I.

ADMISSIBILITY OF EVIDENCE A. RULE 128, SECTION 1-4: RULE 128 GENERAL PROVISIONS SECTION 1. Evidence defined. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) SECTION 2. Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2a) SECTION 3. Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) SECTION 4. Relevancy; Collateral Matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.

CASES: Reyes vs. Court of Appeals 216 SCRA 25 (1993) Rule 128, Sec. 1-4 FACTS: Juan Mendoza, the father of defendant Olympio, is the owner of Farm Lots Nos. 46 and 106, devoted to the production of palay. The lots are tenanted and cultivated by Julian de la Cruz, the husband of plaintiff Eufrocina de la Cruz. In her complaint, Eufrocina alleged that upon the death of her husband, she succeeded him as bona fide tenant. However, Olympio in conspiracy with the other defendants prevented her daughter Violeta and her workers from entering and working on the farm lots. Defendants likewise refused to vacate and surrender the lots, which prompted Eufrocina to file a case for the recover of possession and damages with a writ of preliminary mandatory injunction in the meantime. The petitioners in this case, the defendants Reyes, Parayao, Aguinaldo and Mananghaya, are duly elected and appointed barangay officials of the locality, who denied their interference in the tenancy relationship existing between Olympio and

Eufrocina. Olympio, for his part, raised abandonment, sublease and mortgage of the farm lots without his consent, and non-payment of rentals as his defenses. The Court of Appeals (CA) affirmed the agrarian courts decision with modification, which ordered the defendants to restore possession of the farm lots to plaintiff Eufrocina. The CA likewise ruled that the petitioners are solidarily liable to pay to Eufrocina the value of cavans of palay until they have vacated the area. On appeal, the petitioners questioned the favorable consideration given to the affidavits of Eufrocina and Efren Tecson, since the affiants were not presented and subjected to cross-examination. ISSUE(S): Whether or not the trial court erred when it gave favorable consideration to the affidavits of plaintiff, even if the affiant was not presented and subjected to crossexamination. RULING: The judgment is affirmed. The trial court did not err when it favorable considered the affidavits of Eufrocina and Efren Tecson although the affiants were not presented and subjected to cross-examination. Section 16 of P.D. No. 946 provides that the Rules of Court shall not be applicable in agrarian cases even in a suppletory character. The same provision states that In the hearing, investigation and determination of any question or controversy, affidavits and counter-affidavits may be allowed and are admissible in evidence, Moreover, in agrarian cases, the quantum of evidence required is no more than substantial evidence. Thus, this case is an application of the rule with regard the scope of the Rules on Evidence which states that The rules of evidence shall be the same in all courts and in all trials and hearings except as otherwise provided by law (ex. Section 16 of P.D. No. 946) or these rules. By: Frances Joanne D. Miranda People vs. Turco 337 SCRA 714 (2000) Rule 128, Sec 1-4 FACTS: Rodegelio Turco, Jr. (a.k.a. Totong) was charged with the crime of rape. The prosecution alleged that the victim, Escelea Tabada (12 yrs and 6 months old at the time of the incident) and accused Turco were neighbors. On the night of the incident, upon reaching her home, Escelea heard a call from outside. She recognized the voice to be Turcos since they have been neighbors for 4 years and are second cousins. When she opened the door, the accused with the use of a towel, covered the victims face. Then the accused bid the victim to walk. When they reached a grassy part, near the pig pen which was about 12 meters away from

the victims house, the accused laid the victim on the grass, went on top of her an took off her short pants and panty. The victim tried to resist by moving her body but to no avail. The accused succeeded in pursuing his evil design by forcibly inserting his penis inside the victims private parts. Upon reaching home, the victim discovered that her short pants and panty were filled with blood. For almost ten days, she kept to herself the harrowing experience, until she had the courage to tell her brother-in-law, who in turn told the victims father about the rape of his daughter. Thereafter, they did not waste time and immediately asked the victim to see a doctor for medical examination. After the issuance of the medical certificate, they went to the Isabela Municipal Station and filed a compliant against the accused charging him with rape. The trial court convicted the accused, stating that the defense of sweetheart theory was a mere concoction of the accused in order to exculpate him from criminal liability. Appealing his conviction, the accused-appellant argues that the trial court erred because no actual proof was presented that the rape of the complainant actually happened considering that although a medical certificate was presented, the medico-legal officer who prepared the same was not presented in court to explain the same. ISSUE(S): Whether or not the trial court erred in admitting the medical certificate in evidence, although the medico-legal officer who prepared the same was not presented in court to testify on it. RULING: Conviction affirmed. We place emphasis on the distinction between admissibility of evidence and the probative value thereof. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules (Section 3, Rule 128) or is competent. Since admissibility of evidence is determined by its relevance and competence, admissibility is therefore, an affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation within the guidelines provided in rule 133 and the jurisprudence laid down by the Court. Thus, while evidence may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its reception. However, although the medical certificate is an exception to the hearsay rule, hence admissible as evidence, it has very little probative value due to the absence of the examining physician. Nevertheless, it cannot be said that the prosecution relied solely on the medical certificate. In fact, reliance was made on the testimony of the victim herself, which standing alone even without the medical examination, is sufficient evidence. The absence of medical findings by a medico-legal officer does not disprove the occurrence of rape. It is enough that the evidence on hand convinces the court that conviction is proper. In the instant case, the victims testimony alone is credible and sufficient to convict.

By: Frances Joanne D. Miranda B. RELEVANCE: 1. SECTIONS 3 AND 4, RULE 128 SECTION 3. Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) SECTION 4. Relevancy; Collateral Matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or nJon-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. CASES: Bautista vs. Aparece 51 O.G. 805 (1995) Relevance FACTS: As owner of the lot subject of the case, Nicolas Anasco sold the same to Valentin Justiniani. In the same year, Valentin sold this property to Claudio Justiniani, In October 12, 1935, Claudio Justiniani executed a public instrument whereby he sold the same property for P100 to Apolonio Aparece in whose name it was assessed since 1935. While Aparece was in possession, Hermogenes Bautista illegally entered a part of the land and took possession thereof. Thus, Aparece file a complaint with the guerilla forces then operating in the province of Bohol. When the case was called for hearing, and after inspection was made by a guerilla officer, Bautista executed a public instrument wherein he promised to return the land to Aparece in good will, and recognized Apareces lawful ownership over the land. Thus, possession of the land was restored to Aparece. However, claiming that the property belongs to him, and alleging that with the aid of armed men and pretending to be owner, usurped the land, Bautista filed a complaint in the Court of First Instance (CFI) of Bohol. The CFI rendered judgment declaring Aparece as owner of the land. On appeal, Bautista raised as defense the error of the trial court in admitting the public instrument which he executed as evidence. He argued that the document was executed under duress, violence, and intimidation, and that the guerilla officer before whom it was executed, had no jurisdiction over the matter. ISSUE(S): Whether or not the trial court erred in admitting as evidence, a public document executed before an officer who had no jurisdiction over the matter.

RULING: This argument is beside the point. The test for the admissibility or inadmissibility of a certain document is whether or not it is relevant, material or competent. The public document is not only relevant, but is also material and competent to the issue of ownership between the parties litigants. Relevant evidence is one that has any value in reason as tending to prove any matter probable in ac action. And evidence is said to be material when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings, while competent evidence is one that s not excluded by law in a particular case. With these criteria in mind, we hold that the mere fact that the public document was executed before a guerilla officer does not make the same as irrelevant, immaterial or incompetent to the main issue raised in the pleadings. The public document, considered together with the other evidence, documentary and oral, satisfies the Court that the portions of land in question really belong to defendant Aparece. By: Frances Joanne D. Miranda Lopez vs. Heesen 365 P.2d 448 (1961) Relevance FACTS: Appellee Heesen, an air Force officer, purchased a J.C. Higgins Model 51 30.06 rifle from the store of appellee Sears. The rifle has a bolt action known as a Mausser type action with a Class 1 safety mechanism. At the time of the purchase, Heesen was given an instruction pamphlet which he read, explaining the composition of the rifle and gave operating instructions, including the method to be pursued to make the gun safe. Immediately after the purchase, Heesen left for a deer hunting trip in an area known as Ute Park. He placed a live cartridge in the chamber and placed the gun on safety position. He traveled a good deal during the hours before the shooting and on one of two occasions, he discovered the gun off safety position. This occurred when he had come down a long hill covered with rocks and boulders. Heesen was not aware that the rifle moved from safe to fire position at least twice before the shooting. Ten minutes before the accident began, he left the knoll and he was carrying the gun on his shoulder. He later heard a rustle and saw a deer go between some trees. When he followed the deer, his left foot went down hard on the ground on one side of a log and his right foot slipped on the grass. This brought the rifle down and the rifle discharged, the bullet hitting appellant Lopez, who was nearby. Lopez brought suit against Heesen for allegedly unlawfully assaulting him, thereby inflicting dangerous and painful wounds. He also included as party-

defendant, the designer, manufacturer and seller of the rifle, Sears, for allegedly negligently designing and manufacturing the rifle bought by Heesen. Defendants presented expert testimony on the general reputation of other firearms companies who use the same modified leaf safety device as the Higgins Model 51. Lopez objected to this evidence on the ground that it was wholly immaterial and irrelevant to any issue in the case. He likewise objected on the introduction of testimony on the poundage pressure required to move the safety levers from safe to fire position on the ground of irrelevance and immateriality. Lastly, he objected to the introduction of opinion evidence regarding the design of the safety mechanism, on the ground that it was a subject which is within the province of the jury to determine. ISSUE(S): (1) Whether or not expert testimony on the general reputation of other firearms companies using the same safety device is material and relevant. (2) Whether or not testimony on the poundage pressure required is relevant and material. (3) Whether or not the design of the safety mechanism was a proper subject of expert testimony. RULING: (1) The expert testimony is admissible. The allegations on the ultimate facts in issue involve whether the Higgins Model 51 rifle was in a dangerous and defective condition due to its negligent manufacture, in that the safety mechanism moved re4adily from safe to fire position. This is an issue, the proper understanding of which, requires knowledge or experience and cannot be determined independently merely from deductions made and inferences drawn on the basis of ordinary knowledge. Moreover, the conduct of others is proper evidence for a jury to consider, in determining whether the tendency of the thing is dangerous, defective, or the reverse. Considering these principles, the Court held that the testimony as to the reputation of other firearms companies using the same safety device is material and relevant to the issue of whether the safety device on the Higgins Model 51 was unsafe or safe, and that the trial court did not abuse its discretion in admitting this testimony. (2) The testimony was introduced under Lopezs contention that the Higgins model was unsafe and thus, the issue arose as to the poundage pressure required to move the safety lever from safe to fire. It was then proper for Sears to show the amount of pressure required to move the safety lever as this was relevant to the issue posed. Expert testimony is admissible because the expert testimony was upon the ultimate issue of whether or not the safety device was dangerous and defective. It was the proper subject of expert testimony. It does not usurp the

(3)

functions of the jury as the latter may still reject these opinions. Said opinion evidence is not binding on the jury. By: Frances Joanne D. Miranda State vs Ball 339 S.w2d 783 (1960) Relevance FACTS: Ball appeals from an order of the trial court, convicting him of robbery. At about 2:30 in the afternoon, two colored men, one of them tall and the other short, entered the Krekeler Jewelry Store. As the taller man looked at jewelry and made his purchase, the shorter man looked in the cases and moved about in the store. Later in the same day, at around 5:30 p.m., as John Krekeler was placing the rings and watches in the safe preparing for the closing of the store, the two men who had been in the store at 2:30, entered the store. They were immediately recognized by Krekeler, especially the taller mans narrow-brimmed tall hat, brown jacket, gray short and particularly a scar on his face. The shorter man walked behind the counter and as Krekeler tried to intercept him, the man hit Krekeler on the face using a 0.38 long barreled pistol. With the gun on his back, the two men directed Krekeler to go to the watch repair department, then to the restroom, where he was positioned, facing the wall. Thereafter, he could hear jewelry being dumped in a bag, and the jingle of the car register. After hearing the door slam, Krekeler call the police. He reported that the two men took $4,455.21 worth of watched and rings, and $140 in cash. Three weeks later, Ball was arrested by Officers Powell and Ballard while walking in the street. Ball shoved Officer Powell over and ran down the avenue. The officers ran after him and he was only pacified when the Officers fired a bullet which fell in his back. Ball claims that this evidence of flight was not material or relevant, since it was too remote from the date of the robbery (3 weeks later), to indicate a consciousness of guilt. Ball likewise objected to the admissibility of the following articles found in his person during the arrest on grounds of immateriality and irrelevance: a brown felt hat, a brownish windbreaker type jacket, trousers, gray shirt and shoes, and $258.02 in currency and two pennies. ISSUES(S) (1) Whether or not the evidence of flight is inadmissible for reason of remoteness to the time of the commission of the crime. (2) Whether or not the articles found in the person of the accused at the time of his arrest are inadmissible for being irrelevant and immaterial. RULING:

(1)

Unexplained flight and resisting arrest even thirty days after the supposed commission of the crime is a relevant circumstance. The remoteness of the flight goes to the weight of the evidence rather than to its admissibility. In identifying Ball, Krekeler was impressed with and remembered the brown ensemble, particularly the tall brown hat. These items were of course relevant and admissible in evidence and there is no objection to them. However, the money is inadmissible. The proof of the money here was evidently on the theory that Ball did not have or was not likely to have such a sum of money on his person prior to the commission of the offense. However, Krekeler was not able to identify the money or any of the items on Balls person as having come from the jewelry store so that in fact, they were not admissible in evidence. There was no proof as to the denomination of the money in the cash register, it was simply a total of $140. Here, nineteen days had elapsed, there was no proof that Ball had suddenly come into possession of the $258.02 and in all these circumstances the mere possession of a quantity of money is in itself no indication that the possessor was the taker of the money charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money found is the same as the money taken is too forced and extraordinary to be receivable.

