43] we further elucidated on how to apply the Indeterminate Sentence Law for the charge of estafa: Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower in degree is prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months. In fixing the maximum term, the prescribed penalty of prision correccional maximum to prision mayor minimum should be divided into three equal portions of time, each of which portion shall be deemed to form one period, as follows Minimum Period: From 4 years, 2 months and 1 day to 5 years, 5 months and 10 days Medium Period: From 5 years, 5 months and 11 days to 6 years, 8 months and 20 days Maximum Period: From 6 years, 8 months and 21 days to 8 years pursuant to Article 65, in relation to Article 64, of the Revised Penal Code. When the amounts involved in the offense exceeds P22,000, the penalty prescribed in Article 315 of the Revised Penal Code shall be imposed in its maximum period, adding one year for each additional P10,000.00, although the total penalty which may be imposed shall not exceed twenty (20) years.

In Criminal Case No. 15323-R, Marilyn Mariano testified that upon instruction of accused-appellant she gave accused Gallardo a total of P36,500.00. In Criminal Case Nos. 15327-R and 15571-R, Marie Purificacion Abenoja testified that she gave the amounts of P18,000.00 and P52,000.00 to accused Gallardo and accused-appellant. Out of the amount of P52,000.00, P35,000.00 was intended to answer for the placement fee of her sister Araceli Abenoja, the private complainant in Criminal Case No. 15571-R. The remaining P17,000.00 formed part of the balance of Maries placement fee. Accordingly, accused-appellant shall be criminally liable for the amount of P35,000.00 in Criminal Cases No. 15327-R and P35,000.00 in Criminal Case No. 15571-R. WHEREFORE, in view of the foregoing, the appealed Decision of the Regional Trial Court of Baguio City, Branch 3 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. 15320-R, accused-appellant Remedios Malapit is found GUILTY beyond reasonable doubt of the crime of Simple Illegal Recruitment only, and is sentenced to suffer a prison term of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P200,000.00. (2) In Criminal Case No. 15323-R, accused-appellant Remedios Malapit is found GUILTY beyond reasonable doubt of the crime of Estafa and sentenced to suffer a prison term of four (4) years and two (2) months of prision correccional, as minimum, to nine (9) years and four (4) months of prision mayor, as maximum, and is ORDERED to indemnify Marilyn Mariano the amount of P36,500.00. (3) In Criminal Case No. 15327-R, accused-appellant Remedios Malapit is found GUILTY beyond reasonable doubt of the crime of Estafa and sentenced to suffer a prison term of four (4) years and two (2) months of prision correccional, as minimum, to nine (9) years and four (4) months of prision mayor, as maximum, and is ORDERED to indemnify Marie Purificacion Abenoja the amount of P35,000.00. (4) In Criminal Case No. 15570-R, accused-appellant Remedios Malapit is found GUILTY beyond reasonable doubt of the crime of Simple Illegal Recruitment and is sentenced to suffer a prison term of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P200,000.00. (5) In Criminal Case No. 15571-R, accused-appellant Remedios Malapit is found GUILTY beyond reasonable doubt of the crime of Estafa and sentenced to suffer a prison term of four (4) years and two (2) months of prision correccional, as minimum, to nine (9) years and four (4) months of prision mayor, as maximum, and is ORDERED to indemnify Araceli Abenoja the amount of P35,000.00 SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, and Austria-Martinez, JJ., concur.

THIRD DIVISION
[G.R. No. 136860. January 20, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused. AGPANGA LIBNAO y KITTEN, accused-appellant. DECISION
PUNO, J.:

Before us is an appeal from the Decision dated November 19, 1998 of the Regional Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao and her coaccused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972.xvi[1] For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos. Appellant and her co-accused were charged under the following Information:
That on or about October 20, 1996 at around 1:00 oclock dawn, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused conspiring, confederating and helping with one another, without being lawfully authorized, did then and there willfully, unlawfully and feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a transparent plastic weighing approximately eight (8) kilos, which is in violation of Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. CONTRARY TO LAW.xvi[2]

During their arraignment, both entered a plea of Not Guilty. Trial on the merits ensued. It appears from the evidence adduced by the prosecution that in August of 1996, intelligence operatives of the Philippine National Police (PNP) stationed in Tarlac, Tarlac began conducting surveillance operation on suspected drug dealers in the area. They learned from their asset that a certain woman from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs once a month in big bulks. On October 19, 1996, at about 10 oclock in the evening, Chief Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip which his office received that the two drug pushers, riding in a tricycle, would be making a delivery that night. An hour later, the Police Alert Team installed a checkpoint in Barangay

Salapungan to apprehend the suspects. Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint. At about 1:00 oclock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down a passing tricycle. It had two female passengers seated inside, who were later identified as the appellant Agpanga Libnao and her co-accused Rosita Nunga.xvi[3] In front of them was a black bag. Suspicious of the black bag and the twos uneasy behavior when asked about its ownership and content, the officers invited them to Kabayan Center No.2 located at the same barangay. They brought with them the black bag. Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the opening of the black bag. In the meantime, the two women and the bag were turned over to the investigator on duty, SPO3 Arthur Antonio. As soon as the barangay captain arrived, the black bag was opened in the presence of the appellant, her co-accused and personnel of the center. Found inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper. The leaves were suspected to be marijuana. To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga stated that it was owned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they were made to sign a confiscation receipt without the assistance of any counsel, as they were not informed of their right to have one. During the course of the investigation, not even close relatives of theirs were present. The seized articles were later brought to the PNP Crime Laboratory in San Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them. She concluded that the articles were marijuana leaves weighing eight kilos.xvi[4] For their part, both accused denied the accusation against them. Rosita Nunga testified that in the evening of October 19,1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac Provincial Hospital. The child was suffering from diarrhea, occasioned by abdominal pain. To return to their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the way, the tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan. She was taken aback when the officer invited her to the Kabayan Center. It was there that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputed owning the bag and knowing its contents. She also denied sitting beside the appellant in the passengers seat inside the tricycle, although she admitted noticing a male passenger behind the driver.

