In Re Farber (State v. Jascalevich) 78 N.J. 259, 394 A.2d 330, cert. denied, 439 U.S.

997 (1978) MOUNTAIN, J. In these consolidated appeals The New York Times Company and Myron Farber, a reporter employed by the newspaper, challenge judgments entered against them in two related matters--one a proceeding in aid of a litigant (civil contempt), the other for criminal contempt of court. The proceedings were instituted in an ongoing murder trial now in its seventh month, as a result of the appellants' failure to comply with two subpoenas duces tecum, directing them to produce certain documents and materials compiled by one or both of these appellants in the course of Farber's investigative reporting of certain allegedly criminal activities. Farber's investigations and reporting are said to have contributed largely to the indictment and prosecution of Dr. Mario E. Jascalevich for murder. Appellants moved unsuccessfully before Judge William J. Arnold, the trial judge in State v. Jascalevich, to quash the two subpoenas; an order was entered directing that the subpoenaed material be produced for in camera inspection by the court.... Impelled by appellants' persistent refusal to produce the subpoenaed materials for in camera inspection, Judge Arnold issued an order returnable before Judge Theodore W. Trautwein, directing appellants to show cause why they should not be deemed in contempt of court.... Judge Trautwein determined that both appellants had wilfully contemned Judge Arnold's order directing that materials be produced for in camera inspection and found them guilty as charged. A fine of $100,000 was imposed on The New York Times and Farber was ordered to serve six months in the Bergen County jail and to pay a fine of $1,000. Additionally, in order to compel production of the materials subpoenaed on behalf of Jascalevich, a fine of $5,000 per day for every day that elapsed until compliance with Judge Arnold's order was imposed upon The Times; Farber was fined $1,000 and sentenced to confinement in the county jail until he complied with the order.... I. THE FIRST AMENDMENT Appellants claim a privilege to refrain from revealing information sought by the subpoenas duces tecum essentially for the reason that were they to divulge this material, confidential sources of such information would be made public. Were this to occur, they argue, newsgathering and the dissemination of news would be seriously impaired, because much information would never be forthcoming to the news media unless the persons who were the sources of such information could be entirely certain that their identities would remain secret. The final result, appellants claim, would be a substantial lessening in the supply of available news on a variety of important and sensitive issues, all to the detriment of the public interest. They contend further that this privilege to remain silent with respect to confidential information and the sources of such information emanates from the "free speech" and "free press" clauses of the First Amendment. In our view the Supreme Court of the United States has clearly rejected this claim and has squarely held that no such First Amendment right exists. In Branzburg v. Hayes, 408 U.S. 665 (1972), three news media representatives argued that, for the same reason here advanced, they should not be required to appear and testify before grand juries, and that this privilege to refrain from divulging information, asserted to have been received from confidential sources, derived from the First Amendment. Justice White, noting that there was no common law privilege, stated the issue and gave the Court's answer in the first paragraph of his opinion: "The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not." Branzburg v. Hayes, supra, 408 U.S. at 667 (1972). In that case one reporter, from Frankfort, Kentucky, had witnessed individuals making hashish from marijuana and had made a rather comprehensive survey of the drug scene in Frankfort. He had written an article in the Louisville

Courier-Journal describing this illegal activity. Another, a newsman-photographer employed by a New Bedford, Massachusetts television station, had met with members of the Black Panther movement at the time that certain riots and disorders occurred in New Bedford. The material he assembled formed the basis for a television program that followed. The third investigative reporter had met with members of the Black Panthers in northern California and had written an article about the nature and activities of the movement. In each instance there had been a commitment on the part of the media representative that he would not divulge the source of his article or story. By a vote of 5 to 4 the Supreme Court held that newspaper reporters or other media representatives have no privilege deriving from the First Amendment to refrain from divulging confidential information and the sources of such information when properly subpoenaed to appear before a grand jury. The three media representatives were directed to appear and testify. The holding was later underscored and applied directly to this case by Justice White in a brief opinion filed in this cause upon the occasion of his denial of a stay sought by these appellants. He said, "There is no present authority in this Court either that newsmen are constitutionally privileged to withhold duly subpoenaed documents material to the prosecution or defense of a criminal case or that a defendant seeking the subpoena must show extraordinary circumstances before enforcement against newsmen will be had." New York Times and Farber v. Jascalevich, 439 U.S. 1317, 1322 (1978).... [A]mong the many First Amendment protections that may be invoked by the press, there is not to be found the privilege of refusing to reveal relevant confidential information and its sources to a grand jury which is engaged in the fundamental governmental function of "[f]air and effective law enforcement aimed at providing security for the person and property of the individual...." 408 U.S. at 690. The reason this is so is that a majority of the members of the United States Supreme Court have so determined.... Thus we do no weighing or balancing of societal interests in reaching our determination that the First Amendment does not afford appellants the privilege they claim. The weighing and balancing has been done by a higher court. Our conclusion that appellants cannot derive the protection they seek from the First Amendment rests upon the fact that the ruling in Branzburg is binding upon us and we interpret it as applicable to, and clearly including, the particular issue framed here. It follows that the obligation to appear at a criminal trial on behalf of a defendant who is enforcing his Sixth Amendment rights is at least as compelling as the duty to appear before a grand jury. II. THE SHIELD LAW(1)2 In Branzburg v. Hayes, supra, the Court dealt with a newsman's claim of privilege based solely upon the First Amendment. As we have seen, this claim of privilege failed. In Branzburg no shield law was involved. Here we have a shield law, said to be as strongly worded as any in the country. We read the legislative intent in adopting this statute in its present form as seeking to protect the confidential sources of the press as well as information so obtained by reporters and other news media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey. It is abundantly clear that appellants come fully within the literal language of the enactment.... III. THE SIXTH AMENDMENT AND ITS NEW JERSEY COUNTERPART Viewed on its face, considered solely as a reflection of legislative intent to bestow upon the press as broad a shield as possible to protect against forced revelation of confidential source materials, this legislation is entirely constitutional. Indeed, no one appears to have attacked its facial constitutionality. It is, however, argued, and argued very strenuously, that if enforced under the facts of this case, the Shield Law violates the Sixth Amendment of the Federal Constitution as well as Article 1, 10 of the New Jersey Constitution.... Essentially the argument is this: The Federal and State Constitutions each provide that in all

criminal prosecutions the accused shall have the right "to have compulsory process for obtaining witnesses in his favor." Dr. Jascalevich seeks to obtain evidence to use in preparing and presenting his defense in the ongoing criminal trial in which he has been accused of multiple murders. He claims to come within the favor of these constitutional provisions--which he surely does. Finally, when faced with the Shield Law, he invokes the rather elementary but entirely sound proposition that where Constitution and statute collide, the latter must yield. Subject to what is said below, we find this argument unassailable. The compulsory process clause of the Sixth Amendment has never been elaborately explicated by the Supreme Court. Not until 1967, when it decided Washington v. Texas, 388 U.S. 14, had the clause been directly construed. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 586 (1978). In Washington the petitioner sought the reversal of his conviction for murder. A Texas statute at the time provided that persons charged or convicted as co-participants in the same crime could not testify for one another. One Fuller, who had already been convicted of the murder, was prevented from testifying by virtue of the statute. The record indicated that had he testified his testimony would have been favorable to petitioner. The Court reversed the conviction on the ground that petitioner's Sixth Amendment right to compulsory process had been denied. At the same time it determined that the compulsory process clause in the Sixth Amendment was binding on state courts by virtue of the due process clause of the Fourteenth Amendment. It will be seen that Washington is like the present case in a significant respect. The Texas statute and the Sixth Amendment could not both stand. The latter of course prevailed. So must it be here. Quite recently, in United States v. Nixon, 418 U.S. 683 (1974), the Court dealt with another compulsory process issue. There the Special Prosecutor, Leon Jaworski, subpoenaed various tape recordings and documents in the possession of President Nixon. The latter claimed an executive privilege and refused to deliver the tapes. The Supreme Court conceded that indeed there was an executive privilege and that although "[n]owhere in the Constitution ... is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based." 418 U.S. at 711. Despite this conclusion that at least to some extent a president's executive privilege derives from the Constitution, the Court nonetheless concluded that the demands of our criminal justice system required that the privilege must yield.... It is important to note that the Supreme Court in this case compelled the production of privileged material--the privilege acknowledged to rest in part upon the Constitution--even though there was no Sixth Amendment compulsion to do so. The Sixth Amendment affords rights to an accused but not to a prosecutor. The compulsion to require the production of the privileged material derived from the necessities of our system of administering criminal justice. Article I, 10 of the Constitution of the State of New Jersey contains, as we have seen, exactly the same language with respect to compulsory process as that found in the Sixth Amendment. There exists no authoritative explication of this constitutional provision. Indeed it has rarely been mentioned in our reported decisions. We interpret it as affording a defendant in a criminal prosecution the right to compel the attendance of witnesses and the production of documents and other material for which he may have, or may believe he has, a legitimate need in preparing or undertaking his defense. It also means that witnesses properly summoned will be required to testify and that material demanded by a properly phrased subpoena duces tecum will be forthcoming and available for appropriate examination and use. Testimonial privileges, whether they derive from common law or from statute, which allow witnesses to withhold evidence seem to conflict with this provision. This conflict may arise in a variety of factual contexts with respect to different privileges. We confine our consideration here to the single privilege before us--that set forth in the Shield Law. We hold that Article 1, 10 of our Constitution prevails over this statute.... IV. PROCEDURAL MECHANISM