(2)

By: Frances Joanne D. Miranda C. COMPETENCE: 1. SECTION 3, RULE 128

SECTION 3. Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) 2. EXCLUSIONARY RULES UNDER THE 1987 CONSTITUTION (a) SECTIONS 2 AND 3, ARTICLE III SEC. 2, Article III The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and

particularly describing the place to be searched and the persons or things to be seized. SEC. 3. Article III (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (b) SECTION 12, ARTICLE III Section 12, Article III (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. (c) SECTION 17, ARTICLE III SEC. 17. No person shall be compelled to be a witness against himself.

3.

STATUTORY RULES OF EXCLUSION 1. SECTION 201, TAX REFORM ACT OF 1997

SEC. 201. Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which is required by law to be stamped

and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed thereto and cancelled. (b) RA 1405, LAW ON SECRECY OF BANK DEPOSITS LAW ON SECRECY OF BANK DEPOSITS Republic Act No.1405, as amended

AN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITH ANY BANKING INSTITUTION AND PROVIDING PENALTY THEREFOR Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. Sec 2.1 All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except when the examination is made in the course of a special or general examination of a bank and is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, or when the examination is made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, or upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (As amended by PD No.1792, January 16, 1981) Sec 3. It shall be unlawful for any official or employee of a bank to

disclose to any person other than those mentioned in Section Two hereof, or for an independent auditor hired by a bank to conduct its regular audit to disclose to any person other than a bank director, official or employee authorized by the bank, any information concerning said deposits. (As amended by PD No.1792) Sec 4. All acts or parts of Acts, Special Charters, Executive Orders, Rules and Regulations which are inconsistent with the provisions of this Act are hereby repealed. Sec 5. Any violation of this law will subject the offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court. Sec 6. This Act shall take effect upon its approval. APPROVED, September 9, 1955. __________ 1 This Section and Section 3 were both amended by Pres. Decree No.1792, issued January 16, 1981, PD 1792 was expressly repealed by Sec. 135 of Rep. Act No.7653, approved June 14, 1993. The original Sections 2 and 3 of Rep. Act No.1405 are hereby reproduced for reference, as follows: "Sec. 2 All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written per- mission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials. or in cases where the money deposited or invested is the subject matter of the litigation," "Sec. 3. It shall be unlawful for any official or employee of a banking institution to disclose to any person other than those mentioned in Section two hereof any information concerning said deposits."

(c)

R.A. NO. 4200 WIRETAPPING ACT

REPUBLIC ACT NO. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition. SECTION 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. SECTION 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to

sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose

conversation or communications have been recorded. The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed. SECTION 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. SECTION 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. SECTION 6. This Act shall take effect upon its approval. CASES: Gaanan vs. Intermediate Appellate Court 145 SCRA 112 (1986) Competence (Anti-Wiretapping Act) FACTS: Complainant Atty. Pintor and his client Montebon, were in the living room of complainants residence, discussing the terms from the withdrawal of the complaint for direct assault which they filed against Laconico. After they decided on the conditions, Atty. Pintor made a phone call to Laconico. That same morning, Laconico telephoned Atty. Gaanan to come to his office and advise him on the settlement of the direct assault case. When Atty. Pintor called, Laconico requested Atty. Gaanan to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Twenty minutes later, Atty. Pinto called up again to ask Laconico if he was agreeable to the conditions. Laconico agreed. An amount of P5,000 as settlement money was agreed upon. He was instructed to give the money to give the money to Atty. Pintors wife at the office of the Department of Public Highways. However, Laconico insisted that Atty. Pintor himself should receive the money. However, when Atty. Pintor received the money, he was arrested by agents of the Philippine Constabulary. On the following day, Atty. Gaanan executed an affidavit that he heard complainant Atty. Pintor demand P8,000 for the withdrawal of the case for direct assault. Laconico attached the affidavit to the complaint for robbery/extortion which

he filed against Atty. Pintor. Since Atty. Gaanan listened to the telephone conversation without Atty. Pintors consent, Atty. Pintor charged Atty. Gaanan and Laconico with violation of the Anti-Wiretapping Act (R.A. No. 4200). Atty. Gaanan and Laconico were found guilty by the trial court. The decision was affirmed by the Intermediate Appellate Court (IAC) stating that the extension telephone which was used to overhear the telephone conversation was covered in the term device as provided in R.A. No. 4200. ISSUE(S): Whether or not an extension telephone is among the prohibited device in Section 1 of the Anti-Wiretapping Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line. RULING: The main issue revolves around the meaning of the phrase any other device or arrangement. The law refers to a tap of a wire or cable or the use of a device or arrangement for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other device enumerated un Section 1 of R.A. No. 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. The phrase device or arrangement, although not exclusive to that enumerated, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting, or recording a telephone conversation. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. An extension telephone is not among such device or arrangements covered by Section 1 of R.A No. 4200. By: Frances Joanne D. Miranda

Salcedo-Ortaez vs. Court of Appeals 235 SCRA 111 (1994) Competence (Anti-Wiretapping Act) FACTS: Rafael Ortaez filed a complaint for annulment of marriage with damages against his wife Teresita Salcedo-Ortaez, on grounds of lack of marriage license and/or psychological incapacity of Teresita. Among the exhibits offered by Rafael were three (3) cassette tapes of alleged telephone conversations between Teresita and unidentified persons. These tape recordings were made and obtained when Rafael allowed his friends from the military to wire tap his home telephone. Teresita objected to Rafaels oral offer of the said tapes. However, the Regional Trail Court (RTC) of Quezon City admitted the tapes into evidence. Teresita filed a petition for certiorari with the Court of Appeals (CA), but the CA upheld the lower courts order for two reasons: (1) Tape recordings are not inadmissible per se. hey are admissible depending on how they are presented and offered and how the trial judge utilizes them and (2) Certiorari is inappropriate since the order admitting the tape into evidence is interlocutory. The order should be questioned in the appeal from the judgment on the merits and through the special civil action of certiorari. Hence, Teresita filed a petition for review with the Supreme Court (SC). ISSUE(S): (1) Whether or not the recordings of Teresitas phone conversations, made and obtained through wiretapping are admissible as evidence (not per se inadmissible) (2) Whether or not a petition for certiorari is the appropriate remedy to question an order admitting the tapes into evidence RULING: (1) The tape recordings are inadmissible. Relevant provisions of R.A. 4200 (Anti-Wiretapping Act) provides that: Section 1: It shall be unlawful for any person, not being authorized by all parties to any private conversation or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone, or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described x x x Section 4. Any communication, or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained, or secured by any person in violation of the preceding section of this Act shall not be admitted in evidence in any judicial, quasi-judicial, legislative, or administrative hearing or investigation.

Hence, absent any clear showing that both parties consented to the recording, the inadmissibility of the tapes is mandatory under R.A. No. 4200 (2) Certiorari was the appropriate remedy. Generally, the extraordinary writ of certiorari is not available to challenge interlocutory orders of a trial court. The proper remedy is an ordinary appeal from an adverse judgment, incorporating in the said appeal the grounds fro assailing the interlocutory order. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. By: Aaron Roi B. Riturban Ramirez vs. Court of Appeals 248 SCRA 590 (1995) Competence (Anti-Wiretapping Act) FACTS: Ester Garcia filed a criminal case for violation of R.A. No. 4200 (AntiWiretapping Act) against Socorro Ramirez, for secretly taping their confrontation. Socorro filed a Motion to Quash the Information, which the Regional Trial Court (RTC) of Pasay granted, agreeing that the facts charged did not constitute an offense under R.A. No. 4200 since the law refers to the taping of a communication by a person other than a participant to the communication. After which, Ester filed a petition for review with the Court of Appeals (CA), which reversed the ruling of the lower court. Hence, Socorro filed this instant petition where she raised three ISSUES: (2) That R.A. No. 4200 does not apply to the taping of the conversation by one of the parties to the conversation. She contends that R.A. 4200 only refers to unauthorized taping of a conversation of a person other than those involved in the conversation. (3) That the substance or contents of the cnvesation must be alleged in the information; otherwise, the facts charged will not constitute a violation of R.A. No. 4200. (4) That R.A. No. 4200 penalizes the taping of private communication not a private conversation and that, consequently, her act of secretly taping her conversation with Ester was not illegal under the said Act. RULING: (1) R.A. No. 4200 applies to recordings by one of the parties to the conversation. Section 1 of the Act clearly and unequivocally makes it illegal for any person, not authorized by all parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the

statute ought to be a party other than or different from those involved in the private communication. The statutes intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier any. Consequently, the CA was correct in concluding that even a person privy to a communication, who records his private conversation with another without knowledge of the latter, will qualify as a violator under R.A. No. 4200. A perusal of the Senate Congressional Records, moreover, supports such conclusion. (2) The substance of the conversation need not be alleged in the information. The nature of the communication is immaterial. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. No. 4200 As the Solicitor General pointed out, Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed. Private communication includes private conversation. The word communicate comes from the Latin word communicare, meaning to share or to impart. In its ordinary signification, communication connotes an act of sharing or imparting, as in a conversation (process by which meanings or thoughts are shared between individuals through a common system of symbols). These broad definitions are likely to include the confrontation between Socorro and Ester. Moreover, any doubts about the legislative bodys meaning of the phrase private communication are put to rest by the fact that Senator Taada in his Explanatory Note to the Bill used communication and conversation interchangeably.

(3)

Section 55 RA 8791, General Banking Act of 2000 Sec. 55. Prohibited Transactions. 55.1. No director, officer, employee, or agent of any bank shall (a) Make false entries in any bank report or statement or participate in any fraudulent transaction, thereby affecting the financial interest of, or causing damage to, the bank or any person; (b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity:Provided, That with respect to bank deposits, the provisions of existing laws shall prevail;

(c) Accept gifts, fees, or commissions or any other form of remuneration in connection with the approval of a loan or other credit accommodation from said bank; (d) Overvalue or aid in overvaluing any security for the purpose of influencing in any way the actions of the bank or any bank; or (e) Outsource inherent banking functions. 55.2. No borrower of a bank shall (a) Fraudulently overvalue property offered as security for a loan or other credit accommodation from the bank; (b) Furnish false or make misrepresentation or suppression of material facts for the purpose of obtaining, renewing, or increasing a loan or other credit accommodation or extending the period thereof; (c) Attempt to defraud the said bank in the event of a court action to recover a loan or other credit accommodation; or (d) Offer any director, officer, employee or agent of a bank any gift, fee, commission, or any other form of compensation in order to influence such persons into approving a loan or other credit accommodation application. 55.3. No examiner, officer or employee of the Bangko Sentral or of any department, bureau, office, branch or agency of the Government that is assigned to supervise, examine, assist or render technical assistance to any bank shall commit any of the acts enumerated in this Section or aid in the commission of the same. The making of false reports or misrepresentation or suppression of material facts by personnel of the Bangko Sental ng Pilipinas shall be subject to the administrative and criminal sanctions provided under the New Central Bank Act. 55.4. Consistent with the provisions of Republic Act No. 1405, otherwise known as the Banks Secrecy Law, no bank shall employ casual or non regular personnel or too lengthy probationary personnel in the conduct of its business involving bank deposits. Sections 16 and 18 PD 946 REORGANIZING THE COURTS OF AGRARIAN RELATIONS, STREAMLINING THEIR PROCEDURES, AND FOR OTHER PURPOSES Section 16. Rules of Procedure. The Courts of Agrarian Relation shall adopt uniform rules of procedure on matters not provided for in this Decree in order to achieve a just, expeditious and inexpensive determination of every action or

proceeding filed before them. The rules of Court shall not be applicable to agrarian cases, even in a suppletory character. It is the spirit and intention of this Decree that the Courts of Agrarian Relations shall utilize and employ every and all reasonable means to ascertain the facts of every case in accordance with justice and equity and the merits of the case, without regard to technicalities of law and procedure. To this end, each Court of Agrarian Relations shall have the authority to adopt any appropriate measure or procedure in any situation or matter not provided for or covered by this Decree and in the uniform rules of procedure of the Courts of Agrarian Relations. All such special measures or procedures, and the situations to which they are applied shall be reported to the Supreme Court by the individual Judges through the Executive Judge who shall furnish copies of such reports to all the other Judges. Where there is doubt in the application of uniform rules or in the construction and interpretation of this Decree or of any contract between the parties, the doubt shall be resolved in favor of the tenant-farmers, agricultural lessees, settlers, ownercultivators, amortizing owner-cultivators, the Samahang Nayon, compact farms, farmers' cooperatives and other registered farmers' associations or organizations. In criminal and expropriation cases the Rules of Court shall apply. In the hearing, investigation and determination of any question or controversy, affidavits and counter-affidavits may be allowed and are admissible in evidence. Direct testimonies of witnesses shall be in narrative form subject to cross examination. In cases where the tenurial status of a person is in issue, the Court of Agrarian Relations shall not issue an order restraining the actual tiller from cultivating the land, or impounding the harvest without providing him with at least fifty percent of the net harvest. Should the impounding of the harvest be at the instance of the landholder, he shall file a cash bond to be fixed by the Court, to answer for such damages as may be suffered by the tiller who is found to be a lawful tenant. In case of the malicious denial of the tenancy relationship by the landholder, he shall be subject to the payment of exemplary damages equivalent to at least the value of the harvest impounded. Where a party is a tenant-farmer, agricultural lessee or tiller, settler, or amortizing owner-cultivator, he shall be entitled to the rights of a pauper and/or indigent litigant and the privileges of an indigent litigant under Republic Act numbered sixty hundred and thirty-five without further proof thereof. He shall continue to enjoy such status as pauper and/or indigent litigant in the appellate courts and until the case is finally disposed of.