Remarkably, appellant did not appear in court and was only represented by her lawyer. The latter marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who boarded their Bus No. 983. The incident was recorded in the companys logbook. Gannod, however, was not presented in court to attest that the woman referred in his affidavit was the appellant. After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:
WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos. SO ORDERED.xvi[5]

Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the following errors:
1. The Honorable Regional Trial Court failed to appreciate the contention of the defense that the right of accused against illegal and unwarranted arrest and search was violated by the police officers who arrested both accused. 2. The Honorable Court failed to appreciate the contention of the defense that the right of the accused to custodial investigation was deliberately violated by the peace officers who apprehended and investigated the accused. 3. The Honorable Court miserably failed to evaluate the material inconsistencies in the testimonies of the prosecutions witnesses which inconsistencies cast doubt and make incredible the contention and version of the prosecution. 4. The Honorable Court gravely abused its discretion when it appreciated and considered the documentary and object evidence of the prosecution not formally offered amounting to ignorance of the law.xvi[6]

We are not persuaded by these contentions; hence, the appeal must be dismissed. In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for her arrest. She contends that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle. In the same manner, she impugns the search made on her belongings as illegal as it was done without a valid warrant or under circumstances when warrantless search is permissible. Consequently, any evidence obtained therein is inadmissible against her.

These arguments fail to impress. The general rule is that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the 1987 Constitution, thus:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant and warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.xvi[7]

The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against unreasonable searches and seizures. Searches and seizures are as a rule unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest.xvi[8] Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which relates to search of moving vehicles. xvi[9] Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought.xvi[10] Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection.xvi[11] When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction.xvi[12] In earlier decisions, we held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused;xvi[13] (b) where an informer positively identified the accused who was observed to be acting suspiciously;xvi[14] (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana;xvi[15] (d) where Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so;xvi[16] (f) where the

moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy -- one who participated in the drug smuggling activities of the syndicate to which the accused belong -- that said accused were bringing prohibited drugs into the country;xvi[17] (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him;xvi[18] (h) where police officers received an information that the accused, who was carrying a suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila;xvi[19] and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset.xvi[20] The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police Intelligence Division had been conducting surveillance operation for three months in the area. The surveillance yielded the information that once a month, appellant and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who owned it and what its content was, both became uneasy. Under these circumstances, the warrantless search and seizure of appellants bag was not illegal. It is also clear that at the time she was apprehended, she was committing a criminal offense. She was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto, thus:
Section 5. Arrest without Warrant; when lawful. - A peace officer or a private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

x x x.xvi[21] (emphasis supplied)

Appellant also takes issue of the fact that she was not assisted by a lawyer when police officers interrogated her. She claimed that she was not duly informed of her right to remain silent and to have competent counsel of her choice. Hence, she argues that the confession or admission obtained therein should be considered inadmissible in evidence against her. These contentions deserve scant attention. Appellant did not make any confession during her custodial investigation. In determining the guilt of the appellant and her coaccused, the trial court based its decision on the testimonies of prosecution witnesses and on the existence of the confiscated marijuana. We quote the relevant portion of its decision:
Earlier in the course of the proceedings, the court then presided by Judge Angel Parazo, granted bail to accused Agpanga Libnao, ruling that the confiscation receipt signed by both accused (Exhibit C) is inadmissible because they were not assisted by a counsel. Confronted with this same issue, this court finds the postulate to rest on good authority and will therefore reiterate its inadmissibility. Since the prosecution had not presented any extrajudicial confession extracted from both accused as evidence of their guilt, the court finds it needless to discuss any answer given by both accused as a result of the police interrogation while in their custody. By force of necessity, therefore, the only issue to be resolved by the court is whether or not, based on the prosecutions evidence, both accused can be convicted.xvi[22] (emphasis supplied)

Appellant then faults the trial court for appreciating and taking into account the object and documentary evidence of the prosecution despite the latters failure to formally offer them. Absent any formal offer, she argues that they again must be deemed inadmissible. The contention is untenable. Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case.xvi[23] All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana.xvi[24] Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded.xvi[25] Furthermore, appellants counsel had cross-examined the prosecution witnesses who testified on the exhibits.xvi[26] Appellant also assails the credibility of the testimonies of the prosecution witnesses. She first cites the inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who opened the black bag containing the marijuana; and

that of SPO2 Antonio, who declared that the bag was already open when he arrived at the Kabayan Center. She then focuses on the police officers failure to remember the family name of the driver of the tricycle where she allegedly rode, claiming that this is improbable and contrary to human experience. Again, appellants arguments lack merit. The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic elements of the crime. They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her co-accused were transporting marijuana. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence.xvi[27] The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident.xvi[28] Likewise, we find nothing improbable in the failure of the police officers to note and remember the name of the tricycle driver for the reason that it was unnecessary for them to do so. It was not shown that the driver was in complicity with the appellant and her co-accused in the commission of the crime. To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption.xvi[29] In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting the appellant. Against the credible positive testimonies of the prosecution witnesses, appellants defense of denial and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act.xvi[30] It has to be substantiated by clear and convincing evidence.xvi[31] The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant. Hence, we reject her defense. IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court finding appellant guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing her to an imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby AFFIRMED.

SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.