Appellants insist that they are entitled to a full hearing on the issues of relevance, materiality and overbreadth of the subpoena. We agree. The trial court recognized its obligation to conduct such a hearing, but the appellants have aborted that hearing by refusing to submit the material subpoenaed for an in camera inspection by the court to assist it in determining the motion to quash. That inspection is no more than a procedural tool, a device to be used to ascertain the relevancy and materiality of that material. Such an in camera inspection is not in itself an invasion of the statutory privilege. Rather it is a preliminary step to determine whether, and if so to what extent, the statutory privilege must yield to the defendant's constitutional rights. Appellants' position is that there must be a full showing and definitive judicial determination of relevance, materiality, absence of less intrusive access, and need, prior to any in camera inspection. The obvious objection to such a rule, however, is that it would, in many cases, effectively stultify the judicial criminal process. It might well do so here. The defendant properly recognizes Myron Farber as a unique repository of pertinent information. But he does not know the extent of this information nor is it possible for him to specify all of it with particularity, nor to tailor his subpoena to precise materials of which he is ignorant. Well aware of this, Judge Arnold refused to give ultimate rulings with respect to relevance and other preliminary matters until he had examined the material. We think he had no other course. It is not rational to ask a judge to ponder the relevance of the unknown. The same objection applies with equal force to the contention that the subpoena is overbroad. Appellants do not assert that the subpoena is vague and uncertain, but that the data requested may not be relevant and material. To deal effectively with this assertion it is not only appropriate but absolutely necessary for the trial court to inspect in camera the subpoenaed items so that it can make its determinations on the basis of concrete materials rather than in a vacuum.... While we agree, then, that appellants should be afforded the hearing they are seeking, one procedural aspect of which calls for their compliance with the order for in camera inspection, we are also of the view that they, and those who in the future may be similarly situated, are entitled to a preliminary determination before being compelled to submit the subpoenaed materials to a trial judge for such inspection. Our decision in this regard is not, contrary to the suggestion in some of the briefs filed with us, mandated by the First Amendment; for in addition to ruling generally against the representatives of the press in Branzburg, the Court particularly and rather vigorously, rejected the claims there asserted that before going before the grand jury, each of the reporters, at the very least, was entitled to a preliminary hearing to establish a number of threshold issues. Branzburg v. Hayes, supra, 408 U.S. at 701-07. Rather, our insistence upon such a threshold determination springs from our obligation to give as much effect as possible, within ever-present constitutional limitations, to the very positively expressed legislative intent to protect the confidentiality and secrecy of sources from which the media derive information. To this end such a determination would seem a necessity. PASHMAN, J., dissenting.... This case is the first major test of New Jersey's new "Shield Law." There is no reason to accord this statute an unfriendly reception in any court of this State. There should be no eagerness to narrow or circumvent it. The Shield Law is not an irritation. It is an act of the Legislature. This law was passed in the aftermath of the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Court held that the First Amendment will not always prevent forced disclosure of a reporter's confidential sources and information. More specifically, it ruled that the reporters there involved had no privilege under the First Amendment against being compelled, on pain of contempt, to reveal such confidential data to an investigating grand jury. In its view, the resulting infringement upon the reporters' investigating abilities was outweighed by the grand jury's need to have everyman's evidence. The Court emphasized, however, that state legislatures were not powerless to alter the result reached

in Branzburg. As Justice White stated: "At the federal level, Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute." [408 U.S. at 706, emphasis supplied]. The News Media Privilege Act was New Jersey's response to the Court's invitation. This Act reflects our Legislature's judgment that an uninhibited news media is more important to the proper functioning of our society than is the ability of either law enforcement agencies, the courts or criminal defendants to gain access to confidential news data.... A reporter's ability to obtain sensitive information depends on his reputation for keeping confidences. Once breached--that reputation is destroyed. Potential sources of information can no longer rest secure that their identities and confidences will remain free from disclosure. Realizing that strict confidentiality is essential to the workings of a free press, our Legislature, through the News Media Privilege Act, has granted reporters an immunity from disclosure which is both absolute and comprehensive. Any person connected with any news media for the purpose of gathering or disseminating news is granted the privilege of refusing to disclose, in any legal or quasi-legal proceeding or before anyinvestigative body, both the source of and any information acquired. Courts are thus given no discretion to determine on a case-by-case basis whether the societal importance of a free and robust press is "outweighed" by other assertedly compelling interests. The Legislature has done the weighing and balancing and has determined that in every case the right to non-disclosure is paramount. If a reporter falls within the ambit of the statute, he has a privilege of non-disclosure. This privilege exists not only with respect to public disclosures; it encompasses revelations to any legal or quasilegal body, including "any court." Even forced in camera disclosures are thus prohibited. [A concurring opinion by Chief Judge Hughes and a dissenting opinion by Judge Handler are omitted.]

What arguments may be advanced in support of a reporter's privilege? Does a reporter's privilege satisfy Wigmore's four conditions? Can such a privilege be defended on purely utilitarian grounds or on the basis of other values extrinsic to the litigation process? What data would support a reporter's privilege on either basis? Is such data obtainable? If not, is a reporter's privilege justifiable? Do the majority and dissenting opinions in the Farber case reflect fundamentally different philosophical approaches to privileges in general or only different conceptions of the impact that such a privilege would have on the judicial process? What institutional issues do you see in the Farber case? What are the appropriate respective roles of the legislature and the judiciary in establishing privileges? Again, does this question depend upon the approach taken to the subject of privileges--the instrumentalist-utilitarian, the humanistic, or the perquisite of power? 1. 2. The term "shield law" is commonly and widely applied to statutes granting newsmen and other media

representatives the privilege of declining to reveal confidential sources of information. The New Jersey shield law reads as follows: "Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere: "a. The source, author, means, agency or persons from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and "b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.... "Unless a different meaning clearly appears from the context of this act, as used in this act: "a. 'News media' means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public. "b. 'News' means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect. "c. 'Newspaper' means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter. "d. 'Magazine' means a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter. "e. 'News agency' means a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals, and news broadcasters. "f. 'Press association' means an association of newspapers or magazines formed to gather and distribute news to its members. "g. 'Wire service' means a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters. "h. 'In the course of pursuing his professional activities' means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage."

DIGEST

Facts: Farber was a reporter for the New York Times whose investigative reporting led to a murder prosecution. D wanted discovery of the documents and materials gathered during the course of the investigation, as well as the names of various sources. Farber refused to comply, citing the New Jersey News Media Privilege Act. Issue: Must a statutory privilege shielding reporters from disclosure yield to the Sixth Amendment right to compulsory process? Rule: When a state statute is in conflict with the Constitution, the statute must yield. If D can make a preliminary showing that the privileged material is necessary, relevant, and unobtainable in a less intrusive manner, then the material sought should be submitted to the court for an in camera inspection. Holding and Analysis:The Supreme Court, Mountain, J., held that: (1) newspaper and newspaper reporter were not entitled by the First Amendment to refuse to reveal relevant confidential information and its sources to trial court in criminal prosecution; (2) provision of State Constitution affording criminal defendant the right to compel attendance of witnesses and production of documents prevails over shield law statute protecting confidential sources of the press to the extent permitted by State and Federal Constitutions; however, in recognition of legislative viewpoint favoring confidentiality and secrecy of sources from which the press derives information, members of press from whom confidential information is sought are entitled to a hearing on issues of relevance, materiality and overbreadth of subpoena, and (3) evidence before trial court warranted finding that there was reasonable likelihood that information sought by criminal defendant from newspaper and newspaper reporter was material and relevant to the defense, that it could not be secured from any less intrusive source, and that defendant had legitimate need to see and otherwise use it. Dissent: While the Supreme Court has ruled that the First Amendment grants no special privilege to the media, it has also ruled that states are free to provide such a privilege. The state legislature, in passing this shield law, has weighed the varying interests of defendants and the press and decided on an absolute privilege, not one to
be determined on a case-by-base basis.

EDWARD A. KELLER & CO., LTD., petitioner-appellant, vs. COB GROUP MARKETING, INC., JOSE E. BAX, FRANCISCO C. DE CASTRO, JOHNNY DE LA FUENTE, SERGIO C. ORDOEZ, TRINIDAD C. ORDOEZ, MAGNO C. ORDOEZ, ADORACION C. ORDOEZ, TOMAS C. LORENZO, JR., LUIZ M. AGUILA-ADAO, MOISES P. ADAO, ASUNCION MANAHAN and INTERMEDIATE APPELLATE COURT, respondents-appellees. AQUINO, C.J.: This case is about the liability of a marketing distributor under its sales agreements with the owner of the products. The petitioner presented its evidence before Judges Castro Bartolome and Benipayo. Respondents presented their evidence before Judge Tamayo who decided the case. A review of the record shows that Judge Tamayo acted under a misapprehension of facts and his findings are contradicted by the evidence. The Appellate Court adopted the findings of Judge Tamayo. This is a case where this Court is not bound by the factual findings of the Appellate Court. (See Director of Lands vs. Zartiga, L-46068-69, September 30, 1982, 117 SCRA 346, 355).

Edward A. Keller & Co., Ltd. appointed COB Group Marketing, Inc. as exclusive distributor of its household products, Brite and Nuvan in Panay and Negros, as shown in the sales agreement dated March 14, 1970 (32-33 RA). Under that agreement Keller sold on credit its products to COB Group Marketing. As security for COB Group Marketing's credit purchases up to the amount of P35,000, one Asuncion Manahan mortgaged her land to Keller. Manahan assumed solidarily with COB Group Marketing the faithful performance of all the terms and conditions of the sales agreement (Exh. D). In July, 1970 the parties executed a second sales agreement whereby COB Group Marketing's territory was extended to Northern and Southern Luzon. As security for the credit purchases up to P25,000 of COB Group Marketing for that area, Tomas C. Lorenzo, Jr. and his father Tomas, Sr. (now deceased) executed a mortgage on their land in Nueva Ecija. Like Manahan, the Lorenzos were solidarily liable with COB Group Marketing for its obligations under the sales agreement (Exh. E). The credit purchases of COB Group Marketing, which started on October 15, 1969, limited up to January 22, 1971. On May 8, the board of directors of COB Group Marketing were apprised by Jose E. Bax the firm's president and general manager, that the firm owed Keller about P179,000. Bax was authorized to negotiate with Keller for the settlement of his firm's liability (Exh. 1, minutes of the meeting). On the same day, May 8, Bax and R. Oefeli of Keller signed the conditions for the settlement of COB Group Marketing's liability, Exhibit J, reproduced as follows: This formalizes our conditions for the settlement of C.O.B.'s account with Edward Keller Ltd. 1. Increase of mortgaged collaterals to the full market value (estimated by Edak at P90,000.00). 2. Turn-over of receivables (estimated outstandings P70,000.00 to P80,000.00). 3. Turn-over of 4 (four) trucks for outright sale to Edak, to be credited against C.0.B.'s account. 4. Remaining 8 (eight) trucks to be assigned to Edak, C.O.B will continue operation with these 8 trucks. They win be returned to COB after settlement of full account. 5. C.O.B has to put up securities totalling P200,000.00. P100,000.00 has to be liquidated within one year. The remaining P100,000.00 has to be settled within the second year. 6. Edak wig agree to allow C.O.B. to buy goods to the value of the difference between P200,000.00 and their outstandings, provided C.O.B. is in a position to put up securities amounting to P200,000.00. Discussion held on May 8, 1971. Twelve days later, or on May 20, COB Group Marketing, through Bax executed two second chattel mortgages over its 12 trucks (already mortgaged to Northern Motors, Inc.) as security for its obligation to Keller amounting to P179,185.16 as of April 30, 1971 (Exh. PP and QQ). However, the second mortgages did not become effective because the first mortgagee, Northern Motors, did not give its consent. But the second mortgages served the purpose of being admissions of the liability COB Group Marketing to Keller. The stockholders of COB Group Marketing, Moises P. Adao and Tomas C. Lorenzo, Jr., in a letter dated July 24, 1971 to Keller's counsel, proposed to pay Keller P5,000 on November 30, 1971 and thereafter every thirtieth day of the month for three years until COB Group Marketing's mortgage obligation had been fully satisfied. They also