An agricultural tiller, tenant or lessee who has been allowed to litigate as a pauper and/or indigent litigant shall be entitled to the issuance of a duly certified copy of the transcript of stenographic notes of the hearing, which shall be given to him free of charge. Any undue delay in the transcription of the stenographic notes or in the issuance of a duly certified copy of said transcript in favor of said party and any charging of fees against him in connection therewith shall be dealt with administratively. Section 18. Appeals. An appeal may be taken to the Court of Appeals by giving an oral or written notice of appeal with the trial court within the period of fifteen (15) days from notice of order or decision. A copy of the written notice of appeal shall be served within the same period upon the adverse party. In case the notice of appeal is orally made, the clerk of court shall reduce the same to writing, which shall be signed by the appellant and a copy thereof served within the same period by the clerk of court to the adverse party. In case a motion for reconsideration is filed within that period of fifteen (15) days, the notice of appeal shall be filed within ten (10) days from notice of the resolution denying the motion for reconsideration. Only one motion for reconsideration shall be allowed a party. The Court of Appeals shall affirm the decision or order or the portions thereof appealed from if the findings of fact in the said decision or order are supported by substantial evidence as basis thereof, and the conclusions stated therein are not clearly against the law and jurisprudence. The Court of Appeals shall not be precluded from taking into consideration any issue, question or incident, even if not raised, if resolution thereof is necessary for a complete and just disposition of the case. The Court of Agrarian Relations shall forward to the Court of Appeals the complete records of the case within a non-extendible period of fifteen (15) days from receipt of a notice of appeal, if no motions for reconsideration are filed. In the event that motions for reconsideration are filed, the records shall be forwarded to the appellate court within a like period from receipt by the party concerned of denial of the last motion for reconsideration. Appeal shall not stay the decision or order except where the ejectment of a tenantfarmer, agricultural lessee or tiller, settler, or amortizing owner-cultivator is directed. Upon receipt of the records of the case from the Court of Agrarian Relations, the Court of Appeals may, if it deems necessary, require the parties to file simultaneous memoranda within a non-extendible period of fifteen (15) days from notice; the appellate court shall decide the case within thirty (30) days from receipt of said records or memoranda.

No motion for rehearing or reconsideration shall be allowed in the Court of Appeals. All cases of the Courts of Agrarian Relations now pending before the Court of Appeals shall remain in the Division to which they have been assigned, and shall be within sixty (60) days from the effectivity of this Decree: Provided, however, That if the decision or order be an affirmance in toto of the dispositive conclusion of the judgment appealed from, then the Court of Appeals may, instead of rendering an extended opinion, indicate clearly the trial court's findings of fact and pronouncements of law which have been adopted as basis for the affirmance. Upon the effectivity of this Decree, the Court of Appeals shall designate at least two (2) of its Divisions to which all appealed agrarian cases shall be assigned, and these cases shall have priority over other cases. The decisions or orders of the Court of Appeals may be appealed to the Supreme Court by petition for review on certiorari only on questions of law, within a nonextendible period of thirty (30) days from receipt by the appellant of a copy of the decision or order.

EN BANC

[A.M. No. MTJ-96-1110. June 25, 2001]

CONG. MANUEL N. MAMBA, M.D. ATTY, FRANCISCO N. MAMBA, JR., HON. GUILLERMO SUMIGAD, HON. CALIXTO GENOVEZA, HON. MARTIN SORIANO, HON. LOURDES FAUSTO, HON. LORENZO FERMIN, HON. ADORACION RAQUINIO, HON. LEONIDES FAUSTO, HON. DIOGENES BALIGOD, HON. LORETO MABBORANG, HON. PETER SY, HON. NICCOLO MAMBA, LORETO MAMBA, JUAN TAGUBA, DOMINGO CAMARAT, SEVERINO BUCAYU, CASIANO CHAVENTE, ILLUMINADO BALIGOD, FELICIANO SERRANO, TEOFILO URMA, REMIGIO DE LA CRUZ, ABELARDO BAUIT, MARIANO MIRANDA, JR., ROMULO SERAFICA, CARLOS MANANGUIT, ERNESTO FERMIN, ROGELIO FERNANDEZ, ERNESTO CENABRE, TRINIDAD BALUNSAT, MIGUEL PASON, GIL BALORAN, DOMINGO CALLUENG, BERNARDO BENITO, JUAN TURINGAN, MARCELINO CORPUZ, IGNACIO PASCUA, JR., LEONIDES FAUSTO, TEODORICO PASTOR, DOMINADOR CORSINO, GENEROSO AGLAUA, ZACARIAS MAGGAY, SIMEON BENZON, PATRICIO TAGUIAM, LUCAS TAGUINOD, MA. GLORIA G. BALIGOD, LAURO N. FAUSTO, EDGAR AGGABAO, RODOLFO CARDENAS,

TERESITA ESPINOSA, PACIFICO C. BINULUAN, ROGELIO SORIANO, ARTURO MAMBA, DR. EXSUPERIOR YUAGA, VIVIAN DE GUZMAN, EXCONG. FRANCISCO K. MAMBA, CRISTINA MAMBA, EDWIN LIU, PABLO DANGA, ALICE LOA, VICENTE TOLENTINO, NUMERIANO MACAPULAY, ROLLY SEDANO, complainants, vs. JUDGE DOMINADOR L. GARCIA, MTC, TUAO, CAGAYAN, respondent. DECISION PER CURIAM: This is a resolution, which is more accurately a manifesto or a petition of concerned citizens of Tuao, Cagayan, denouncing certain acts of Judge Dominador L. Garcia, Municipal Trial Court, Tuao, Cagayan, in connection with his handling of Criminal Case No. 399, entitled People vs. Renato Bulatao. The complainants are then Representative of the Third District of Cagayan, the mayor and vicemayor, ten (10) members of the Sangguniang Bayan, thirty-two (32) barrio captains, ten (10) LGU department heads of Tuao, Cagayan, and eight (8) heads of non-governmental organizations or NGOs in the municipality of Tuao. The resolution, dated November 4, 1996, was presented to this Court. It was adopted at an assembly led by Rep. Manuel N. Mamba which picketed the municipal trial court on that day.[1] The "resolution" was treated as an administrative complaint and respondent Judge Dominador L. Garcia was required to answer. The matter was referred to Executive Judge Orlando D. Beltran, Jr. of the Regional Trial Court of Tuao, Cagayan, for investigation, report, and recommendation.[2] Thereafter, an investigation was held during which the affidavits and sworn statements of NBI Special Investigator Ablezer Rivera, the joint affidavit of NBI agents, Raul A. Ancheta and Paul D. Rivera, the sworn statement of the accused in Criminal Case No. 699, Renato Bulatao, and the testimonies of Abner P. Cardenas, clerk of court, MTC, Tuao, Cagayan and Tomas Latauan, Jr., interpreter of the same court, were presented. The gist of the evidence for the complainants is as follows: On August 23, 1996, a complaint for violation of Presidential Decree No.1866 (illegal possession of firearms) was filed against a certain Renato Bulatao by the Cagayan Provincial Police Command before the sala of respondent Judge Dominador L. Garcia of the Municipal Trial Court, Tuao, Cagayan.[3] Respondent set the preliminary investigation on September 4, 1996, but the same was subsequently postponed and reset to October 23, 1996 as respondent was not present, although the complaining officer, P/Sr. Inspector Danny F. Salvador, appeared in court. On October 23, 1996, the preliminary investigation was again reset to October 30, 1996. On October 29, 1996, the accused, Renato Bulatao, complained to the NBI that at the scheduled preliminary investigation on September 4, 1996, P/Sr. Inspector Salvador demanded P30,000.00 from him in consideration of the withdrawal of the criminal case against him. According to Bulatao, the demand was reiterated by Salvador and respondent judge on October 23, 1996. As Bulatao told them that he could not afford it, the amount was reduced to P6,000.00.

Based on Bulataos report, the NBI set out to entrap Salvador and respondent judge. The NBI gave Bulatao 12 pieces of P500.00 marked bills amounting to P6,000.00, which the latter would give to Salvador and respondent the next day. [4] Accordingly, at about 7 o'clock in the morning of the following day, October 30, Bulatao met the NBI operatives in the house of Francisco Mamba, Sr., former representative of the 3rd District of Cagayan, where the entrapment was planned. Bulatao was given a tape recorder to record his conversation with whoever will receive the money. At 9 a.m., Bulatao went to the Municipal Trial Court and waited for his case to be called. At 10:30 a.m., respondent went out of his chambers and talked to SPO2 Jonathan Santos and SPO4 Carlos Poli, representatives of P/Sr. Inspector Salvador in the preliminary investigation. Respondent then called Bulatao and led him and the two police officers to the office of the MTC court personnel. Inside, respondent asked Bulatao if he had the money with him. When he answered in the affirmative, respondent took them to his chambers and left them there as he proceeded to his sala. After handing the money to the police officers, Bulatao went out of respondent's chambers. Upon his signal, the NBI operatives waiting outside respondent's court then rushed to the judge's chambers and arrested the two police officers after recovering 11 pieces of P500.00 marked bills in their possession.[5] After the matter was referred by this Court to Executive Judge Orlando Beltran for investigation, the latter scheduled several hearings for the reception of evidence for the respondent. The records show that hearings were set on different dates (December 10, 1997, January 30, 1998, February 10, 1998, March 3, 1998, March 10, 1998, September 10, 1998, October 9, 1998, November 11, 1998, January 5, 1999, February 9, 1999, March 4, 1999, and April 5, 1999), but respondent did not appear despite due notice. Accordingly, he was deemed to have waived the right to present evidence and the case was submitted for decision. Hence only his counter-affidavit was considered, in which respondent claimed that it was Bulatao who asked permission to talk to the two police officers. He denied that he took the three to his chambers.[6] On the basis of these facts, the Investigating Judge made the following recommendation: "The foregoing facts indisputably show that the respondent Judge allowed the use of his chambers by the two (2) police officers SPOII Jonathan Santos and SPOIV Carlos Poli and Renato Bulatao, the accused in the criminal case for illegal possession of firearms, so that they could talk about the "settlement" of Bulatao's case which was then pending preliminary investigation by the respondent Judge. Although the two (2) witnesses, Abner Cardenas and Tomas Latauan, Jr., claimed that they did not hear the subject of the conversation between Bulatao, on one hand, and the two (2) policemen and the respondent Judge Dominador L. Garcia, on the other, before the three first-named persons went inside the chambers of the respondent Judge, it is not difficult to conclude that they must have talked about the criminal case of Bulatao and its "settlement." For if the subject-matter of their conversation were other than said "settlement" there appears no reason or purpose to allow the policemen and the accused to go inside the judge's chambers and there to continue their conversation. Simply stated, the respondent judge allowed the two (2) policemen and the accused Renato Bulatao to use his chambers so that they could consummate the

arrangements for the dismissal of the case, particularly the payment of the sum of money being demanded as consideration for such dismissal. "In this connection, the undersigned Investigating Judge cannot help but refer to the taped conversation between the two (2) policemen and Renato Bulatao inside the chamber of the respondent Judge. A portion of the translated dialogue between Poli and Bulatao, which was in Ilocano, tends to show that the P6,000.00 pay-off handed by Bulatao to the policemen was not intended for the respondent Judge but solely for the policemen and their superior, P/Sr. Inspector Salvador. However, it is not easy to disregard the implication obvious from the said conversation that the respondent Judge was privy to the entire transaction. SPOIV Poli pointedly told Bulatao "to take care of the Judge" which implies that the Judge knew of the pay-off being made and was willing to abide by the "deal" provided he would be "taken care of" by Bulatao. "Such acts of the respondent Judge are improper, to say the least. He, therefore, violated the duty of every Judge to uphold the integrity of the judiciary and to avoid impropriety and the appearance of impropriety in all activities. (Mortel vs. Leido, Jr. 44 SCAD 567). It cannot be over-emphasized that a judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of official duties but also in his every day life, should be beyond reproach. (Marcos, Sr. vs. Arcangel, 72 SCAD 1). Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not just impropriety in their conduct but even the mere appearance of impropriety. This is true not only in the performance of their official duties but in all their activities, including their private life. They must conduct themselves in such a manner that they give no ground for reproach. (Pedro San Juan vs. Judge Lore V. Bagalsera, RTC, BR. 23, Naga City, A. M. No. RTJ-97-1395, December 22, 1997). In this case, the acts of the respondent judge were clearly improper as he facilitated, if not participated in, the obviously unauthorized/illegal transaction between the two (2) police officers and the accused Renato Bulatao for the settlement/dismissal of the latter's criminal case, in consideration of a sum of money, particularly since the offense charged against Bulatao is a grievous one and that it is one which is not allowed by law to be compromised. "In view of all the foregoing, the undersigned Investigating Judge respectfully recommends that the respondent Judge Dominador L. Garcia be found guilty of improper conduct and be punished accordingly.[7]" The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two police officers is erroneous. The recording of private conversations without the consent of the parties contravenes the provisions of Rep. Act. No. 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding.[8] The law covers even those recorded by persons privy to the private communications, as in this case. [9] Thus, the contents of the tape recorder cannot be relied upon to determine the culpability of respondent judge.

