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G.R. No. L-32599 June 29, 1979 EDGARDO E. MENDOZA, petitioner vs. HON. ABUNDIO Z.

ARRIETA, Presiding Judge of Branch VIII, Court of First Instance of Manila, FELINO TIMBOL, and RODOLFO SALAZAR, respondents. Petitioner, Edgardo Mendoza, seeks a review on certiorari of the Orders of respondent Judge in Civil Case No. 80803 dismissing his Complaint for Damages based on quasi-delict against respondents Felino Timbol and Rodolfo Salazar. The facts which spawned the present controversy may be summarized as follows: On October 22, 1969, at about 4:00 o'clock in the afternoon, a three- way vehicular accident occurred along Mac-Arthur Highway, Marilao, Bulacan, involving a Mercedes Benz owned and driven by petitioner; a private jeep owned and driven by respondent Rodolfo Salazar; and a gravel and sand truck owned by respondent Felipino Timbol and driven by Freddie Montoya. As a consequence of said mishap, two separate Informations for Reckless Imprudence Causing Damage to Property were filed against Rodolfo Salazar and Freddie Montoya with the Court of First Instance of Bulacan. The race against truck-driver Montoya, docketed as Criminal Case No. SM-227, was for causing damage to the jeep owned by Salazar, in the amount of Pl,604.00, by hitting it at the right rear portion thereby causing said jeep to hit and bump an oncoming car, which happened to be petitioner's Mercedes Benz. The case against jeep-owner-driver Salazar, docketed as Criminal Case No. SM 228, was for causing damage to the Mercedes Benz of petitioner in the amount of P8,890.00 At the joint trial of the above cases, petitioner testified that jeep-owner- driver Salazar overtook the truck driven by Montoya, swerved to the left going towards the poblacion of Marilao, and hit his car which was bound for Manila. Petitioner further testified that before the impact, Salazar had jumped from the jeep and that he was not aware that Salazar's jeep was bumped from behind by the truck driven by Montoya. Petitioner's version of the accident was adopted by truck driver Montoya. Jeep-owner-driver Salazar, on the other hand, tried to show that, after overtaking the truck driven by Montoya, he flashed a signal indicating his intention to turn left towards the poblacion of Marilao but was stopped at the intersection by a policeman who was directing traffic; that while he was at a stop position, his jeep was bumped at the rear by the truck driven by Montova causing him to be thrown out of the jeep, which then swerved to the left and hit petitioner's car, which was coming from the opposite direction. On July 31, 1970, the Court of First Instance of Bulacan, Branch V, Sta. Maria, rendered judgment, stating in its decretal portion: IN VIEW OF THE FOREGOING, this Court finds the accused Freddie Montoya GUILTY beyond reasonable doubt of the crime of damage to property thru reckless imprudence in Crime. Case No. SM-227, and hereby sentences him to pay a fine of P972.50 and to indemnify Rodolfo Salazar in the same amount of P972.50 as actual damages, with subsidiary imprisonment in case of insolvency, both as to fine and indemnity, with costs.

Accused Rodolfo Salazar is hereby ACQUITTED from the offense charged in Crime. Case No. SM-228, with costs de oficio, and his bond is ordered canceled SO ORDERED.
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Thus, the trial Court absolved jeep-owner-driver Salazar of any liability, civil and criminal, in view of its findings that the collision between Salazar's jeep and petitioner's car was the result of the former having been bumped from behind by the truck driven by Montoya. Neither was petitioner awarded damages as he was not a complainant against truck-driver Montoya but only against jeep-owner-driver Salazar. On August 22, 1970, or after the termination of the criminal cases, petitioner filed Civil Case No. 80803 with the Court of First Instance of Manila against respondents jeep-owner-driver Salazar and Felino Timbol, the latter being the owner of the gravel and sand truck driven by Montoya, for indentification for the damages sustained by his car as a result of the collision involving their vehicles. Jeep-owner-driver Salazar and truck-owner Timbol were joined as defendants, either in the alternative or in solidum allegedly for the reason that petitioner was uncertain as to whether he was entitled to relief against both on only one of them. On September 9, 1970, truck-owner Timbol filed a Motion to Dismiss Civil Case No. 80803 on the grounds that the Complaint is barred by a prior judgment in the criminal cases and that it fails to state a cause of action. An Opposition thereto was filed by petitioner. In an Order dated September 12, 1970, respondent Judge dismissed the Complaint against truck-owner Timbol for reasons stated in the afore- mentioned Motion to Dismiss On September 30, 1970, petitioner sought before this Court the review of that dismissal, to which petition we gave due course. On January 30, 1971, upon motion of jeep-owner-driver Salazar, respondent Judge also dismissed the case as against the former. Respondent Judge reasoned out that "while it is true that an independent civil action for liability under Article 2177 of the Civil Code could be prosecuted independently of the criminal action for the offense from which it arose, the New Rules of Court, which took effect on January 1, 1964, requires an express reservation of the civil action to be made in the criminal action; otherwise, the same would be barred 2 pursuant to Section 2, Rule 111 ... Petitioner's Motion for Reconsideration thereof was denied in the order dated February 23, 1971, with respondent Judge suggesting that the 3 issue be raised to a higher Court "for a more decisive interpretation of the rule. On March 25, 1971, petitioner then filed a Supplemental Petition before us, also to review the last two mentioned Orders, to which we required jeep-owner-driver Salazar to file an Answer. The Complaint against truck-owner Timbol We shall first discuss the validity of the Order, dated September 12, 1970, dismissing petitioner's Complaint against truck-owner Timbol.

In dismissing the Complaint against the truck-owner, respondent Judge sustained Timbol's allegations that the civil suit is barred by the prior joint judgment in Criminal Cases Nos. SM227 and SM-228, wherein no reservation to file a separate civil case was made by petitioner and where the latter actively participated in the trial and tried to prove damages against jeep-driver-Salazar only; and that the Complaint does not state a cause of action against truck-owner Timbol inasmuch as petitioner prosecuted jeep-owner-driver Salazar as the one solely responsible for the damage suffered by his car. Well-settled is the rule that for a prior judgment to constitute a bar to a subsequent case, the following requisites must concur: (1) it must be a final judgment; (2) it must have been rendered by a Court having jurisdiction over the subject matter and over the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and second actions, Identity of parties, Identity of subject matter and Identity of cause of action. It is conceded that the first three requisites of res judicata are present. However, we agree with petitioner that there is no Identity of cause of action between Criminal Case No. SM227 and Civil Case No. 80803. Obvious is the fact that in said criminal case truck-driver Montoya was not prosecuted for damage to petitioner's car but for damage to the jeep. Neither was truck-owner Timbol a party in said case. In fact as the trial Court had put it "the owner of the Mercedes Benz cannot recover any damages from the accused Freddie Montoya, he (Mendoza) being a complainant only against Rodolfo Salazar in Criminal Case 4 No. SM-228. And more importantly, in the criminal cases, the cause of action was the enforcement of the civil liability arising from criminal negligence under Article l of the Revised Penal Code, whereas Civil Case No. 80803 is based on quasi-delict under Article 5 2180, in relation to Article 2176 of the Civil Code As held in Barredo vs. Garcia, et al. The foregoing authorities clearly demonstrate the separate in. individuality of cuasi-delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability arising from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce either a civil liability arising from a crime under the Penal Code, or a separate responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited render it inescapable to conclude that the employer in this case the defendantpetitioner is primarily and directly liable under article 1903 of the Civil Code. That petitioner's cause of action against Timbol in the civil case is based on quasi-delict is evident from the recitals in the complaint to wit: that while petitioner was driving his car along MacArthur Highway at Marilao, Bulacan, a jeep owned and driven by Salazar suddenly swerved to his (petitioner's) lane and collided with his car That the sudden swerving of Salazar's jeep was caused either by the negligence and lack of skill of Freddie Montoya, Timbol's employee, who was then driving a gravel and sand truck iii the same direction as Salazar's jeep; and that as a consequence of the collision, petitioner's car suffered extensive damage amounting to P12,248.20 and that he likewise incurred actual and moral damages, litigation expenses and attorney's fees. Clearly, therefore, the two factors that a cause of action must consist of, namely: (1) plaintiff's primary right, i.e., that he is the owner of a

Mercedes Benz, and (2) defendant's delict or wrongful act or omission which violated plaintiff's primary right, i.e., the negligence or lack of skill either of jeep-owner Salazar or of Timbol's employee, Montoya, in driving the truck, causing Salazar's jeep to swerve and 6 collide with petitioner's car, were alleged in the Complaint. Consequently, petitioner's cause of action being based on quasi-delict, respondent Judge committed reversible error when he dismissed the civil suit against the truck-owner, as said case may proceed independently of the criminal proceedings and regardless of the result of the latter. Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. But it is truck-owner Timbol's submission (as well as that of jeep-owner-driver Salazar) that petitioner's failure to make a reservation in the criminal action of his right to file an independent civil action bars the institution of such separate civil action, invoking section 2, Rule 111, Rules of Court, which says: Section 2. Independent civil action. In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shau proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Interpreting the above provision, this Court, in Garcia vs. Florida said: As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising from crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation of the criminal law, while the latter is a distinct and independent negligence, having always had its own foundation and individuality. Some legal writers are of the view that in accordance with Article 31, the civil action based upon quasi-delict may proceed independently of the criminal proceeding for criminal negligence and regardless of the result of the latter. Hence, 'the proviso in Section 2 of Rule 111 with reference to ... Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for these articles were drafted ... and are intended to constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso, which is procedural, may also be regarded as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation required in the proviso ... .
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In his concurring opinion in the above case, Mr. Justice Antonio Barredo further observed that inasmuch as Articles 2176 and 2177 of the Civil Code create a civil liability distinct and different from the civil action arising from the offense of negligence under the Revised Penal Code, no reservation, therefore, need be made in the criminal case; that Section 2 of Rule 111 is inoperative, "it being substantive in character and is not within the power of the Supreme Court to promulgate; and even if it were not substantive but adjective, it cannot stand because of its inconsistency with Article 2177, an enactment of the legislature superseding the Rules of 1940." We declare, therefore, that in so far as truck-owner Timbol is concerned, Civil Case No. 80803 is not barred by the fact that petitioner failed to reserve, in the criminal action, his right to file an independent civil action based on quasi-delict. The suit against jeep-owner-driver Salazar The case as against jeep-owner-driver Salazar, who was acquitted in Criminal Case No. SM228, presents a different picture altogether. At the outset it should be clarified that inasmuch as civil liability co-exists with criminal responsibility in negligence cases, the offended party has the option between an action for enforcement of civil liability based on culpa criminalunder Article 100 of the Revised Penal Code, and an action for recovery of damages based on culpa aquilianaunder Article 2177 of the Civil Code. The action for enforcement of civil liability based on culpa criminal under section 1 of Rule 111 of the Rules of Court is deemed simultaneously instituted with the criminal action, unless expressly waived or reserved for separate application by the offended 8 party. The circumstances attendant to the criminal case yields the conclusion that petitioner had opted to base his cause of action against jeep-owner-driver Salazar on culpa criminal and not on culpa aquiliana as evidenced by his active participation and intervention in the prosecution of the criminal suit against said Salazar. The latter's civil liability continued to be involved in the criminal action until its termination. Such being the case, there was no need for petitioner to have reserved his right to file a separate civil action as his action for civil liability was deemed impliedly instituted in Criminal Case No. SM-228. Neither would an independent civil action he. Noteworthy is the basis of the acquittal of jeep-owner-driver Salazar in the criminal case, expounded by the trial Court in this wise: In view of what has been proven and established during the trial, accused Freddie Montoya would be held able for having bumped and hit the rear portion of the jeep driven by the accused Rodolfo Salazar, Considering that the collision between the jeep driven by Rodolfo Salazar and the car owned and driven by Edgardo Mendoza was the result of the hitting on the rear of the jeep by the truck driven by Freddie Montoya, this Court behaves that accused Rodolfo Salazar cannot be held able for 9 the damages sustained by Edgardo Mendoza's car.

Crystal clear is the trial Court's pronouncement that under the facts of the case, jeep-ownerdriver Salazar cannot be held liable for the damages sustained by petitioner's car. In other words, "the fact from which the civil might arise did not exist. " Accordingly, inasmuch as petitioner's cause of action as against jeep-owner-driver Salazar isex- delictu, founded on Article 100 of the Revised Penal Code, the civil action must be held to have been 10 extinguished in consonance with Section 3(c), Rule 111 of the Rules of Court which provides: Sec. 3. Other civil actions arising from offenses. In all cases not included in the preceding section the following rules shall be observed: xxx xxx xxx c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil night arise did not exist. ... And even if petitioner's cause of action as against jeep-owner-driver Salazar were not exdelictu, the end result would be the same, it being clear from the judgment in the criminal case that Salazar's acquittal was not based upon reasonable doubt, consequently, a civil action for damages can no longer be instituted. This is explicitly provided for in Article 29 of the Civil Code quoted here under: Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence ... If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. In so far as the suit against jeep-owner-driver Salazar is concerned, therefore, we sustain respondent Judge's Order dated January 30, 1971 dismissing the complaint, albeit on different grounds. WHEREFORE, 1) the Order dated September 12, 1970 dismissing Civil Case No. 80803 against private respondent Felino Timbol is set aside, and respondent Judge, or his successor, hereby ordered to proceed with the hearing on the merits; 2) but the Orders dated January 30, 1971 and February 23, 1971 dismissing the Complaint in Civil Case No. 80803 against respondent Rodolfo Salazar are hereby upheld. No costs. SO ORDERED.

G.R. No. 82380 April 29, 1988 AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs. HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. G.R. No. 82398 April 29, 1988 HAL MCELROY petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude to the Phihppinence once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists. Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos. The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love and the revolution. Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope will capture the unique atmosphere and forces that combined to overthrow President Marcos. David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap'). Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that occurred during th period . The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television

FELICIANO, J.: Petitioner Hal McElroy an Australian film maker, and his movie production company, 1 Petitioner Ayer Productions pty Ltd. (Ayer Productions), envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below: The Four Day Revolution is a six hour mini-series about People Powera unique event in modern history that-made possible the Peaceful revolution in the Philippines in 1986. Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country. These character stories have been woven through the real events to help our huge international audience understand this ordinary period inFilipino history.

play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as background. On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them. It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued exparte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. In an Order dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus: WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto.
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xxx xxx xxx (Emphasis supplied) On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380. A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398. By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent. Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy. I The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is entitled to enjoy. Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, 3 education and entertainment. In Gonzales v. Katigbak, former Chief Justice Fernando, speaking for the Court, explained: 1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that

they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a 4 diminution of the basic right to free expression. ... This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, 5 does include a right of privacy. It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the 6 right to be let alone," like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about 7 him constitute of apublic character. Succinctly put, the right of privacy cannot be invoked 8 resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarrantedpublicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside 9 the realm of legitimate public concern. Lagunzad v. Vda. de Gonzales, on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal 11 Party then in power and his men were tried and convicted. In the judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said: Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY
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434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.' Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because 12 without it, it would be a drab story of torture and brutality. In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said: Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: xxx xxx xxx The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold thatunder the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached 13 when expression touches upon matters of essentially private concern." Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy." 1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of expression, 14 a weighty presumption of invalidity vitiates. The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert. 2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family. 4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:" A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused. The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News" includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definination of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from

the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal. The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public may be permitted to read; and they were 15 understandably liberal in allowing the benefit of the doubt. Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of government in February 1986. Because his participation therein was major in character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the Philippines. 5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent. II In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private

respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping." Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical. For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes. WHEREFORE, a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him. No pronouncement as to costs. SO ORDERED.

G.R. No. L-39999 May 31, 1984 ROY PADILLA, FILOMENO GALDONES, BEDENIA, petitioners, vs.COURT OF APPEALS, respondent. GUTIERREZ, JR., J.: This is a petition for review on certiorari of a Court of Appeals' decision which reversed the trial court's judgment of conviction and acquitted the petitioners of the crime of grave coercion on the ground of reasonable doubt but inspite of the acquittal ordered them to pay jointly and severally the amount of P9,000.00 to the complainants as actual damages. The petitioners were charged under the following information: The undersigned Fiscal accused ROY PADILLA, FILOMENO GALDONES, PEPITO BEDENIA, YOLLY RICO, DAVID BERMUNDO, VILLANOAC, ROBERTO ROSALES, VILLANIA, ROMEO GARRIDO, JOSE ORTEGA, JR., RICARDO CELESTINO, REALINGO alias "KAMLON", JOHN DOE alias TATO, and FOURTEEN (14) RICARDO DOES of the crime of GRAVE COERCION, committed as follows: That on or about February 8, 1964 at around 9:00 o'clock in the morning, in the municipality of Jose Panganiban, province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, Roy Padilla, Filomeno Galdones, Pepito Bedenia, Yolly Rico, David Bermundo, Villanoac, Roberto Rosales, Villania, Romeo Garrido, Jose Ortega, Jr., Ricardo Celestino, Realingo alias Kamlon, John Doe alias Tato, and Fourteen Richard Does, by confederating and mutually helping one another, and acting without any authority of law, did then and there wilfully, unlawfully, and feloniously, by means of threats, force and violence prevent Antonio Vergara and his family to close their stall located at the Public Market, Building No. 3, Jose Panganiban, Camarines Norte, and by subsequently forcibly opening the door of said stall and thereafter brutally demolishing and destroying said stall and the furnitures therein by axes and other massive instruments, and carrying away the goods, wares and merchandise, to the damage and prejudice of the said Antonio Vergara and his family in the amount of P30,000.00 in concept of actual or compensatory and moral damages, and further the sum of P20,000.00 as exemplary damages. That in committing the offense, the accused took advantage of their public positions: Roy Padilla, being the incumbent municipal mayor, and the rest of the accused being policemen, except Ricardo Celestino who is a civilian, all of Jose Panganiban, Camarines Norte, and that it was committed with evident premeditation. ISMAEL GONZALGO and JOSE FARLEY