proposed to substitute the Manahan mortgage with a mortgage on Adao's lot at 72 7th Avenue, Cubao, Quezon City (Exh. L). These pieces of documentary evidence are sufficient to prove the liability of COB Group Marketing and to justify the foreclosure of the two mortgages executed by Manahan and Lorenzo (Exh. D and E). Section 22, Rule 130 of the Rules of Court provides that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him "as admissions of a party". The admissions of Bax are supported by the documentary evidence. It is noteworthy that all the invoices, with delivery receipts, were presented in evidence by Keller, Exhibits KK-1 to KK-277-a and N to N-149-a, together with a tabulation thereof, Exhibit KK, covering the period from October 15, 1969 to January 22, 1971. Victor A. Mayo, Keller's finance manager, submitted a statement of account showing that COB Group Marketing owed Keller P184,509.60 as of July 31, 1971 (Exh. JJ). That amount is reflected in the customer's ledger, Exhibit M. On the other hand, Bax although not an accountant, presented his own reconciliation statements wherein he showed that COB Group Marketing overpaid Keller P100,596.72 (Exh. 7 and 8). He claimed overpayment although in his answer he did not allege at all that there was an overpayment to Keller. The statement of the Appellate Court that COB Group Marketing alleged in its answer that it overpaid Keller P100,596.72 is manifestly erroneous first, because COB Group Marketing did not file any answer, having been declared in default, and second, because Bax and the other stockholders, who filed an answer, did not allege any overpayment. As already stated, even before they filed their answer, Bax admitted that COB Group Marketing owed Keller around P179,000 (Exh. 1). Keller sued on September 16, 1971 COB Group Marketing, its stockholders and the mortgagors, Manahan and Lorenzo. COB Group Marketing, Trinidad C. Ordonez and Johnny de la Fuente were declared in default (290 Record on Appeal). After trial, the lower court (1) dismissed the complaint; (2) ordered Keller to pay COB Group Marketing the sum of P100,596.72 with 6% interest a year from August 1, 1971 until the amount is fully paid: (3) ordered Keller to pay P100,000 as moral damages to be allocated among the stockholders of COB Group Marketing in proportion to their unpaid capital subscriptions; (4) ordered the petitioner to pay Manahan P20,000 as moral damages; (5) ordered the petitioner to pay P20,000 as attomey's fees to be divided among the lawyers of all the answering defendants and to pay the costs of the suit; (6) declared void the mortgages executed by Manahan and Lorenzo and the cancellation of the annotation of said mortgages on the Torrens titles thereof, and (7) dismissed Manahan's crossclaim for lack of merit. The petitioner appealed. The Appellate Court affirmed said judgment except the award of P20,000 as moral damages which it eliminated. The petitioner appealed to this Court. Bax and the other respondents quoted the six assignments of error made by the petitioner in the Appellate Court, not the four assignments of error in its brief herein. Manahan did not file any appellee's brief. We find that the lower courts erred in nullifying the admissions of liability made in 1971 by Bax as president and general manager of COB Group Marketing and in giving credence to the alleged overpayment computed by Bax . The lower courts not only allowed Bax to nullify his admissions as to the liability of COB Group Marketing but they also erroneously rendered judgment in its favor in the amount of its supposed overpayment in the sum of

P100,596.72 (Exh. 8-A), in spite of the fact that COB Group Marketing was declared in default and did not file any counterclaim for the supposed overpayment. The lower courts harped on Keller's alleged failure to thresh out with representatives of COB Group Marketing their "diverse statements of credits and payments". This contention has no factual basis. In Exhibit J, quoted above, it is stated by Bax and Keller's Oefeli that "discussion (was) held on May 8, 1971." That means that there was a conference on the COB Group Marketing's liability. Bax in that discussion did not present his reconciliation statements to show overpayment. His Exhibits 7 and 8 were an afterthought. He presented them long after the case was filed. The petitioner regards them as "fabricated" (p. 28, Appellant's Brief). Bax admitted that Keller sent his company monthly statements of accounts (20-21 tsn, September 2, 1976) but he could not produce any formal protest against the supposed inaccuracy of the said statements (22). He lamely explained that he would have to dig up his company's records for the formal protest (23-24). He did not make any written demand for reconciliation of accounts (27-28). As to the liability of the stockholders, it is settled that a stockholder is personally liable for the financial obligations of a corporation to the extent of his unpaid subscription (Vda. de Salvatierra vs. Garlitos 103 Phil. 757, 763; 18 CJs 1311-2). While the evidence shows that the amount due from COB Group Marketing is P184,509.60 as of July 31, 1971 or P186,354.70 as of August 31, 1971 (Exh. JJ), the amount prayed for in Keller's complaint is P182,994.60 as of July 31, 1971 (18-19 Record on Appeal). This latter amount should be the one awarded to Keller because a judgment entered against a party in default cannot exceed the amount prayed for (Sec. 5, Rule 18, Rules of Court). WHEREFORE, the decisions of the trial court and the Appellate Court are reversed and set aside. COB Group marketing, Inc. is ordered to pay Edward A. Keller & Co., Ltd. the sum of P182,994.60 with 12% interest per annum from August 1, 1971 up to the date of payment plus P20,000 as attorney's fees. Asuncion Manahan and Tomas C. Lorenzo, Jr. are ordered to pay solidarity with COB Group Marketing the sums of P35,000 and P25,000, respectively. The following respondents are solidarity liable with COB Group Marketing up to the amounts of their unpaid subscription to be applied to the company's liability herein: Jose E. Bax P36,000; Francisco C. de Castro, P36,000; Johnny de la Fuente, P12,000; Sergio C. Ordonez, P12,000; Trinidad C. Ordonez, P3,000; Magno C. Ordonez, P3,000; Adoracion C. Ordonez P3,000; Tomas C. Lorenzo, Jr., P3,000 and Luz M. Aguilar-Adao, P6,000. If after ninety (90) days from notice of the finality of the judgment in this case the judgment against COB Group Marketing has not been satisfied fully, then the mortgages executed by Manahan and Lorenzo should be foreclosed and the proceeds of the sales applied to the obligation of COB Group Marketing. Said mortgage obligations should bear six percent legal interest per annum after the expiration of the said 90-day period. Costs against the private respondents. SO ORDERED. GUILLERMO VIACRUCIS, LUISA DE VIACRUCIS, CLAROS MARQUEZ, and RUSTICA AREVALO MARQUEZ,petitioners, vs. THE COURT OF APPEALS, ANASTACIO ORAIS and CELESTINA MALAZARTE, respondents. CONCEPCION, C.J.:p

Private respondents, Anastacio Orais and his wife Celestina Malazarte brought this action, in the Court of First Instance of Leyte, to establish their title to a land of about four (4) hectares, located in the sitio of Candilomot, barrio of Santo Rosario, formerly Palompon, now Matag-ob Leyte, and more particularly described in the complaint alleging that it is part of a bigger lot sold to them, on June 8, 1936, by its registered owner, Pedro Sanchez, by virtue of a deed of sale, copy of which was attached to said pleading, as Annex A and later marked as Exhibit B as well as to recover, from petitioners herein defendants in the aforesaid court Guillermo Viacrucis and Luisa de Viacrucis the possession of said land and damages. In their answer to said complaint, Mr. and Mrs. Viacrucis averred that they are the owners of said 4-hectare land; that the deed of sale, Exhibit B, in favor of Anastacio Orais, on which private respondents plaintiffs in the court of first instance rely, attests merely to a simulated transaction; and that this action is barred by the statute of limitations. Alleging that the rights of Mr. and Mrs. Viacrucis had been assigned to them, Claros Marquez and his wife Rustica Arevalo subsequently intervened in the case, reiterating, in a way, the stand taken by Mr. and Mrs. Viacrucis although with a variation to be pointed out later on. After appropriate proceedings, the trial court rendered a decision, in favor of the plaintiffs therein respondent herein and against the defendants and the intervenors petitioners herein rejecting their defenses of prescription of action and simulation of contract (Exhibit B), and declaring that the whole land conveyed thereby belongs to Mr. and Mrs. Orais, as well as ordering Mr. and Mrs. Viacrucis to vacate said land and awarding damages to Mr. and Mrs. Orais. The dispositive part of said decision reads: WHEREFORE, decision is hereby rendered in favor of the plaintiffs and against the defendants and intervenors: (1) declaring the following parcel of land to wit: "A tract of agricultural land situated in the Sitio of Barrio of Balagtas (now Santo Rosario), Municipality of Palompon (now Matag-ob), Province of Leyte. Bounded on the North, by property claimed by Serapio Dicio; on the East, by property claimed by Bartolome Asayas; on the South, by property claimed by Pablo Sanchez; on the West by properties claimed by Borgas Merin and Canuto Loreo, containing an area of 14 hectares, 63 ares and 03 centares, embraced and covered by Original Certificate of Title No. 243, Patent No. 7335, Bu. of Lands No. H-11803." as the property of the plaintiffs and hereby ordering the defendants to immediately vacate the premises; (2) to jointly and severally pay the plaintiffs the sum of Five Thousand Pesos (P5,000.00) for and as moral damages, plus Three Thousand Five Hundred Ten Pesos (P3,510.00) for and as actual damages from 1947 up to 1960; plus the further sum of Two Hundred Seventy Pesos (P270.00) annually from November 15, 1960 until the land in question shall have been delivered to the plaintiffs and the further sum of One Thousand Pesos (P1,000.00) for and as attorney's fees, with costs against the defendants and intervenors. On appeal taken by Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez, said decision, against them and in favor of Mr. and Mrs. Orais, was affirmed by the Court of Appeals, with the following "modifications": ...; the portion of four (4) hectares claimed in the complaint and described in paragraph 3 thereof is declared to belong to plaintiffs-appellees; defendants and intervenors are condemned to surrender the same unto plaintiffs; and to account for their possession, defendants from 26 January, 1959 and intervenors from 3 September, 1962 until the property should have been finally delivered to the plaintiffs; costs against defendants and intervenors.