In all other respects, however, the findings of the Investigating Judge are in accordance with the evidence. We hold, however, that respondent judge is guilty not just of improper conduct but of serious misconduct. Serious misconduct is such conduct which affects a public officer's performance of his duties as such officer and not only that which affects his character as a private individual. For serious misconduct to warrant a dismissal from the service, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law. It must (1) be serious, important, weighty, momentary, and not trifling; (2) imply wrongful intention and not mere error of judgment; and (3) have a direct relation to and be connected with the performance of his official duties.[10] In the case at bar, it is clear that the crime of bribery was committed. Although the evidence may not be sufficient to support a conviction in a criminal case, it is adequate for the purpose of these proceedings. The standards of integrity required of members of the Bench are not satisfied by conduct which merely allows one to escape the penalties of the criminal law.[11] In an administrative proceeding, such as this case, only substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, is required.[12] To constitute bribery, the following must be shown: (1) the offender is a public officer within the scope of Art. 203; (2) the offender accepts an offer or a promise or receives a gift or present by himself or through another; (3) such offer or promise is accepted, or gift received by the public officer, (a) with a view to committing some crime; (b) in consideration of the execution of an act which does not constitute a crime, but which is unjust; or (c) to refrain from doing something which it is his official duty to do; and (4) the act which he agrees to perform is connected with the performance of his official duties. [13] From the records, it is evident that P/Sr. Inspector Salvador, a public officer, solicited money from Bulatao in consideration of the withdrawal of the case against the latter. The former categorically told the latter that he would withdraw the criminal case against Bulatao if Bulatao gives him P30,000.00, which was later lowered to P6,000.00. The fact that two of his men came for the preliminary investigation and, without hesitation, followed respondent judge to his chambers after hearing that Bulatao had the money, bears out Bulatao's allegations. Although these circumstances do not show conclusively that respondent judge was privy to the crime of bribery, there is substantial evidence showing that he was at least an accomplice to the crime who cooperated in the execution of the offense by previous or simultaneous acts.[14] The following circumstances, as corroborated by the report of the NBI and the testimonies of two employees of the MTC, who were disinterested witnesses, show that respondent judge knowingly and voluntarily cooperated with P/Sr. Inspector Salvador in consummating the crime: (1) On the day of the entrapment, respondent judge asked Bulatao if he had the money, and when he received an affirmative answer, he took Bulatao and the two police officers to his chambers, told the police officers to receive whatever Bulatao would give them, [15] and then left; and (2) When Bulatao left respondent's chambers and gave the signal to the NBI operatives waiting outside, the marked bills were found by the agents in the possession of SPO2

Jonathan Santos, as the latter was leaving the chambers of respondent judge with SPO4 Carlos Poli. As the Investigating Judge observed, respondent willingly allowed his chambers to be used for the consummation of the illegal transaction. The actions of respondent implies a wrongful intention to commit an unlawful act while in the performance of his official duties. Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not only impropriety but even the appearance of impropriety in all their conduct. This includes not taking an undue interest in the settlement of criminal cases pending before them as this may compromise the integrity and impartiality of their office. [16] As the visible representation of the law and of justice, their conduct must be above reproach and suspicion. [17] By acting as an accomplice to P/Sr. Inspector Salvador, respondent judge violated not only the law but also the Code of Judicial Conduct. Nor does the fact that respondent committed misconduct during a preliminary investigation, which is non-judicial in character, exempt him from the disciplinary power of this Court as the conduct of a preliminary investigation is only an addition to his judicial functions.[18] In Cabrera vs. Pajares,[19] where the payment of the money to respondent judge in his chambers was witnessed by an NBI agent, this Court ordered his dismissal from the service. Likewise, in Court Administratorvs. Hermoso,[20] where the judge received money from a party to a case pending before his sala and was entrapped by an NBI agent, this Court ordered his dismissal. In addition, the erring judge is liable to the forfeiture of his leave credits and retirement benefits and his dismissal shall be with prejudice to reemployment in any branch of the government or any of its agencies or instrumentalities, including government-owned and controlled corporations, as provided by Section 9, Rule 14 of the Omnibus Rules Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) and our current rulings.[21] Respondent judge was previously convicted in two administrative cases filed before this Court. In A.M. No. MTJ-91-616, entitled "Clodualdo Escobar vs. Garcia," the Court, in a resolution dated September l, 1992, found respondent guilty of palpable ignorance of Rule 114, section 8 resulting in the denial of due process to the prosecution in a criminal case. Respondent was fined an amount equivalent to 15 days salary with warning that a repetition of the same would be dealt with more severely. In another case, A.M. No. MTJ95-1049, entitled Eloisa Bernardo v. Garcia, the Court, in a resolution dated June 28, 1995, found respondent guilty of deliberately delaying his decision in a civil case and falsifying certificates of service. He was reprimanded and ordered to pay a fine of P5,000.00 with warning that a repetition of the same or similar acts will be dealt with more severely. WHEREFORE, the Court finds respondent Judge Dominador L. Garcia guilty of serious misconduct and accordingly orders his DISMISSAL from the service and the forfeiture of his leave credits and retirement benefits, with prejudice to reemployment in any branch of the government or any of its agencies or instrumentalities, including governmentowned and controlled corporations. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and SandovalGutierrez, JJ., concur.

[1] [2] [3] [4] [5] [6] [7]

Rollo, pp. 34-44. Id., p. 143. Id., p. 24. Id., pp. 57-59, 65. Id., pp. 63-64, 66-68. Id., p. 122. Id., pp. 247-248.
[8]

SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly over hear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. (Italics ours). .... SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Italics ours).
[9]

Ramirez vs. Court of Appeals, 248 SCRA 590 (1995). Manuel vs. Calimag, Jr., 307 SCRA 657 (1999).

[10] [11]

Centrum Agri-business Realty Corporation vs. Katalbas-Moscardon, 247 SCRA 147 (1995).
[12]

Lorenza vs. Encomienda, 302 SCRA 632 (1999); Liwanag vs. Lustre, 306 SCRA 55 (1999); REVISED RULES OF EVIDENCE, Rule 133, Sec. 5.
[13] [14] [15] [16]

L.B. Reyes, The Revised Penal Code: Criminal Law, vol. 2, pp. 366-367 (14th ed., 1998). Revised Penal Code, Art.18. Rollo, p. 132. Ferrer vs. Maramba, 290 SCRA 44 (1998), Code of Judicial Conduct, Rule 2.01.

[17]

Cabrera vs. Pajares, 142 SCRA 127 (1986); Quiz vs. Castano, 107 SCRA 196 (1981); Montemayor vs. Collado, 107 SCRA 258 (1981).
[18] [19] [20] [21]

Radomes vs. Jakosalem, 320 SCRA 445 (1999). 142 SCRA 127 (1986). 150 SCRA 269 (1987).

National Bureau of Investigation vs. Reyes, 326 SCRA 109 (2000); Nazareno vs. Almario, 268 SCRA 657 (1997); Tabao vs. Espina, 257 SCRA 298 (1996); Centrum AgriBusiness Realty Corporation vs. Katalbas-Moscardon, 247 SCRA 145 (1995); Lee vs. Abastillas, 234 SCRA 29 (1994); Imbing vs. Tiongson, 229 SCRA 690 (1994).

EN BANC

[G.R. No. 135882. June 27, 2001]

LOURDES T. MARQUEZ, in her capacity as Branch Manager, Union Bank of the Philippines, petitioners, vs. HON. ANIANO A. DESIERTO, (in his capacity as OMBUDSMAN, Evaluation and Preliminary Investigation Bureau, Office of the Ombudsman, ANGEL C. MAYOR-ALGO, JR., MARY ANN CORPUZMANALAC and JOSE T. DE JESUS, JR., in their capacities as Chairman and Members of the Panel, respectively, respondents. DECISION PARDO, J.: In the petition at bar, petitioner seeks to-a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, respondents order dated September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes T. Marquez for indirect contempt, received by counsel of September 9, 1998, and their order dated October 14, 1998, denying Marquezs motion for reconsideration dated September 10, 1998, received by counsel on October 20, 1998. b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing of the motion to cite Marquez for indirect contempt, through the issuance by this Court of a temporary restraining order and/or preliminary injunction.[1]

The antecedent facts are as follows: Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated April 29, 1998, to produce several bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of the Philippines, Julia Vargas Branch, where petitioner is the branch manager. The accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and 245-30318-1, involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. Amado Lagdameo, et. al. The order further states: It is worth mentioning that the power of the Ombudsman to investigate and to require the production and inspection of records and documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989 and under existing jurisprudence on the matter. It must be noted that R. A. 6770 especially Section 15 thereof provides, among others, the following powers, functions and duties of the Ombudsman, to wit: x x x

(8) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; (9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein. Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A. 1405) and places the office of the Ombudsman in the same footing as the courts of law in this regard.[2] The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail of managers checks purchased by one George Trivinio, a respondent in OMB-0-970411, pending with the office of the Ombudsman. It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount of P272.1 Million at Traders Royal Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs in the amount of P70.6 million, were deposited and credited to an account maintained at the Union Bank, Julia Vargas Branch.[3] On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B. Macalino at the banks main office, Ayala Avenue, Makati City. The meeting was for the purpose of allowing petitioner and Atty. Macalino to view the checks furnished by Traders Royal Bank. After convincing themselves of the veracity of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.[4]

However, on June 4, 1998, petitioner wrote the Ombudsman explaining to him that the accounts in question cannot readily be identified and asked for time to respond to the order. The reason forwarded by petitioner was that despite diligent efforts and from the account numbers presented, we can not identify these accounts since the checks are issued in cash or bearer. We surmised that these accounts have long been dormant, hence are not covered by the new account number generated by the Union Bank system. We therefore have to verify from the Interbank records archives for the whereabouts of these accounts. [5] The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: firstly, it must be emphasized that Union Bank, Julia Vargas Branch was the depositary bank of the subject Traders Royal Bank Managers Checks (MCs), as shown at its dorsal portion and as cleared by the Philippine Clearing House, not the International Corporate Bank. Notwithstanding the fact that the checks were payable to cash or bearer, nonetheless, the name of the depositor(s) could easily be identified since the account numbers x x x where said checks were deposited are identified in the order. Even assuming that the accounts xxx were already classified as dormant accounts, the bank is still required to preserve the records pertaining to the accounts within a certain period of time as required by existing banking rules and regulations. And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3, 1998, thereby giving the bank enough time within which to sufficiently comply with the order.[6] Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents relative to the accounts in issue. The order states: Viewed from the foregoing, your persistent refusal to comply with Ombudsmans order is unjustified, and is merely intended to delay the investigation of the case. Your act constitutes disobedience of or resistance to a lawful order issued by this office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also constitute obstruction in the lawful exercise of the functions of the Ombudsman which is punishable under Section 36 of R.A. 6770.[7] On July 10, 1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief, prohibition and injunction [8] with the Regional Trial Court, Makati City, against the Ombudsman. The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of her rights from the court due to the clear conflict between R. A. No. 6770, Section 15 and R. A. No. 1405, Sections 2 and 3. Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and other persons acting under his authority were continuously harassing her to produce the bank documents relative to the accounts in question. Moreover, on June 16, 1998, the Ombudsman issued another order stating that unless petitioner appeared before the FFIB with the

documents requested, petitioner manager would be charged with indirect contempt and obstruction of justice. In the meantime,[9] on July 14, 1998, the lower court denied petitioners prayer for a temporary restraining order and stated thus: After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to be without merit. Since the application prays for the restraint of the respondent, in the exercise of his contempt powers under Section 15 (9) in relation to paragraph (8) of R.A. 6770, known as The Ombudsman Act of 1989, there is no great or irreparable injury from which petitioners may suffer, if respondent is not so restrained. Respondent should he decide to exercise his contempt powers would still have to apply with the court. x x x Anyone who, without lawful excuse x x x refuses to produce documents for inspection, when thereunto lawfully required shall be subject to discipline as in case of contempt of Court and upon application of the individual or body exercising the power in question shall be dealt with by the Judge of the First Instance (now RTC) having jurisdiction of the case in a manner provided by law (section 580 of the Revised Administrative Code). Under the present Constitution only judges may issue warrants, hence, respondent should apply with the Court for the issuance of the warrant needed for the enforcement of his contempt orders. It is in these proceedings where petitioners may question the propriety of respondents exercise of his contempt powers. Petitioners are not therefore left without any adequate remedy. The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau vs. Amado Lagdameo, et. el., OMB-0-97-0411, for violation of R.A. 3019. Since petitioner failed to show prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of injunction may be issued by this Court to delay this investigation pursuant to Section 14 of the Ombudsman Act of 1989.[10] On July 20, 1998, petitioner filed a motion for reconsideration based on the following grounds: a. Petitioners application for Temporary Restraining Order is not only to restrain the Ombudsman from exercising his contempt powers, but to stop him from implementing his Orders dated April 29,1998 and June 16,1998; and b. The subject matter of the investigation being conducted by the Ombudsman at petitioners premises is outside his jurisdiction.[11] On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief[12] on the ground that the Regional Trial Court has no jurisdiction to hear a petition for relief from the findings and orders of the Ombudsman, citing R. A. No. 6770, Sections 14 and 27. On August 7, 1998, the Ombudsman filed an opposition to petitioners motion for reconsideration dated July 20, 1998.[13]

[14]

On August 19, 1998, the lower court denied petitioners motion for reconsideration, and also the Ombudsmans motion to dismiss.[15]

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the Ombudsman by Agapito B. Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).[16] On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground that the filing thereof was premature due to the petition pending in the lower court.[17]Petitioner likewise reiterated that she had no intention to disobey the orders of the Ombudsman. However, she wanted to be clarified as to how she would comply with the orders without her breaking any law, particularly R. A. No. 1405. [18] Respondent Ombudsman panel set the incident for hearing on September 7, 1998. After hearing, the panel issued an order dated September 7, 1998, ordering petitioner and counsel to appear for a continuation of the hearing of the contempt charges against her. [20]
[19]

On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above order.[21] Her motion was premised on the fact that there was a pending case with the Regional Trial Court, Makati City, [22] which would determine whether obeying the orders of the Ombudsman to produce bank documents would not violate any law. The FFIB opposed the motion, [23] and on October 14, 1998, the Ombudsman denied the motion by order the dispositive portion of which reads: Wherefore, respondent Lourdes T. Marquezs motion for reconsideration is hereby DENIED, for lack of merit. Let the hearing of the motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt be intransferrably set to 29 October 1998 at 2:00 oclock p.m. at which date and time she should appear personally to submit her additional evidence. Failure to do so shall be deemed a waiver thereof. [24] Hence, the present petition.[25] The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman. And whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law on secrecy of bank deposits (R. A. No. 1405). An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal the following exceptions: 1. Where the depositor consents in writing; 2. Impeachment case; 3. By court order in bribery or dereliction of duty cases against public officials; 4. Deposit is subject of litigation;

5. Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco[26] The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of R. A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI. We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case. In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be absolutely confidential except: (1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, (2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, (3) Upon written permission of the depositor, (4) In cases of impeachment, (5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or (6) In cases where the money deposited or invested is the subject matter of the litigation[27] In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for inspection. Zones of privacy are recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of another. It also holds a public officer or employee or any

private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime of the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code.[28] IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her place to comply with the order dated October 14, 1998, and similar orders. No costs. SO ORDERED.