The Court of First Instance of Camarines Norte, Tenth Judicial District rendered a decision, the dispositive portion of which states that: IN VIEW OF THE FOREGOING, the Court finds the accused Roy Padilla, Filomeno Galdonez, Ismael Gonzalgo and Jose Parley Bedenia guilty beyond reasonable doubt of the crime of grave coercion, and hereby imposes upon them to suffer an imprisonment of FIVE (5) months and One (1) day; to pay a fine of P500.00 each; to pay actual and compensatory damages in the amount of P10,000.00; moral damages in the amount of P30,000.00; and another P10,000.00 for exemplary damages, jointly and severally, and all the accessory penalties provided for by law; and to pay the proportionate costs of this proceedings. The accused Federico Realingo alias 'Kamlon', David Bermundo, Christopher Villanoac, Godofredo Villania, Romeo Garrido, Roberto Rosales, Ricardo Celestino and Jose Ortega, are hereby ordered acquitted on grounds of reasonable doubt for their criminal participation in the crime charged. The petitioners appealed the judgment of conviction to the Court of Appeals. They contended that the trial court's finding of grave coercion was not supported by the evidence. According to the petitioners, the town mayor had the power to order the clearance of market premises and the removal of the complainants' stall because the municipality had enacted municipal ordinances pursuant to which the market stall was a nuisance per se. The petitioners stated that the lower court erred in finding that the demolition of the complainants' stall was a violation of the very directive of the petitioner Mayor which gave the stall owners seventy two (72) hours to vacate the market premises. The petitioners questioned the imposition of prison terms of five months and one day and of accessory penalties provided by law. They also challenged the order to pay fines of P500.00 each, P10,000.00 actual and compensatory damages, P30,000.00 moral damages, P10,000.00 exemplary damages, and the costs of the suit. The dispositive portion of the decision of the respondent Court of Appeals states: WHEREFORE, we hereby modify the judgment appealed from in the sense that the appellants are acquitted on ground of reasonable doubt. but they are ordered to pay jointly and severally to complainants the amount of P9,600.00, as actual damages. The petitioners filed a motion for reconsideration contending that the acquittal of the defendants-appellants as to criminal liability results in the extinction of their civil liability. The Court of Appeals denied the motion holding that: xxx xxx xxx ... appellants' acquittal was based on reasonable doubt whether the crime of coercion was committed, not on facts that no unlawful act was committed; as their taking the law into their hands, destructing (sic) complainants' properties is unlawful, and, as evidence on record

established that complainants suffered actual damages, the imposition of actual damages is correct. Consequently, the petitioners filed this special civil action, contending that: I THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW OR GRAVELY ABUSED ITS DISCRETION IN IMPOSING UPON PETITIONERS PAYMENT OF DAMAGES TO COMPLAINANTS AFTER ACQUITTING PETITIONERS OF THE CRIME CHARGED FROM WHICH SAID LIABILITY AROSE. II THE COURT OF APPEALS ERRED IN HOLDING IN ITS RESOLUTION DATED DECEMBER 26, 1974 THAT SINCE APPELLANTS' ACQUITTAL WAS BASED ON REASONABLE DOUBT, NOT ON FACTS THAT NO UNLAWFUL ACT WAS COMMITTED, THE IMPOSITION OF ACTUAL DAMAGES IS CORRECT. III THE COURT OF APPEALS COMMITTED A LEGAL INCONSISTENCY, IF NOT PLAIN JUDICIAL ERROR, IN HOLDING IN ITS APPEALED RESOLUTION THAT PETITIONERS COMMITTED AN UNLAWFUL ACT, THAT IS TAKING THE LAW INTO THEIR HANDS, DESTRUCTING (sic) 'COMPLAINANTS' PROPERTIES', AFTER HOLDING IN ITS MAIN DECISION OF NOVEMBER 6,1974 THAT THE ACTS FOR WHICH THEY WERE CHARGED DID NOT CONSTITUTE GRAVE COERCION AND THEY WERE NOT CHARGED OF ANY OTHER CRIME. IV THE COURT OF APPEALS ERRED IN ORDERING THE PETITIONERS HEREIN, APPELLANTS IN CA-G.R. NO. 13456CR, JOINTLY AND SEVERALLY, TO PAY COMPLAINANTS P9,600.00 IN SUPPOSED ACTUAL DAMAGES. The issue posed in the instant proceeding is whether or not the respondent court committed a reversible error in requiring the petitioners to pay civil indemnity to the complainants after acquitting them from the criminal charge. Petitioners maintain the view that where the civil liability which is included in the criminal action is that arising from and as a consequence of the criminal act, and the defendant was acquitted in the criminal case, (no civil liability arising from the criminal case), no civil liability arising from the criminal charge could be imposed upon him. They cite precedents to the effect that the liability of the defendant for the return of the amount received by him may not be enforced in the criminal case but must be raised in a separate civil action for the

recovery of the said amount (People v. Pantig, 97 Phil. 748; following the doctrine laid down in Manila Railroad Co. v. Honorable Rodolfo Baltazar, 49 O.G. 3874; Pueblo contra Abellera, 69 Phil. 623; People v. Maniago 69 Phil. 496; People v. Miranda, 5 SCRA 1067; Aldaba v. Elepafio 116 Phil. 457). In the case before us, the petitioners were acquitted not because they did not commit the acts stated in the charge against them. There is no dispute over the forcible opening of the market stall, its demolition with axes and other instruments, and the carting away of the merchandize. The petitioners were acquitted because these acts were denominated coercion when they properly constituted some other offense such as threat or malicious mischief. The respondent Court of Appeals stated in its decision: For a complaint to prosper under the foregoing provision, the violence must be employed against the person, not against property as what happened in the case at bar. ... xxx xxx xxx The next problem is: May the accused be convicted of an offense other than coercion? From all appearances, they should have been prosecuted either for threats or malicious mischief. But the law does not allow us to render judgment of conviction for either of these offenses for the reason that they were not indicted for, these offenses. The information under which they were prosecuted does not allege the elements of either threats or malicious mischief. Although the information mentions that the act was by means of threats', it does not allege the particular threat made. An accused person is entitled to be informed of the nature of the acts imputed to him before he can be made to enter into trial upon a valid information. We rule that the crime of grave coercion has not been proved in accordance with law. While appellants are entitled to acquittal they nevertheless are liable for the actual damages suffered by the complainants by reason of the demolition of the stall and loss of some of their properties. The extinction of the penal action does not carry with it that of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. (Rule 111, Sec. 3 (c), Rev. Rules of Court; Laperal v. Aliza, 51 OG.R. 1311, People v. Velez, 44 OG. 1811). In the instant case, the fact from which the civil might arise, namely, the demolition of the stall and loss of the properties contained therein; exists, and this is not denied by the accused. And since there is no showing that the complainants have reserved or waived their right to institute a separate civil action, the civil aspect therein is

deemed instituted with the criminal action. (Rule 111, Sec. 1, Rev. Rules of Court). xxx xxx xxx Section 1 of Rule 111 of the Rules of Court states the fundamental proposition that when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with it. There is no implied institution when the offended party expressly waives the civil action or reserves his right to institute it separately. (Morte Sr. v. Alvizo, Jr., 101 SCRA 221). The extinction of the civil action by reason of acquittal in the criminal case refers exclusively to civil liability ex delicto founded on Article 100 of the Revised Penal Code. (Elcano v. Hill, 77 SCRA 98; Virata v. Ochoa, 81 SCRA 472). In other words, the civil liability which is also extinguished upon acquittal of the accused is the civil liability arising from the act as a crime. As easily as 1942, the Supreme Court speaking through Justice Jorge Bocobo in Barredo v. Garcia, et at. 73 Phil. 607 laid down the rule that the same punishable act or omission can create two kinds of civil liabilities against the accused and, where provided by law, his employer. 'There is the civil liability arising from the act as a crime and the liability arising from the same act as a quasi-delict. Either one of these two types of civil liability may be enforced against the accused, However, the offended party cannot recover damages under both types of liability. For instance, in cases of criminal negligence or crimes due to reckless imprudence, Article 2177 of the Civil Code provides: Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. Section 3 (c) of Rule 111 specifically provides that: Sec. 3. Other civil actions arising from offenses. In all cases not included in the preceding section the following rules shall be observed: xxx xxx xxx xxx xxx xxx (c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the Jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered.

The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration that the facts from which the civil might arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt (PNB v. Catipon, 98 Phil. 286) as only preponderance of evidence is required in civil cases; where the court expressly declares that the liability of the accused is not criminal but only civil in nature (De Guzman v. Alvia, 96 Phil. 558; People v. Pantig, supra) as, for instance, in the felonies of estafa, theft, and malicious mischief committed by certain relatives who thereby incur only civil liability (See Art. 332, Revised Penal Code); and, where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted (Castro v. Collector of Internal Revenue, 4 SCRA 1093; See Regalado, Remedial Law Compendium, 1983 ed., p. 623). Article 29 of the Civil Code also provides that: When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. More recently, we held that the acquittal of the defendant in the criminal case would not constitute an obstacle to the filing of a civil case based on the same acts which led to the criminal prosecution: ... The finding by the respondent court that he spent said sum for and in the interest of the Capiz Agricultural and Fishery School and for his personal benefit is not a declaration that the fact upon which Civil Case No. V-3339 is based does not exist. The civil action barred by such a declaration is the civil liability arising from the offense charged, which is the one impliedly instituted with the criminal action. (Section 1, Rule III, Rules of Court.) Such a declaration would not bar a civil action filed against an accused who had been acquitted in the criminal case if the criminal action is predicated on factual or legal considerations other than the commission of the offense charged. A person may be acquitted of malversation where, as in the case at bar, he could show that he did not misappropriate the public funds in his possession, but he could be rendered liable to restore said funds or at least to make a proper accounting thereof if he shall spend the same for purposes which are not authorized nor intended, and in a manner not permitted by applicable rules and regulations. (Republic v. Bello, 120 SCRA 203) There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted. Due process has been accorded the accused. He was, in fact, exonerated of the criminal charged. The constitutional presumption

of innocence called for more vigilant efforts on the part of prosecuting attorneys and defense counsel, a keener awareness by all witnesses of the serious implications of perjury, and a more studied consideration by the judge of the entire records and of applicable statutes and precedents. To require a separate civil action simply because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on the part of all concerned. The trial court found the following facts clearly established by the evidence adduced by both the prosecution and the defense: xxx xxx xxx (9) In the morning of February 8, 1964, then Chief Galdones, complying with the instructions contained in said Memorandum No. 32 of the Mayor, and upon seeing that Antonio Vergara had not vacated the premises in question, with the aid of his policemen, forced upon the store or stall and ordered the removal of the goods inside the store of Vergara, at the same time taking inventory of the goods taken out, piled them outside in front of the store and had it cordoned with a rope, and after all the goods were taken out from the store, ordered the demolition of said stall of Antonio Vergara. Since then up to the trial of this case, the whereabouts of the goods taken out from the store nor the materials of the demolished stall have not been made known. The respondent Court of Appeals made a similar finding that: On the morning of February 8th, because the said Vergaras had not up to that time complied with the order to vacate, the co-accused Chief of Police Galdones and some members of his police force, went to the market and, using ax, crowbars and hammers, demolished the stall of the Vergaras who were not present or around, and after having first inventoried the goods and merchandise found therein, they had them brought to the municipal building for safekeeping. Inspite of notice served upon the Vergaras to take possession of the goods and merchandise thus taken away, the latter refused to do so. The loss and damage to the Vergaras as they evaluated them were: Cost of stall construction P1,300.00 Value of furniture and equipment judgment destroyed 300.00 Value of goods and equipment taken 8,000.00 P9,600.00

It is not disputed that the accused demolished the grocery stall of the complainants Vergaras and carted away its contents. The defense that they did so in order to abate what they considered a nuisance per se is untenable, This finds no support in law and in fact. The couple has been paying rentals for the premises to the government which allowed them to lease the stall. It is, therefore, farfetched to say that the stall was a nuisance per se which could be summarily abated. The petitioners, themselves, do not deny the fact that they caused the destruction of the complainant's market stall and had its contents carted away. They state: On February 8, 1964, despite personal pleas on Vergaras by the Mayor to vacate the passageways of Market Building No. 3, the Vergaras were still in the premises, so the petitioners Chief of Police and members of the Police Force of Jose Panganiban, pursuant to the Mayor' 6 directives, demolished the store of the Vergaras, made an inventory of the goods found in said store, and brought these goods to the municipal building under the custody of the Municipal Treasurer, ... The only supposed obstacle is the provision of Article 29 of the Civil Code, earlier cited, that "when the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted." According to some scholars, this provision of substantive law calls for a separate civil action and cannot be modified by a rule of remedial law even in the interests of economy and simplicity and following the dictates of logic and common sense. As stated by retired Judge J. Cezar Sangco: ... if the Court finds the evidence sufficient to sustain the civil action but inadequate to justify a conviction in the criminal action, may it render judgment acquitting the accused on reasonable doubt, but hold him civilly liable nonetheless? An affirmative answer to this question would be consistent with the doctrine that the two are distinct and separate actions, and win (a) dispense with the reinstituting of the same civil action, or one based on quasi-delict or other independent civil action, and of presenting the same evidence: (b) save the injured party unnecessary expenses in the prosecution of the civil action or enable him to take advantage of the free services of the fiscal; and (c) otherwise resolve the unsettling implications of permitting the reinstitution of a separate civil action whether based on delict, or quasi-delict, or other independent civil actions. ... But for the court to be able to adjudicate in the manner here suggested, Art. 29 of the Civil Code should be amended because it clearly and expressly provides that the civil action based on the same act or omission may only be instituted in a separate action, and therefore, may not inferentially be resolved in the same criminal action. To dismiss the civil action upon acquittal of the accused and disallow the reinstitution of

any other civil action, would likewise render, unjustifiably, the acquittal on reasonable doubt without any significance, and would violate the doctrine that the two actions are distinct and separate. In the light of the foregoing exposition, it seems evident that there is much sophistry and no pragmatism in the doctrine that it is inconsistent to award in the same proceedings damages against the accused after acquitting him on reasonable doubt. Such doctrine must recognize the distinct and separate character of the two actions, the nature of an acquittal on reasonable doubt, the vexatious and oppressive effects of a reservation or institution of a separate civil action, and that the injured party is entitled to damages not because the act or omission is punishable but because he was damaged or injured thereby (Sangco, Philippine Law on Torts and Damages, pp. 288-289). We see no need to amend Article 29 of the Civil Code in order to allow a court to grant damages despite a judgment of acquittal based on reasonable doubt. What Article 29 clearly and expressly provides is a remedy for the plaintiff in case the defendant has been acquitted in a criminal prosecution on the ground that his guilt has not been proved beyond reasonable doubt. It merely emphasizes that a civil action for damages is not precluded by an acquittal for the same criminal act or omission. The Civil Code provision does not state that the remedy can be availed of only in a separate civil action. A separate civil case may be filed but there is no statement that such separate filing is the only and exclusive permissible mode of recovering damages. There is nothing contrary to the Civil Code provision in the rendition of a judgment of acquittal and a judgment awarding damages in the same criminal action. The two can stand side by side. A judgment of acquittal operates to extinguish the criminal liability. It does not, however, extinguish the civil liability unless there is clear showing that the act from which civil liability might arise did not exist. A different conclusion would be attributing to the Civil Code a trivial requirement, a provision which imposes an uncalled for burden before one who has already been the victim of a condemnable, yet non-criminal, act may be accorded the justice which he seeks. We further note the rationale behind Art. 29 of the Civil Code in arriving at the intent of the legislator that they could not possibly have intended to make it more difficult for the aggrieved party to recover just compensation by making a separate civil action mandatory and exclusive: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the the criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those cases where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party... it is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? (Code Commission, pp. 45-46). A separate civil action may be warranted where additional facts have to be established or more evidence must be adduced or where the criminal case has been fully terminated and a separate complaint would be just as efficacious or even more expedient than a timely remand to the trial court where the criminal action was decided for further hearings on the civil aspects of the case. The offended party may, of course, choose to file a separate action. These do not exist in this case. Considering moreover the delays suffered by the case in the trial, appellate, and review stages, it would be unjust to the complainants in this case to require at this time a separate civil action to be filed. With this in mind, we therefore hold that the respondent Court of Appeals did not err in awarding damages despite a judgment of acquittal. WHEREFORE, we hereby AFFIRM the decision of the respondent Court of Appeals and dismiss the petition for lack of merit. SO ORDERED. G.R. No. 129029 April 3, 2000

RAFAEL REYES TRUCKING CORPORATION, petitioner, vs. PEOPLE OF THE PHILIPPINES and ROSARIO P. DY (for herself and on behalf of the minors Maria Luisa, Francis Edward, Francis Mark and Francis Rafael, all surnamed Dy), respondents. PARDO, J.: The case is an appeal via certiorari from the amended decision of the Court of 2 3 Appeals affirming the decision and supplemental decision of the trial court, as follows:
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IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing the appeals interposed by both accused and Reyes Trucking Corporation and affirming the Decision and Supplemental Decision dated June 6, 1992 and October 26, 1992 respectively. SO ORDERED.
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against petitioner. On December 15, 1989, private respondents withdrew the reservation to file a separate civil action against the accused and manifested that they would prosecute the 6 civil aspect ex delicto in the criminal action. However, they did not withdraw the separate civil action based on quasi delict against petitioner as employer arising from the same act or 7 omission of the accused driver. Upon agreement of the parties, the trial court consolidated both criminal and civil cases and conducted a joint trial of the same. The facts, as found by the trial court, which appear to be undisputed, are as follows: The defendant Rafael Reyes Trucking Corporation is a domestic corporation engaged in the business of transporting beer products for the San Miguel Corporation (SMC for Short) from the latter's San Fernando, Pampanga plant to its various sales outlets in Luzon. Among its fleets of vehicles for hire is the white truck trailer described above driven by Romeo Dunca y Tumol, a duly licensed driver. Aside from the Corporation's memorandum to all its drivers and helpers to physically inspect their vehicles before each trip (Exh. 15, pars. 4 & 5), the SMC's Traffic Investigator-Inspector certified the roadworthiness of this White Truck trailer prior to June 20, 1989 (Exh. 17). In addition to a professional driver's license, it also conducts a rigid examination of all driver applicants before they are hired. In the early morning of June 20, 1989, the White Truck driven by Dunca left Tuguegarao, Cagayan bound to San Fernando, Pampanga loaded with 2,000 cases of empty beer "Grande" bottles. Seated at the front right seat beside him was Ferdinand Domingo, his truck helper ("pahinante" in Pilipino). At around 4:00 o'clock that same morning while the truck was descending at a slight downgrade along the national road at Tagaran, Cauayan, Isabela, it approached a damaged portion of the road covering the full width of the truck's right lane going south and about six meters in length. These made the surface of the road uneven because the potholes were about five to six inches deep. The left lane parallel to this damaged portion is smooth. As narrated by Ferdinand Domingo, before approaching the potholes, he and Dunca saw the Nissan with its headlights on coming from the opposite direction. They used to evade this damaged road by taking the left lance but at that particular moment, because of the incoming vehicle, they had to run over it. This caused the truck to bounce wildly. Dunca lost control of the wheels and the truck swerved to the left invading the lane of the Nissan. As a result, Dunca's vehicle rammed the incoming Nissan dragging it to the left shoulder of the road and climbed a ridge above said shoulder where it finally stopped. (see Exh. A-5, p. 8, record). The Nissan was severely damaged (Exhs. A-7, A-8, A-9 and A-14, pp. 9-11 record), and its two passengers, namely: Feliciano Balcita and Francisco Dy, Jr. died instantly (Exh. A-19) from external and internal hemorrhage and multiple fractures (pp. 15 and 16, record). For the funeral expenses of Francisco Dy, Jr. her widow spent P651,360.00 (Exh. I3). At the time of his death he was 45 years old. He was the President and Chairman of the Board of the Dynamic Wood Products and Development Corporation (DWPC), a wood processing establishment, from which he was receiving an income of P10,000.00 a month. (Exh. D). In the Articles of

The facts are as follows: On October 10, 1989, Provincial Prosecutor Patricio T. Durian of Isabela filed with the Regional Trial Court, Isabela, Branch 19, Cauayan an amended information charging Romeo Dunca y de Tumol with reckless imprudence resulting in double homicide and damage to property, reading as follows: That on or about the 20th day of June, 1989, in the Municipality of Cauayan, Province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused being the driver and person-in-charge of a Trailer Truck Tractor bearing Plate No. N2A-867 registered in the name of Rafael Reyes Trucking Corporation, with a load of 2,000 cases of empty bottles of beer grande, willfully, unlawfully and feloniously drove and operated the same while along the National Highway of Barangay Tagaran, in said Municipality, in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and ordinances and without taking the necessary precautions to prevent injuries to persons and damage to property, causing by such negligence, carelessness and imprudence the said trailer truck to hit and bump a Nissan Pick-up bearing Plate No. BBG-957 driven by Feliciano Balcita and Francisco Dy, Jr., @ Pacquing, due to irreversible shock, internal and external hemorrhage and multiple injuries, open wounds, abrasions, and further causing damages to the heirs of Feliciano Balcita in the amount of P100,000.00 and to the death of Francisco Dy, Jr.; @ Pacquing and damages to his Nissan Pick-Up bearing Plate No. BBG-957 in the total amount of P2,000,000.00. CONTRARY TO LAW. Cauayan, Isabela, October 10, 1989. (Sgd.) FAUSTO C. CABANTAC Third Assistant Provincial Prosecutor Upon arraignment on October 23, 1989, the accused entered a plea of not guilty. On the same occasion, the offended parties (Rosario P. Dy and minor children and Angelina M. Balcita and minor son Paolo) made a reservation to file a separate civil action against the 5 accused arising from the offense charged. On November 29, 1989, the offended parties actually filed with the Regional Trial Court, Isabela, Branch 19, Cauayan a complaint against petitioner Rafael Reyes Trucking Corporation, as employer of driver Romeo Dunca y de Tumol, based onquasi delict. The petitioner settled the claim of the heirs of Feliciano Balcita (the driver of the other vehicle involved in the accident). The private respondents opted to pursue the criminal action but did not withdraw the civil case quasi ex delicto they filed

Incorporation of the DWPC, the spouses Francisco Dy, Jr. and Rosario Perez Dy appear to be stockholders of 10,000 shares each with par value of P100.00 per share out of its outstanding and subscribed capital stock of 60,000 shares valued at P6,000,000.00 (Exhs. K-1 & 10-B). Under its 1988 Income Tax Returns (Exh. J) the DWPC had a taxable net income of P78,499.30 (Exh. J). Francisco Dy, Jr. was a La Salle University graduate in Business Administration, past president of the Pasay Jaycees, National Treasurer and President of the Philippine Jaycees in 1971 and 1976, respectively, and World Vice-President of Jaycees International in 1979. He was also the recipient of numerous awards as a civic leader (Exh. C). His children were all studying in prestigious schools and spent about P180,000.00 for their education in 1988 alone (Exh. H-4). As stated earlier, the plaintiffs' procurement of a writ of attachment of the properties of the Corporation was declared illegal by the Court of Appeals. It was shown that on December 26, 1989, Deputy Sheriff Edgardo Zabat of the RTC at San Fernando, Pampanga, attached six units of Truck Tractors and trailers of the Corporation at its garage at San Fernando, Pampanga. These vehicles were kept under PC guard by the plaintiffs in said garage thus preventing the Corporation to operate them. However, on December 28, 1989, the Court of Appeals dissolved the writ (p. 30, record) and on December 29, 1989, said Sheriff reported to this Court that the attached vehicles were taken by the defendant's representative, Melita Manapil (Exh. O, p. 31, record). The defendant's general Manager declared that it lost P21,000.00 per day for the non-operation of the six units during their attachment (p. 31, t.s.n., Natividad C. Babaran, proceedings on December 10, 8 1990). On June 6, 1992, the trial court rendered a joint decision, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing considerations judgment is hereby rendered: 1. Finding the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of the crime of Double Homicide through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136), and appreciating in his favor the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset the same, the Court hereby sentences him to suffer two (2) indeterminate penalties of four months and one day of arresto mayor as minimum to three years, six months and twenty days as maximum; to indemnify the Heirs of Francisco Dy. Jr. in the amount of P3,000,000.00 as compensatory damages, P1,000,000.00 as moral damages, and P1,030,000.00 as funeral expenses; 2. Ordering the plaintiff in Civil Case No. Br. 19-424 to pay the defendant therein actual damages in the amount of P84,000.00; and 3. Ordering the dismissal of the complaint in Civil Case No. Br. 19-424. No pronouncement as to costs.