Hence the present petition, for review on certiorari, of Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez, against the Court of Appeals and Mr. and Mrs. Orais, to which petition We gave due course. Thereafter, Mr. and Mrs. Orais moved to dismiss said petition upon the ground that the questions raised therein "are of facts and not of law and/or too unsubstantial to require consideration" and that "the petition is prosecuted manifestly for delay." Upon consideration of the motion and the opposition thereto of petitioners herein, the Court resolved to defer action thereon until the case is taken up on the merits. It appears that the land of about four (4) hectares involved in this case is part of a bigger lot of about 14.6303 1 hectares, covered by Original Certificate of Title No. 243 (Exhibit A) in the name of Pedro Sanchez; that, on June 8, 1936, Sanchez executed the deed, Exhibit B, selling said lot of 14.6303 hectares to Anastacio Orais; that said Exhibit B was, on September 10, 1936, filed with the Office of the Register of Deeds of Leyte, and recorded in the memorandum of incumbrances of Homestead OCT No. 243; that, on July 7, 1941, Sanchez executed another deed, Exhibit 10, conveying the disputed portion, of four (4) hectares to Balentin Ruizo who, in turn, sold it, on October 10, 1945, to Guillermo Viacrucis (Exhibit II); that, on January 12, 1959, Anastacio Orais who claimed to have made oral demands formally demanded from Viacrucis that he vacate said portion and surrender its possession to him (Orais) that this demand was not heeded by Viacrucis who, instead, executed, on March 19, 1959, the deed, Exhibit 9, confirming the sale of said portion, allegedly made by him, on January 12, 1954, in favor of his brotherin-law Claros Marquez; and that the deeds of sale, Exhibits 10, 11 and 9, in favor of Ruizo, Viacrucis and Marquez, respectively, have not been registered in the Office of the Register of Deeds of Leyte. Petitioners herein maintained in the court of first instance and the Court of Appeals that, although the deed of sale, Exhibit B, in favor of Orais is earlier, by over five (5) years, than that executed, in favor of their predecessor in interest, Balentin, Ruizo, by the original owner, Pedro Sanchez, they (petitioners) have a better right to the land in question, said Exhibit B having been executed merely to simulate a sale, in order that Orais could "secure a loan from a bank"; but this pretense was overruled by said courts, which, likewise, rejected petitioners' plea; of prescription of action. In their brief before Us, petitioners do not assail the findings of fact and the conclusions reached by the Court of Appeals in connection with the aforementioned defenses of simulation of Exhibit B and prescription of action. They merely contend that the Court of Appeals has erred: (1) "in confusing the doctrine of laches with estoppel" and in considering "misrepresentation as of the essence thereof"; (2) in "confusing laches with estoppel" and "rejecting the defense of laches in this case where all essential requisites thereof are fully met and (3) in deciding this case in violation of sections 22, 23 and 25, Rule 130 of the New Rules of Court. In support of the first assignment of error, petitioners maintain that the Court of Appeals had disposed of their plea of laches "without the least reference to the legal requisites of laches in relation to the uncontroverted facts of this case," whereas, under their second assignment of error, it is urged that the essential elements of the equitable defense of laches are present in the case at bar. Regardless of the merits of these two (2) assignments of error, well settled is the rule that laches is a defense that must be pleaded especially, and that, otherwise, it is deemed waived, so that it can not be set up for the first time on appeal. The record discloses that the defenses of laches and prescription are being raised for the first time in this appeal. They were not invoked in the proceedings before the Hearing Officer nor later on before Associate Commissioner Sanchez and the Workmen's Compensation Commission. As said defenses do not affect the jurisdiction of the latter, they cannot now be entertained and must be deemed to have been waived (Regalado vs. Visayan Shipping Company, Inc., G.R. No. L42855, May 21, 1939; Victorias Milling Company, Inc. vs. Compensation Commissioner, et al., G.R. No. L-10533, May 31, 1957; Manila Yatch Club, Inc. vs. Workmen's Compensation Commission, et al., 2 G.R. No. L-19258, May 31, 1963).

Laches not having been invoked as a defense in the court below, the same can not be gone into 3 at this stage of the proceedings, ... ... Neither prescription of appellee's claim or bar of the action for recovery due to laches was averred in appellant's defenses. Appellant cannot raise them now for the first time on appeal. Verily the failure to raise the issue of prescription and laches, amounts to a waiver of such defenses (Sec. 10, Rule 9; Maxilim v. Tabotabo, 9 Phil. 390; Domingo v. Osorio, 7 Phil. 405). Moreover, the right of the appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under doctrine of laches (Art. 348, Civil Code; Francisco, et 4 al. v. Cruz, et al., 43 O.G. 5105). ... Petitioners Mr. and Mrs. Viacrucis, as defendants in the court of first instance, and petitioners Mr. and Mrs. Marquez as intervenors therein, filed their respective answer and answer in intervention alleging no other defenses than that of prescription of action and that the deed of conveyance Exhibit B merely simulated a sale. Laches was invoked by herein petitioners for the first time in the Court of Appeals, which could not properly entertain it, said, defense having been deemed waived in consequence of petitioner's failure to allege it in the trial court. The first and second assignments of error are, therefore, clearly untenable. With respect to the third assignment of error, petitioners maintain that the Court of Appeals had erred in considering that the failure of Orais to bring the present action earlier was mere "laziness," instead of an omission that "may be given in evidence against him," as provided in section 22 of Rule 130 of the Rules of Court and as "strongly persuasive of lack of merit" of the claim of said respondent, and that when he tried to obtain a loan from the Philippine National Bank in 1936 and offered OCT No. 243 as collateral security, the bank did not accept said offer upon the ground that the land in question is not his property, in reply to which Orais said nothing, which is an admission by silence, pursuant to section 23 of the same Rule 130. Moreover, petitioners bewail that the Court of Appeals, like the trial court, considered in favor of Orais allegedly in violation of section 25 of said Rule 130 the admission of Mrs. Beatriz Costelo, to the effect that, although the land in dispute was physically in the possession of her now deceased husband, Pelagio Costelo, he and she recognized Orais as the owner of said land. It should be noted, however, that said testimony of Mrs. Costelo and this recognition by the now deceased Pelagio Castelo which were confirmed by the public document Exh. G constitute a declaration of Mr. and Mrs. Castelo adverse to their interest, which is admissible in evidence, pursuant to section 32 of said Rule 130. Petitioners have no reason whatsoever to object to the consideration in favor of Orais of said admission, the same having been made in 1936, more than five (5) years before their (petitioners) predecessor in interest, Balentin Ruizo, had entered into the picture, when Orais and Castelo were the only parties who had any interest in the object of said admission. Pursuant to said legal provision, such admission "may be received in evidence," not only 5 against the party who made it "or his successors in interest," but, also, "against third persons." As regards the alleged failure of Orais to say anything when the bank refused to accept OCT No. 243 as collateral for the loan applied for by Orais, upon the ground that the land covered by said certificate of title was not his property, there is no competent evidence on whether or not Orais had said anything in response to said statement. Moreover, OCT No. 243 was in the name of Pedro Sanchez, and no matter how real the sale by the latter to Orais may be, the bank would not accept the land in question as security for said loan, unless and until OCT No. 243 shall have been cancelled and a transfer certificate of title issued to Orais. This, however, could not take place before the filing of his loan application, because the owner's duplicate of said certificate of title admittedly delivered by Sanchez to Orais had been lost in the possession of the latter's counsel, to whom he (Orais) had turned it over in connection with a given criminal case. As regards the effect or import of the failure of Orais to file the present action until November 15, 1960, this is a matter relevant to the issue whether the sale attested to by Exh. B is simulated, as contended by petitioners herein, or a true and authentic sale, as Orais maintains. The decision of the Court of Appeals, affirming that of the