Ejercito v. Sandiganbayan, 509 SCRA 190 (2006) FACTS: -[In the case of Pp. v. Estrada] Special Prosecution Panel (composed of the Ombudsman, the Special Prosecutor, Deputy Special Prosecutor, Asst. Ombudsman, Special Prosecution III and SP II), filed before Sandiganbayan a request for the issuance of subpoena duces tecum directing the president of Export and Industry Bank (EIB) or his/her representative to produce documents relating to the acts therein specified. -The Special Prosecution Panel likewise requested for issuance of Subpoena Duces Tecum / Ad testificandum directed to the authorized representative of Equitable-PCI Bank to produce statements of accounts in the name of Jose Velarde and testify thereon.

-Estrada, claiming to have learned from the media that the Special Prosecution Panel had requested for the issuance of subpoenas the examination of bank accounts belonging to him, attended the hearing of the case and filed before the Sandiganbayan a letter of opposition and requested that he be given time to retain the services of a lawyer and prayed that the issuance of the subpoena be held in abeyance for at least 10 days to enable him to take appropriate legal steps. -In open court, Associate Justice Sandoval of Sandiganbayan advised Estrada that his remedy was to file a motion to quash, for which he was given up to 12nn the following day. -Estrada unassisted by counsel filed a motion to quash claiming that his bank accounts are covered by RA 1405 and do not fall under any of the exceptions stated therein. -Other requests for issuance of Subpoenas were filed, and thus issued, hence, motion to quash was filed by Estrada but was denied by Sandiganbayan. Sandiganbayan further denied Motion for reconsideration. ISSUES: 1. Whether or not Estradas Account is covered by the term deposit as used in RA 1405. 2. Whether or not Estradas Trust and Savings accounts are excepted from the protection of RA 1405. HELD:

-An examination of RA 1405 shows that the term deposits used therein is to be understood broadly and not limited to accounts which give rise to a creditor-debtor relationship between the depositor and the bank. If the money deposited under an account may be used by banks for authorized loans to third persons, then such account, regardless of whether it creates a creditor-debtor relationship between the depositor and the bank falls under the category of accounts which the law precisely seeks to protect. The phrase of whatever nature proscribes any restrictive interpretation of deposits. RA 1405 applies not only to money which are invested, such as those placed in a trust account. -These accounts are no longer protected by the Secrecy of Bank Deposits Law, there being two exceptions applicable in this case namely: (1) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials, and (2) the money deposited or invested is the subject matter of the litigation. Exception 1 applies since the plunder case pending against former President Estrada is analogous to bribery or dereliction of duty, while exception 2 applies because the money deposited in Estradas bank accounts is said to form part of the subject matter of the same plunder case.

EN BANC JOSEPH VICTOR G. EJERCITO, Petitioner, G.R. Nos. 157294-95 Present: PANGANIBAN, C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ,

- versus -

SANDIGANBAYAN (SPECIAL DIVISION) AND PEOPLE OF THEPHILIPPINES, Respondents .

CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ. Promulgated:

November 30, 2006 x----------- ---------------------------------------x DECISION CARPIO MORALES, J.: The present petition for certiorari under Rule 65 assails the Sandiganbayan Resolutions dated February 7 and 12, 2003 denying petitioner Joseph Victor G. Ejercitos Motions to Quash Subpoenas Duces Tecum/Ad Testificandum, and Resolution dated March 11, 2003 denying his Motion for Reconsideration of the first two resolutions. The three resolutions were issued in Criminal Case No. 26558, People of the Philippines v. Joseph Ejercito Estrada, et al. , for plunder, defined and penalized in R.A. 7080, AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER. In above-stated case of People v. Estrada, et al., the Special Prosecution Panel[1] filed on January 20, 2003 before the Sandiganbayan a Request for Issuance of Subpoena Duces Tecum for the issuance of a subpoena directing the President of Export and Industry Bank (EIB, formerly Urban Bank) or his/her authorized representative to produce the following documents during the hearings scheduled on January 22 and 27, 2003: I. For Trust Account No. 858; 1. Account Opening Documents; 2. Trading Order No. 020385 dated January 29, 1999; 3. Confirmation Advice TA 858; 4. Original/Microfilm copies, including the dorsal side, of the following:

a.

Bank of Commerce MC # 0256254 in the amount of P2,000,000.00; b. Urban bank Corp. MC # 34181 dated November 8, 1999 in the amount of P10,875,749.43; c. Urban Bank MC # 34182 dated November 8, 1999 in the amount of P42,716,554.22; d. Urban Bank Corp. MC # 37661 dated November 23, 1999 in the amount of P54,161,496.52; 5. Trust Agreement dated January 1999: Trustee: Joseph Victor C. Ejercito Nominee: URBAN BANK-TRUST DEPARTMENT Special Private Account No. (SPAN) 858; and 6. Ledger of the SPAN # 858. II. For Savings Account No. 0116-17345-9 SPAN No. 858 1. 2. III. Signature Cards; and Statement of Account/Ledger

Urban Bank Managers Check and their corresponding Urban Bank Managers Check Application Forms, as follows: 1. 2. 3. 4. MC # 039975 dated January 18, 2000 in the amount of P70,000,000.00; MC # 039976 dated January 18, 2000 in the amount of P2,000,000.00; MC # 039977 dated January 18, 2000 in the amount of P2,000,000.00; MC # 039978 dated January 18, 2000 in the amount of P1,000,000.00;

The Special Prosecution Panel also filed on January 20, 2003, a Request for Issuance of Subpoena Duces Tecum/Ad Testificandum directed to the authorized representative of Equitable-PCI Bank to produce statements of account pertaining to certain accounts in the name of Jose Velarde and to testify thereon. The Sandiganbayan granted both requests by Resolution of January 21, 2003 and subpoenas were accordingly issued. The Special Prosecution Panel filed still another Request for Issuance of Subpoena Duces Tecum/Ad Testificandum dated January 23, 2003 for the President of EIB or his/her authorized representative to produce the same documents subject of the Subpoena Duces Tecum dated January 21, 2003 and to testify thereon on the hearings scheduled on January

27 and 29, 2003 and subsequent dates until completion of the testimony. The request was likewise granted by the Sandiganbayan. A Subpoena Duces Tecum/Ad Testificandum was accordingly issued on January 24, 2003. Petitioner, claiming to have learned from the media that the Special Prosecution Panel had requested for the issuance of subpoenas for the examination of bank accounts belonging to him, attended the hearing of the case on January 27, 2003 and filed before the Sandiganbayan a letter of even date expressing his concerns as follows, quoted verbatim: Your Honors: It is with much respect that I write this court relative to the concern of subpoenaing the undersigneds bank account which I have learned through the media. I am sure the prosecution is aware of our banking secrecy laws everyone supposed to observe. But, instead of prosecuting those who may have breached such laws, it seems it is even going to use supposed evidence which I have reason to believe could only have been illegally obtained. The prosecution was not content with a general request. It even lists and identifies specific documents meaning someone else in the bank illegally released confidential information. If this can be done to me, it can happen to anyone. Not that anything can still shock our family. Nor that I have anything to hide. Your Honors. But, I am not a lawyer and need time to consult one on a situation that affects every bank depositor in the country and should interest the bank itself, the Bangko Sentral ng Pilipinas, and maybe the Ombudsman himself, who may want to investigate, not exploit, the serious breach that can only harm the economy, a consequence that may have been overlooked. There appears to have been deplorable connivance. xxxx I hope and pray, Your Honors, that I will be given time to retain the services of a lawyer to help me protect my rights and those of every banking depositor. But the one I have in mind is out of the country right now. May I, therefore, ask your Honors, that in the meantime, the issuance of the subpoena be held in abeyance for at least ten (10) days to enable me to

take appropriate legal steps in connection with the prosecutions request for the issuance of subpoena concerning my accounts. (Emphasis supplied)

From the present petition, it is gathered that the accounts referred to by petitioner in his above-quoted letter are Trust Account No. 858 and Savings Account No. 0116-17345-9.
[2]

In open court, the Special Division of the Sandiganbayan, through Associate Justice Edilberto Sandoval, advised petitioner that his remedy was to file a motion to quash, for which he was given up to 12:00 noon the following day, January 28, 2003. Petitioner, unassisted by counsel, thus filed on January 28, 2003 a Motion to Quash Subpoena Duces Tecum/Ad Testificandum praying that the subpoenas previously issued to the President of the EIB dated January 21 and January 24, 2003 be quashed.[3] In his Motion to Quash, petitioner claimed that his bank accounts are covered by R.A. No. 1405 (The Secrecy of Bank Deposits Law) and do not fall under any of the exceptions stated therein. He further claimed that the specific identification of documents in the questioned subpoenas, including details on dates and amounts, could only have been made possible by an earlier illegal disclosure thereof by the EIB and the Philippine Deposit Insurance Corporation (PDIC) in its capacity as receiver of the then Urban Bank. The disclosure being illegal, petitioner concluded, the prosecution in the case may not be allowed to make use of the information. Before the Motion to Quash was resolved by the Sandiganbayan, the prosecution filed another Request for the Issuance of Subpoena Duces Tecum/Ad Testificandum dated January 31, 2003, again to direct the President of the EIB to produce, on the hearings scheduled on February 3 and 5, 2003, the same documents subject of the January 21 and 24, 2003 subpoenas with the exception of the Bank of Commerce MC #0256254 in the amount of P2,000,000 as Bank of Commerce MC #0256256 in the amount ofP200,000,000 was instead requested. Moreover, the request covered the following additional documents: IV. For Savings Account No. 1701-00646-1: 1. Account Opening Forms; 2. Specimen Signature Card/s; and

3. Statements of Account.

The prosecution also filed a Request for the Issuance of Subpoena Duces Tecum/Ad Testificandum bearing the same date, January 31, 2003, directed to Aurora C. Baldoz, Vice President-CR-II of the PDIC for her to produce the following documents on the scheduled hearings on February 3 and 5, 2003: 1. 2. 3. 4. 5. 6. Letter of authority dated November 23, 1999 re: SPAN [Special Private Account Number] 858; Letter of authority dated January 29, 2000 re: SPAN 858; Letter of authority dated April 24, 2000 re: SPAN 858; Urban Bank check no. 052092 dated April 24, 2000 for the amount of P36, 572, 315.43; Urban Bank check no. 052093 dated April 24, 2000 for the amount of P107,191,780.85; and Signature Card Savings Account No. 0116-17345-9. (Underscoring supplied)

The subpoenas prayed for in both requests were issued by the Sandiganbayan on January 31, 2003. On February 7, 2003, petitioner, this time assisted by counsel, filed an Urgent Motion to Quash Subpoenae Duces Tecum/Ad Testificandum praying that the subpoena datedJanuary 31, 2003 directed to Aurora Baldoz be quashed for the same reasons which he cited in the Motion to Quash[4] he had earlier filed. On the same day, February 7, 2003, the Sandiganbayan issued a Resolution denying petitioners Motion to Quash Subpoenae Duces Tecum/Ad Testificandum datedJanuary 28, 2003.

Subsequently or on February 12, 2003, the Sandiganbayan issued a Resolution denying petitioners Urgent Motion to Quash Subpoena Duces Tecum/Ad Testificandum dated February 7, 2003. Petitioners Motion for Reconsideration dated February 24, 2003 seeking a reconsideration of the Resolutions of February 7 and 12, 2003 having been denied by Resolution of March 11, 2003, petitioner filed the present petition. Raised as issues are: 1. 2. 3. Whether petitioners Trust Account No. 858 is covered by the term deposit as used in R.A. 1405; Whether petitioners Trust Account No. 858 and Savings Account No. 011617345-9 are excepted from the protection of R.A. 1405; and Whether the extremely-detailed information contained in the Special Prosecution Panels requests for subpoena was obtained through a prior illegal disclosure of petitioners bank accounts, in violation of the fruit of the poisonous tree doctrine.