SO ORDERED. Cauayan, Isabela, June 6, 1992. (Sgd.) ARTEMIO R. ALIVIA 9 Regional Trial Judge On September 3, 1992, petitioner and the accused filed a notice of appeal from the joint 10 decision. On the other hand, private respondents moved for amendment of the dispositive portion of the joint decision so as to hold petitioner subsidiarily liable for the damages awarded to the 11 private respondents in the event of insolvency of the accused. On October 26, 1992, the trial court rendered a supplemental decision amending the dispositive portion by inserting an additional paragraph reading as follows: 2:A Ordering the defendant Reyes Trucking Corporation subsidiarily liable for all the damages awarded to the heirs of Francisco Dy, Jr., in the event of insolvency of the accused but deducting therefrom the damages of P84,000.00 awarded to said 12 defendant in the next preceding paragraph; and . . . On November 12, 1992, petitioner filed with the trial court a supplemental notice of appeal 13 from the supplemental decision. During the pendency of the appeal, the accused jumped bail and fled to a foreign country. By resolution dated December 29, 1994, the Court of Appeals dismissed the appeal of the 14 accused in the criminal case. On January 6, 1997, the Court of Appeals rendered an amended decision affirming that of 15 the trial court, as set out in the opening paragraph of this decision. On January 31, 1997, petitioner filed a motion for reconsideration of the amended 16 decision. On April 21, 1997, the Court of Appeals denied petitioner's motion for reconsideration for 17 lack of merit Hence, this petition for review.
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On July 21, 1997, the Court required respondents to comment on the petition within ten (10) 19 days from notice. On January 27, 1998, the Solicitor General filed his comment. On April 13, 1998, the Court 21 granted leave to petitioner to file a reply and noted the reply it filed on March 11, 1998.
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We now resolve to give due course to the petition and decide the case. Petitioner raises three (3) grounds for allowance of the petition, which, however, boil down to two (2) basic issues, namely: 1. May petitioner as owner of the truck involved in the accident be held subsidiarily liable for the damages awarded to the offended parties in the criminal action against the truck driver despite the filing of a separate civil action by the offended parties against the employer of the truck driver? 2. May the Court award damages to the offended parties in the criminal case despite the filing of a civil action against the employer of the truck driver; and in amounts exceeding that alleged in the information for reckless imprudence 22 resulting in homicide and damage to property? We grant the petition, resolving under the circumstances pro hac vice to remand the cases to the trial court for determination of the civil liability of petitioner as employer of the accused driver in the civil action quasi ex delictore-opened for the purpose. In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability arising from crime under Article 100 of the Revised Penal Code; and (2) a separate action for quasi delict under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party can not avail himself of any other remedy because he may not 23 recover damages twice for the same negligent act or omission of the accused. This is the rule against double recovery.1wphi1.nt In other words, "the same act or omission can create two kinds of liability on the part of the offender, that is, civil liability ex delicto, and civil liability quasi delicto" either of which "may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code 24 that the offended party can not recover damages under both types of liability." In the instant case, the offended parties elected to file a separate civil action for damages against petitioner as employer of the accused, based on quasi delict, under Article 2176 of the Civil Code of the Philippines. Private respondents sued petitioner Rafael Reyes Trucking Corporation, as the employer of the accused, to be vicariously liable for the fault or negligence of the latter. Under the law, this vicarious liability of the employer is founded on at least two specific provisions of law. The first is expressed in Article 2176 in relation to Article 2180 of the Civil Code, which would allow an action predicated on quasi-delict to be instituted by the injured party against the employer for an act or omission of the employee and would necessitate only a preponderance of evidence to prevail. Here, the liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to the defense of due diligence in the selection and supervision of the employee. The enforcement of the judgment against the employer in an action based on Article 2176 does not require the employee to be insolvent since the nature of the liability of the employer with that of the employee, the two being 25 statutorily considered joint tortfeasors, is solidary. The second, predicated on Article 103 of the Revised Penal Code, provides that an employer may be held subsidiarily civilly liable

for a felony committed by his employee in the discharge of his duty. This liability attaches when the employee is convicted of a crime done in the performance of his work and is found 26 to be insolvent that renders him unable to properly respond to the civil liability adjudged. As regards the first issue, the answer is in the negative. Rafael Reyes Trucking Corporation, as employer of the accused who has been adjudged guilty in the criminal case for reckless imprudence, can not be held subsidiarily liable because of the filing of the separate civil action based on quasi delict against it. In view of the reservation to file, and the subsequent filing of the civil action for recovery of civil liability, the same was not instituted with the criminal action. Such separate civil action was for recovery of damages under Article 2176 of 27 the Civil Code, arising from the same act or omission of the accused. Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules of Criminal Procedure, when private respondents, as complainants in the criminal action, reserved the right to file the separate civil action, they waived other available civil actions predicated on the same act or omission of the accused-driver. Such civil action includes the recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, and 34 of the 28 Civil Code of the Philippines arising from the same act or omission of the accused. The intention of private respondents to proceed primarily and directly against petitioner as employer of accused truck driver became clearer when they did not ask for the dismissal of the civil action against the latter based onquasi delict. Consequently, the Court of Appeals and the trial court erred in holding the accused civilly liable, and petitioner-employer of the accused subsidiarily liable for damages arising from crime (ex delicto) in the criminal action as the offended parties in fact filed a separate civil action against the employer based on quasi delict resulting in the waiver of the civil action ex delicto. It might be argued that private respondents as complainants in the criminal case withdrew the reservation to file a civil action against the driver (accused) and manifested that they would pursue the civil liability of the driver in the criminal action. However, the withdrawal is ineffective to reverse the effect of the reservation earlier made because private respondents did not withdraw the civil action against petitioner based on quasi delict. In such a case, the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure is clear that the reservation to file or the filing of a separate civil action results in a waiver of other available civil actions arising from the same act or omission of the accused. Rule 111, Section 1, paragraph 2 enumerated what are the civil actions deemed waived upon such reservation or filing, and one of which is the civil indemnity under the Revised Penal Code. Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically provides: A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others. The rationale behind this rule is the avoidance of multiple suits between the same litigants arising out of the same act or omission of the offender. The restrictive phraseology of the

section under consideration is meant to cover all kinds of civil actions, regardless of their source in law, provided that the action has for its basis the same act or omission of the 29 offender. However, petitioner as defendant in the separate civil action for damages filed against it, based on quasi delict, may be held liable thereon. Thus, the trial court grievously erred in dismissing plaintiff's civil complaint. And the Court of Appeals erred in affirming the trial court's decision. Unfortunately private respondents did not appeal from such dismissal and 30 could not be granted affirmative relief. The Court, however, in exceptional cases has relaxed the rules "in order to promote their objectives and assist the parties in obtaining just, speedy, and inexpensive determination of 31 every action or proceeding" or exempted "a particular case from the operation of the 32 rules." Invoking this principle, we rule that the trial court erred in awarding civil damages in the criminal case and in dismissing the civil action. Apparently satisfied with such award, private respondent did not appeal from the dismissal of the civil case. However, petitioner did appeal. Hence, this case should be remanded to the trial court so that it may render decision 33 in the civil case awarding damages as may be warranted by the evidence. With regard to the second issue, the award of damages in the criminal case was improper because the civil action for the recovery of civil liability was waived in the criminal action by the filing of a separate civil action against the employer. As enunciated in Ramos 34 vs. Gonong, "civil indemnity is not part of the penalty for the crime committed." The only issue brought before the trial court in the criminal action is whether accused Romeo Dunca y de Tumol is guilty of reckless imprudence resulting in homicide and damage to property. The action for recovery of civil liability is not included therein, but is covered by the separate civil action filed against the petitioner as employer of the accused truck-driver. In this case, accused-driver jumped bail pending his appeal from his conviction. Thus, the judgment convicting the accused became final and executory, but only insofar as the penalty in the criminal action is concerned. The damages awarded in the criminal action was invalid because of its effective waiver. The pronouncement was void because the action for recovery of the civil liability arising from the crime has been waived in said criminal action. With respect to the issue that the award of damages in the criminal action exceeded the amount of damages alleged in the amended information, the issue is de minimis. At any rate, the trial court erred in awarding damages in the criminal case because by virtue of the reservation of the right to bring a separate civil action or the filing thereof, "there would be no possibility that the employer would be held liable because in such a case there would be 35 no pronouncement as to the civil liability of the accused. As a final note, we reiterate that "the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the 36 employee or against his employer. The injured party must choose which of the available 37 causes of action for damages he will bring.

Parenthetically, the trial court found the accused "guilty beyond reasonable doubt of the crime of Double Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136)". There is no such nomenclature of an offense under the Revised Penal Code. Thus, the trial court was misled to sentence the accused "to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as maximum." This is erroneous because in reckless imprudence cases, the actual penalty for criminal negligence bears no relation to the individual willfull crime or crimes committed, but is set in 38 relation to a whole class, or series of crimes. Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has become final and executory. Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. Much of the confusion has arisen from the common use of such descriptive phrase as "homicide through reckless imprudence", and the like; when the strict technical sense is, more accurately, "reckless imprudence resulting in homicide"; or "simple imprudence causing damages to 39 property"." There is need, therefore, to rectify the designation of the offense without disturbing the imposed penalty for the guidance of bench and bar in strict adherence to precedent. WHEREFORE, the Court GRANTS the petition and SETS ASIDE the amended decision and resolution of the Court of Appeals in CA-G.R. CR No. 14448, promulgated on January 6, 1997, and the joint decision of the Regional Trial Court, Isabela, Branch 19, Cauayan, in Criminal Case No. Br. 19-311 and Civil Case No. Br. 19-424, dated June 6, 1992. IN LIEU THEREOF, the Court renders judgment as follows: (1) In Criminal Case No. Br. 19-311, the Court declares the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of reckless imprudence resulting in homicide and damage to property, defined and penalized under Article 365, paragraph 2 of the Revised Penal Code, with violation of the automobile law (R.A. No. 4136, as amended), and sentences him to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as 40 maximum, without indemnity, and to pay the costs, and (2) In Civil Case No. Br. 19-424, the Court orders the case re-opened to determine the liability of the defendant Rafael Reyes Trucking Corporation to plaintiffs and that of plaintiffs on defendant's counterclaim. No costs in this instance. SO ORDERED.

G.R. No. L-15315

August 26, 1960

ABUNDIO MERCED, petitioner, vs. HON. CLEMENTINO V. DIEZ, ETC. ET AL., respondents. LABRADOR, J.: This is a petition for a writ of certiorari with prohibition to prohibit the judge presiding the Court of First Instance of Negros Oriental, Hon. Clementino V. Diez, from proceeding further in the Criminal Case No. V-6520, entitled People of the Philippines vs. Abundio Merced until after final termination of Civil Case No. R-5387, for the annulment of the marriage of petitioner Abundio Merced with Elizabeth Ceasar, also pending in same court. The record disclose the following proceedings in the court a quo: On January 30, 1958, Abundio Merced filed a complaint for annulment of his second marriage with Elizabeth Ceasar. The complaint is docketed as Civil Case No. R-5387. The complaint alleges that defendant Elizabeth Ceasar and her relatives forced, threatened and intimated him into signing an affidavit to the effect that he and defendant had been living together as husband and wife for over five years, which is not true; that this affidavit was used by defendant in securing their marriage of exceptional character, without the need for marriage license; that he was again forced, threatened and intimated by defendant and her relatives into entering the marriage with her on August 21, 1957 before Municipal Judge Medardo A. Conde; that immediately after the celebration of the marriage plaintiff left defendant and never lived with her; that the defendant wrote him on October 29, 1957, admitting that he was forced into the marriage and asking him to go to Cebu to have the marriage annulled, but he refused to go for fear he may be forced into living with the defendant. Merced prays for annulment of the marriage and for moral damages in the amount of P2,000. On March 3, 1958, Elizabeth Ceasar filed her answer to the complaint. In her answer, she denies the material allegations of the complaint and avers as affirmative defenses that neither she nor her relatives know of plaintiff's previous marriage to Eufrocina Tan; that sometime in July, 1957, plaintiff asked her mother to intercede on their behalf to secure her father's consent to their marriage as plaintiff could not concentrate on his studies without marrying Elizabeth, but that her mother advised him to finish his studies first; that sometime in April, 1957, defendant learned that plaintiff was engaged to marry Eufrocina Tan, but plaintiff, upon being confronted with such discovery, showed her a letter which he wrote breaking off his engagement with Tan. As a counterclaim defendant asks P50,000 as moral damages for the deceit, fraud and insidious machinations committed upon her by plaintiff. On February 19, 1958, after had filed Civil Case No. R-5387 defendant Elizabeth Ceasar filed a criminal complaint for bigamy 39 3 against plaintiff Abundio Merced with the office of the City Fiscal of Cebu. On April 7, 1958 the Assistant City Fiscal filed Criminal Case No. V-6520, charging Merced with bigamy for the second marriage. The information reads. The undersigned Assistant Fiscal of City of Cebu accuses Abundio Merced of the crime of bigamy, committed as follows:

That on or about the 21st day of August, 1957, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused Abundio Merced, being previously united in lawful marriage with Eufrocina Tan, and without the said marriage having been legally dissolved did then and there wilfully unlawfully, feloniously contract a second marriage with Elizabeth Ceasar. Contrary to Article 349 of the Revised Penal Code. (Annex "2".) Abundio Merced filed a motion to hold to trial of said criminal case in abeyance until final termination of Civil Case No. R- 5387. Reason alleged for the motion is that the Civil Action involves facts which if proved will determine the innocence of the accused. After an opposition thereto was filed by the assistant provincial fiscal, the court granted the motion. However, upon motion for reconsideration filed by the fiscal, the order was set aside and another entered denying the motion of accused for suspension of the criminal proceedings, which last order is the one sough herein to be annulled. The court held in its last order that inasmuch as by virtue of the decision of the Supreme Court in the case of People vs. Mendoza, 95 Phil., 50 Off. Gaz. [10], 4767, judicial declaration of nullity of a second and bigamous marriage is not necessary, there is no need in this case to decide the nullity of the second marriage, or to determine and declare the existence of the grounds for annulling the same, but that said grounds should be used as a defense in the criminal action. A motion to reconsider the second order of the court having been denied, petition herein was filed. When the petition for certiorari with prohibition was filed, the petitioner secured from this Court a writ of preliminary injunction to enjoin respondent judge from proceeding further in the criminal case. Before this Court the sole question raised is whether an action to annul the second marriage is a prejudicial question in a prosecution for bigamy. The definition and the elements of a prejudicial question have been set forth by us as follows: Prejudicial question has been defined to be that which arises in a case, the resolution of which (question) is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another Tribunal (Cuestion prejudicial, es 3o 3 la que surge en un pleito o causa cuya resolucion sean antecedente logico de la cuestion-objeto del pleito o causa y cuyo conocimiento corresponda a los Tribunales de otro orden o jurisdiccion. Enciclopedia Juridica Espaola, p. 228). The prejudicial question must be determinative of the case before the court; this is its first element. Jurisdiction to try said question must be lodged in another tribunal; this is the second element. In an action for bigamy for example, if the accused claims that the first marriage is null and void and the right to decide such validity is vested in another tribunal, the civil action for nullity must be first decided before the action for bigamy can proceed, hence, the validity of the first marriage is a prejudicial question. (People vs. Aragon, 94 Phil., 357; 50 Off. Gaz., No. 10, 4863).

In order that a person may be held guilty of the crime of bigamy, the second and subsequent marriage must have all the essential elements of a valid marriage, were it not for the subsistence of the first marriage. This was the ruling of this Court in People vs. Dumpo, 62 Phil., 246, where we said: It is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage. It appearing that the marriage alleged to have been contracted by the accused with Sabdapal, her former marriage with Hassan being undissolved, can not be considered as such, according to Mohameddan rites, there is no justification to hold her guilty of the crime charged in the information. (People vs. Dumpo, 62 Phil. 246). One of the essential elements of a valid marriage is that the consent thereto of the contracting parties must be freely and voluntarily given. Without the element of consent a marriage would be illegal and void. (Section 29, Act No. 3613, otherwise known as the Marriage Law.) But the question of invalidity can not ordinarily be decided in the criminal action for bigamy but in a civil action for annulment. Since the validity of the second marriage, subject of the action for bigamy, cannot be determined in the criminal case and since prosecution for bigamy does not lie unless the elements of the second marriage appear to exist, it is necessary that a decision in a civil action to the effect that the second marriage contains all the essentials of a marriage must first be secured. We have, therefore, in the case at bar, the issue of the validity of the second marriage, which must be determined before hand in the civil action, before the criminal action can proceed. We have a situation where the issue of the validity of the second marriage can be determined or must be determined in the civil action before the criminal action for bigamy can be prosecuted. The question of the validity of the second marriage is, therefore, a prejudicial question, because determination of the validity of the second marriage is determinable in the civil action and must precede the criminal action for bigamy. Spanish jurisprudence, from which the principle of prejudicial question has been taken, requires that the essential element determinative of the criminal action must be cognizable by another court. This requirement of a different court is demanded in Spanish jurisprudence because Spanish courts are divided according to their jurisdictions, some courts being exclusively of civil jurisdiction, others of criminal jurisdiction. In the Philippines, where our courts are vested with both civil and criminal jurisdiction, the principle of prejudicial question is to be applied even if there is only one court before which the civil action and the criminal action are to be litigated. But in this case the court when exercising its jurisdiction over the civil action for the annulment of marriage is considered as a court distinct and different from itself when trying the criminal action for bigamy. Our conclusion that the determination of the validity of the marriage in the civil action for annulment is a prejudicial question, insofar as the criminal action for bigamy is concerned, is supported by Mr. Justice Moran in his dissenting opinion in De Leon vs. Mabanag, 70 Phil., 207 thus:

La regla general es que cuando hay una cuestion civil y otra criminal sobre un mismo delito u ofensa, la segunda debe verse antes que la primera, por la razon de que las formas de un juicio criminal son las mas a proposito para la averiguacion de un delito, y no las de un juicio civil. Esta regla tiene, sin embargo, una excepcion, y es la que se refiere a una cueston civil prejudicial. Una cuestion civil es de caracter prejudicial y debe resolverse antes que una cuestion criminal, cuando versa sonbre un hecho distinto y separado del delito, pero tan intimamente ligado a el que determina la culpabilidad o inocencia del acusado. Por ejemplo, una accion criminal por bigamia. The majority decision in said case of De Leon vs. Mabanag also sustains the theory that when a civil action is pending in court, in which a validity of a document claimed to be false and fictitious is in issue, the fiscal may not prosecute the person who allegedly executed the false document because the issue of the validity of the instrument is sub judice and the prosecuting officer should be ordered to suspend the criminal action until the prejudicial question has been finally determined. Thus the Court said" Hablando en terminos generales la facultad del Fiscal y su deber perseguir los delitos no deben ser controlados ni coartados por los tribunales; pero no hay duda que esa facultad puede ser regulada para que no se abuse de ella. Cuando un miembro del Ministerio Fiscal se desvia de la ley y entorpece la recta administracion de justicia procesando a una persona por hechos constituvos de delito que se encuentran sub-judice y de los cuales se propone una cuestion prejudicial administrativa, es deber de los tribunales llamarle la atencion y obligarle que suspenda toda accion criminal hasta que la cuestion prejudicial administrativa se haya decidido finalmente. (De Leon vs. Mabanag, 70 Phil., 207.) The case of People vs. Mendoza, supra, upon which the trial court and the respondents rely, presents a different sets of facts from the case at bar. So is the ruling therein as contained in the syllabus. In the case of People vs. Mendoza, Mendoza was charged with and convicted of bigamy for a marriage with one Carmencita Panlilio, contracted in August, 1949. Mendoza was married for the first time in 1946 with Josefa de Asis; then married for the second time with Olga Lema; and then married for the third time to Panlilio in 1949. On February 2, 1943, Josefa de Asis died. The court citing the provisions of Article 29 of the marriage law, held that the second marriage of the appellant Mendoza with Lema was operation of law null and void, because at the time of the second marriage in 1941, appellant's former wife Josefa de Asis was still living. This marriage of appellant with Lema being null and void at the time the appellant contracted the said marriage, the impediment of the second marriage did not exist. Hence the appellant was acquitted of bigamy for the 1949 marriage because his previous marriage with Lema in 1941, by operation of law, was void ab initio. In the case at bar, in order that the petitioner be held guilty of the crime of bigamy, the marriage which she contracted for the second time with Elizabeth Ceasar, must first be declared valid. But its validity has been questioned in the civil action. This civil action must be decided before the prosecution for bigamy can proceed. For the foregoing considerations, the petition for the issuance of a writ of certiorari and prohibition is hereby granted. The order of the court denying the petition of the herein petitioner to prohibit the Fiscal from prosecuting the case for bigamy, criminal case no. V-

6520, entitled People vs. Abundio Merced, is hereby set aside and the preliminary injunction issued by this court to that effect is hereby made permanent. So Ordered. G.R. No. L-22579 February 23, 1968

ROLANDO LANDICHO, petitioner, vs. HON. LORENZO RELOVA, in his capacity as Judge of the Court of First Instance of Batangas, Branch I, and PEOPLE OF THE PHILIPPINES, respondents. FERNANDO, J.: In this petition for certiorari and prohibition with preliminary injunction, the question before the Court is whether or not the existence of a civil suit for the annulment of marriage at the instance of the second wife against petitioner, with the latter in turn filing a third party complaint against the first spouse for the annulment of the first marriage, constitutes a prejudicial question in a pending suit for bigamy against him. Respondent, Judge Relova answered in the negative. We sustain him. The pertinent facts as set forth in the petition follow. On February 27, 1963, petitioner was charged before the Court of First Instance of Batangas, Branch I, presided over by respondent Judge, with the offense, of bigamy. It was alleged in the information that petitioner "being then lawfully married to Elvira Makatangay, which marriage has not been legally dissolved, did then and there wilfully, unlawfully and feloniously contract a second marriage with Fe Lourdes Pasia." On March 15, 1963, an action was filed before the Court of First Instance ofBatangas, likewise presided plaintiff respondent Judge Fe Lourdes Pasia, seeking to declare her marriage to petitioner as null and void ab initio because of the alleged use of force, threats and intimidation allegedly employed by petitioner and because of its allegedly bigamous character. On June 15, 1963, petitioner as defendant in said case, filed a third-party complaint, against the third-party defendant Elvira Makatangay, the first spouse, praying that his marriage with the said third-party defendant be declared null and void, on the ground that by means of threats, force and intimidation, she compelled him to appear and contract marriage with her before the Justice of the Peace of Makati, Rizal. Thereafter, on October 7, 1963, petitioner moved to suspend the hearing of the criminal case pending the decision on the question of the validity of the two marriages involved in the pending civil suit. Respondent Judge on November 19, 1963 denied the motion for lack of merit. Then came a motion for reconsideration to set aside the above order, which was likewise denied on March 2, 1964. Hence this petition, filed on March 13, 1964. In a resolution of this Court of March 17, 1964, respondent Judge was required to answer within ten (10) days, with a preliminary injunction being issued to restrain him from further proceeding with the prosecution of the bigamy case. In the meanwhile, before the answer was filed there was an amended petition for certiorari, the amendment consisting solely in the inclusion of the People of the Philippines as another respondent. This Court admitted such amended petition in a resolution of April 3, 1964.

Then came the answer to the amended petition on May 14 of that year where the statement of facts as above detailed was admitted, with the qualifications that the bigamy charge was filed upon the complaint of the first spouse Elvira Makatangay. It alleged as one of its special and affirmative defenses that the mere fact that "there are actions to annul the marriages entered into by the accused in a bigamy case does not mean that 'prejudicial questions are automatically raised in said civil actions as to warrant the suspension of the 1 criminal case for bigamy." The answer stressed that even on the assumption that the first marriage was null and void on the ground alleged by petitioner, the fact would not be material to the outcome of the criminal case. It continued, referring to Viada, that "parties to the marriage should not be permitted to judge for themselves its nullity, for this must be submitted to the judgment of competent courts and only when the nullity of a marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, according to Viada, he who contracts a second marriage before the judicial declaration of nullity of the first marriage incurs the penalty 2 provided for in this Article. . . ." This defense is in accordance with the principle implicit in authoritative decisions of 3 this Court. In Merced v. Diez, what was in issue was the validity of the second marriage, "which must be determined before hand in the civil action before the criminal action can proceed." According to the opinion of Justice Labrador: "We have a situation where the issue of the validity of the second marriage can be determined or must first be determined in the civil action before the criminal action for bigamy can be prosecuted. The question of the validity of the second marriage is, therefore, a prejudicial question because determination of the validity of the second marriage is determinable in the civil action and must precede the criminal action for bigamy." It was the conclusion of this Court then that for petitioner Merced to be found guilty of bigamy, the second marriage which he contracted "must first be declared valid." Its validity having been questioned in the civil action, there must be a decision in such a case "before the prosecution for bigamy can proceed." To the same effect is the doctrine announced in Zapanta v. Mendoza. As explained in the opinion of Justice Dizon: "We have heretofore defined a prejudicial question as that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. . . . The prejudicial question we further said must be determinative of the case before the court, and jurisdiction to try the same must be lodged in another court. . . . These requisites are present in the case at bar. Should the question for annulment of the second marriage pending in the Court of First Instance of Pampanga prosper on the ground that, according to the evidence, petitioner's consent thereto was obtained by means of duress, force and intimidation, it is obvious that his act was involuntary and can not be the basis of his conviction for the crime of bigamy with which he was charged in the Court of First Instance of Bulacan. Thus the issue involved in the action for the annulment of the second marriage is determinative of petitioner's guilt or innocence of the crime of bigamy. . . ." The situation in this case is markedly different. At the time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. Then on March 15, 1963, it was the second spouse, not petitioner who filed an action for nullity on the ground of force, threats and intimidation. It was sometime later, on June 15, 1963, to be precise, when petitioner, as defendant in the civil action, filed a third-party complaint against the first spouse alleging that his marriage
4

with her should be declared null and void on the ground of force, threats and intimidation. As was correctly stressed in the answer of respondent Judge relying on Viada, parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy. Such was the situation of petitioner. There is no occasion to indulge in the probability that the third-party complaint against the first wife brought almost five months after the prosecution for bigamy was started could have been inspired by the thought that he could thus give color to a defense based on an alleged prejudicial question. The above judicial decisions as well as the opinion of Viada preclude a finding that respondent Judge abused, much less gravely abused, his discretion in failing to suspend the hearing as sought by petitioner. WHEREFORE, the petition for certiorari is denied and the writ of preliminary injunction issued dissolved. With costs.1wph1.t G.R. No. L-5921 July 25, 1911

While the judgment was in the course of execution, Elisa Torres de Villanueva, the wife of Vicente Sixto Villanueva, appeared and alleged: (1) That on July 24, 1909, the latter was declared to be insane by the Court of First Instance of the city of Manila; (2) that she was appointed his guardian by the same court; (3) that, on October 11, following, she was authorized by the court, as guardian, to institute the proper legal proceedings for the annulment of several bonds given by her husband while in a state of insanity, among them that concerned in the present cause, issued in behalf of The Standard Oil Company of New York; (4) that she, the guardian, was not aware of the proceedings had against her husband and was only by chance informed thereof; (5) that when Vicente S. Villanueva gave the bond, the subject of this suit, he was already permanently insane, was in that state when summoned and still continued so, for which reason he neither appeared nor defended himself in the said litigation; and, in conclusion, she petitioned the court to relieve the said defendant Villanueva from compliance with the aforestated judgment rendered against him in the suit before mentioned, and to reopen the trial for the introduction of evidence in behalf of the said defendant with respect to his capacity at the time of the execution of the bond in question, which evidence could not be presented in due season on account of the then existing incapacity of the defendant. The court granted the petition and the trial was reopened for the introduction of evidence, after due consideration of which, when taken, the court decided that when Vicente Villanueva, on the 15th of December, 1908, executed the bond in question, he understood perfectly well the nature and consequences of the act performed by him and that the consent that was given by him for the purpose was entirely voluntary and, consequently, valid and efficacious. As a result of such findings the court ruled that the petition for an indefinite stay of execution of the judgment rendered in the case be denied and that the said execution be carried out. After the filing of an exception to the above ruling, a new hearing was requested "with reference to the defendant Vicente S. Villanueva" and, upon its denial, a bill of exceptions was presented in support of the appeal submitted to this court and which is based on a single assignment of error as follows: Because the lower court found that the monomania of great wealth, suffered by the defendant Villanueva, does not imply incapacity to execute a bond such as the one herein concerned. Certainly the trial court founded its judgment on the basis of the medico-legal doctrine which supports the conclusion that such monomania of wealth does not necessarily imply the result that the defendant Villanueva was not a person capable of executing a contract of bond like the one here in question. This court has not found the proof of the error attributed to the judgment of the lower court. It would have been necessary to show that such monomania was habitual and constituted a veritable mental perturbation in the patient; that the bond executed by the defendant Villanueva was the result of such monomania, and not the effect of any other cause, that is, that there was not, nor could there have been any other cause for the contract than an ostentation of wealth and this purely an effect of monomania of wealth; and that the monomania existed on the date when the bond in question was executed.

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellee, vs. JUAN CODINA ARENAS AND OTHERS, defendants; VICENTE SIXTO VILLANUEVA, appellant. ARELLANO, C.J.: On December 15, 1908, Juan Codina Arenas and Francisco Lara del Pino, as principals, and Alipio Locso, Vicente Sixto Villanueva and the Chinaman, Siy Ho, as sureties, assumed the obligation to pay, jointly and severally, to the corporation, The Standard Oil Company of New York, the sum of P3,305. 76, at three months from date, with interest at P1 per month. On April 5, 1909, The Standard Oil Company of New York sued the said five debtors for payment of the P3,305.76, together with the interest thereon at the rate of 1 per cent per month from the 15th of December, 1908, and the costs. The defendants were summoned, the record showing that summons was served on Vicente Sixto Villanueva on April 17, 1909. On May 12, 1909, Vicente Sixto Villanueva and Siy Ho were declared to be in default and were so notified, the latter on the 14th and the former on the 15th of May, 1909. On August 28, 1909, the Court of First Instance of the city of Manila sentenced all the defendants to pay jointly and severally to the plaintiff company the sum of P3,305.76, together with the interest thereon at 1 per cent per month from December 15, 1908, until complete payment should have been made of the principal, and to pay the costs.

With regard to the first point: "All alienists and those writers who have treated of this branch of medical science distinguish numerous degrees of insanity and imbecility, some of them, as Casper, going so far into a wealth of classification and details as to admit the existence of 60 to 80 distinct states, an enumeration of which is unnecessary. Hence, the confusion and the doubt in the minds of the majority of the authors of treatises on the subject in determining the limits of sane judgment and the point of beginning of this incapacity, there being some who consider as a sufficient cause for such incapacity, not only insanity and imbecility, but even those other chronic diseases or complaints that momentarily perturb or cloud the intelligence, as mere monomania, somnambulism, epilepsy, drunkenness, suggestion, anger, and the divers passional states which more or less violently deprive the human will of necessary liberty." (Manresa, Commentaries on the Civil Code, Vol. V, p. 342.) In our present knowledge of the state of mental alienation such certainly has not yet been reached as to warrant the conclusion, in a judicial decision, that he who suffers the monomania of wealth, believing himself to be very wealthy when he is not, is really insane and it is to be presumed, in the absence of a judicial declaration, that he acts under the influence of a perturbed mind, or that his mind is deranged when he executes an onerous contract .The bond, as aforesaid, was executed by Vicente S. Villanueva on December 15, 1908, and his incapacity, for the purpose of providing a guardian for him, was not declared until July 24, 1909. The trial court, although it conceded as a fact that the defendant had for several years suffered from such monomania, decided, however, guided by the medico-legal doctrine above cited, that a person's believing himself to be what he is not or his taking a mere illusion for a reality is not necessarily a positive proof of insanity or incapacity to bind himself in a contract. Specifically, in reference to this case, the following facts were brought out in the testimony given by the physicians, Don Rudesino Cuervo and Don Gervasio de Ocampo, witnesses for the defendant, the first of whom had visited him some eight times during the years 1902 and 1903, and the latter, only once, in 1908. Dr. Cuervo: Q. But if you should present to him a document which in no wise concerns his houses and if you should direct him to read it, do you believe that he would understand the contents of the document? A. As to understanding it, it is possible that he might, in this I see nothing particularly remarkable; but afterwards, to decide upon the question involved, it might be that he could not do that; it depends upon what the question was. Dr. Ocampo: Q. Do you say that he is intelligent with respect to things other than those concerning greatness? A. Yes, he reasons in matters which do not refer to the question of greatness and wealth. Q. He can take a written paper and read it and understand it, can he not?

A. Read it, yes, he can read it and understand it, it is probable that he can, I have made no trial. Q. Is he not a man of considerable intelligence, only with the exception of this monomania of greatness and wealth? A. Q. A. Of not much intelligence, an ordinary intelligence. He knows how to read and write, does he not? Yes, sir I believe that he does.

Mr. F.B. Ingersoll, a witness for the plaintiff, testified that as a notary he had prepared the instrument of bond and received the statements of the signers; that he explained to Mr. Villanueva its contents and when the witness asked the latter whether he wished to sign it he replied that he was willing and did in fact do so; that the defendant's mental condition appeared to the witness to be normal and regular and that he observed nothing to indicate the contrary; and that the defendant was quiet and composed and spoke in an ordinary way without giving cause fir any suspicion that there was anything abnormal. Honorable Judge Araullo testified as a witness for the plaintiff that while trying in the Court of First Instance, over which he presided, the case concerning the estate of the Chinaman Go-Cho-Co, and Mr. Villanueva having been proposed as a surety therein, the witness asked him some questions about his property, in order to ascertain whether he was solvent and would be adequate surety, and that Villanueva testified the same as many, others had done, and witness did not notice any particular disorder or perturbation of his mental faculties; that he answered the questions concerning the property that he held, stated its value, specified the place where it was situated, his answers being precisely relevant to the matter treated; that he therefore approved the bond; and that all this took place between July and September, 1908. This witness having been asked, on cross-examination, whether Mr. Villanueva, subsequent to the date mentioned, had again been surety in any other case, and whether it appeared strange to witness that Mr. Villanueva should engage in giving bonds and whether for that reason he rejected this new bond, replied that it was in that same case relative to the estate of the Chinaman Go-Cho-Co that he endeavored to investigate, as he customarily did, with regard to whether Mr. Villanueva had given any other previous bond, and the discovered that he had in fact previously given bond in a criminal case, but that, as it had already been cancelled, he had no objection to accepting the one offered by Mr. Villanueva in the said Go-Cho-Co case. Capacity to act must be supposed to attach to a person who has not previously been declared incapable, and such capacity is presumed to continue so long as the contrary be not proved, that is, that at the moment of his acting he was incapable, crazy, insane, or out his mind: which, in the opinion of this court, has not been proved in this case. With regard to the second point, it is very obvious that in every contract there must be a consideration to substantiate the obligation, so much so that, even though it should not be expressed in the contract, it is presumed that it exists and that it is lawful, unless the debtor proves the contrary. (Civil Code, art. 1277.) In the contract of bond the consideration,

general, is no other, as in all contract of pure beneficence, than the liberality of the benefactor. (Id, 1274.) Out of the ordinary, a bond may be given for some other consideration, according to the agreement and the free stipulation of the parties and may be, as in onerous and remuneratory contracts, something remunerative stipulated as an equivalent, on the part of the beneficiary of the bond. It is not clear as to the reason why Villanueva gave the bond in favor of the two members of the firm of Arenas & Co., Francisco Lara, and Juan Arenas. Lara testified that he had never had dealings with Villanueva; from which it is inferred that the latter could hardly have been moved to favor the former by the benefit of an assumed obligation to pay him some three thousand pesos, with monthly interest .But he added that Arenas & Co. obtained an agent to look for sureties for them, to whom Arenas paid a certain sum of money. The witness did not know, however, whether Arenas gave the money for the signature of the bond or simply in order that the agent might find sureties. The fact is that the sureties came with the agent and signed the bond. The appellant presented, as proof that Villanueva concealed from his family his dealings with Arenas, a note by the latter addressed to his friend, Mr. Villanueva, on the 13th of May, 1909, that is, two days before Villanueva was declared to be in default, inviting him to a conference "for the purpose of treating of a matter of great importance of much interest to Villanueva, between 5 and 6 of that same day, in the garden and on the benches which are in front of the Delmonico Hotel, on Calle Palacio, corner of Calle Victoria, and if rained, in the bar on the corner." It can not be affirmed with certainty (the trial court considers it probable) that Villanueva engaged in the business of giving bonds for a certain consideration or remuneration; but neither can it be sustained that there was no other cause for the giving of the bond in question than the mental disorder that dominated the intellect of the person obligated, to the extent of his believing himself so oversupplied with money as to be able to risk it in behalf of any person whatever. There is no proof that the said bond was merely the product of an insensate ostentation of wealth, nor that, if Villanueva boasted of wealth in giving several bonds, among them that herein concerned, he was influenced only by the monomania of boasting of being wealthy, when he was not. Neither is there any proof whatever with respect to the third point, that is, that, granting that he was a monomaniac, he was dominated by that malady when he executed the bond now under discussion. In the interpretative jurisprudence on this kind of incapacity, to wit, lunacy or insanity, it is a rule of constant application that is not enough that there be more or less probability that a person was in a state of dementia at a given time, if there is not direct proof that, at the date of the performance of the act which it is endeavored to invalidate for want of capacity on the part of the executor, the latter was insane or demented, in other words, that he could not, in the performance of that act, give his conscious, free, voluntary, deliberate and intentional consent. The witness who as physicians testified as to extravagancies observed in Villanueva's conduct, referred, two of them, to a time prior to 1903, and another of them to the year 1908, but none to December 15, 1908, the date of the execution of the bond sought to be invalidated. the testimony of one of these witnesses shows that when Villanueva's wife endeavored, in 1908, to have her husband confined in the Hospicio de San Jose and cared for therein, objection was made by the director of the institution who advised her that if he entered in that way and lodged in the ward for old men, as soon as he shouted and disturbed them in their sleep he would have to be locked up in the insane ward; to which Villanueva's wife replied "that her

husband was not exactly insane enough to be placed among the insane." This same lady, testifying as a witness in this case, stated: that no restrictions had ever been placed upon her husband's liberty to go wherever he wished and do what he liked; that her husband had property of his own and was not deprived of its management; that he went out every morning without her knowing where he went; that she did not know whether he had engaged in the business of signing bonds, and that, with reference to the one now concerned, she had learned of it only by finding to note, before mentioned, wherein Arenas invited him to a rendezvous on the benches in front of the Delmonico Hotel; that she had not endeavored legally to deprive him of the management of his own real estate which had been inherited by him, although he did not attend to the collection of the rents and the payment of the land tax, all this being done by her, and she also it was who attended to the subsistence of the family and to all their needs. Finally, and with direct reference to the point under discussion, she was asked: Q. It is not true that, up to the date of his signing this bond, he used to go out of the house and was on the streets nearly every day? to which she replied: A. He went where he pleased, he does this even now. He goes to the markets, and buys provisions and other things. In fact I don't know where he goes go. Q. From his actions toward others, did he show any indication of not being sane when he was on the street, according to your opinion? A. Half of Manila knows him and are informed of this fact and it is very strange that this should have occurred. If you need witnesses to prove it, there are many people who can testify in regard to this particular. The only incorrectness mentioned by this lady is that her husband, when he went to the market, would return to the house with his pockets full of tomatoes and onions, and when she was asked by the judge whether he was a man of frugal habits, she replied that, as far as she knew, he had never squandered any large sum of money; that he had never been engaged in business; that he supported himself on what she gave him; and that if he had something to count on for his living, it was the product of his lands. Such is a summary of the facts relating to the debated incapacity of the appellant, and it is very evident that it can not be concluded therefrom that, on December 15, 1908, when Villanueva subscribed the obligation now contested, he did not possess the necessary capacity to give efficient consent with respect to the bond which he freely executed. Therefore, the judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