trial court and sustaining the claim of Orais, constitutes a finding of fact, which is final in this proceeding for 6 reviewon certiorari. In any event, said finding is fully borne out by the record. Indeed, petitioners' main argument, apart from the aforementioned inaction of Orais, is that he had never been in possession of the land in question, and that the same had remained in the name of Pedro Sanchez for tax purposes. It should be noted, however, that, although the disputed land was actually held by Pelagio Costelo, from 1936 to 1941, Costelo executed, on July 30, 1936, Exh. G, whereby he, in effect, acknowledged Orais as owner of the land an Orais granted him (Costelo) the right to possess it until the year 1941. And this was confirmed by Mrs. Costelo on the witness stand. As a consequence, Orais came to be in constructive possession of said land, from July 30, 1936. As a matter of fact, petitioners eventually admitted that Orais had been in actual possession, although they claim of another portion of the land covered by OCT No. 243. Then, again, the following circumstances militate agains the simulation alleged by petitioners herein, namely: 1. Exhibit B was not only notarized on the very date of its execution. It was, also, filed, soon thereafter or on September 10, 1936 with the Office of the Register of Deeds of Leyte and recorded in the memorandum of incumbrances of Homestead OCT No. 243. It is noteworthy that according to Viacrucis' deposition, 7 and the testimony of Calixta Suganub, widow of Balentin Ruizo, as witness for petitioners herein, Pedro Sanchez delivered his owner's duplicate of said OCT No. 243 to Anastacio Orais, which is clearly indicative of the intent of Sanchez to give full force and effect to said deed of sale. Upon the other hand, Exhibits 9, 10 and 11, on which herein petitioners rely, have not been registered either under the provisions of the Land Registration Act or under those of Act No. 3344 despite the provision in said deeds to the effect that the same should be or would be registered, by agreement of the parties. Likewise significant is a provision, in the deed Exhibit 10, in favor of Ruizo, that the land thus conveyed is part of a lotcovered by a (certificate of) title, the space intended for the number of which was left blank, and that, this notwithstanding, it was stipulated in said instrument that it would be registered pursuant to Act No. 3344, which refers to lands not registered under the provisions of Act No. 496. Worse still, apart from including the latter stipulation, 8 Mr. and Mrs. Viacrucis declared in the deed, Exhibit 9, in favor of Claros Marquez, that said land isnot registered under the Land Registration Act, which is not true. Apparently, petitioners knew they could not register Exhibits 9, 10 and 11, under the provisions of the Land Registration Act, without their rights under said instruments becoming officially subordinated to those of Anastacio Orais. In fact, Viacrucis stated, in his aforementioned deposition, that he had "lost no time in going to Tacloban, Leyte, to have the Deed of Sale" presumably Exhibit 11, in his favor "registered with the office of the Register of Deeds." We have every reason to believe, therefore, that petitioners had actual knowledge of the existence of Exhibit B and of the fact that it had been filed with the office of the register of deeds, and entered in the memorandum of incumbrances of Homestead OCT No. 243. 2. In their "Amended Answer in Intervention," dated December 10, 1962, Mr. and Mrs. Marquez admitted that Sanchez had really made a sale in favor of Orais, although said intervenors alleged that the land thus acquired by him was only 6.6303 hectares; but, petitioners have not even tried to explain why Exhibit B the only deed executed by Pedro Sanchez in favor of Anastacio Orais conveys the entire lot of 14.6303 covered by OCT No. 243. Petitioners make much of a deed marked as Exhibit 4, 9 executed by Anastacio Orais, on May 25, 1939, whereby he sold one-half (1/2) of a lot of 6.6303 hectares, covered by OCT No. 243, to Alfredo Parrilla, Pastor Zaragoza, Pedro Gorumba and Eugenio A. Evangelista. Said Exhibit 4 does not say, however, that the land sold by Pedro Sanchez to Anastacio Orais was limited to said area of 6.6303 hectares. What is more, it contains an indication to the contrary, for, in describing the object of the sale, Exhibit 4 states that it is one-half (1/2) of a lotbounded on the South by a land of Anastacio Orais. In other words, said lot of 6.6303 was not all that he owned. This might explain why petitioners after producing, marking and identifying Exhibit 4 did not introduce the same in evidence,

although copy thereof is attached to the Amended Answer in Intervention of Mr. and Mrs. Claros Marquez as Annex 5. It should be noted, also, that, at the time of the execution of said Exhibit 4, on May 25, 1939, a portion of about four (4) hectares of the land of 14.6303 hectares sold by Sanchez to Orais, was still held by Pelagio Costelo, to guarantee the payment of a debt of Sanchez, in view of which Orais conceded in Exhibit G Costelo's right to possess the land from 1936 to 1941 evidently, so that he could apply the fruits or products thereof to the satisfaction of his credit and Costelo acknowledged the dominical rights of Orais. Furthermore, it appears that on July 10, 1936, or over a month after the sale by Sanchez to Orais, a deed, Exhibit 1, dated April 19, 1934, and bearing the signature of Sanchez, was notarized. Exhibit 1 purports to convey to one Crecente Marquez a portion, of about four (4) hectares, of the lot covered by OCT No. 243, which portion is notinvolved in the case at bar. There is evidence to the effect that Exhibit 1 was filed with the Office of the Register of Deeds of Leyte, on August 3, 1936, and recorded in the Memorandum of the Incumbrances of OCT No. 243. This must have been made without producing the owner's duplicate of said OCT No. 243, inasmuch as the same was in the possession of Orais, according to the above-mentioned deposition of Viacrucis, since, apparently the execution of Exhibit B, on June 8, 1936. Under the circumstances, Orais may have felt that it was neither necessary nor advisable to make any reference, in Exhibit 4, either to said portion of four (4) hectares, ostensibly conveyed to Crecente Marquez by virtue of Exhibit 1, or to the similar area held by Pelagio Costelo an aggregate of eight (8) hectares, which, deducted from the land of 14.6303 hectares covered by OCT No. 243, left approximately the 6.6303 hectares mentioned in said deed Exhibit 1. 3. Although the entire lot of 14.6303 hectares purchased by Orais from Sanchez, pursuant to Exhibit B, remained for tax purposes in the latter's name, Orais paid the taxes due thereon." 10 At this juncture, it may not be amiss to advert to the fact that, since Exhibit B had filed with the office of the register of deeds and recorded therein as above stated, Ruizo Viacrucis and Marquez are deemed to have constructive notice of the sale in favor of Orais, apart from the circumstances heretofore adverted to that, since Viacrucis had gone to said office soon after the execution in his favor, on October 10, 1945, of the deed of sale Exhibit 11 for the purpose of registering the same, said petitioner must have had actual knowledge of the previous sale to Orais. And this explains why, despite the fact that Viacrucis had gone to the office of the register of deeds for the aforementioned purpose, he did not carry out the same. Viacrucis did not even try to explain why he failed to do so. Petitioners herein, likewise, failed to explain why neither Ruizo nor Claros Marquez had filed with said office the deeds of sale Exhibits 10 and 9 in their favor, respectively, despite the provision in both documents for the registration thereof. Indeed, the parties in Exh. 10 Sanchez and Ruizo had stipulated therein: Que el terreno objeto de esta venta es parte del titulo No. , del vendedor y que es nuestro deseo sin embargo que la presente se register bajo la Ley No. 3344. 11 What is more, as witness for petitioners herein, Jose R. Pastor the notary public who prepared Exh. 10 and before whom it was acknowledged testified positively that Sanchez had explicitly told him, on that occasion, andin the presence of Ruizo, that the 4-hectare land thereby conveyed to Ruizo is covered by a certificate of title, which was not produced then. Likewise, the deed of sale Exh. 11, executed by Ruizo in favor of Viacrucis, provides:

That ... it is our will that this document be registered under the provisions of Act 3344. Similarly, the deed Exh. 9, executed by Mr. and Mrs. Viacrucis in favor of Claros Marquez, states: The the above-mentioned parcel is not registered under Act No. 496, otherwise known as the Land Registration Act nor under the Spanish Mortgage Law; and the parties hereto agree to register this instrument in the office of the Registry of Deeds of the Province of Leyte in accordance with the provisions of the Revised Administrative Code, as amended by Act No. 3344. 12 Considering that Exhibit 10 had been delivered by Ruizo to Viacrucis, who, later, turned over Exhibits 10 and 11 to Claros Marquez, We are fully persuaded that, aware of the registered status of the land in question, petitioners herein had advisedly chosen to treat the same as an unregistered land. None of them claims to have relied upon OCT No. 243 in the name of Pedro Sanchez. They cannot invoke, therefore, the rights of a purchaser for value in good faith under the provisions of the Land Registration Act. Upon the other hand, Orais had purchased said land, and taken possession thereof at first, constructively, in consequence of the deed of sale in his favor, incorporated in the public document, Exhibit B, and, also, of the agreement Exh. G, between Orais and Costelo, and, then, actually, upon the expiration of Castelo's right of possession, under said Exh. G apart from filing said Exh. B with the office of the Register of Deeds and having it recorded therein. As between Pedro Sanchez, Orais and petitioners herein, the title to said land if treated as an unregistered one passed, therefore, to Orais either on June 8, 1936, the date of Exhibit B, or, on July 30, 1936, the date of Exhibit G, or, at the latest, on September 10, 1936, when Exhibit B was recorded in the office of the register of deeds. 13 Accordingly, Sanchez was no longer its owner when he sold it, on July 7, 1941, to Balentin Ruizo who, as a consequence, acquired no title to said land, and conveyed none, on October 10, 1945, to Viacrucis, who, in turn, 14 could not have transmitted any to Claros Marquez. Furthermore, petitioners could not possibly have acquired title to said land, as one registered under Act No. 496, inasmuch as the deeds of conveyance Exhibits 9, 10 and 11 in their favor and in that of their predecessor in interest, Balentin Ruizo have not been registered, and, pursuant to the provisions of said Act, "the act of registration shall be the operative act to convey and affect the land ...." 15 Neither could the petitioners have acquired title by prescription, for "no title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession." 16 Hence, petitioners have given up the plea of prescription, on which they relied heavily in the court of first instance and the Court of Appeals, and now merely press the defense of laches, belatedly invoked, for the first time, in the Court of Appeals and properly rejected by the same. In short, whether the property in question is treated as a registered land or as one not registered under the provisions of Act No. 496, Orais has, therefore, a better right than petitioners herein, and the third assignment of error cannot be sustained. WHEREFORE, the appealed decision of the Court of Appeals should be, as it is hereby affirmed, with costs against herein petitioners Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez. It is so ordered. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIRO ALEGRE y CERDONCILLO, MARIO COMAYAS y CUDILLAN, MELECIO CUDILLAN y ARCILLAS, and JESUS MEDALLA y CUDILLAN, defendants-appellants.