Respondent People posits that Trust Account No. 858 [5] may be inquired into, not merely because it falls under the exceptions to the coverage of R.A. 1405, but because it is not even contemplated therein. For, to respondent People, the law applies only to deposits which strictly means the money delivered to the bank by which a creditor-debtor relationship is created between the depositor and the bank. The contention that trust accounts are not covered by the term deposits, as used in R.A. 1405, by the mere fact that they do not entail a creditor-debtor relationship between the trustor and the bank, does not lie. An examination of the law shows that the term deposits used therein is to be understood broadly and not limited only to accounts which give rise to a creditor-debtor relationship between the depositor and the bank. The policy behind the law is laid down in Section 1: SECTION 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized

by banks in authorized loans to assist in the economic development of the country. (Underscoring supplied)

If the money deposited under an account may be used by banks for authorized loans to third persons, then such account, regardless of whether it creates a creditor-debtor relationship between the depositor and the bank, falls under the category of accounts which the law precisely seeks to protect for the purpose of boosting the economic development of the country. Trust Account No. 858 is, without doubt, one such account. The Trust Agreement between petitioner and Urban Bank provides that the trust account covers deposit, placement or investment of funds by Urban Bank for and in behalf of petitioner.[6] The money deposited under Trust Account No. 858, was, therefore, intended not merely to remain with the bank but to be invested by it elsewhere. To hold that this type of account is not protected by R.A. 1405 would encourage private hoarding of funds that could otherwise be invested by banks in other ventures, contrary to the policy behind the law. Section 2 of the same law in fact even more clearly shows that the term deposits was intended to be understood broadly: SECTION 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (Emphasis and underscoring supplied)

The phrase of whatever nature proscribes any restrictive interpretation of deposits. Moreover, it is clear from the immediately quoted provision that, generally, the law applies not only to money which is deposited but also to those which are invested. This further shows that the law was not intended to apply only to deposits in the strict sense of the word. Otherwise, there would have been no need to add the phrase or invested.

Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No. 858. The protection afforded by the law is, however, not absolute, there being recognized exceptions thereto, as above-quoted Section 2 provides. In the present case, two exceptions apply, to wit: (1) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials, and (2) the money deposited or invested is the subject matter of the litigation. Petitioner contends that since plunder is neither bribery nor dereliction of duty, his accounts are not excepted from the protection of R.A. 1405. Philippine National Bank v. Gancayco[7] holds otherwise: Cases of unexplained wealth are similar to cases of bribery or dereliction of duty and no reason is seen why these two classes of cases cannot be excepted from the rule making bank deposits confidential.The policy as to one cannot be different from the policy as to the other. This policy expresses the notion that a public office is a public trust and any person who enters upon its discharge does so with the full knowledge that his life, so far as relevant to his duty, is open to public scrutiny.

Undoubtedly, cases for plunder involve unexplained wealth. Section 2 of R.A. No. 7080 states so. SECTION 2. Definition of the Crime of Plunder; Penalties. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least Seventy-five million pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State. (Emphasis and underscoring supplied)

An examination of the overt or criminal acts as described in Section 1(d) of R.A. No. 7080 would make the similarity between plunder and bribery even more pronounced since bribery is essentially included among these criminal acts. Thus Section 1(d) states: d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and or business associates by any combination or series of the following means or similar schemes. 1) 2) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. (Emphasis supplied)

3)

4)

5)

6)

Indeed, all the above-enumerated overt acts are similar to bribery such that, in each case, it may be said that no reason is seen why these two classes of cases cannot be excepted from the rule making bank deposits confidential. [8]

The crime of bribery and the overt acts constitutive of plunder are crimes committed by public officers, and in either case the noble idea that a public office is a public trust and any person who enters upon its discharge does so with the full knowledge that his life, so far as relevant to his duty, is open to public scrutiny applies with equal force. Plunder being thus analogous to bribery, the exception to R.A. 1405 applicable in cases of bribery must also apply to cases of plunder. Respecting petitioners claim that the money in his bank accounts is not the subject matter of the litigation, the meaning of the phrase subject matter of the litigation as used in R.A. 1405 is explained in Union Bank of the Philippines v. Court of Appeals,[9] thus: Petitioner contends that the Court of Appeals confuses the cause of action with the subject of the action. In Yusingco v. Ong Hing Lian, petitioner points out, this Court distinguished the two concepts. x x x The cause of action is the legal wrong threatened or committed, while the object of the action is to prevent or redress the wrong by obtaining some legal relief; but the subject of the action is neither of these since it is not the wrong or the relief demanded, the subject of the action is the matter or thing with respect to which the controversy has arisen, concerning which the wrong has been done, and this ordinarily is the property or the contract and its subject matter, or the thing in dispute. The argument is well-taken. We note with approval the difference between the subject of the action from the cause of action. We also find petitioners definition of the phrase subject matter of the action is consistent with the term subject matter of the litigation, as the latter is used in the Bank Deposits Secrecy Act. In Mellon Bank, N.A. v. Magsino, where the petitioner bank inadvertently caused the transfer of the amount of US$1,000,000.00 instead of only US$1,000.00, the Court sanctioned the examination of the bank accounts where part of the money was subsequently caused to be deposited: x x x Section 2 of [Republic Act No. 1405] allows the disclosure of bank deposits in cases where the money deposited

is the subject matter of the litigation. Inasmuch as Civil Case No. 26899 is aimed at recovering the amount converted by the Javiers for their own benefit, necessarily, an inquiry into the whereabouts of the illegally acquired amount extends to whatever is concealed by being held or recorded in the name of persons other than the one responsible for the illegal acquisition. Clearly, Mellon Bank involved a case where the money deposited was the subject matter of the litigation since the money deposited was the very thing in dispute. x x x (Emphasis and underscoring supplied) The plunder case now pending with the Sandiganbayan necessarily involves an inquiry into the whereabouts of the amount purportedly acquired illegally by former President Joseph Estrada. In light then of this Courts pronouncement in Union Bank, the subject matter of the litigation cannot be limited to bank accounts under the name of President Estrada alone, but must include those accounts to which the money purportedly acquired illegally or a portion thereof was alleged to have been transferred. Trust Account No. 858 and Savings Account No. 0116-17345-9 in the name of petitioner fall under this description and must thus be part of the subject matter of the litigation. In a further attempt to show that the subpoenas issued by the Sandiganbayan are invalid and may not be enforced, petitioner contends, as earlier stated, that the information found therein, given their extremely detailed character, could only have been obtained by the Special Prosecution Panel through an illegal disclosure by the bank officials concerned. Petitioner thus claims that, following the fruit of the poisonous tree doctrine, the subpoenas must be quashed. Petitioner further contends that even if, as claimed by respondent People, the extremely-detailed information was obtained by the Ombudsman from the bank officials concerned during a previous investigation of the charges against President Estrada, such inquiry into his bank accounts would itself be illegal. Petitioner relies on Marquez v. Desierto[10] where the Court held:

We rule that before an in camera inspection may be allowed there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case. (Underscoring supplied)

As no plunder case against then President Estrada had yet been filed before a court of competent jurisdiction at the time the Ombudsman conducted an investigation, petitioner concludes that the information about his bank accounts were acquired illegally, hence, it may not be lawfully used to facilitate a subsequent inquiry into the same bank accounts. Petitioners attempt to make the exclusionary rule applicable to the instant case fails. R.A. 1405, it bears noting, nowhere provides that an unlawful examination of bank accounts shall render the evidence obtained therefrom inadmissible in evidence. Section 5 of R.A. 1405 only states that [a]ny violation of this law will subject the offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court. The case of U.S. v. Frazin,[11] involving the Right to Financial Privacy Act of 1978 (RFPA) of the United States, is instructive. Because the statute, when properly construed, excludes a suppression remedy, it would not be appropriate for us to provide one in the exercise of our supervisory powers over the administration of justice. Where Congress has both established a right and provided exclusive remedies for its violation, we would encroach upon the prerogatives of Congress were we to authorize a remedy not provided for by statute. United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977).

The same principle was reiterated in U.S. v. Thompson:[12] x x x When Congress specifically designates a remedy for one of its acts, courts generally presume that it engaged in the necessary balancing of interests in determining what the appropriate penalty should be. See Michaelian, 803 F.2d at 1049 (citing cases); Frazin, 780 F.2d at 1466.

Absent a specific reference to an exclusionary rule, it is not appropriate for the courts to read such a provision into the act.

Even assuming arguendo, however, that the exclusionary rule applies in principle to cases involving R.A. 1405, the Court finds no reason to apply the same in this particular case. Clearly, the fruit of the poisonous tree doctrine[13] presupposes a violation of law. If there was no violation of R.A. 1405 in the instant case, then there would be no poisonous tree to begin with, and, thus, no reason to apply the doctrine. How the Ombudsman conducted his inquiry into the bank accounts of petitioner is recounted by respondent People of the Philippines, viz: x x x [A]s early as February 8, 2001, long before the issuance of the Marquez ruling, the Office of the Ombudsman, acting under the powers granted to it by the Constitution and R.A. No. 6770, and acting on information obtained from various sources, including impeachment (of then Pres. Joseph Estrada) related reports, articles and investigative journals, issued a Subpoena Duces Tecumaddressed to Urban Bank. (Attachment 1-b) It should be noted that the description of the documents sought to be produced at that time included that of numbered accounts 727, 737, 747, 757, 777 and 858 and included such names as Jose Velarde, Joseph E. Estrada, Laarni Enriquez, Guia Gomez, Joy Melendrez, Peachy Osorio, Rowena Lopez, Kevin or Kelvin Garcia. The subpoena did not single out account 858. xxxx Thus, on February 13, 2001, PDIC, as receiver of Urban Bank, issued a certification as to the availability of bank documents relating to A/C 858 and T/A 858 and the non-availability of bank records as to the other accounts named in the subpoena. (Attachments 2, 2-1 and 2-b) Based on the certification issued by PDIC, the Office of the Ombudsman on February 16, 2001 again issued a Subpoena Duces Tecum directed to Ms. Corazon dela Paz, as Interim Receiver, directing the production of documents pertinent to account A/C 858 and T/C 858. (Attachment 3)

In compliance with the said subpoena dated February 16, 2001, Ms. Dela Paz, as interim receiver, furnished the Office of the Ombudsman certified copies of documents under cover latter datedFebruary 21, 2001: 1. Transaction registers dated 7-02-99, 8-16-99, 9-17-99, 10-18-99, 11-22-99, 1-07-00, 04-03-00 and 04-24-00; 2. Report of Unregularized TAFs & TDs for UR COIN A & B Placements of Various Branches as of February 29, 2000 and as of December 16, 1999; and 3. Trading Orders Nos. A No. 78102 and A No. 078125. Trading Order A No. 07125 is filed in two copies a white copy which showed set up information; and a yellow copy which showed reversal information. Both copies have been reproduced and are enclosed with this letter. We are continuing our search for other records and documents pertinent to your request and we will forward to you on Friday, 23 February 2001, such additional records and documents as we might find until then. (Attachment 4) The Office of the Ombudsman then requested for the mangers checks, detailed in the Subpoena Duces Tecum dated March 7, 2001. (Attachment 5) PDIC again complied with the said Subpoena Duces Tecum dated March 7, 2001 and provided copies of the managers checks thus requested under cover letter dated March 16, 2001. (Attachment 6) [14] (Emphasis in the original)

The Sandiganbayan credited the foregoing account of respondent People. [15] The Court finds no reason to disturb this finding of fact by the Sandiganbayan. The Marquez ruling notwithstanding, the above-described examination by the Ombudsman of petitioners bank accounts, conducted before a case was filed with a court of competent jurisdiction, was lawful. For the Ombudsman issued the subpoenas bearing on the bank accounts of petitioner about four months before Marquez was promulgated on June 27, 2001.