G.R. No. L-11872

December 1, 1917

DOMINGO MERCADO and JOSEFA MERCADO, plaintiffs-appellants, vs. JOSE ESPIRITU, administrator of the estate of the deceased Luis Espiritu, defendantappellee. TORRES, J.: This is an appeal by bill of exceptions, filed by the counsel for the plaintiffs from the judgment of September 22, 1914, in which the judge of the Seventh Judicial District dismissed the complaint filed by the plaintiffs and ordered them to keep perpetual silence in regard to the litigated land, and to pay the costs of the suit. By a complaint dated April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the Court of First Instance of Bulacan, against Luis Espiritu, but, as the latter died soon thereafter, the complaint was amended by being directed against Jose Espiritu in his capacity of his administrator of the estate of the deceased Luis Espiritu. The plaintiffs alleged that they and their sisters Concepcion and Paz, all surnamed Mercado, were the children and sole heirs of Margarita Espiritu, a sister of the deceased Luis Espiritu; that Margarita Espiritu died in 1897, leaving as her paraphernal property a tract of land of 48 hectares in area situated in the barrio of Panducot, municipality of Calumpit, Bulacan, and bounded as described in paragraph 4 of the amended complaint, which hereditary portion had since then been held by the plaintiffs and their sisters, through their father Wenceslao Mercado, husband of Margarita Espiritu; that, about the year 1910, said Luis Espiritu, by means of cajolery, induced, and fraudulently succeeded in getting the plaintiffs Domingo and Josefa Mercado to sign a deed of sale of the land left by their mother, for the sum of P400, which amount was divided among the two plaintiffs and their sisters Concepcion and Paz, notwithstanding the fact that said land, according to its assessment, was valued at P3,795; that one-half of the land in question belonged to Margarita Espiritu, and one-half of this share, that is, onefourth of said land , to the plaintiffs, and the other one-fourth, to their two sisters Concepcion and Paz; that the part of the land belonging to the two plaintiffs could produce 180 cavanes of rice per annum, at P2.50 per cavan, was equivalent to P450 per annum; and that Luis Espiritu had received said products from 1901 until the time of his death. Said counsel therefore asked that judgment be rendered in plaintiffs' favor by holding to be null and void the sale they made of their respective shares of their land, to Luis Espiritu, and that the defendant be ordered to deliver and restore to the plaintiffs the shares of the land that fell to the latter in the partition of the estate of their deceased mother Margarita Espiritu, together with the products thereof, uncollected since 1901, or their equivalent, to wit, P450 per annum, and to pay the costs of the suit. In due season the defendant administrator answered the aforementioned complaint, denying each and all of the allegations therein contained, and in special defense alleged that the land, the subject-matter of the complaint, had an area of only 21 cavanes of seed rice; that, on May 25, 1894, its owner, the deceased Margarita Espiritu y Yutoc, the plaintiffs' mother, with the due authorization of her husband Wenceslao Mercado y Arnedo Cruz sold to Luis Espiritu for the sum of P2,000 a portion of said land, to wit, an area such as is usually required for fifteen cavanes of seed; that subsequently, on May 14, 1901, Wenceslao Mercado y Arnedo Cruz, the plaintiffs' father, in his capacity as administrator of the property

of his children sold under pacto de retro to the same Luis Espiritu at the price of P375 the remainder of the said land, to wit, an area covered by six cavanes of seed to meet the expenses of the maintenance of his (Wenceslao's) children, and this amount being still insufficient the successively borrowed from said Luis Espiritu other sums of money aggregating a total of P600; but that later, on May 17,1910, the plaintiffs, alleging themselves to be of legal age, executed, with their sisters Maria del Consejo and Maria dela Paz, the notarial instrument inserted integrally in the 5th paragraph of the answer, by which instrument, ratifying said sale under pacto de retro of the land that had belonged to their mother Margarita Espiritu, effected by their father Wenceslao Mercado in favor of Luis Espiritu for the sum of P2,600, they sold absolutely and perpetually to said Luis Espiritu, in consideration of P400, the property that had belonged to their deceased mother and which they acknowledged having received from the aforementioned purchaser. In this crosscomplaint the defendant alleged that the complaint filed by the plaintiffs was unfounded and malicious, and that thereby losses and damages in the sum of P1,000 had been caused to the intestate estate of the said Luis Espiritu. He therefore asked that judgment be rendered by ordering the plaintiffs to keep perpetual silence with respect to the land in litigation and, besides, to pay said intestate estate P1,000 for losses and damages, and that the costs of the trial be charged against them. In reply to the cross-complaint, the plaintiffs denied each and all of the facts therein set forth, and in special defense alleged that at the time of the execution of the deed of sale inserted in the cross-complaint the plaintiffs were still minors, and that since they reached their majority the four years fixed by law for the annulment of said contract had not yet elapsed. They therefore asked that they be absolved from the defendant's cross-complaint. After trial and the introduction of evidence by both parties, the court rendered the judgment aforementioned, to which the plaintiffs excepted and in writing moved for a reopening of the case and a new trial. This motion was overruled, exception was taken by the petitioners, and the proper bill of exceptions having been presented, the same was approved and transmitted to the clerk of this court. As the plaintiffs assailed the validity of the deed of sale, Exhibit 3, executed by them on May 17, 1910, on the ground that they were minors when they executed it, the questions submitted to the decision of this court consist in determining whether it is true that the plaintiffs were then minors and therefore incapable of selling their property on the date borne by the instrument Exhibit 3; and in case they then were such, whether a person who is really and truly a minor and, notwithstanding, attests that he is of legal age, can, after the execution of the deed and within legal period, ask for the annulment of the instrument executed by him, because of some defect that invalidates the contract, in accordance with the law (Civ. Code, arts. 1263 and 1300), so that he may obtain the restitution of the land sold. The records shows it to have been fully proven that in 1891 Lucas Espiritu obtained title by composition with the State, to three parcels of land, adjoining each other, in the sitio of Panducot of the pueblo of Calumpit, Bulacan, containing altogether an area of 75 hectares, 25 ares, and 59 centares, which facts appear in the title Exhibit D; that, upon Luis Espiritu's death, his said lands passed by inheritance to his four children named Victoria, Ines, Margarita, and Luis; and that, in the partition of said decedent's estate, the parcel of land described in the complaint as containing forty-seven and odd hectares was allotted to the

brother and sister Luis and Margarita, in equal shares. Margarita Espiritu, married to Wenceslao Mercado y Ardeno Cruz, had by this husband five children, Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, all surnamed Mercado y Espiritu, who, at the death of their mother in 1896 inherited, by operation of law, one-half of the land described in the complaint. The plaintiffs' petition for annulment of the sale and the consequent restitution to them of two-fourths of the land left by their mother, that is, of one-fourth of all the land described in the complaint, and which, they stated, amounts to 11 hectares, 86 ares and 37 centares. To this claim the defendant excepted, alleging that the land in question comprised only an area such as is customarily covered by 21 cavanes of seed. It was also duly proven that, by a notarial instrument of May 25, 1894, the plaintiffs' mother conveyed by actual and absolute sale for the sum of P2,000, to her brother Luis Espiritu a portion of the land now on litigation, or an area such as is usually covered by about 15 cavanes of seed; and that, on account of the loss of the original of said instrument, which was on the possession of the purchaser Luis Espiritu, and furthermore because, during the revolution, the protocols or registers of public documents of the Province of Bulacan were burned, Wenceslao Mercado y Arnedo Cruz, the widower of the vendor and father of the plaintiffs, executed, at the instance of the interested party Luis Espiritu, the notarial instrument Exhibit 1, of the date of May 20, 1901, in his own name and those of his minor children Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, and therein set forth that it was true that the sale of said portion of land had been made by his aforementioned wife, then deceased, to Luis Espiritu in 1894. However, even prior to said date, to wit, on May 14th of the same year, 1901, the widower Wenceslao Mercado, according to the private document Exhibit 2, pledged or mortgaged to the same man, Luis Espiritu, for P375, a part, or an area covered by six cavanes of seed, of the land that had belonged to this vendor's deceased wife, to the said Luis Espiritu and which now forms a part of the land in question a transaction which Mercado was obliged to make in order to obtain funds with which "to cover his children's needs." Wenceslao Mercado, the plaintiffs' father, having died, about the year 1904, the plaintiffs Domingo and Josefa Mercado, together with their sisters Consejo and Paz, declaring themselves to be of legal age and in possession of the required legal status to contract, executed and subscribed before a notary the document Exhibit 3, on May 17, 1910, in which referring to the previous sale of the land, effected by their deceased mother for the sum of P2,600 and with her husband's permission and authorization, they sold absolutely and in perpetuity to Luis Espiritu, for the sum of P400 "as an increase" of the previous purchase price, the land described in said instrument and situated in Panducot, pueblo of Calumpit, Bulacan, of an area equal to that usually sown with 21 cavanes of seed bounded on the north by the lands of Flaviano Abreu and the heirs of Pedro Espiritu, on the east by those of Victoria Espiritu and Ines Espiritu, on the south by those of Luis Espiritu, and on the west by those of Hermogenes Tan-Toco and by the Sapang-Maitu stream. In this status of the case the plaintiffs seek the annulment of the deed Exhibit 3, on the ground that on the date of its execution they were minors without legal capacity to contract, and for the further reason that the deceased purchaser Luis Espiritu availed himself of deceit and fraud in obtaining their consent for the execution of said deed.

As it was proven by the testimony of the clerk of the parochial church of Apalit (plaintiffs were born in Apalit) that the baptismal register books of that parish pertaining to the years 1890-1891, were lost or burned, the witness Maria Consejo Mercado recognized and identified the book Exhibit A, which she testified had been kept and taken care of by her deceased father Wenceslao Mercado, pages 396 and 397 of which bear the attestation that the plaintiff Domingo Mercado was born on August 4, 1890, and Josefa Mercado, on July 14, 1891. Furthermore, this witness corroborated the averment of the plaintiffs' minority, by the personal registration certificate of said Domingo Mercado, of the year 1914, Exhibit C, by which it appears that in 1910 he was only 23 years old, whereby it would also be appear that Josefa Mercado was 22 years of age in 1910, and therefore, on May 17,1910, when the instrument of purchase and sale, Exhibit 3, was executed, the plaintiffs must have been, respectively, 19 and 18 years of age. The witness Maria Consejo Mercado also testified that after her father's death her brother and sisters removed to Manila to live there, although her brother Domingo used to reside with his uncle Luis Espiritu, who took charge of the administration of the property left by his predecessors in interest; that it was her uncle Luis who got for her brother Domingo the other cedula, Exhibit B, pertaining to the year 1910, where in it appears that the latter was then already 23 years of age; that she did not know why her uncle did so; that she and her brother and sisters merely signed the deed of May 17, 1910; and that her father Wenceslao Mercado, prior to his death had pledged the land to her uncle Luis Espiritu. The witness Ines Espiritu testified that after the death of the plaintiffs' father, it was Luis Espiritu who directed the cultivation of the land in litigation. This testimony was corroborated by her sister Victoria Espiritu, who added that her nephew, the plaintiff Domingo, had lived for some time, she did not know just how long, under the control of Luis Espiritu. Roque Galang, married to a sister of Luis Espiritu, stated that the land that fell to his wife and to his sister-in-law Victoria, and which had an area of about 8 hectares less than that of the land allotted to the aforementioned Luis and Margarita produced for his wife and his sister-in-law Victoria a net and minimum yield of 507 cavanes in 1907, in spite of its being high land and of inferior quality, as compared with the land in dispute, and that its yield was still larger in 1914, when the said two sisters' share was 764 cavanes. Patricio Tanjucto, the notary before whom the deed Exhibit 3 was ratified, was a witness for the defendant. He testified that this deed was drawn up by him at the request of the plaintiff Josefa Mercado; that the grantors of the instrument assured him that they were all of legal age; that said document was signed by the plaintiffs and the other contracting parties, after it had been read to them and had been translated into the Pampangan dialect for those of them who did not understand Spanish. On cross-examination, witness added that ever since he was 18 years of age and began to court, he had known the plaintiff Josefa Mercado, who was then a young maiden, although she had not yet commenced to attend social gatherings, and that all this took place about the year 1898, for witness said that he was then [at the time of his testimony, 1914,] 34 years of age. Antonio Espiritu, 60 years of age, who knew Lucas Espiritu and the properties owned by the latter, testified that Espiritu's land contained an area of 84 cavanes, and after its owner's death, was under witness' administration during to harvest two harvest seasons; that the

products yielded by a portion of this land, to wit, an area such as is sown by about 15 cavanes of seed, had been, since 1894, utilized by Luis Espiritu, by reason of his having acquired the land; and that, after Margarita Espiritu's death, her husband Wenceslao Mercado took possession of another portion of the land, containing an area of six cavanes of seed and which had been left by this deceased, and that he held same until 1901, when he conveyed it to Luis Espiritu. lawphi1.net The defendant-administrator, Jose Espiritu, son of the deceased Luis Espiritu, testified that the plaintiff Domingo Mercado used to live off and on in the house of his deceased father, about the year 1909 or 1910, and used to go back and forth between his father's house and those of his other relatives. He denied that his father had at any time administered the property belonging to the Mercado brother and sisters. In rebuttal, Antonio Mercado, a cousin of Wenceslao, father of the plaintiffs, testified that he mediate in several transactions in connection with a piece of land belonging to Margarita Espiritu. When shown the deed of purchase and sale Exhibit 1, he stated that he was not acquainted with its contents. This same witness also testified that he mediated in a transaction had between Wenceslao Mercado and Luis Espiritu (he did not remember the year), in which the former sold to the latter a parcel of land situated in Panducot. He stated that as he was a witness of the deed of sale he could identify this instrument were it exhibited to him; but he did not do so, for no instrument whatever was presented to him for identification. The transaction mentioned must have concerned either the ratification of the sale of the land of 15 cavanes, in 1901, attested in Exhibit 1, or the mortgage or pledge of the other parcel of 6 cavanes, given on May 14, 1901, by Wenceslao Mercado to Luis Espiritu, as may be seen by the private document Exhibit 2. In rebuttal, the plaintiff Josefa Mercado denied having gone to the house of the notary Tanjutco for the purpose of requesting him to draw up any document whatever. She stated that she saw the document Exhibit 3 for the first time in the house of her uncle Luis Espiritu on the day she signed it, on which occasion and while said document was being signed said notary was not present, nor were the witnesses thereto whose names appear therein; and that she went to her said uncle's house, because he had sent for her, as well as her brother and sisters, sending a carromata to fetch them. Victoria Espiritu denied ever having been in the house of her brother. Luis Espiritu in company with the plaintiffs, for the purpose of giving her consent to the execution of any deed in behalf of her brother. The evidence adduced at the trial does not show, even circumstantially, that the purchaser Luis Espiritu employed fraud, deceit, violence, or intimidation, in order to effect the sale mentioned in the document Exhibit 3, executed on May 17, 1910. In this document the vendors, the brother and the sisters Domingo, Maria del Consejo, Paz and, Josefa surnamed Mercado y Espiritu, attested the certainty of the previous sale which their mother, during her lifetime, had made in behalf of said purchaser Luis Espiritu, her brother with the consent of her husband Wenceslao Mercado, father of the vendors of the portion of land situated in the barrio of Panducot, pueblo of Calumpit, Bulacan; and in consideration of the fact that the said vendor Luis Espiritu paid them, as an increase, the sum of P400, by virtue of the contract made with him, they declare having sold to him absolutely and in perpetuity said parcel of the land, waive and thenceforth any and all rights they may have, inasmuch as said sum constitutes the just price of the property.

So that said document Exhibit 3 is virtually an acknowledgment of the contract of sale of the parcel or portion of land that would contain 15 cavanes of seed rice made by the vendors' mother in favor of the purchaser Luis Espiritu, their uncle, and likewise an acknowledgment of the contract of pledge or mortgage of the remainder of said land, an area of six cavanes, made with the same purchaser, at an increase of P400 over the price of P2,600, making an aggregate sum of P3,000, decomposed as follows: P2,000, collected during her lifetime, by the vendors' father; and the said increase of P400, collected by the plaintiffs. In the aforementioned sale, according to the deed of May 25, 1894, Margarita Espiritu conveyed to her brother Luis the parcel of 15 cavanes of seed, Exhibit 1, and after her death the plaintiffs' widowed father mortgaged or pledged the remaining parcel or portion of 6 cavanes of seed to her brother-in-law, Luis Espiritu, in May, 1901 (Exhibit 2). So it is that the notarial instrument Exhibit 3, which was assailed by the plaintiffs, recognized the validity of the previous contracts, and the totality of the land, consisting of an area containing 21 cavanes of seed rice, was sold absolutely and in perpetuity, the vendors receiving in exchange P400 more; and there is no conclusive proof in the record that this last document was false and simulated on account of the employment of any violence, intimidation, fraud, or deceit, in the procuring of the consent of the vendors who executed it. Considering the relation that exists between the document Exhibit 3 and those of previous dates, Exhibits 1 and 2, and taking into the account the relationship between the contracting parties, and also the general custom that prevails in many provinces of these Islands for the vendor or debtor to obtain an increase in the price of the sale or of the pledge, or an increase in the amount loaned, without proof to the contrary, it would be improper and illegal to hold, in view of the facts hereinabove set forth, that the purchaser Luis Espiritu, now deceased, had any need to forge or simulate the document Exhibit 3 inasmuch as, since May, 1894, he has held in the capacity of owner by virtue of a prior acquisition, the parcel of land of 15 cavanes of seed, and likewise, since May, 1901, according to the contract of mortgage or pledge, the parcel of 6 cavanes, or the remainder of the total area of 21 cavanes. So that Luis Espiritu was, during his lifetime, and now, after his death, his testate or intestate estate is in lawful possession of the parcel of land situated in Panducot that contains 21 cavanes of seed, by virtue of the title of conveyance of ownership of the land measuring 15 cavanes, and, in consequence of the contract of pledge or mortgage in security for the sum of P600, is likewise in lawful possession of the remainder of the land, or an area containing 6 cavanes of seed. The plaintiffs have absolutely no right whatever to recover said first parcel of land, as its ownership was conveyed to the purchaser by means of a singular title of purchase and sale; and as to the other portion of 6 cavanes of seed, they could have redeemed it before May 17, 1910, upon the payment or the return of the sum which their deceased father Wenceslao Mercado had, during his lifetime, received as a loan under security of the pledged property; but, after the execution of the document Exhibit 3, the creditor Luis Espiritu definitely acquired the ownership of said parcel of 6 cavanes. It is therefore a rash venture to attempt to recover this latter parcel by means of the contract of final and absolute sale, set forth in the deed Exhibit 3.