ANTONIO, J.: This is an automatic review of a decision of the court of First Instance of Rizal, Seventh Judicial District, Branch VII, Pasay City finding all the accused, namely, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas and Jesus Medalla y Cudillan, guilty of the crime of Robbery with Homicide and sentencing them as follows: WHEREFORE, this Court finds accused Melecio Cudillan, ,Jesus Medalla, Ramiro Alegre, and Mario Comayas guilty beyond reasonable doubt of ROBBERY WITH HOMICIDE, committed with four (4) aggravating circumstances, not offset by any mitigating circumstance, and hereby sentences all of them to suffer the penalty of death, to be carried out pursuant to the applicable provisions of law, to indemnify jointly and severally the heirs of Adlina Sajo in the amount of P350,000.00, representing the value of the pieces of jewelry unrecovered, to pay jointly and severally also the heirs of Adelina Sajo the amount of P12,000.00. and to pay the costs. With or without appeal, let this case be elevated to the Supreme Court for review, pursuant to law. During the pendency of this appeal, Melecio Cudillan died on arrival at the New Bilibid Prison Hospital on August 16, 1970, and the case as against the said accused, insofar as his criminal liability is concerned, was dismissed on August 29, 1974. This decision, therefore, is limited to appellants Ramiro Alegre, Mario Comayas and Jesus Medalla. This case arose from the death of Adelina Sajo y Maravilla, Spinster, 57 years old, whose body was found in her bathroom inside her house at the Maravilla compound, Ignacio Street, Pasay City, in the early morning of July 26, 1966. According to the Necropsy Report, she died of asphyxia by manual strangulation, and the time of her death was placed between eighteen to twenty-two hours before 12:30 p.m. of July 26, 1966. Her bedroom was in "shambles," evidently indicating that it was ransacked. The drawers and several cabinets were open, and some personal garments, hadbags and papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police headquarters for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Adlina Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966 (Exhibits "F", "F-1" and "F-2"). In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok" of Villalon, Calubian, Leyte; Jesus Medalla, of Villahermosa, Calubian, Leyte; Mario Cudillan, also of Villahermosa, Calubian, Leyte; one "Danny" Fernandez, of Balaquid, Cabucgayan, Biliran Sub-province; and one "Rammy, " another Leyteno. When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession (Exhibits "A ", "A-1 " to "A-6" on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, and Identified Ramiro Alegre, Jesus Medalla and Mario Comayas as the persons he referred to as Jesus Medalla, "Rami" and "Mario" in his declaration. On the basis of the aforementioned extrajudicial confession of Melecio Cudillan, an Information for Robbery with Homicide was filed by the Special Counsel of Pasay City against Celso Fernandez, alias "Esok," Jesus Medalla y Cudillan, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas, and one John Doe."

When arraigned on August 10, 1966, Mario Comayas, Melecio Cudillan, Jesus Medalla and Ramiro Alegre entered a plea of not guilty. The prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the extrajudicial confessions of Melecio Cudillan. Thus, the details of the planning and the execution of the crime were taken from the "Pasay Sworn Statement" (Exhibits "A", "A-1" to "A-6"). The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. The testimony of Sgt. Mariano Isla of the Pasay City police is to the effect that when he was investigating Melecio Cudillan, the latter pointed to Ramiro Alegre, Mario Comayas and Jesus Medalla as his companions in the commission of the crime. According to him, said appellants "just stared at him (Melecio Cudilla) and said nothing." Q. In what particular place in the Police Department did you have to confront the accused Melecio Cudillan with the other suspects'? A. In the office of the Secret Service Division. Q. When you said there was a confrontation between the accused Melecio Cudillan and other suspects whom do you refer to as other suspects? A. Jesus Medalla, Celso Fernandez, Rosario Dejere and Mario. There was another person Eduardo Comayas. He was also one of those suspects but Melecio Cudillan failed to point to him as his companion. Q. Who were those persons or suspects pointed to by Melecio Cudillan in the Police Department of Pasay City as his companions? A. To Jesus Medalla, Ramiro Alegre and Mario Comayas. Q. When Melecio Cudilla pointed to these persons what did these three persons do? A. They just stared at him and said nothing. (t.s.n., pp. 15-16, Hearing of October 28, 1966). According to the trial court, had the appellants "really been innocent (they) should have protested vigorously and not merely kept their silence." Hernando Carillo, a detention prisoner in the Pasay City jail, declared that the three (3) appellants admitted to him that they took part in the robbery and homicide committed in the residence of the deceased, viz.: ATTY. DEPASUCAT: Q. Do you know the other accused Ramiro Alegre? A. Yes, sir. Q. If he is inside the court room, will you please point him out? INTERPRETER:

Witness points to the fellow in the second row, fourth from the left who, upon being asked, gave his name as Ramiro Alegre. ATTY. DEPASUCAT: Q. Did you have any occasion to talk to Ramiro Alegre? A. Yes, sir. Q. Where? A. In the city jail because our cells are also near each other. Q. And what did you and Ramiro Alegre talk about? A. Concerning his case and he told me that he has also anticipated in the commission of the killing of Adelina Sajo. Q. By the way, when did you talk with Ramiro Alegre, more or less? A. About the middle of June. Q. And what else did Ramiro Alegre tell you, if any? A. That he was also inside the room when they killed Adelina Sajo. Q. Now, regarding that conversation you had with the accused Jesus Medalla, when did that take place, more or less? A. About that month also of June, about the middle of June. Q. What year? A. 1967. Q. Do you know the other accused Mario Comayas? A. Yes, sir. Q. Why do you know him? A. He is also one of the prisoners and our cells are near each other. Q. If he is inside the courtroom, will you please point him out? INTERPRETER: Witness indicating to the fellow who gave his name as Mario Comayas.

ATTY. DEPASUCAT: Q. Did you have any occasion to talk with the accused Mario Comayas? A. Yes, sir. Q. When was that, more or less? A. In the month of June, about the middle part also of June. Q. And what did you talk about? A. Regarding this case of Adelina Sajo and he admitted to me that he was one of those who planned and killed Adelina Sajo. Q. I see! And what, else did he tell you, if any? A. That while the killing was being perpetrated upstairs he was told to by the door. Q. How about the other accused Melencio Cudillan, do you know him? A. Yes, sir. Q. If he is in court, will you please point him out? INTERPRETER: Witness pointing to the accused who gave his name as Melecio Cudillan. ATTY. DEPASUCAT: Q. Why do you know Melecio Cudillan? A. Because he is with me in one cell. Q. Were you able also to talk with Melecio Cudillan? A. Most of the time because we used to talk about our case. Q. When have you talked with Melecio Cudillan, more or less? A. Three days after my confinement and subsequently thereafter up to about the first week of June, 1967. Q. And what did the accused Melecio Cudillan tell you about this case? ATTY. RAMIREZ:

Objection, Your Honor, leading. COURT: Witness may answer, there is already a basis. A. That they were the ones who planned and killed Adelina Sajo. (t.s.n., pp. 286-289, Hearing of July 21, 1967). However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. Appellants Jesus Medalla and Mario Comayas denied any involvement in the crime. They testified that at the time of the incident in question. they were attending the internment of the deceased child of Ciriaco Abobote. According to Jesus Medalla, he and his companions left the Maravilla compound at 10:00 o'clock in the morning of July 25, 1966 to attend the internment. 'They left the cemetery at about 5:00 o'clock in the afternoon and proceeded directly to his house at Leveriza Street where he stayed the whole night. Mario Comayas confirmed that he and Jesus Medalla were at the house of Ciriaco Abobote in the morning of July 25, 1966, until after 5:00 o'clock in the afternoon when he returned to the bakery where he was employed to resume his work. Appellant Ramiro Alegre did not testify but presented three (3) witnesses to support his defense. Thus, Urbano Villanueva testified that he was a sub-contractor of Jose Inton for the welding project of David M. Consunji at the Sheraton Hotel construction; that Ramiro Alegre began working at the construction as a welder on July 13, 1966, and that from 7:00 o'clock in the morning to 4:00 o'clock in the afternoon, Alegre worked in the project and that he knew this because he is the foreman and timekeeper in the project. He Identified the Time Record of Ramiro Alegre (Exhibit "1"). Rodolfo Villanueva and Romeo Origenes testified that from 7:00 o'clock in the morning up to 4:00 o'clock in the afternoon of July 25, 1966, appellant Ramiro Alegre was at the Sheraton Hotel construction at Roxas Boulevard. Their testimony is confirmed by the Time Record of Ramiro Alegre (Exhibit "1") which contained the number of hours he actually worked at the Sheraton Hotel construction project. Appellants now contend that the lower court erred in utilizing the extrajudicial confessions of Melecio Cudillan (now deceased) as evidence against herein appellants; in concluding from the alleged "Silence" of appellants when allegedly pointed to by Melecio Cudillan as "his companions" in the commission of the crime, an admission of guilt; and in giving undue weight and credence to the testimony of an inmate of the Pasay City Jail that appellants admitted to him their participation in the crime. I The extrajudicial confessions of Melecio Cudillan (Exhibits "A", "A- I " to "A-6" and "F", "F-1" and "F-2"), on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, 1 under the principle of "res inter alios acta alteri nocere non debet" there being no independent evidence of 2 conspiracy. As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co- accused. It is merely hearsay evidence as far as the 3 other accused are concerned. While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. II

The next question to be resolved is whether or not the silence of appellants while under police custody, in the face of statements of Melecio Cudillan implicating them as his companions in the commission of the crime, could be considered as tacit admission on their part of their participation therein. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, 4 and that he may refuse to answer an incriminating question. 5 It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of 6 7 silence would be illusory. The leading case of Miranda v. Arizona held that the prosecution may not use at trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at a police custodial interrogation. Prior to Miranda, it was the view of many authorities that a man to whom a statement implicating him in a crime is directed may fail to reply if he is in custody under a charge of the commission of that crime, not because he acquiesces in the truth of the statement, but because he stands on his constitutional right to remain silent, as being the safest course for him to pursue and the best way out of his predicament. 8 Other courts have held that the circumstance that one is under arrest by itself does not render the evidence inadmissible, and that an accusation of a crime calls for a reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicate that he is free to answer if he chooses. 9 We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against self-incrimination. The right or privilege of a person accused of a crime against self- incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against selfincrimination is an important development in man's struggle for liberty. It reflects man's fundamental values and his most noble of aspirations, the unwillingness of civilized men to subject those' suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life." 10 In the words of Chavez v. Court of Appeals: 11 ... this right is 'not merely a formal technical rule the enforcement of which is left to the discretion of the court;' it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice ... Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. It must be stressed here that even under a regime of martial law, the operations of our laws governing the rights of an accused person are not open to doubt. Under the code for the administration of detainees, all officers, civilian and military personnel are sworn to uphold the rights of detainees. Among such fundamental rights are the right against compulsory testimonial self-incrimination, the right, when under investigation for the commission of an offense, to remain silent, to have counsel, and to be informed of his rights; the right not to be subjected to force, violence, threats, intimidation and degrading punishment or torture in the course of one's detention, and the safeguard that any confession obtained in violation of the foregoing rights shall be inadmissible in evidence. 12The