While judicial interpretations of statutes, such as that made in Marquez with respect to R.A. No. 6770 or the Ombudsman Act of 1989, are deemed part of the statute as of the date it was originally passed, the rule is not absolute. Columbia Pictures, Inc. v. Court of Appeals[16] teaches: It is consequently clear that a judicial interpretation becomes a part of the law as of the date that law was originally passed, subject only to the qualification that when a doctrine of this Court is overruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good faith. (Emphasis and underscoring supplied)

When this Court construed the Ombudsman Act of 1989, in light of the Secrecy of Bank Deposits Law in Marquez, that before an in camera inspection may be allowed there must be a pending case before a court of competent jurisdiction, it was, in fact, reversing an earlier doctrine found in Banco Filipino Savings and Mortgage Bank v. Purisima[17]. Banco Filipino involved subpoenas duces tecum issued by the Office of the Ombudsman, then known as the Tanodbayan, [18] in the course of its preliminary investigation of a charge of violation of the Anti-Graft and Corrupt Practices Act. While the main issue in Banco Filipino was whether R.A. 1405 precluded the Tanodbayans issuance of subpoena duces tecum of bank records in the name of persons other than the one who was charged, this Court, citing P.D. 1630,[19] Section 10, the relevant part of which states: (d) He may issue a subpoena to compel any person to appear, give sworn testimony, or produce documentary or other evidence the Tanodbayan deems relevant to a matter under his inquiry,

held that The power of the Tanodbayan to issue subpoenae ad testificandum and subpoenae duces tecum at the time in question is not disputed, and at any rate does not admit of doubt.[20]

As the subpoenas subject of Banco Filipino were issued during a preliminary investigation, in effect this Court upheld the power of the Tandobayan under P.D. 1630 to issue subpoenas duces tecum for bank documents prior to the filing of a case before a court of competent jurisdiction. Marquez, on the other hand, practically reversed this ruling in Banco Filipino despite the fact that the subpoena power of the Ombudsman under R.A. 6770 was essentially the same as that under P.D. 1630. Thus Section 15 of R.A. 6770 empowers the Office of the Ombudsman to (8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; A comparison of this provision with its counterpart in Sec. 10(d) of P.D. 1630 clearly shows that it is only more explicit in stating that the power of the Ombudsman includes the power to examine and have access to bank accounts and records which power was recognized with respect to the Tanodbayan through Banco Filipino. The Marquez ruling that there must be a pending case in order for the Ombudsman to validly inspect bank records in camera thus reversed a prevailing doctrine.[21] Hence, it may not be retroactively applied. The Ombudsmans inquiry into the subject bank accounts prior to the filing of any case before a court of competent jurisdiction was therefore valid at the time it was conducted. Likewise, the Marquez ruling that the account holder must be notified to be present during the inspection may not be applied retroactively to the inquiry of the Ombudsman subject of this case. This ruling is not a judicial interpretation either of R.A. 6770 or R.A. 1405, but a judge-made law which, as People v. Luvendino[22] instructs, can only be given prospective application:

x x x The doctrine that an uncounselled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 inMorales v. Enrile and reiterated on 20 March 1985 in People v. Galit. x x x While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales. (Emphasis supplied)

In fine, the subpoenas issued by the Ombudsman in this case were legal, hence, invocation of the fruit of the poisonous tree doctrine is misplaced. AT ALL EVENTS, even if the challenged subpoenas are quashed, the Ombudsman is not barred from requiring the production of the same documents based solely on information obtained by it from sources independent of its previous inquiry. In particular, the Ombudsman, even before its inquiry, had already possessed information giving him grounds to believe that (1) there are bank accounts bearing the number 858, (2) that such accounts are in the custody of Urban Bank, and (3) that the same are linked with the bank accounts of former President Joseph Estrada who was then under investigation for plunder. Only with such prior independent information could it have been possible for the Ombudsman to issue the February 8, 2001 subpoena duces tecum addressed to the President and/or Chief Executive Officer of Urban Bank, which described the documents subject thereof as follows: (a) bank records and all documents relative thereto pertaining to all bank accounts (Savings, Current, Time Deposit, Trust, Foreign Currency Deposits, etc) under the account names of Jose Velarde, Joseph E. Estrada, Laarni Enriquez, Guia Gomez, Joy Melendrez, Peach Osorio, Rowena Lopez, Kevin or Kelvin Garcia, 727, 737, 747, 757, 777 and 858. (Emphasis and underscoring supplied)

The information on the existence of Bank Accounts bearing number 858 was, according to respondent People of the Philippines, obtained from various sources including the proceedings during the impeachment of President Estrada, related reports, articles and investigative journals.[23] In the absence of proof to the contrary, this explanation proffered by respondent must be upheld. To presume that the information was obtained in violation of R.A. 1405 would infringe the presumption of regularity in the performance of official functions. Thus, with the filing of the plunder case against former President Estrada before the Sandiganbayan, the Ombudsman, using the above independent information, may now proceed to conduct the same investigation it earlier conducted, through which it can eventually obtain the same information previously disclosed to it by the PDIC, for it is an inescapable fact that the bank records of petitioner are no longer protected by R.A. 1405 for the reasons already explained above. Since conducting such an inquiry would, however, only result in the disclosure of the same documents to the Ombudsman, this Court, in avoidance of what would be a timewasteful and circuitous way of administering justice,[24] upholds the challenged subpoenas. Respecting petitioners claim that the Sandiganbayan violated his right to due process as he was neither notified of the requests for the issuance of the subpoenas nor of the grant thereof, suffice it to state that the defects were cured when petitioner ventilated his arguments against the issuance thereof through his earlier quoted letter addressed to the Sandiganbayan and when he filed his motions to quash before the Sandiganbayan. IN SUM, the Court finds that the Sandiganbayan did not commit grave abuse of discretion in issuing the challenged subpoenas for documents pertaining to petitioners Trust Account No. 858 and Savings Account No. 0116-17345-9 for the following reasons: 1. These accounts are no longer protected by the Secrecy of Bank Deposits Law, there being two exceptions to the said law applicable in this case, namely: (1) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials, and (2) the money deposited or invested is the subject matter of the litigation. Exception (1) applies since the plunder case pending against former President Estrada is analogous to bribery or dereliction of duty, while exception (2) applies because the

money deposited in petitioners bank accounts is said to form part of the subject matter of the same plunder case. 2. The fruit of the poisonous tree principle, which states that once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible, does not apply in this case. In the first place, R.A. 1405 does not provide for the application of this rule. Moreover, there is no basis for applying the same in this case since the primary source for the detailed information regarding petitioners bank accounts the investigation previously conducted by the Ombudsman was lawful. 3. At all events, even if the subpoenas issued by the Sandiganbayan were quashed, the Ombudsman may conduct on its own the same inquiry into the subject bank accounts that it earlier conducted last February-March 2001, there being a plunder case already pending against former President Estrada. To quash the challenged subpoenas would, therefore, be pointless since the Ombudsman may obtain the same documents by another route. Upholding the subpoenas avoids an unnecessary delay in the administration of justice. WHEREFORE, the petition is DISMISSED. The Sandiganbayan Resolutions dated February 7 and 12, 2003 and March 11, 2003 are upheld. The Sandiganbayan is hereby directed, consistent with this Courts ruling in Marquez v. Desierto, to notify petitioner as to the date the subject bank documents shall be presented in court by the persons subpoenaed. SO ORDERED.

It was the case People v Yatar7 where the Supreme Court admitted DNA evidence in parentage cases, albeit the use of this type of analysis was not immediately evident. People v Yatar is a rape-homicide case wherein biological samples collected from the body of the 16-year old victim were

kept for two years prior to the conduct of DNA tests. To generate the DNA profile of the victim, bloodstains on her clothing that were found at the crime scene were submitted for laboratory testing. In addition, a reverse paternity DNA test was performed using reference samples collected from her parents to verify that the DNA profile generated from the bloodstain was that of the victim and not due to contamination because of prolonged storage. Knowledge of the correct DNA profile of the victim was essential because the vaginal swab collected from her were composed of more than one DNA profile. Hence generation of a reference victims DNA profile facilitated the identification of the nonvictim DNA on the vaginal swab which is that of the perpetrator, provided the evidence was properly handled and not contaminated. Moreover, the victims DNA profile confirmed that the slides containing the vaginal smear stored at room temperature in the local hospital were part of the set of evidence relevant to the case. The Supreme Court admitted the procedures and the interpretation of DNA evidence presented at the Regional Trial Court, and highlighted the utility of DNA evidence, when properly collected, handled and stored, to assist in the prompt and fair resolution of cases: Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the US has proven instructive. In Daubert v Merrell Dow, it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Although the resolution of questioned paternity is normally a civil issue, it may also play an important role in criminal cases such as those involving

rape when the victim also claims that the accused is the father of her child born out of the rape (criminal paternity). The first such case where DNA evidence was used wasPeople v Paras8 where blood typing and DNA profiling results conclusively excluded the accused from being the father of the victims child. To the trial court, the date of the last incidence of rape stated by the victim is important since the child was born 10 months after the said date. According to the trial court, these facts would be in violation of the rule of nature.9 This situation was further reinforced by the results derived from DNA analysis. The results of the laboratory examination, the inconsistencies of the victims testimony and the testimony of the victims mother as well as other evidences presented by the defense in Court on the whereabouts of the accused during the stated time and dates of the incidences of rape cast a very serious doubt in the mind of the court as to the guilt of the accused, Victoriano Paras, on the five information(s) of rape filed against him. WHEREFORE, premises considered, this court on reasonable doubt, acquits, Victoriano Paras, on the five information(s) of rape filed against him. Cost de oficio.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 150224 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant. DECISION PER CURIAM: On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral

damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation. 1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will. CONTRARY TO LAW.2 The facts are: On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyns friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning.3 At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house.4 Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother.5 At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellants eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyns husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8 In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid. 9 Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police.10 At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawangs house. Together with fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m. The police discovered the victims panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. When questioned by the police authorities, appellant denied any knowledge of Kathylynss death,11 however, he was placed under police custody. On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (Hes running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan

recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty." After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS. II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. Appellants contentions are unmeritorious. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.13 Well-entrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judges assessment of credibility deserves the appellate courts highest respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.16 The weight of the prosecutions evidence must be appreciated in light of the wellsettled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime. 17

Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victims abdomen and back, causing a portion of her small intestines to spill out of her body. 18 Rigor mortisof the vicitms body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellants assault on her virtue.22 Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. DNA is a molecule that encodes the genetic information in all living organisms. 23 A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.25 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could

also be transferred to the victims body during the assault. 27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime. 28 The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. 29 In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. 30 Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. 31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. 34 Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since

it is reasonably based on scientifically valid principles of human genetics and molecular biology. Independently of the physical evidence of appellants semen found in the victims vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellants wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victims vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt.35 Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37 The right against self- incrimination is simply against the legal process of extracting from the lips of the accused an admission of

guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law. This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented. Appellants twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawangs house during the time when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens hisalibi. As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt. Appellants assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged. 43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty. However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.44 Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appellant running down the stairs of Isabels house and proceeding to the back of the same house.46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school." 47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmothers house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives x x x."50 These statements were not contradicted by appellant. Thus, appellants motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused

before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred. 51 Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victims lips by stabbing her repeatedly, thereby causing her untimely demise. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as the victims father, stepfather, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The fact that the victims hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.56 In the case at bar, appellant is the husband of the victims aunt. He is seven years older than the victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-laws house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim. Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar. As to damages, civil indemnity ex delicto of P100,000.00, 57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances.60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED. Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. Costs de oficio. SO ORDERED.
People vs. Bardaje 99 SCRA 388 (1980) Real and Demonstrative Evidence FACTS: The accused, Adelino Bardaje was convicted of Forcible Abduction with Rape and sentenced to death. Thus, the case is brought to the SC for automatic review. The complainant Marcelina Cuizon claimed that she was dragged by the accused together with five other persons from the house of a certain Fernandez by means of force and intimidation and at nighttime. Also, she narrated that Bardaje slapped her rendering her unconscious and when she regained consciousness in a hut, Bardaje was holding her hands and removing her panties. Despite her struggle, Bardaje succeeded in having sexual intercourse with her while his companions kept guard. When Cuizon underwent physical examination, the doctor found that there were old healed lacerations which may have been caused by possible sexual intercourse or other factors, and if it were intercourse, it could have occurred two weeks or one month ago. During trial, Adelino admitted having had carnal knowledge of the victim but denied having raped her. He claims that they eloped as previously planned. ISSUE: Whether or not the guilt of Bardaje was established beyond reasonable doubt? RULING: No. Cuizons charge that she was forcibly abducted and afterwards raped was highly dubious and inherently improbable. According to the medical findings, no evidence of external injuries was found around the vulva or any part of the body. Considering that complainant was allegedly dragged, slapped into unconsciousness, wrestled with and criminally abused. Physical evidence is of the highest order and speaks more eloquently than all witness put together.

The medical findings of old healed lacerations in the hymen which according to the testimony of the examining physician would have occurred two weeks or even one month before, if said lacerations had been caused by sexual intercourse. This expert opinion bolsters the defense that Bardaje and Cuizon had previous amorous relations at the same time that it casts serious doubts on the charge of intercourse by force and intimidation. It is impossible that complainant could have been raped by the accused inside a small room occupied by a woman and two children and in a small hut where the owner, his wife and seven children are all present. It is improbable that she could have been sexually abused with so many within hearing and seeing distance. Under the abovementioned circumstances, the Five Others who stood guard outside while Adelino allegedly took advantage of her. Would have taken turns in abusing her if rape indeed happen. The fact that they did not do so, implies a special relationship between Marcelino and Adelino. This is a case where a young girl could not admit to her parents that she had eloped and voluntarily submitted to sexual intercourse. She was left with no choice but to charge Bardaje with rape or incur the ire of her parents and social disrepute from a small community.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29271 August 29, 1980 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADELINO BARDAJE, defendant-appellant.

MELENCIO-HERRERA, J.: The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction with Rape, and sentenced to death. The case is before us on automatic review. On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of First Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS):

The undersigned complainant, after having been duly sworn to according to law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape, committed as follows: That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Lopig, Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, conspiring, confederating together and helping one another, with lewd design, by means of force and intimidation, and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon from the house of one Norma Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her several times while his co-accused were on guard. Contrary to law. (Emphasis supplied). ADELINO was arrested on December 17th, and it was on December 20th, when he signed the alleged confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which was probably the basis for MARCELINA's complaint, presumably prepared with the help of the Fiscal. What has been noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the FIVE OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was "kidnapped". There is no indication in the record as to why Domingo Odal was not included in MARCELINA's complaint as one of the accused. The following day, December 21st, the Fiscal's office filed the following Information with the Court: The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with Illegal Detention committed as follows: That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing, Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this Honorable court the above-named accused, conspiring, confederating together and helping one another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means of force and intimidation, armed with bolos and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the house of one Norma Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her for several times while his co-accused were on guard.