Moreover, the notarial document Exhibit 1, are regards the statements made therein, is of the nature of a public document and is evidence of the fact which gave rise to its execution and of the date of the latter, even against a third person and his predecessors in interest such as are the plaintiffs. (Civ. Code, art. 1218.) The plaintiffs' father, Wenceslao Mercado, recognizing it to be perfectly true that his wife Margarita Espiritu sold said parcel of land which she inherited from her father, of an area of about "15 cavanes of seed," to her brother Luis Espiritu, by means of an instrument executed by her on May 25,1894 an instrument that disappeared or was burned and likewise recognizing that the protocols and register books belonging to the Province of Bulacan were destroyed as a result of the past revolution, at the request of his brother-inlaw Luis Espiritu he had no objection to give the testimony recorded in said notarial instrument, as it was the truth regarding what had occurred, and in so doing he acted as the plaintiffs' legitimate father in the exercise of his parental authority, inasmuch as he had personal knowledge of said sale, he himself being the husband who authorized said conveyance, notwithstanding that his testimony affected his children's interest and prejudiced his own, as the owner of any fruits that might be produced by said real property. The signature and handwriting of the document Exhibit 2 were identified as authentic by one of the plaintiffs, Consejo Mercado, and as the record shows no evidence whatever that this document is false, and it does not appear to have been assailed as such, and as it was signed by the plaintiffs' father, there is no legal ground or well-founded reason why it should be rejected. It was therefore properly admitted as evidence of the certainty of the facts therein set forth. The principal defect attributed by the plaintiffs to the document Exhibit 3 consists in that, on the date of May 17, 1910, when it was executed that they signed it, they were minors, that is, they had not yet attained the age of 21 years fixed by Act No. 1891, though no evidence appears in the record that the plaintiffs Josefa and Domingo Mercado were in fact minors, for no certified copies were presented of their baptismal certificates, nor did the plaintiffs adduce any supplemental evidence whatever to prove that Domingo was actually 19 and Josefa 18 years of age when they signed the document Exhibit 3, on May 17, 1910, inasmuch as the copybook, Exhibit A, notwithstanding the testimony of the plaintiff Consejo Mercado, does not constitute sufficient proof of the dates of births of the said Domingo and Josefa. However, even in the doubt whether they certainly were of legal age on the date referred to, it cannot be gainsaid that in the document Exhibit 3 they stated that they were of legal age at the time they executed and signed it, and on that account the sale mentioned in said notarial deed Exhibit 3 is perfectly valid a sale that is considered as limited solely to the parcel of land of 6 cavanes of seed, pledged by the deceased father of the plaintiffs in security for P600 received by him as a loan from his brother-in-law Luis Espiritu, for the reason that the parcel of 15 cavanes had been lawfully sold by its original owner, the plaintiffs' mother. The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by minors who pretend to be of legal age, when in fact they are not, is valid, and they will not be permitted to excuse themselves from the fulfillment of the obligations contracted by them, or to have them annulled in pursuance of the provisions of Law 6, title 19, of the 6th Partida; and the judgment that holds such a sale to be valid and absolves the

purchaser from the complaint filed against him does not violate the laws relative to the sale of minors' property, nor the juridical rules established in consonance therewith. (Decisions of the supreme court of Spain, of April 27, 1860, July 11, 1868, and March 1, 1875.) itc@alf With respect to the true age of the plaintiffs, no proof was adduced of the fact that it was Luis Espiritu who took out Domingo Mercado's personal registration certificate on April 13, 1910, causing the age of 23 years to be entered therein in order to corroborate the date of the notarial instrument of May 17th of the same year; and the supposition that he did, would also allow it to be supposed, in order to show the propriety of the claim, that the cedula Exhibit C was taken out on February 14, 1914, where in it is recorded that Domingo Mercado was on that date 23 years of age, for both these facts are not proved; neither was any proof adduced against the statement made by the plaintiffs Domingo and Josefa in the notarial instrument Exhibit 3, that, on the date when they executed it, they were already of legal age, and, besides the annotation contained in the copybook Exhibit A, no supplemental proof of their true ages was introduced. Aside from the foregoing, from a careful examination of the record in this case, it cannot be concluded that the plaintiffs, who claim to have minors when they executed the notarial instrument Exhibit 3, have suffered positive and actual losses and damages in their rights and interests as a result of the execution of said document, inasmuch as the sale effected by the plaintiffs' mother, Margarita Espiritu, in May, 1894, of the greater part of the land of 21 cavanes of seed, did not occasion any damage or prejudice to the plaintiffs, inasmuch as their father stated in the document Exhibit 2 that he was obliged to mortgage or pledge said remaining portion of the land in order to secure the loan of the P375 furnished by Luis Espiritu and which was subsequently increased to P600 so as to provide for certain engagements or perhaps to meet the needs of his children, the plaintiff; and therefore, to judge from the statements made by their father himself, they received through him, in exchange for the land of 6 cavanes of seed, which passed into the possession of the creditor Luis Espiritu, the benefit which must have accrued to them from the sums of money received as loans; and, finally, on the execution of the impugned document Exhibit 3, the plaintiffs received and divided between themselves the sum of P400, which sum, added to that P2,000 received by Margarita Espiritu, and to that of the P600 collected by Wenceslao Mercado, widower of the latter and father of the plaintiffs, makes all together the sum of P3,000, the amount paid by the purchaser as the price of all the land containing 21 cavanes of seed, and is the just price of the property, was not impugned, and, consequently, should be considered as equivalent to, and compensatory for, the true value of said land. For the foregoing reasons, whereby the errors assigned to the judgment appealed from have been refuted, and deeming said judgment to be in accordance with law and the evidence of record, we should, and do hereby, affirm the same, with costs against the appellants.

So ordered.

G.R. No. L-27710

January 30, 1928

ISIDRO BAMBALAN Y PRADO, plaintiff-appellant, vs. GERMAN MARAMBA and GENOVEVA MUERONG, defendants-appellants. ROMUALDEZ, J.: The defendants admit in their amended answer those paragraphs of the complaint wherein it is alleged that Isidro Bambalan y Colcotura was the owner, with Torrens title, of the land here in question and that the plaintiff is the sole and universal heir of the said deceased Isidro Bambalan y Colcotura, as regards the said land. This being so, the fundamental question to be resolved in this case is whether or not the plaintiff sold the land in question to the defendants. The defendants affirm they did and as proof of such transfer present document Exhibit 1, dated July 17, 1922. The plaintiff asserts that while it is true that he signed said document, yet he did so by intimidation made upon his mother Paula Prado by the defendant Genoveva Muerong, who threatened the former with imprisonment. While the evidence on this particular point does not decisively support the plaintiff's allegation, this document, however, is vitiated to the extent of being void as regards the said plaintiff, for the reason that the latter, at the time he signed it, was a minor, which is clearly shown by the record and it does not appear that it was his real intention to sell the land in question. What is deduced from the record is, that his mother Paula Prado and the latter's second husband Vicente Lagera, having received a certain sum of money by way of a loan from Genoveva Muerong in 1915 which, according to Exhibit 3, was P200 and according to the testimony of Paula Prado, was P150, and Genoveva Muerong having learned later that the land within which was included that described in said Exhibit 3, had a Torrens title issued in favor of the plaintiff's father, of which the latter is the only heir and caused the plaintiff to sign a conveyance of the land. At any rate, even supposing that the document in question, Exhibit 1, embodies all of the requisites prescribed by law for its efficacy, yet it does not, according to the provisions of section 50 of Act No. 496, bind the land and would only be a valid contract between the parties and as evidence of authority to the register of deeds to make the proper registration, inasmuch as it is the registration that gives validity to the transfer. Therefore, the defendants, by virtue of the document Exhibit 1 alone, did not acquire any right to the property sold as much less, if it is taken into consideration, the vendor Isidro Bambalan y Prado, the herein plaintiff, was a minor. As regards this minority, the doctrine laid down in the case of Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein the minor was held to be estopped from contesting the contract executed by him pretending to be age, is not applicable herein. In the case now before us the plaintiff did not pretend to be of age; his minority was well known to the purchaser, the defendant, who was the one who purchased the plaintiff's first cedula used in the acknowledgment of the document.

In regard to the amount of money that the defendants allege to have given the plaintiff and her son in 1992 as the price of the land, the preponderance of evidence shows that no amount was given by the defendants to the alleged vendors in said year, but that the sum of P663.40, which appears in the document Exhibit 1, is arrived at, approximately, by taking the P150 received by Paula Prado and her husband in 1915 and adding thereto interest at the rate of 50 per cent annum, then agreed upon, or P75 a year for seven years up to July 31, 1922, the sate of Exhibit 1. The damages claimed by the plaintiff have not been sufficiently proven, because the witness Paula Prado was the only one who testified thereto, whose testimony was contradicted by that of the defendant Genoveva Muerong who, moreover, asserts that she possesses about half of the land in question. There are, therefore, not sufficient data in the record to award the damages claimed by the plaintiff. In view of the foregoing, the dispositive part of the decision appealed from is hereby affirmed, without any express findings as to the costs in this instance. So ordered. G.R. No. L-12471 April 13, 1959

ROSARIO L. DE BRAGANZA, ET AL., petitioners, vs. FERNANDO F. DE VILLA ABRILLE, respondent. BENGZON, J.: Rosario L. de Braganza and her sons Rodolfo and Guillermo petition for review of the Court of Appeal's decision whereby they were required solidarily to pay Fernando F. de Villa Abrille the sum of P10,000 plus 2 % interest from October 30, 1944. The above petitioners, it appears, received from Villa Abrille, as a loan, on October 30, 1944 P70,000 in Japanese war notes and in consideration thereof, promised in writing (Exhibit A) to pay him P10,000 "in legal currency of the P. I. two years after the cessation of the present hostilities or as soon as International Exchange has been established in the Philippines", plus 2 % per annum. Because payment had not been made, Villa Abrille sued them in March 1949. In their answer before the Manila court of first Instance, defendants claimed to have received P40,000 only instead of P70,000 as plaintiff asserted. They also averred that Guillermo and Rodolfo were minors when they signed the promissory note Exhibit A. After hearing the parties and their evidence, said court rendered judgment, which the appellate court affirmed, in the terms above described. There can be no question about the responsibility of Mrs. Rosario L. Braganza because the minority of her consigners note release her from liability; since it is a personal defense of the minors. However, such defense will benefit her to the extent of the shares for which such minors may be responsible, (Art. 1148, Civil Code). It is not denied that at the time of signing

Exhibit A, Guillermo and Rodolfo Braganza were minors-16 and 18 respectively. However, the Court of Appeals found them liable pursuant to the following reasoning: . . . . These two appellants did not make it appears in the promissory note that they were not yet of legal age. If they were really to their creditor, they should have appraised him on their incapacity, and if the former, in spite of the information relative to their age, parted with his money, then he should be contended with the consequence of his act. But, that was not the case. Perhaps defendants in their desire to acquire much needed money, they readily and willingly signed the promissory note, without disclosing the legal impediment with respect to Guillermo and Rodolfo. When minor, like in the instant case, pretended to be of legal age, in fact they were not, they will not later on be permitted to excuse themselves from the fulfillment of the obligation contracted by them or to have it annulled. (Mercado, et al. vs. Espiritu, 37 Phil., 215.) [Emphasis Ours.] We cannot agree to above conclusion. From the minors' failure to disclose their minority in the same promissory note they signed, it does not follow as a legal proposition, that they will not be permitted thereafter to assert it. They had no juridical duty to disclose their inability. In fact, according to Corpuz Juris Secundum, 43 p. 206; . . . . Some authorities consider that a false representation as to age including a contract as part of the contract and accordingly hold that it cannot be the basis of an action in tort. Other authorities hold that such misrepresentation may be the basis of such an action, on the theory that such misrepresentation is not a part of, and does not grow out of, the contract, or that the enforcement of liability for such misrepresentation as tort does not constitute an indirect of enforcing liability on the contract. In order to hold infant liable, however, the fraud must be actual and not constructure. It has been held that his mere silence when making a contract as to age does not constitute a fraud which can be made the basis of an action of decit. (Emphasis Ours.) The fraud of which an infant may be held liable to one who contracts with him in the belief that he is of full age must be actual not constructive, and mere failure of the infant to disclose his age is not sufficient. (27 American Jurisprudence, p. 819.) The Mecado case cited in the decision under review is different because the document signed therein by the minor specifically stated he was of age; here Exhibit A contained no such statement. In other words, in the Mercado case, the minor was guilty of active misrepresentation; whereas in this case, if the minors were guilty at all, which we doubt it is of passive (or constructive) misrepresentation. Indeed, there is a growing sentiment in favor of limiting the scope of the application of the Mercado ruling, what with the consideration that the very minority which incapacitated from contracting should likewise exempt them from the results of misrepresentation. We hold, on this point, that being minors, Rodolfo and Guillermo Braganza could not be legally bound by their signatures in Exhibit A.
1

It is argued, nevertheless, by respondent that inasmuch as this defense was interposed only in 1951, and inasmuch as Rodolfo reached the age of majority in 1947, it was too late to invoke it because more than 4 years had elapsed after he had become emancipated upon reaching the age of majority. The provisions of Article 1301 of the Civil Code are quoted to the effect that "an action to annul a contract by reason of majority must be filed within 4 years" after the minor has reached majority age. The parties do not specify the exact date of Rodolfo's birth. It is undenied, however, that in October 1944, he was 18 years old. On the basis of such datum, it should be held that in October 1947, he was 21 years old, and in October 1951, he was 25 years old. So that when this defense was interposed in June 1951, four years had not yet completely elapsed from October 1947. Furthermore, there is reason to doubt the pertinency of the 4-years period fixed by Article 1301 of the Civil Code where minority is set up only as a defense to an action, without the minors asking for any positive relief from the contract. For one thing, they have not filed in 2 this case an action for annulment. They merely interposed an excuse from liability. Upon the other hand, these minors may not be entirely absolved from monetary responsibility. In accordance with the provisions of Civil Code, even if their written contact is unenforceable because of non-age, they shall make restitution to the extent that they have profited by the money they received. (Art. 1340) There is testimony that the funds delivered to them by Villa Abrille were used for their support during the Japanese occupation. Such being the case, it is but fair to hold that they had profited to the extent of the value of such money, which value has been authoritatively established in the so-called Ballantine Schedule: in October 1944, P40.00 Japanese notes were equivalent to P1 of current Philippine money. Wherefore, as the share of these minors was 2/3 of P70,000 of P46,666.66, they should now 3 return P1,166.67. Their promise to pay P10,000 in Philippine currency, (Exhibit A) can not be enforced, as already stated, since they were minors incapable of binding themselves. Their liability, to repeat, is presently declared without regard of said Exhibit A, but solely in pursuance of Article 1304 of the Civil Code. Accordingly, the appealed decision should be modified in the sense that Rosario Braganza 4 shall pay 1/3 of P10,000 i.e., P3,333.33 plus 2% interest from October 1944; and Rodolfo 5 and Guillermo Braganza shall pay jointly to the same creditor the total amount of P1,166.67 plus 6% interest beginning March 7, 1949, when the complaint was filed. No costs in this instance. G.R. No. L-5426 May 29, 1953

RAMON JOAQUIN, petitioner, vs. ANTONIO C. NAVARRO, respondent. TUASON, J.: This three proceedings was instituted in the Court of First Instance of Manila in the summary settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin

Navarro, Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo handed down a single decision which was appealed to the Court of Appeals, whose decision, modifying that the Court of First Instance, in turn was elevated to the Supreme Court for review. The main question represented in the first two courts related to the sequence of the deaths of Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians by Japanese troops in Manila in February 1945. The trial court found the deaths of this persons to have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro and Joaquin Navarro, Jr., the latter was declared to have survived his mother. It is this modification of the lower court's finding which is now being contested by the petitioner. The importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or vice versa, lies in the fact that it radically affects the rights of succession of Ramon Joaquin, the present petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first marriage. The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals as follows: "On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought refuge in the ground floor of the building known as the German Club, at the corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the building, especially those who were trying to escape. The three daughters were hit and fell of the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to abandon the premises to seek a safer heaven. They could not convince Angela Joaquin who refused to join them; and son Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife, Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin. "Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid shelter nearby, the stayed there about three days, until February 10, 1915, when they were forced to leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa Academy in San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the refugees, killing Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about 67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and 25." The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as between the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the survivorship is uncertain and insufficient" and the statutory presumption must be applied. The appellate Court's reasoning for its conclusion is thus stated: "It does not require argument to show that survivorship cannot be established by proof of the death of only one of the parties; but that there must be adequate proof that one was alive when the other had already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and died shortly after the living the German Club in the company of his father and the witness, and that the burning edified entirely collapsed minutes after the shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the instant his son turned his back to her, to dash out to the Club, until he died. All we can glean from the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German Club; but she could have died almost immediately after, from a variety of causes. She might have been shot by the Japanese, like her daughters, killed by falling beams from the burning edifice, overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for certain. No evidence is available on the point. All we can decide is that no one saw her alive after her son left her aside, and that there is no proof when she died. Clearly, this circumstance alone cannot support a finding that she died latter than her son, and we are thus compelled to fall back upon the statutory presumption. In deed, it could be said that the purpose of the presumption of survivorship would be precisely to afford a solution to uncertainties like these. Hence the son Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court). "The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her deceased children perished in the same calamity. There being no evidence to the contrary, the only guide is the occasion of the deaths, which is identical for all of them; that battle for the liberation of Manila. A second reason is that the law, in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity, could not overlooked that a variety of cause of death can ( and usually do) operate in the source of combats. During the same battle, some may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards episodic details, and treats the battle as an overall cause of death in applying the presumption of survivorship. "We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no doubt), the father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889, now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time. The point is not of much if any relevancy and will be left open for the consideration when obsolute necessity there for arises. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be presently set forth. Rule 123, section 69 (ii) of the Revised Rules of Court, reads: When two person perish in the same calamity, such as wreck, battle or conflagration, and it is not (1) shown who died first, and there are no (2) particular circumstances from when it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and ages of the sexes, according to the following rules: xxx xxx xxx

other. Grand Lodge A.O.W.W.vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When by circumstantial evidence alone, a party seeks to prove a survivorship contrary to the statutory presumption, the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. The inference of survivorship cannot rest upon mere surmise, speculation, or conjecture. As was said in Grand Lodge vs. Miller, supra, "if the matter is left to probably, then the statue of the presumption." It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or inferential. Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls. Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient for this purpose? For a better appreciation of this issue, it is convenient and necessary to detail the testimony, which was described by the trial court as "disinterested and trustworthy" and by the Court of Appeals as "entitled to credence." Lopez testified: Q. You said you were also heat at that time as you leave the German Club with Joaquin Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir. Q. Did you fall? A. I fell down. Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Article 33 of the Civil Code of 1889 of the following tenor: Whenever a doubt arises as to which was the first to die to the two or more persons who would inherent one from the other, the persons who alleges the prior death of either must prove the allegation; in the absence of proof the presumption shall be that they died at the same time, and no transmission of rights from one to the other shall take place. Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are not to be available when there are facts. With particular reference to section 69 ( ii) of Rule 123, "the situation which it present is one in which the facts are not only unknown but unknowable. By hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence, 1940 ed., 483.) In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec. 1936 of the California Code of Civil Procedure," the Supreme Court of California said: When the statue speaks of "particular circumstances from which it can be inferred" that one died before the other it means that there are circumstances from which the fact of death by one before the other may be inferred as a relation conclusion from the facts proven. The statue does not mean circumstances which would shown, or which would tend to show, probably that one died before the

Q. When the German Club collapsed where were you? A. We were out 15 meters away from the building but I could see what was going on. xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the shooting of Joaquin Navarro, Jr. and the collapse of the German Club? A. Yes, sir, I could not say exactly, Occasions like that, you know, you are confused. Q. Could there (have) been an interval of an hour instead of fifteen minutes? A. Possible, but not probable. Q. Could it have been 40 minutes? A. Yes, sir, about 40 minutes. xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? A. Yes, sir. Q. Can you tell the Honorable Court when did Angela Joaquin die? A. Well, a few minutes after we have dashed out, the German Club, which was burning, collapsed over them, including Mrs. Joaquin Navarro, Sr. xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain that? A. They were trying to escape probably. It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother. While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated that distance in five seconds or less, and so died within that interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her come along. She could have perished within those five or fewer seconds, as stated, but the probabilities that she did seem very remote. True, people in the building were also killed but these, according to Lopez, were mostly refugees who had tried to slip away from it and were shot by Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving the place and exposing themselves to gun fire. This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same time, of a condition of relative safety in the clubhouse at the moment her husband, son, and daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends credence to Mr. Lopez' statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was "minutes". Even so, it was much longer than five seconds, long enough to warrant the inference that Mrs. Angela Joaquin was sill alive when her son expired The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could have been killed. All these are speculative , and the probabilities, in the light of the known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family, she could not have kept away form protective walls. Besides, the building had been set on fire trap the refugees inside, and there was no necessity for the Japanese to was their ammunition except upon those who tried to leave the premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly not within the brief space of five seconds between her son's departure and his death. It will be said that all this is indulging in inferences that are not conclusive. Section 69( ii) of Rule 123 does not require that the inference necessary to exclude the presumption therein