1973 Constitution gives explicit constitutional sanction to the right to silence. Thus, in Section 20 of Article IV of the Constitution, there is this categorical mandate: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." This privilege against self-incrimination guaranteed by the Constitution protects, therefore, the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence. 13 This aspect of the right has been comprehensively explained by then Associate Justice Enrique M. Fernando, now Chief justice, in Pascual Jr. v. Board of Medical Examiners, 14 thus: The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: 'The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt.' Only last year, in Chavez v. Court of Appeals, speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant 'to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.' Identifying the right of an accused to remain silent with right to privacy, this Court, in Pascual explained that the privilege against self-incrimination "enables the citizen to create a zone of privacy which government may not force to surrender to its detriment." We hold, therefore, that it was error for the trial court to draw from appellants' silence while under police custody, in the face of the incriminatory statements of Melecio Cudillan, the conclusion that the aforesaid appellants had tacitly admitted their guilt. We hold, further, that in view of the inadmissibility of the extrajudicial confession of Melecio Cudillan implicating herein appellants, the remaining evidence against them, consisting in the testimonies of Sgt. Mariano Isla and Hernando Carillo, is insufficient to sustain the judgment of conviction. Indeed, it is inherently improbable that herein appellants would have readily confessed their participation in the commission of a heinous crime to a casual acquaintance in a prison detention cell, considering that on the same occasion they strongly denied any involvement in such crime before the police authorities. WHEREFORE, the judgement appealed from is reversed, and appellants Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan and Jesus Medalla y Cudillan are hereby ACQUITTED of the crime with which they are charged. Their immediate release from detention is ordered, unless they or any one of them is otherwise held for some other lawful cause. SO ORDERED. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO PARAGSA, alias "BENBEN", defendant-appellant. MAKASIAR, J.: Bienvenido Paragsa, alias "Benben", appealed to the Court of Appeals the decision of the Court of First Instance of Cebu (Judge Agapito Hontanosas, presiding), the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered convicting the accused Bienvenido Paragsa of the crime of Rape as charged in the Information beyond reasonable doubt and applying the

Indeterminate Sentence Law, hereby sentences him to suffer the indeterminate penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as the maximum and to indemnify the complaining witness in the amount of P8,000.00 (People vs. Rogato Rivera, 58, O.G. and People vs. Chan et al., CA No. 03545-GR, August 11, 1967) with all legal accessories and to pay the costs. Being a detention prisoner, he is entitled to the full credit of his preventive imprisonment from the time of his confinement up to the date of the promulgation of this judgment. xxx xxx xxx (pp. 10-19, rollo). Because the penalty of reclusion perpetua was imposed by the Court of Appeals on the accused, this case is now before US for review pursuant to Section 34, Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948. The evidence for the prosecution consists of the testimony of Mirasol Magallanes, the alleged rape victim, her aunt-in-law, Mrs. Lita Parochel, and Dr. Luis L. Gandiongco of the Bantayan Emergency Hospital, Bantayan, Cebu, who examined the offended party and submitted Exhibit A embodying his findings thereon, Substantially, the records show that in the afternoon of July 13, 1971, Mirasol, who was then a little over twelve and a half (12) years old (Exhibit B, p. 7, rec.), was alone in her parents' house in Sitio Tabagac of Barrio Bunacan, Municipality of Madridejos, Cebu, cooking hog feed. Her parents were away at the time her father was in Cadiz, while her mother was in Sagay, both in Negros Occidental (p. 16, t.s.n., Jan. 5, 1972) while the rest of the family were with Mirasol's grandmother in Barrio Codia; also in Madridejos, Cebu. Mirasol was a 6th grade student of the Bunacan Elementary School (p. 6, t.s.n., Dec. 3, 1971). Upon instruction of her mother, she did not go to school that afternoon so that she could look after the pigs and cook their feed. Thus, she was alone in the ground floor of their house cooking hog feed when the accused, Bienvenido Paragsa, armed with a hunting knife, entered the house and closed the door after him. Approaching from behind, he placed his left arm around Mirasol's neck, encircled her abdomen with his right arm, at the same time pointing the hunting knife with s right hand at her breast, and threatened her not to shout otherwise she would be killed. Thereafter, the accused pushed her to a bamboo bed nearby, rolled up her dress and, with his two hands, removed her panties. The accused then placed his hunting knife on the bed by Mirasol's side, opened the zipper of his pants while kneeling on the bed, opened Mirasol's thighs, picked up the hunting knife again, placed himself on top of Mirasol, inserted his erect penis into her sexual organ and then made four push and pull movement until he ejaculated (pp. 7, 10-11, 12, 13, 14, t.s.n.,Ibid). In the process, Mirasol's dress and panties were not torn, since, because of fear, she allowed the accused to roll up her dress and pull her panties without any resistance whatsoever. During the intercourse, the accused was not holding the hunting knife. After the accused had discharged, he ran to the storeroom of the house upstairs because he heard Mrs. Lita Parochel, wife of the younger brother of Mirasol's father, calling from outside the gate of the house, asking Mirasol to open the gate. Mirasol did not answer because she was then in the act of putting on her panties (p. 14, t.s.n., Ibid; p. 10, t.s.n., Jan. 5, 1972). After she had put on her panties, she opened the gate and saw her aunt Lita, who asked her what the accused did to her, but she did not answer because she was afraid as the accused was still inside the house. She also did not tell her aunt Lita that the accused had sexual intercourse with her under threats and against her will. Her aunt Lita then walked away. Thereafter, the accused reappeared in the room and told Mirasol that if she would tell her aunt Lita what he did, he would kill her (pp. 13-14, t.s.n., Dec. 3, 1971). After the incident, Mirasol went to Barrio Codia later in the afternoon of the same day and joined her brother and sister and grandmother. She did not reveal to any of them what transpired between her and the accused in Tabagac. Mirasol's father returned from Cadiz, Negros Occidental that same day; but Mirasol did not also reveal the incident to him because she was afraid her father might punish her. Her mother returned home on July 16, 1971 from

Sagay, Negros Occidental; but Mirasol did not also tell her mother about what happened to her on July 13 in Tabagac It was her aunt Lita who revealed the matter to Mirasol's mother, who thereupon confronted her daughter. Mirasol had to reveal the incident of July 13 to her mother only when her mother asked her about it; because, according to her, she wanted to take revenge on the accused (p. 15, Dec. 3, 1971). Three days after her return from Sagay, Negros Occidental on July 19, 1971 Mirasol's mother brought her to the Bantayan Emergency Hospital in Bantayan, Cebu, where she was examined by Dr. Luis L. Gandiongco, who submitted his findings as follows: Abrasion of inguinal region Abrasion, left thigh, medial side INTERNAL FINDINGS: 1. Discharges sticky, milky in color, found at the anterior fornix but negative for spermatozoa (Exh. A, p. 8, rec.; p. 2, t.s.n., Nov. 16, 1971). Mrs. Lita Parochel, the aunt-in-law of Mirasol, testified that she is the wife of the younger brother of Mirasol's father. Her house is fifty (50) meters away from the house of her brother-in-law, Ruperto Magallanes. In the afternoon of July 13, 1971, she went to the house of her brother-in-law in Tabagac Arriving there, she saw, through the gate which was made of split bamboos, the accused running away when she shouted to Mirasol, who was then in the act of putting on her panties, to open the gate (p. 10, t.s.n., Jan. 15, 1972). Mirasol opened the gate after she had put on her panties. Entering the house, Mrs. Parochel asked Mirasol what the accused did to her, but Mirasol did not answer. So, she hid and from her hiding place she saw the accused emerge from his hiding place and run away, passing through the gate of the fence. Thereupon, she told Mirasol to go home to barrio Codia because she was also going there (p. 15, t.s.n., Ibid). Mrs. Parochel met Mirasol's father at about 4:00 o'clock the same afternoon but she did not talk to him about what she saw earlier in Tabagak However, she revealed the incident to her husband (p. 17, t.s.n., Ibid). When Mirasol's mother returned from Sagay, Negros Occidental, Mrs. Parochel had a conversation with her regarding the person of the accused and thereafter Mirasol's mother filed the corresponding complaint against the accused (p. 18, t.s.n., Ibid). Incidentally, in support of the complaint of Bernandina Magallanes, mother of Mirasol, Mrs. Parochel executed an affidavit which she subscribed and swore to before the municipal judge of Madridejos, Cebu, on July 30, 1971, wherein she stated, among other things: 1. That at about 3:00 o'clock in the afternoon of July 13, 1971, I went to the house of Ruperto Magallanes, my neighbor; 2. That when I entered their fence, I found out that one Benben Paragsa ran from the bed where Mirasol Magallanes was sitting on while putting on her panties; 3. That she, Mirasol Magallanes, upon my arrival, did not say anything to me about the happening; and that I was only thinking that something had happened (Exh. 1, p. 5, rec.). In his typewritten brief, the appellant enumerated and discussed five errors as having been committed by the trial court. These errors may, however, be boiled down to the issue of credibility.