That the commission of the crime the aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men, were present. (Emphasis supplied). It will be noted that the complaint filed directly by MARCELINA with the Court was amended by the Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal charged him with "Rape with Illegal Detention". MARCELINA merely alleged that she was dragged from the house of Norma Fernandez by means of force and intimidation and at nighttime. On the other hand, the Information added that the accused were "armed with bolos". The name of the barrio was also changed from Lopig to Crossing. Lastly, the Information included the allegation that the crime of Rape with Illegal Detention was committed with the "aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men". Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood trial. The period of the offense was from December 14th to 17th, with the complaint having been filed on December 20th, or barely three (3) days thereafter. With that time frame in mind, an analysis of the Information will show the assumption that only ADELINO was the principal culprit while the FIVE OTHERS were either principals by cooperation or accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it was ADELINO who had dragged MARCELINA "with" the help of the FIVE OTHERS. Both the complaint and Information also indicated that ADELINO was the only one who committed the rape, while the FIVE OTHERS were merely accomplices. On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include the allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3) days, which allegation could be taken into account in connection with Illegal Detention 2 but not in connection with Forcible Abduction. 3 Since according to Exhibit "C", MARCELINA was "kidnapped" at midnight of December 14th, and ADELINO was arrested in the morning of December 17th, or an interval of less than 72 Hours, it could not be correctly pleaded that MARCELINA was deprived of liberty for three (3) days. 4 After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967, in which he specifically argued that "the prosecution did not establish the elements of Rape and Illegal Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in the Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the crime which should be imputed to ADELINO is Rape with Forcible Abduction. The prosecution's Memorandum stated: Although the information is for Rape with Illegal Detention instead of Rape with Forcible Abduction, yet from the body of the information it could be clearly gleaned that the elements of abduction are sufficiently

alleged therein and hence the accused can be convicted thereunder (People vs. Emiliano Javete, CA 01956-57-CR April 7, 1964 (82-1965). The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced him to death. The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14, 1965 while she was then eating supper, ADELINO, whom she knew when they were "still small", and who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS, entered the house and began drinking "sho hoc tong" which they brought along. After the liquor had been fully consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She then ran to the room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed her, tried to extricate her from her mother's embrace and dragged the two of them to the sala. Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and the four males, two of whom were armed with bolos, forced her downstairs and by holding and dragging her, brought her to the mountain about two kilometers from Barrio Crossing. That was about 12 midnight. On the way, ADELINO slapped her rendering her unconscious. She regained consciousness in a hut, with ADELINO holding her hands, and removing her panty. She bit and kicked him. Despite her struggle, ADELINO succeeded in having sexual intercourse with her while his other companions stayed outside on guard. Under cross-examination, MARCELINA declared that she did not know who owned the hut and that it was just a one-room affair where a woman and two small children lived; that she and Appellant slept in that same room as the woman, while the FIVE OTHERS slept near the kitchen. 5 At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at the house of one called Ceferino (also called Cipriano) who lived there with his family. She was kept in one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed with bolos, drinking and guarding her. In the evening, ADELINO had another sexual intercourse with her even though she bit and kicked him and shouted for help which was to no avail as all present were relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita (daughter of Ceferino) the next day, because ADELINO threatened to kill her if she did not. Her curling paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma Fernandez (her cousin) who gave the equipment as she (Norma) was also threatened. MARCELINA and her "captors" stayed in Ceferino's house for two days. In the morning of December 17, two

soldiers with her father, Alejo Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE OTHERS jumped down the window and fled. Upon her father, she embraced him and cried. They all returned to Barrio Crossing. She and her mother, Maria Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital. When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were living in the same hut where she was taken the second time, which hut was about waist high from the ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room and the sala was a wall of split bamboos so that noise inside the room could be heard clearly from the other side. 6 Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the following findings: 1. No evidence of external injuries around the vulva or any part of the body. 2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock. 3. Vagina easily admits two fingers. 4. Vaginal smear negative for spermatozoa
7

Explaining the "old healed laceration", the doctor stated that laceration may have been caused by possible sexual intercourse or other factors, and if it were intercourse, he estimated that it could have occured " say, two weeks or one month" or possibly more. 8 For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but denied having raped her. He claims that they eloped on December 14 to 17, 1965 as previously planned, they having been sweethearts since November 12, 1964. As such, they used to date in Tacloban and "anything goes". MARCELINA's family used to have a house in Barrio Crossing but now MARCELINA just stays in the house of her aunt, Sofia, which is about five houses away from theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's mother and others were eating, MARCELINA handed him a bag and beauty culture equipment through the window, went downstairs, after which the two of them walked to the mountains, to Ceferino Armada's house. Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with 18-year old Narita, Ceferino's daughter. While in that hut, food was brought to them by his sister, Nenita. MARCELINA curled Narita's hair the next day.

In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him and embraced him and said she was to blame. notwithstanding, he was boxed by the soldiers as instructed by MARCELINA's father and taken to Maulong PC Headquarters for questioning. During the investigation, he was boxed and kicked and was forced to sign a statement implicating the FIVE OTHERS as his companions even if untrue. He did not know who attested to his statement as one Sgt. Gacelos took the document elsewhere. Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly brought the second time, corroborated that portion of ADELINO's testimony regarding their stay in his house adding that MARCELINA and ADELINO had told him that they had eloped; that MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's), and helped in house chores and in the threshing of palay, while ADELINO helped in carrying palay because it was rainy. The trial Court found the prosecutors version of the incident more worthy of credence stating that Complainant had no improper motive to implicate ADELINO in such a detestable crime as Rape. On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has not been established beyond reasonable doubt. In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on the credibility of a complainant's testimony since by the intrinsic nature of those crimes they usually involve only two persons the complainant and the accused. The offended party's testimony, therefore, must be subjected to thorough scrutiny for a determination of its veracity beyond reasonable doubt. In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable. To start with, according to the medical findings, "no evidence of external injuries was found around the vulva or any part of the body" of Complainant, a fact which is strange, indeed, considering that Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and criminally abused. Physical evidence is of the highest order and speaks more eloquently than an witnesses put together. We are also faced with the medical finding of "old healed lacerations" in the hymen which, according to the testimony of the examining physician would have occurred two weeks or even one month before if said lacerations had been caused by sexual intercourse. This expert opinion bolsters the defense that MARCELINA and ADELINO had previous amorous relations at the same time that it casts serious doubts on the charge of intercourse by force and intimidation.

Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room affair occupied by a woman and two small children. Her charge, therefore, that she was ravished in that same room is highly improbable and contrary to human experience. Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that of Ceferino Armada, consisted of a small room separated from the sala by a wall of split bamboos. Further, that Ceferino with his wife and seven children all lived therein. It challenges human credulity that she could have been sexually abused with so many within hearing and distance. It is unbelievable, too, that under those circumstances the FIVE OTHERS could have stood guard outside, armed with bolos and drinking, while ADELINO allegedly took advantage of her. If rape were, indeed, their malevolent intent, they would, in all probability, have taken turns in abusing her. That they did not, indicates that there was, indeed, some special relationship between MARCELINA and ADELINO. Furthermore, with people around, and the hut constructed as it was, it would have been an easy matter for MARCELINA to have shouted and cried for help. Surely, the old man Ceferino, his wife and/or his children could not have been insensible to her outcries notwithstanding their relationship to ADELINO. The aphorism still rings true that evidence to be believed must not only come from the mouth of a credible witness but must be credible in itself. Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's daughters, a fact inconsistent with her allegation of "captivity". That she was threatened with death if she did not accede to such an inconsequential request defies credulity. The livelihood is that, as the defense maintains, MARCELINA was not forcibly abducted but that she and ADELINO had, in fact, eloped and that she had brought her beauty culture paraphernalia with her, or, that she herself had sent for them from her cousin Norma Fernandez voluntarily and not under threat from ADELINO. The totality of the foregoing circumstances count with such great weight and significance that they lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had been "kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual intercourse, it was because of force or intimidation exercised upon her. They are circumstances that were overlooked by the trial Court and justify a reversal of its finding of guilt as an exception to the established rule that the findings of fact of a trial Judge based on the relative credibility of witnesses are entitled to great respect and will not be disturbed by appellate Courts. This case also constitutes an exception to the general belief that a young girl would not expose herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit who had ravished and shamed her placed behind bars. As we view it, MARCELINA was confronted with a paradoxical situation as a daughter

of relative tender age who could not shamefacedly admit to her parents that she had eloped and voluntarily submitted to sexual intercourse, since that elopement must have met with righteous indignation on the part of her parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO with rape or incur the ire of her parents and social disrepute from a small community. In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial confession made by an accused shag not be sufficient ground for conviction unless corroborated by evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that the crime prosecuted had been committed. That proof has not been met in the case at bar, the evidence establishing more of an elopement rather than kidnapping or illegal detention or forcible abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when being investigated by soldiers, 10 without benefit of counsel nor of anyone to advise him of his rights. Aside from his declaration that Ws confession was obtained through maltreatment and violence, 11 it was also vitiated by a procedural irregularity testified to by no less than prosecution witness Sgt. Pedro Gacelos to the effect that he and room after he presented the statement to the Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so called confession was attested without ADELINO's presence so that the latter cannot be said to have duly subscribed and sworn to it. It should also be noted that throughout the hearings before the trial Court, it was assumed that ADELINO was being held responsible for the complex crime of Rape with Illegal Detention. While it is true that an accused can be punished for a crime described by the facts alleged in tile Information despite a wrong designation of the crime in the preamble of the Information, 13 yet, in capital cases, it should be desirable that, whenever a discrepancy is noted between the designation of the crime made by the Fiscal and the crime described by the facts pleaded in his Information. The lower Court should call attention of the accused to the discrepancy, so that the accused may be fully apprised of the nature and cause of the accusation against him. This was not done in regards to ADELINO who all the time was under the impression that he was being tried for Rape with Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had known that he was being tried for Forcible Abduction with Rape, he may have changed the strategy or tactics of his defense. Not that it could be said he would have done so; but he should have been advised he had the right, and given the opportunity, to do so. Again, one of the rights of an accused is "to have compulsory process issued to secure the attendance of witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in the house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well as the hair of other girls in the vicinity. ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But instead of taking effective steps to have Narita brought to Court,

the lower court gave responsibility for Narita's attendance to the defense, expressly stating that, if the defense was not able to bring her to the Court, her testimony will be dispensed with. The record shows: ATTY. BOHOL I appear as counsel for the accused. Up to now, Your Honor, the witnesses we have been expecting have not yet arrived. This representation, with the consent of the Clerk of Court have wired the Chief of Police of Sta. Rita, Samar to bring Ceferino Armada and Narita Armada tomorrow for the hearing, continuation of this case for those persons mentioned to testify, your Honor, for the accused. We pray, Your Honor, that we be given time to hear from the Chief of Police to bring those persons tomorrow, Your Honor. COURT What will be the nature of the testimonies of those witnesses. xxx xxx xxx COURT How about the other girl? ATTY. BOHOL Narita Armada will substantially be corroborative, Your Honor. COURT Suppose the two witnesses do not arrive tomorrow, for which this case is set also? ATTY. BOHOL If we receive information and find that those witnesses could really not come for this case, Your Honor, I will be constrained to submit the case for decision based on the testimony of the accused. However, Your Honor, if it will be all right with the Honorable Court and we find that there

is hope that within this week Ceferino Armada could come here, in view of the distance, I pray before the Honorable Court that we be given time within this week to present Ceferino Armada, and upon his failure, submit the case for decision COURT The Court will not allow that anymore, anyway this case is set for tomorrow. The Court wail grant the postponement today on condition that any witness not presented tomorrow will be considered waived Afterall as you have manifest, 4 their testimonies will be corroborative. xxx xxx xxx COURT What I mean is that you should have taken the necessary precaution for the attendance of your witness today considering that there is a subpoena for the witnesses.ORDER - for the reason that accused have no more witnesses to present today, the trial of this case is hereby Postponed for tomorrow, July 26, 1967 at 8:30 A.M., with the warning that witnesses not presented during that day shall be considered waived. 15 Considering that this case involved a prosecution for a capital offense, the lower Court acted precipitously in not having Narita brought to Court, by ordering her arrest if necessary ADELINO was deprived of his right "to have compulsory process issued to secure the attendance of witnesses on his behalf." Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA testified before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC Sgt. who investigated the complaint against ADELINO, testified: Q. Was that investigation of M Cuizon reduced to writing? A. Yes, Sir. 16 It would have been advisable if the lower Court had right then and there asked for the production of the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse previous to December 14th. On the other hand, ADELINO had testified that he and MARCELINA used to go together to Tacloban, and while there several times, "we had sexual intercourse because she likes it." 17 Considering the possible infliction of the death penalty on ADELINO, the lower Court could have asked MARCELINA if she had had sexual intercourse prior to December 14th and, if so, if it was with ADELINO. Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The lower Court could have asked MARCELINA if she realized that, charging ADELINO with Rape with Illegal Detention, the latter could be sentenced to death. If that had been explained to her clearly by the lower Court, she might then have admitted that she was neither raped nor "kidnapped" nor illegally detained. MARCELINA could had been examined on the two matters mentioned above, with the Court excluding the public from the hearing under the provisions of Rule 119, Section 14. MARCELINA might have testified without feeling the pressure of her relatives or other persons, if such pressure had in fact existed. It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged trial Judges have been enjoined to refrain from accepting them with alacrity but to be extra solicitous in seeing to it that an accused fully understands the import of his plea, so also, in prosecutions for capital offenses, it behooves the trial Courts to exercise greater care in safeguarding the rights of an accused. The trial Judge should also take a more active role by means of searching questions in the examination of witnesses for the ascertaintment of the truth and credibility of their testimonies so that any judgment of conviction imposing the supreme penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand no less. WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty, is reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged. His immediate release is ordered unless lie is held on other charges. Costs de oficio. SO ORDERED.