Q. From your testimony it would appear that while you can give positive evidence to the fact that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give the same positive evidence to the fact that Angela Joaquin also died? A. Yes, sir, in the sense that I did not see her actually die, but when the building collapsed over her I saw and I am positive and I did not see her come out of that building so I presumed she died there. xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin Navarro Jr. and the latter's wife? A. Because the Japanese had set fire to the Club and they were shooting people outside, so we thought of running away rather than be roasted. xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar, Concepcion, and Natividad, were already wounded? A. to my knowledge, yes. Q. They were wounded? A. Yes, sir. Q. Were they lying on the ground or not? A. On the ground near the entrance, because most of the people who were shot by the Japanese were those who were trying to escape, and as far as I can remember they were among those killed. xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? A. That is what I think, because those Japanese soldiers were shooting the people inside especially those trying to escape. xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A . There were many people shot because they were trying to escape. xxx xxx xxx

provided be certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but if may be plain enough to justify a finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is enough that "the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases." (In re Wallace's Estate, supra.) "Juries must often reason," says one author, "according to probabilities, drawing an inference that the main fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its existence. The vital question in such cases is the cogency of the proof afforded by the secondary facts. How likely, according to experience, is the existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in drawing the inference that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about an hour before at the same animal also trespassing." That conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand. In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. the opposite theory that the mother outlived her son is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by, which civil cases are decided, this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.) It is said that part of the decision of the Court of Appeals which the appellant impugns, and which has been discussed, involves findings of fact which can not be disturbed. The point is not, in our judgment, well considered. The particular circumstances from which the parties and the Court of Appeals drew conclusions are, as above seen, undisputed, and this being the case, the correctness or incorrectness of those conclusions raises a question of law, not of fact, which the Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed. 856, 857, "Undisputed evidence is one thing, and contradicted evidence is another. An incredible witness does not cease to be such because he is not impeached or contradicted. But when the evidence is purely documentary, the authenticity of which is not questioned and the only issue is the construction to be placed thereon, or where a case is submitted upon an agreement of facts, or where all the facts are stated in the judgment and the issue is the correctness of the conclusions drawn therefrom, the question is one of law which may be reviewed by the Supreme Court." The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of law. The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial evidence. By substantial evidence is meant real evidence

or at least evidence about which reasonable men may disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception to the general rule. We are constrained to reverse the decision under review, and hold that the distribution of the decedents' estates should be made in accordance with the decision of the trial court. This result precludes the necessity of passing upon the question of "reserva troncal" which was put forward on the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without costs. G.R. No. L-30538 January 31, 1981 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO TIROL and CIRIACO BALDESCO, defendants-appellants. PER CURIAM: Review of the decision of the Court of First Instance of Cotabato, Branch III, in Criminal Case No. 360, dated March 31, 1969, imposing on Bonifacio Tirol and Ciriaco Baldesco the death penalty for each of the seven (7) murders and an indeterminate sentence for each of the two (2) frustrated murders. The following facts appear uncontroverted. In the evening of December 4, 1965, while Kosain Manibpol was sleeping with his family in their house at Kabalangasan Matalam, Cotabato, he was awakened by the barking of their dogs. When he got up to investigate, he saw two persons outside their house who had already come up. They were Beatingco, Jr. and Julian Casian He asked them what they came for, and they answered that they wanted to borrow part of his land, to which he consented. After he gave his consent, Kulas Bati suddenly arrived, flashed his flashlight on his face and boxed him. When he fell to the floor, the rest of his assailant's companions, numbering more than ten, who were afl armed with bladed weapons and firearms, also came and hacked or boloed him, his wife and his seven children, resulting in the death of his wife, Kadidia Kalangtongan and his six children, namely, Daduman Malaguianon Locaydal Pinangcong, Baingkong and Abdul Rakman all surnamed Kusain He and one of his daughters, Undang Kosain who was about six years old, survived although wounded. They were able to run to the houses of their neighbors, and were later brought to the municipal building where they reported to the police and were given medical attention. For the death of Kosains wife and his six children, as well as for the wounding of himself and his daughter Undang, fourteen (14) persons were charged (p. 3, Vol. II, rec with multiple murder and double frustrated murder by the Matalam Chief of Police, and these were: Nicolas Bate, Beatingco Junior, Ruperto Diosma Pablo Diosma Lorenzo Canio Durico Sugang Teofilo Baldesco, Ciriaco Baldesco, Julian Casiag Nick Bunque a certain Miestizo Sofring Romualdo, and Bonifacio Bautista [later amended to Bonifacio Tirol p. 29, Vol. 11, record of the fourteen, only Ciriaco Baldesco and Bonifacio Tirol were apprehended, while the rest remain at large.

On February 17, 1966, after the second stage of prehn iinary investigation was waived by accused Ciriaco Baldesco and Bonifacio Tirol, the acting Provincial Fiscal of Cotabato filed the following information (p. 37, Vol. II, rec.) against the two: INFORMATION The undersigned Acting Provincial Fiscal accuses Bonifacio Tirol and Ciriaco Baldisco of the crime of multiple murder with double frustrated murder, committed as follows: That on or about December 4, 1965, in Kobalangasan Barrio Lampayan, Matalam, Province of Cotabato, Philippines, and within the jurisdiction of this Honorable Court, the said accused, in company with Nicolas Bate, Beatingco Junior, Ruperto Diosma Pablo Diosma Lorenzo Canio Durico Sugang Teofilo Baldesco, Julian Casiag Nick Bunque Miestizo Sopring Romualdo and Bonifacio Bautista who are still at large, conspiring and confederating together and mutually helping one another, armed with bladed weapons and firearms did then and there wilfully, unlawfully and feloniously, with treachery and evident premeditation and with intent to kilt taking advantage of the cover of the night, attack, stab and shoot Kadidia Kalangtogan Duaduman Kosain Malaguianon Kosain Locayda Kosain Penangcong Ko Biacong Kosain and Abdul Rakman Kosain who as a result thereof, sustained mortal wounds which directly caused their death and Kosain Manibpol and Undang Kosain sustained serious wounds which ordinarily would have caused their death, thus performing all acts of execution which should have produced the crime of double murder as a consequence thereof, but nevertheless did not produce it by reason of causes independent of the will of the accused, that is by the timely and able medical assistance rendered to said Kosain Manibpol and Undang Kosain which prevented their death. Contrary to law, especially Articles 248 and 6 of the Revised Penal Code. The prosecution relied mainly on the testimonies of the two survivors, Kosain Manibpol and his daughter Undang Kosain to prove the guilt of the accused. The only other witness presented by the prosecution was the municipal health officer who issued the death certificates of the deceased and the medical certificate of Kosain. Kosain Manibpol 33 years old, widower and resident of Kabalangasan Matalam, Cotabato, declared on direct examination that at about 8:00 P.M. on December 4, 1965, more than ten (10) persons, all armed, entered his house in Kabalangasan Matalam, Cotabato. Two persons, Beatingco Junior and Julian Casian came ahead, immediately after he got up from his sleep to check what was causing the barking of their dogs which awakened him. When he asked why they were there, the two answered that they wanted to borrow his land, to which he consented. Suddenly, Kulas Bate arrived, flashed his flashlight on his face and boxed him. When he fell to the floor, the rest of the armed men came and hacked or boloed not only him but also Ws wife and seven children. Among the assailants he recognized aside from the three above-named, were Bonifacio Tirol, Ciriaco Baldesco, Ruperto Diosma Florencio Cafio

Dorico whose family name he forgot, Teofilo Baldesco, a certain mestizo and Sopring Romualdo. He actually saw Ciriaco Baldesco hacking his wife with a bolo, and the "bungi" harelipped Bonifacio Tirol hacking his eldest daughter. He had known Bonifacio Tirol for two years before the incident and Ciriaco Baldesco for a longer period. His wife and six of his children died as a result of the sudden attack. He himself was wounded at the outer part of his right arm, at the back of his right wrist and on his forehead, and his chest was badly beaten; but he survived because he was able to run to the house of a neighbor named Angcogan (t.s.n., pp. 1-10, Vol. III, rec.). On cross-examination, Kosain testified that when he was investigated by the police, he was not sure of the surname of accused Bonifacio, so he stated that it may be Bautista. He learned later that the surname was Tirol He admitted that he was confused when he stated earlier that he had known Bonifacio Bautista for one year and Bonifacio Tirol for two years. Bonifacio Bautista and Bonifacio Tirol are one and the same person. He further declared that after he had fallen down as a result of the blow by Kulas Bate, Sopring immediately hacked him. It was after he fell that he was able to observe the stabbing and slashing of his family, because his assailants must have thought him dead. He later fled to the house of Angcogan who ran away because of fear, but returned afterwards with companions and went to their house to verify what happened (pp. 10-24, t.s.n., Vol. III, rec.). On questioning by the court, Kosain testified that on the night of December 4, 1965 he slept with a petroleum fight burning in their house as in fact they always slept with their house righted because their youngest child would cry if there was no light. When he was attacked he was not able to shout for help because he was caught unaware. His eldest daughter, Danonan (Daduman) was the one who pleaded with their assailants not to hack them as they had no fault, but she was also hacked and hit at the abdomen. At this stage he interchanged the assailants of his wife and children by saying that Bonifacio Tirol hacked his wife and Ciriaco Baldesco hacked his eldest child (p. 29, t s. n Vol. III, rec.). Undang Kosain about 6 years old, resident of Kabalangasan Matalam, Cotabato, corroborated the testimony of her father, Kosain Manibpol that she and her father are the only two in the family now, after her mother, sisters and brother had been killed by more than ten armed men who entered their house and attacked their family. Among their more than ten assailants, she knows only three, namely, Kulas Bati, Ciriaco Baldesco and another person whom she remembers only as "bungi" (harelipped). Of the three she knows only two were in court, namely Ciriaco Baldesco and the "bungi" Bonifacio Tirol She Identified them by touching the shoulders of Baldesco and Tirol (p. 65, t.s.n., Vol. III, rec.). She remembers Tirol distinctly because of his appearance as "bungi." She did not see who hacked her mother, but she saw "bungi" hack his younger brother and sister. Her elder sisters were hacked by Baldesco. She herself was hacked at her back by Kulas Bati She showed in court her scar at the back of her left shoulder going diagonally to the spinal column and measuring about 6 inches long and 3/4 of an inch wide, which appear to have scars of stiches. Afterwards, she went to the house of a neighbor named Antalig. In answer to the court's questions, Undang declared that she had three older sisters, two younger sisters and one younger brother. Her elder sisters were Danonang (Daduman), Maguianon (Malaguianan) and Lakaida (Locayda). Her younger sisters were Inangkong (Penangkong) and Bayangkong (Benangkong), and her younger brother was Abdul Rakman They all died when more than ten men went inside their house wle they were lying down on

the mat. She did not see who hacked their father, but she saw Bonifacio Tirol hacking her three elder sisters, and Ciriaco Baldesco hacking his younger brother. They used kalsido or bolo. The other men were also armed with boloes, and one of them, Kulas Bati was with a firearm. There was light inside their house at that time. Besides, it was moonlight night. Before the night of the hacking incident, she used to see Bonifacio Tirol passing by their house in going to the house of Kulas Bati which is near their house. She has not seen Ciriaco Baldesco before (t.s.n., pp. 69-75, Vol. III, rec.). On cross-examination, Undang testified that she used to see Ciriaco Baldesco at their store where her family buys things. The house of Baldesco is near the schools of her elder sisters. She sometimes went with them to school. Her oldest sister was hacked by Baldesco at the abdomen. Her two other elder sisters were likewise hacked by Baldesco at the abdomen. Her younger brother was hacked by Bonifacio Tirol Their house was lighted at that time, aside from the fact that it was bright because of the round moon. The accused Baldesco and Tirol were dressed in white and dark clothes. The color of the dark clothes was black, She does not know of any trouble between Ciriaco Baldesco or Bonifacio Tirol and her father (t.s.n., PP79-85, Vol. III, rec.). The defense of both accused is alibi, and neither of them disputed the facts established by the prosecution except to deny involvement in the crimes alluded to them. Accused Ciriaco Baldesco, 48 years old, married and residing at Kabalangasan Matalam, Cotabato, testifying on his own behalf, declared that on December 4, 1965, he went home at about 6:00 P.M. after pasturing his carabao. He took his supper at 6:00 P.M. and listened to the radio up to 9:00 P.M.. Thereafter, he went to sleep (t.s.n., pp. 125- 130, Vol. Ill, rec.). To bolster his alibi, Baldesco presented Demetrio Riparip 25 years old, single, a former teacher at Kabalangasan Elementary School and boarder in the house of Baldesco, who declared that he took his supper with the latter at his house at about 6:00 P.M. on December 4, 1965. Then he went to sleep at 7:00 P.M.. He did not wake up till the following morning (t.s.n., pp. 96-112, Vol. III, rec.). A daughter of Baldesco, Teofista Baldesco, 21 years old, married, housekeeper and residing at Lampayan, Matalam, Cotabato, likewise corroborated Baldesco's testimony that family, consisting of her father, mother, brother, and sister took supper in their house after 6.00 P.M., then listened to the radio up to 9:00 P.M.. They went to sleep at 9:00 P.M. (t.s.n., pp. 115-117, Vol. III, rec.). Accused Bonifacio Tirol, 31 years old, married and residing at Kabalangasan Matalam, Cotabato, likewise testified on his own behalf. He declared that he was in Salat, a part of Kabacan Cotabato, from December 2 to 7, 1965, seeking employment as a laborer in the logging firm of Felipe Tan. He left Kabalangasan at 10:00 A.M., took a motorboat and arrived in Salat at 5:00 P.M. He did not see the manager, Felipe Tan, of the logging firm until December 6, 1965, and so he was able to return to Kabalangasan only on December 7, 1965. While in Salat, he stayed in the camp where his friend Rufino Duan was staying. When he returned to Kabalangasan his family had already evacuated out of fear for revenge, because of the massacre of the fimily of Kosain He went to Malamaing another barrio of Matalam, where he found his family. In Malamaing they stayed in the house of a Cebuano named

Kulas. They never went back to Kabalangasan because they were afraid that Kosains family might take revenge on them (t.s.n., pp. 131-142, Vol. III, rec.). His wife Nicolasa Tirol, 30 years old and residing at Paco, Kidapawan, Cotabato, confirmed Tirol's absence from Matalam from December 2 to 7, 1965 while he was looking for a job in Salat. She also stated that she evacuated her family because she was warned that the family of Kosain might take revenge on them (t.s.n., pp. 145-151, Vol. III, rec.). A friend from the logging company, Rufino Duan 23 years old, single and residing at Paco, Kidapawan, Cotabato, likewise corroborated Tirol's testimony that he was in Salat from December 2 to 7. 1965. The said accused stayed with him in the camp he is occupying while he was at Salat for seven (7) days, looking for work. In order to go to Salat froni Kabalangasan one has to take a ride on a truck (t.s.n., pp. 1 18122, Vol. III, rec.). After trial, the trial court rendered its decision (pp. 6-28, Vol. I, rec.) dated March 31, 1969, the dispositive portion of which reads as follows: WHEREFORE, the court hereby finds the herein accused, Bonifacio Tirol and Ciriaco Baldesco, guilty beyond reasonable doubt, of the crime of murder of seven (,7) persons, namely: Daduman Klantongan Kosain [also written in the transcript of steno-type notes as Danonan and Dananong Baingkong Kosain [also written in the transcript as Bai Ingkong]; Abdul Kalatogan Kosain [also written in the transcript as Abdul Rakman Kadidia Kalantongan Malaguianon Kosain Locayda Kosain [also written Lokaidal Pinangkong Kosain [also written Maningdongi and Binangkong and of the crime of Frustrated Murder of Kosain Manibpol [also written as Kusain Manedpoll and Undang Kosain and hereby sentences each of them to suffer the supreme penalty of death for each of the seven murders of the seven deceased, and to an imprisonment of TEN (10) YEARS to SEVENTEEN (17) YEARS and FOUR (4) MONTHS for each of the two Frustra Murders of the two wounded persons and to indenuiify jointly and severally the heirs of each of the seven deceased with the sum of SIX THOUSAND PESOS (P6,000.00) for each of the seven deceased, or FORTYTWO THOUSAND PESOS (P42,000.00) in all, and pay the costs, fifty-fifty. It appearing that the accused have been detained, they each should be credited one-half (1/2) of their preventive imprisonment in the cases of two frustrated murders. The penalty herein imposed for each of the seven murders being the maximum death the records of this case are hereby automatically elevated to the Supreme Court. Let copy of this Judgment be furnished the Philippine Constabulary and the NBI at Cotabato City, and the Police Department of Matalam, Cotabato, so that they may exert efforts to apprehend the other culprits who committed the crimes herein dealt with.