Appellant admits having sexual intercourse with Mirasol, the complaining witness, but he stoutly denied that he did so by employing force or intimidation against Mirasol. He claims he and Mirasol were sweethearts; that on the day of the incident, it was Mirasol who invited him to the latter's house where they had sexual intercourse after kissing each other; and that the intercourse they had that afternoon was, as a matter of fact, their third sexual intercourse (pp. 2, 3, 5, 6, 8-9, t.s.n., March 21, 1972). The foregoing testimony of the accused was substantially corroborated by two witnesses for the defense, Mercado Batosbatosan and Eduardo Ducay (pp. 5, 6-7, 12, 15-16, 17, 18, 19, 20, 25, t.s.n., Feb. 1, 1972). A careful scrutiny of the record reveals that the prosecution's evidence is weak, unsatisfactory and inconclusive to justify a conviction. Certain circumstances negate the commission by the appellant of the crime charged and point to the conclusion that the sexual intercourse between the appellant and the complaining witness was voluntary. Force and intimidation were not proven. Mirasol did not offer any resistance or vocal protestation against the alleged sexual assault. She could have easily made an outcry or resisted the appellant's advances without endangering her life. But she did not. She was allegedly raped in her own home, not far from her neighbors and during the daytime. If, indeed, she was raped under the circumstances narrated by her, she could have revealed the same the very moment she was confronted by her aunt Lita who asked her what the accused did to her upon entering the house immediately after the intercourse took place and when the accused ran from the bed to a storeroom of the house to hide upon seeing and/or hearing the voice of her aunt Lita. or, she could have grabbed the hunting knife by her side when the copulation was going on, and with it she could have possibly prevented the accused from consummating the sexual act. But she did not. Another circumstance is that Mirasol did not reveal immediately to her parents that she was raped. It was only after her mother arrived from Sagay, Negros Occidental, three (3) days after the incident, and confronted her about the rape incident that her mother learned through her aunt Lita that she eventually revealed to her mother what the accused did to her in the afternoon of July 13, 1971. Still another circumstance is the fact that Mirasol did not bother at all to rebut the testimony of the appellant and his witnesses to the effect that the accused and Mirasol were actually sweethearts; and that they had had two previous sexual communications before July 13, 1971, one of which happened on June 29, 1971 in the house of the accused, where Mirasol and the accused slept together in the evening of the same day after the mother of the accused and Mirasol had returned from the town fiesta of Bantayan, Cebu (p. 10, t.s.n., March 21, 1972). The rule allowing silence of a person to be taken as an implied admission of the truth of the statements uttered in his presence is applicable in criminal cases. But before the silence of a party can be taken as an admission of what is said, it must appear: (1) that he heard and understood the statement; (2) that he was at liberty to interpose a denial; (3) that the statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally, for an answer; (4) that the facts were within his knowledge; and (5) that the fact admitted or the inference to be drawn from his silence would be material to the issue (IV Francisco, The Revised Rules of Court in the Philippines, 1973 ed., p. 316). These requisites of admission by silence all obtain in the present case. Hence, the silence of Mirasol on the facts asserted by the accused and his witnesses may be safely construed as an admission of the truth of such assertion. One more circumstance which engenders serious doubt on the truthfulness of Mirasol is the testimony of Dr. Gandiongco that he did not notice any laceration in the walls of Mirasol's vagina, thus Q Doctor, you testified that according to your findings a foreign body might have inserted the internal organ of the offended party?

A Yes, sir. Q And as a matter of fact, in your examination there was no laceration? A There was no laceration (p 5, t.s.n., November 16, 1971; Emphasis supplied). Considering Mirasol's tender age, if she had no previous sexual experience, she must have been a virgin when she was allegedly raped by the accused. Yet she did not state that she felt some pain as the accused tried to insert his organ into her private part. Neither did she state that she was bleeding during and after the alleged forced coition. Instead, she matter-of-factly narrated that the accused made four push and pull movements after which the latter ejaculated indicating that he had an easy time doing it. If WE are to believe her story, certainly the doctor who examined her could have noticed the lacerations even after the lapse of three (3) days from the coition, if the intercourse on July 13, 1971 was in fact her first experience. WE believe the absence of lacerations in the walls of Mirasol's vagina, as testified to by Dr. Gandiongco, supra,eloquently confirms the truth of the accused's assertion that before the incident in question, he and Mirasol had two prior copulations. And still another circumstance which casts serious doubt on the credibility of the complaining witness and her aunt Lita is the matter of the hunting knife. While it is true that on the witness stand these two witnesses practically corroborated each other on this particular point, the matter of the accused having a hunting knife with him on the day of the incident was not, however, mentioned by Mrs. Parochel in her affidavit, Exhibit 1, which she executed on July 30, 1971 five months before she testified in court. Besides, at the trial, the prosecution did not bother to present such "hunting knife". A last circumstance which also engenders serious doubt on the veracity of Mrs. Parochel, whose testimony the trial court summarized, runs thus: ... The victim did not answer the call of her aunt nor did she open the barred door. ... She returned to the opened door and asked Mirasol what had happened. Mirasol was very pale, trembling and in a state of shock, did not answer her inquiries ...(p. 3, Decision; p. 64, rec.; emphasis added). The Solicitor General adopted the above factual summary made by the trial court by stating that Mirasol's aunt, Lita Parochel ... found her niece in a state of shock (p. 4, Brief for the PlaintiffAppellee; p. 49, rec.; Emphasis supplied). A painstaking scrutiny of the record, particularly the transcript of stenographic notes, shows that contrary to the finding of the trial court, Mirasol answered the call of her aunt and opened the gate of the house after she had put on her panties (p. 14, t.s.n., Dec. 3, 1971); and that Mirasol only seemed to be afraid, besides trembling (p. 23, t.s.n., 1972); nowhere in the record is any evidence of Mirasol having been in a state of shock. If Mirasol was in fact in a state of shock 1. How come she was able to put on her panties and thereafter open the gate of the house when she heard her aunt Lita calling from the outside? 2. Her aunt Lita would feel so alarmed and so concerned that she would not lose any time to bring her to a doctor or to a hospital for medical treatment or assistance;

3. Her aunt Lita would have confronted the accused who was still hiding in the closet in a corner of the ground floor, or she would have gone to the nearest police authority or barrio captain, who could have easily apprehended the accused: 4. Her aunt could have sought the assistance of their barriomates or neighbors; or 5. She could have brought Mirasol to her own house which was on about 50 meters away (pp. 7, 20, t.s.n., Jan. 5, 1972). But what did she do? She abandoned Mirasol "because" she Mirasol had to feed her hogs (p. 24, Idem). That Mirasol was pale, afraid and trembling can only be attributed to the fact that her aunt discovered her having sexual intercourse at so young an age and that she feared that her aunt would report the same to her parents. And if Mrs. Parochel really believed that her niece Mirasol was raped by appellant about 3 o'clock that afternoon of July 13, 1971, why did she not report the outrage to Mirasol's father her husband's brother whom she met about 4 o'clock that same afternoon, just one hour after the alleged rape? Mrs. Parochel's close relationship to her niece-daughter of her brother-in-law vitiates her credibility. Appellant cannot be legally convicted of simple seduction under Article 338 of the Revised Penal Code, for the same is not warranted by the wording of the information, which does not alleged deceit, although appellant testified that he promised to marry Mirasol if "something happens to her body." Much less can simple seduction include rape. WHEREFORE, APPELLANT BIENVENIDO PARAGSA, ALIAS "BENBEN", IS HEREBY ACQUITTED, WITH COSTSde oficio AND HIS IMMEDIATE RELEASE IS HEREBY ORDERED UNLESS HE IS BEING DETAINED ON OTHER CHARGES. SO ORDERED. Griffin v. California Argued March 9, 1965 Decided April 28, 1965 380 U.S. 609 Syllabus Comment to the jury by a prosecutor in a state criminal trial upon a defendant's failure to testify as to the matters which he can reasonably be expected to deny or explain because of facts within his knowledge or by the court that the defendant's silence under those circumstances evidences guilt violates the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution, as made applicable to the States by the Fourteenth, Malloy v. Hogan, 378 U. S. 1. 380 U. S. 610-615. 60 Cal.2d 182, 383 P.2d 432, reversed. MR. JUSTICE DOUGLAS delivered the opinion of the Court. Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trial on the issue of penalty. The trial court instructed the jury on the issue of guilt, stating that a defendant has a constitutional right not to testify. But it told the jury:

"As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable." It added, however, that no such inference could be drawn as to evidence respecting which he had no knowledge. It stated that failure of a defendant to deny or explain the evidence of which he had knowledge does not create a presumption of guilt, nor, by itself, warrant an inference of guilt nor relieve the prosecution of any of its burden of proof. Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The prosecutor made much of the failure of petitioner to testify: "The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her." "What kind of a man is it that would want to have sex with a woman that beat up is she was beat up at the time he left? " "He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor, because he was conscious of his own guilt and wanted to get away from that damaged or injured woman." "These things he has not seen fit to take the stand and deny or explain." "And, in the whole world, if anybody would know, this defendant would know." "Essie Mae is dead; she can't tell you her side of the story. The defendant won't." The death penalty was imposed, and the California Supreme Court affirmed. 60 Cal.2d 182, 32 Cal.Rptr. 24, 383 P.2d 432. The case is here on a writ of certiorari which we granted, 377 U.S. 989, to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan, 378 U. S. 1, decided after the Supreme Court of California had affirmed the present conviction. If this were a federal trial, reversible error would have been committed. Wilson v. United States, 149 U. S. 60, so holds. It is said, however, that the Wilson decision rested not on the Fifth Amendment, but on an Act of Congress, now 18 U.S.C. 3481. [Footnote 4] That indeed is the fact, as the opinion of the Court in the Wilson case states. And see Adamson v. California, 332 U. S. 46, 332 U. S. 50, n. 6; Bruno v. United States, 308 U. S. 287, 308 U. S. 294. But that is the beginning, not the end, of our inquiry. The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.

We think it does. It is, in substance, a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made, as in other situations, but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. The Court in the Wilson case stated: ". . . the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to everyone, and not wish to be witnesses. It is not everyone who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character and offenses charged against him will often confuse and embarrass him to such a degree as to increase, rather than remove, prejudices against him. It is not everyone, however, honest, who would therefore willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be witnesses, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him." If the words "fifth Amendment" are substituted for "act" and, for "statute," the spirit of the Self-Incrimination Clause is reflected. For comment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice," Murphy v. Waterfront Comm., which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is, in any event, natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. People v. Modesto, 62 Cal.2d 436, 452-453, 42 Cal.Rptr. 417, 426-427, 398 P.2d 753, 762-763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. That the inference of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself: "Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him (Code Civ.Proc. 2051), and not that he is unable to deny the accusations. It is true that the defendant might fear that his prior convictions will prejudice the jury, and therefore another possible inference can be drawn from his refusal to take the stand." We said in Malloy v. Hogan, supra, that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." We take that in its literal sense, and hold that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. Reversed.