SO ORDERED. On appeal, accused Baldesco and Tirol, contend in their joint brief: FIRST ASSIGNED ERROR: The lower court erred in admitting in the death certificates issued by the doctor who did not personally view and examine the victims, but whose findings therein were based upon the sketch prepared by the police. SECOND ASSIGNED ERROR: The lower court erred in disregarding the testimony of both accused despite the convincingly strong evidence showing that they were not at the scene of the crime on 4 December 1965, and therefore their nonparticipation in the crime charged. THIRD ASSIGNED ERROR: The lower court erred in not granting new trial even as the complaining witness himself made a voluntary extra-judicial admission by means of a sworn statement (affidavit) that he merely involved accused Baldesco for a consideration. FOURTH ASSIGNED ERROR: The evidence failed to establish conspiracy among the accused. FIFTH ASSIGNED ERROR: The decision is contrary to law. (p. 98, Vol. I, rec.) During the pendency of this appeal, or on October 23, 1977, appellant Baldesco died in the New Bilibid Prison Hospital (p. 192, Vol. I, rec.) so that on January 28, 1978, We resolved to dismiss this case insofar as the criminal liability of the said appellant is concerned. Following the doctrine in People vs. Sendaydiego (81 SCRA 124, 134), this appeal will bd resolved insofar as Baldesco is concerned only for the purpose of determining his criminal liability which is the basis of the civil liability for which his estate may be liable. Appellants would like the court to reject the death certificates of the victims on the ground that they are hearsay evidence, since the doctor who issued them did so on the strength of the sketch furnished by the police, without personally examining the bodies of the victims. WE find no error in the admission of said exhibits "as part of the testimony of the witnesses" (p. 9, Vol. I and p. 95, Vol. III, rec.). The fact of death of the victims is not in issue. The testimonies of the prosecution witnesses that the victims died because of stab wounds

inflicted by the armed men who entered their residence on the night of December 4, 1965 remain uncontroverted. That death came to the deceased by foul means is a moral and legal certainty. Their death certificates therefore are only corroborative of the testimonies of the prosecution witnesses. Appellants would likewise have the Court give credence to their defense of alibi, alleging that they have presented convincingly strong evidence showing that they were not at the scene of the crime on December 4, 1965. This contention is devoid of merit. The rule is well settled, to the point of being trite that the defense of alibi, which is easy to concoct, must be received with utmost caution, for it is one of the weakest defenses that can be resorted to by an accused (People vs. Castafieda, 93 SCRA 58, 69; People vs. Cortez, 57 SCRA 208). Moreover, the alibi of both appellants cannot prevail over the positive Identification of the prosecution witnesses Identifying and pointing to the accused as among the group of armed men which massacred the victims (People vs. Tabion, 93 SCRA 566, 570; People vs. Angeles, 92 SCRA 433). The two survivors, Kosain and his 6-year old daughter positively Identified both accused as two of the more than ten persons who entered their house on December 4, 1965 and participated in the hacking and boloing of their family. Accused Tirol was even more distinctly and positively recognized as the "bungi" harelipped who hacked some of the victims. The credibility of these two prosecution witnesses was never successfully assailed. The inconsistencies attributed to Kosain Manibpol refer to minor details (i.e., about the length of time he had had known one of the two persons who first came up to his residence on the pretext of borrowing his lot pp. 15-16, Vol. III, rec., in relation to Exhibits "I" and "2", pp. 5 & 17, Vol. II, rec.), which do not affect his credibility. The apparent inconsistency in his testimony as well as that of 6-year old Undang Kosain whose credibility was never questioned, as to who among the armed men hacked or attacked which victim is likewise insufficient to destroy their credibility, considering that the presence of a number of armed men simultaneously participating in the unlawful aggression could really be confusing. As noted by the trial court, it would be unnatural if the witnesses who were themselves victims of the horrible deed were not confused during that terrifying massacre committed together by more than ten persons (p. 27, Vol. I, rec.). What is important is the positive Identification of the two accused appellants as having been in that group and who participated in the concerted attack on the hapless victims. "Alibi is unavailing once the accused is positively Identified by one without motive to charge falsely said accused, specially with a grave offense that could bring death by execution on the culprit" (People vs. Estante, 92 SCRA 122). The weakness of appellant Baldesco's defense lies in the fact that his house where he purportedly stayed from 6:00 P.M. of December 4, 1965 to the following day is only about one kilometer from the house of the victims, the scene of the crime, according to his own daughter and witness, Teofista Baldesco (p. 116, Vol. III, rec.). And although Baldesco himself testified that the victims' house is more than three (3) kilometers from his, it still does not belie the fact that he could easily go there if he wanted to, considering that both residences are within the same barrio of Kabalangasan. So also is the house of Tirol located in the same barrio. According to him, his house is about 11/2 kilometers from that of the victim. He wants to impress upon this Court, however, that he was not in his house when the incident occurred but in another town looking for a job in

a logging company. The trial court correctly rejected this theory because of the inconsistencies noted in Tirol's evidence. Said the trial court: The alibi of Bonifacio Tirol is unbelievable. His witness Rufino Duan testified that from Kabalangasan where Bonifacio Tirol lived to Salat where Bonifacio was supposed to be on December 4, 1965, people would take a truck ride of the PTC but Bonifacio Tirol declared that he went to Salat by speedboat, and went home to Kabalangasan by banca. Duan testified that Salat is very far from Kabalangasan because it takes one day to reach it from there; but Bonifacio Tirol declared that he started at Kabalangasan by motorboat at 10:00 A.M., and arrived at Salat at 5:00 P.M. or seven hours only. He modified this afterwards, in the cross-examination, by testifying that from his house in Kabalangasan to the log pond where he took the speedboat, he had to walk from 6:00 A.M. to 10:00 A.M. or for 3 hours; fixing the time from his home to Salat at 10 hours, But this testimony about the log pond cannot be believed. He testified he did not know where the log pond was located; that was the first time he went there. How he located a long pond at a place he did not know is certainly beyond belief. Of course, he said, Rufino told him where to pass, but that was a long time ago. Bonifacio Tirol further testified that when he went home to Kabalangasan he took a banca at Salat at 3:00 dawn and arrived in his house at Kabalangasan at 9:00 in the morning, or 6 hours. He changed the time of arrival to 10:00 A.M. when questioned by the Court about it. When asked by the Court why the difference in the period of time of travel he reasoned out that the motorboat in going to Salat was going upstream, and the paddled banca in going to Kabalangasan was going downstream. Even, if that were so, the difference cannot be three or four hours. xxx xxx xxx But even granting that Bonifacio really went to Salat on the 2nd to look for work, there was no physical impossibility for him to be in Kabalangasan on the evening of the 4th which was a Saturday. The testimony of Duan that he saw Bonifacio of the 4th in the evening cannot be believed because of his interest and its improbability. Why should Bonifacio wait for the manager on a Saturday evening when the next day was a Sunday, therefore not a work day? (pp. 2425, Vol. I, rec.). It is a well-settled doctrine that for alibi to be acceptable, it must be shown that the place where the accused was alleged to when the offense was committed must be located at such a distance that it is well nigh impossible for him to be at the scene of the crime (People vs. dela Cruz, G.R. No. L-30912, April 30, 1980; People vs. Mercado, et al., L- 39511-13, April 28,1980; People vs. Malibay, 63 SCRA 421). As to appellant Baldesco, the testimonies of his witnesses do not at all bolster his alibi. Demetrio Riparip stated that he took supper with Baldesco at 6:00 P.M. on December 4, 1965, after which he slept at 7:00 P.M. and did not wake up until the next morning (p. 109, t.s.n., Vol. III, rec.). Baldesco's daughter, Teofista, on the other hand, testified that she took

supper at 6:00 P.M. with her father, mother, brother and sister (p. 116, t.s.n., Vol. III, rec.), without mentioning the presence of Riparip in their house; then she listended to the radio with her father, mother, brother and sister up to 9:00 P.M. and went to sleep afterwards. These testimonies do not rule out the possibility that he could have left the house that same evening while the rest of his family were sound asleep and returned late that night or early the following morning. The third assigned error is likewise bereft of merit. Counsel for appellants contends that the trial court erred in not granting a new trial even as the complaining witness himself made a voluntary extrajudicial admission by means of sworn statement (affidavit) that he merely involved accused Baldesco for a consideration. The trial court rejected the motion for new trial on the -round that it was filed out of time (p. 97, Vol. II rec.). Section 9, Rule 122 of the Rules of Court requires that in all cases in which the death penalty is impo the records should be forwarded to this Court within twenty (20) days but not less than fifteen (15) days from rendition of judgment. This 20-day period is not rigid or absolute nor jurisdictional, and may be shortened or extended (People vs. Bocar, 97 Phil. 398). However, the extension of period is for the purpose of enabling the lower court to comply with the mandatory requirement of elevating the records for review, and not to lengthen the minimum period within which trial courts may modify or alter their decision. As enunciated in People vs. Bocar, supra, the reason for the 15-day minimum requirement is such that within that period, the trial court may on its own motion with the consent of the defendant, grant a new trial. Within that period the trial court may modify its judgment by reducing the penalty or fine, or even set it aside altogether and acquit the accused. In the case at bar, the motion for new trial was filed on April 28,1969 (pp. 92-94, Vol. II, rec.) or twenty-eight days after rendition of the judgment on March 31, 1969 (p. 90, Vol. II, rec.). Although a 15-day extension from April 21, 1969 was granted to the lower court within which to forward the record of this case (p. 30, Vol. I, rec.), that extension did not affect the 15-day period for filing a motion for new trial. But even granting that the said motion were filed on time, the -game does not merit a favorable action. The ground relied on is an alleged newly-discovered evidence, referring to a sworn statement (p. 94, Vol. II, rec.) executed on April 17, 1969 by a certain Romualdo Diosma barrio captain of barrio Lampayan, Matalam, Cotabato. In the said affidavit, the affiant declared that he was shocked to learn that the accused were sentenced to death; that Kosain Manibpol the principal witness, had confided to him that he was only interested in commercializing or making money out of his case, which is why he implicated the accused Baldesco; that Kosain Manibpol had persuaded him to convince Feliciano Codoy, a son-inlaw of Baldesco, to give him Kosain one carabao so that he wili drop the case; that Kosain Manibpol also personally demanded from Codoy one carabao so that he Will not testify against Baldesco; that he (affiant) even went with Kosain to see Codoy in November, 1967 to persuade him to give a carabao to Kosain but Codoy refused; and that Kosain realizing the wrong he had done, was willing to tell the truth regarding the non-involvement and nonparticipation of Baldesco in the crime charged, but it was too late to tell the court because the case was already submitted for decision; and that it was a common knowledge in their barrio that Baldesco was not among the band that killed Kosains family.

This so-called "extra-judicial admission," referring to Diosmas sworn statement is not the kind of newly-discovered evidence contemplated in Section 2, Rule 121 of the Rules of Court. Well-settled is the rule that before a new trial may be granted on the ground of newlydiscovered evidence, it must be shown that: (a) the evidence was discovered after trial; (b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) the evidence is material, not merely cumulative, corroborative or impeaching, and (d) it must be to the merits as ought to produce a different result, if admitted [Jose vs. CA, 70 SCRA 258]. The very affidavit of Diosma indicates that the so-called extra-judicial admission of Kosain was already available during the trial, otherwise, he would not have demanded from Feliciano Codoy personally one carabao so that he will not testify against accused Baldesco. For how could he have offered not to testify against Baldesco if the trial was already concluded? Codoy should have been presented as a defense witness if such was the fact, together with some other barrio residents who had knowledge, as was allegedly "public knowledge in our barrio," that Baldesco was not involved in the crime. The purported extrajudicial admission is a last-minute concoction. Appellants also point out as error that the evidence failed to establish conspiracy. While it has been held that conspiracy must be established by positive evidence, direct proof is not essential to show it, since by its very nature it is planned in utmost secrecy (People vs. Peralta, 25 SCRA 760). In the rase of People vs. Madai Santalani (93 SCRA 316, 330), We held: "Conspiracy implies concert of design and not participation in every detail of the execution. If it is proved that two or more persons aimed, by their acts, at the accomplishment of some unlawful object each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, conspiracy may be inferred although no actual meeting between them to conspire is proved, for the prosecution need not establish that all the parties thereto agreed to every detail in the execution of the crime or that they were actually together at all stages of the conspiracy" (see also People vs. Cabiling, 74 SCRA 285). In this case under review, it has been clearly established that the appellants and their cohorts acted in unison when they went up the house of Kosain Manibpol and attacked their victims in a manner showing singleness of purpose the massacre of the entire family of Kosain The fact that two survived is of no moment. The intention to kill all of them was most patent. Thus, the fifth assigned error, i.e., that the decision is contrary to law, need not be considered separately. The prosecution evidence has clearly established the guilt of the accused appellants. In addition, there are more incriminating evidence that emanate from the appellants themselves. The trial court had taken judicial notice of the escape of accused Baldesco from police custody on December 15, 1965, (p. 27, Vol. II, rec.), and his subsequent re-arrest while en route to Davao (p. 28, Vol. II, rec.). On the other hand, accused Tirol himself had testified that after coming from Salat, he left his house and never returned, for the reason that the members of his family were afraid of some vendetta because of the

massacre of Ko Manibpols family (pp. 141-142, Vol. II, rec.). The trial court noted that this fear was entertained even before the chief of police could ffle a complaint and before a warrant of arrest could be issued. These actuations could only indicate a sense of guilt. As the trial court pointed out, fear of reprisal or retaliation could only haunt one who is aware of his wrong doing (p. 26, Vol. I, rec.). The trial court did not err in finding the accused guilty of murder of seven (7) persons, qualified by treachery, and of two frustrated murders. There was treachery because the accused and their companions made a deliberate surprise attack on the victims. They perpetrated the killings in such a manner that there was no risk to themselves. Treachery has absorbed the circumstance of nighttime, taking advantage of superior strength, employing means to weaken the defense, and that the crime was committed by a band. The aggravating circumstance of evident premeditation was not proven, hence it may not be appreciated. The aggravating circumstance of dwelling, the crime having been committed in the dwelling place of the victims who had not given any provocation, likewise can be appreciated. Considering that there is no mitigating circumstance, the trial court did not err in imposing the maximum penalty provided for in Article 248. Since the penal liability of appellant Ciriaco Baldesco had been extinguished by his death on October 23, 1977, only his civil liability remains to be determined which can be recovered from his estate. The civil liability of both appellants for each of the seven victims of the seven murders is hereby raised to P12,000.00 and their civil liability for each of the two victims of the two frustrated murders is hereby increased to P8,000.00. The civil liability arising from the crime of 2 or more accused is solidary. WHEREFORE APPELLANTS BONIFACIO TIROL AND CIRIACO BALDESCO ARE HEREBY SENTENCED TO (1) INDEMNIFY JOINTLY AND SEVERALLY KOSAIN MANIBPOL AND UNDANG KOSAIN AS THE ONLY SURVIVING HEIRS OF THE SEVEN MURDER VICTIMS IN THE SUM OF TWELVE THOUSAND (P12,000.00) PESOS FOR EACH OF THE SEVEN MURDER VICTIMS; AND (2) INDEMNIFY JOINTLY AND SEVERALLY KOSAIN MANIBPOL IN THE SUM OF EIGHT THOUSAND (P8,000.00) PESOS AND UNDANG KOSAIN ALSO IN THE SUM OF EIGHT THOUSAND (P8,000.00) PESOS AS THE TWO VICTIMS OF THE TWO FRUSTRATED MURDERS. THUS MODIFIED, THE JUDGMENT IS HEREBY AFFIRMED IN ALL OTHER RESPECTS. SO ORDERED.

G.R. No. 119976 September 18, 1995 IMELDA ROMUALDEZ-MARCOS, petitioner, vs. COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents. KAPUNAN, J.: A constitutional provision should be construed as to give it effective operation and suppress 1 the mischief at which it is aimed. The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately 2 preceding the election." The mischief which this provision reproduced verbatim from the 1973 Constitution seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the 3 latter, from an elective office to serve that community." Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte with the Provincial Election Supervisor on March 4 8, 1995, providing the following information in item no. 8: RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________ Years and seven Months. On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, filed a "Petition for 5 Cancellation and Disqualification" with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives on the evidence of declarations 6 made by her in Voter Registration Record 94-No. 3349772 and in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and 7 canceling the certificate of candidacy." On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since childhood" in item no. 8 of the amended 8 certificate. On the same day, the Provincial Election Supervisor of Leyte informed petitioner that: [T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on 9 or before the March 20, 1995 deadline.

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros, Manila on March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of an "honest 10 misinterpretation" which she sought to rectify by adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always maintained 11 Tacloban City as her domicile or residence. Impugning respondent's motive in filing the petition seeking her disqualification, she noted that: When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the creation of another legislative district to remove the town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections 12 on May 8, 1995. On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote 13 of 2 to 1, came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of 14 Candidacy. Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held: Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendment should subsequently be allowed. She averred that she thought that what was asked was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First Legislative District, to which she could have responded "since childhood." In an accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she always intended to return whenever absent and which she has never abandoned. Furthermore, in

her memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has been a resident of the First Legislative District of Leyte since childhood, although she only became a resident of the Municipality of Tolosa for seven months. She asserts that she has always been a resident of Tacloban City, a component of the First District, before coming to the Municipality of Tolosa. Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that she would be registering in Tacloban City so that she can be a candidate for the District. However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claim and instead implicitly acceded to it by registering in Tolosa. This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked was her actual and physical presence in Tolosa is not easy to believe because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the explanation of respondent fails to be persuasive. From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit. To further buttress respondent's contention that an amendment may be made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the "inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections." The Supreme Court in that case considered the amendment only as a matter of form. But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter which determines her qualification as a candidacy, specially those intended to suppress, accurate material representation in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the integrity of the election. Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong it by claiming it was "since childhood"

is to allow an untruthfulness to be committed before this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she can be reregistered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the respondent's consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be persuaded to believe in the respondent's contention that it was an error. xxx xxx xxx Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this Commission. xxx xxx xxx Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not complied with the one year residency requirement of the Constitution. In election cases, the term "residence" has always been considered as synonymous with "domicile" which imports not only the intention to reside in a fixed place but also personal presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991, the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban. This Division is aware that her claim that she has been a resident of the First District since childhood is nothing more than to give her a color of qualification where she is otherwise constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit. Except for the time that she studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered

voter. In 1978, she served as member of the Batasang Pambansa as the representative of the City of Manila and later on served as the Governor of Metro Manila. She could not have served these positions if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of her registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, including Metro Manila. This debunks her claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood. In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She registered as a voter in different places and on several occasions declared that she was a resident of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC(226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to abandon the old domicile. In other words there must basically be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile. Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention. Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence to show that her conduct, one year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of Manila. It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood." To further support the assertion that she could have not been a resident of the First District of Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa

for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she 15 had been a resident of the district for six months only. In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en 16 banc denied petitioner's Motion for Reconsideration of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of 17 Representatives for the First Legislative District of Leyte. The Resolution tersely stated: After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters having been raised therein to warrant re-examination of the resolution granting the petition 18 for disqualification. On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass show that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of 19 petitioner be suspended in the event that she obtains the highest number of votes. In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental Petition. On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief. Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two general areas: I. The issue of Petitioner's qualifications Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 9, 1995 elections. II. The Jurisdictional Issue a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code. b) After the Elections Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections. I. Petitioner's qualification A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for election to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong 20 vs. Republic this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose 21 intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is 22 established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another 23 domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly: There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time.

A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. In Nuval vs. Guray, the Court held that "the term residence. . . is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal 25 presence in that place, coupled with conduct indicative of such intention." Larena 26 vs. Teves reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros 27 Oriental. Faypon vs. Quirino, held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected 28 does not constitute loss of residence. So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, "and a resident thereof", that is, in the district for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given 29 to it was domicile. xxx xxx xxx Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence.
24

Mr. De los Reyes: Domicile. Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not 30 physical residence. In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term 32 residence in election law, regarding it as having the same meaning as domicile. In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months? It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not and individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification. It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate seeks election thus: 7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte
31

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months. Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence and the second requiring domicile coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were established by means more convincing than a mere entry on a piece of paper. We now proceed to the matter of petitioner's domicile. In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies. We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes. In Larena 33 vs. Teves, supra, we stressed: [T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality.

More significantly, in Faypon vs. Quirino,

34

We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive proof of abandonment for another. From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the 35 provisions of the Omnibus Election Code (B.P. 881). What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's assailed 36 Resolution: In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually established residence in different parts of the country for various reasons. Even during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting well-publicized projects for the benefit of her province and hometown, and establishing a political power base where her siblings and close relatives held positions of power either through the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte. Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again." We do not agree. First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established only when her father brought his family back to Leyte contrary to private respondent's averments. Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one 37 must demonstrate: 1. An actual removal or an actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and establishing a new one; and 3. Acts which correspond with the purpose. In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of

residence requires an actual and deliberate abandonment, and one cannot have two legal 38 residences at the same time. In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with one of her own choosing ( domicilium voluntarium). In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code concepts of 39 "domicile" and "residence." The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains: In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or 40 juridical, independent of the necessity of physical presence. Article 110 of the Civil Code provides: Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husband's choice of residence upon marriage. Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states: La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero. Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously

cannot be understood to refer to domicile which is a fixed, fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence. The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence. Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus: Art. 109. The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual help and support. The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains: Residence and Domicile Whether the word "residence" as used with reference to particular matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision must be made from a consideration of the purpose and intent with which the word is used. Sometimes they are used synonymously, at other times they are distinguished from one another. xxx xxx xxx Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. Residence is acquired by living in place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some other 41 place. In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle; In cases applying the Civil Code on the question of

a common matrimonial residence, our jurisprudence has recognized certain 42 situations where the spouses could not be compelled to live with each other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart from being allowed to opt 43 for a new one). In De la Vina vs. Villareal this Court held that "[a] married woman may acquire a residence or domicile separate from that of her husband during the existence of 44 the marriage where the husband has given cause for divorce." Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband on pain of contempt. 45 In Arroyo vs. Vasques de Arroyo the Court held that: Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible ( sic) by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and he experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony. In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who

had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148). In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt. Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged by virtue of Article 110 of the Civil Code to follow her husband's actual place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin. On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's rights in the intervening years by making the choice of 46 domicile a product of mutual agreement between the spouses. Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations of husband and wife the term residence should only be interpreted to mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a 47 home in our homeland." Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband. In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte. II. The jurisdictional issue Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the 48 election in violation of Section 78 of the Omnibus Election Code. Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable. It is a settled doctrine that a statute requiring rendition of judgment within a specified time 49 is generally construed to be merely directory, "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would 50 have clearly indicated it." The difference between a mandatory and a directory provision is often made on grounds of necessity. Adopting the same view held by several American 51 authorities, this court in Marcelino vs. Cruz held that: The difference between a mandatory and directory provision is often determined on grounds of expediency, the reason being that less injury results to the general public by disregarding than enforcing the letter of the law. In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty (30) days within which a decree may be

entered without the consent of counsel, it was held that "the statutory provisions which may be thus departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of the essential act." Thus, in said case, the statute under examination was construed merely to be directory. The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a decision within a given or prescribed period. In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of 52 B.P. 881, it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections. As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member 53 of the House of Representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past. WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of Leyte. SO ORDERED.

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