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G.R. No.

126696 January 21, 1999


SECURITY BANK & TRUST COMPANY, petitioner,
vs.
TRIUMPH LUMBER AND CONSTRUCTION CORPORATION, respondent.

DAVIDE, JR., C.J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court the
petitioner asks this Court to reverse the decision
1
of 28 December 1995 and the
resolution
2
of 17 September 1996 of the Court of Appeals in CA-G.R. CV No,
33513. The former set aside the decision
3
of 14 November 1990 of the Regional
Trial Court (RTC) of Makati in Civil Case No. 16882 and ordered the petitioner to
reimburse the private respondent the value of the alleged forged checks drawn
against private respondent's account, plus interest and attorney's fees. The
latter denied petitioner's motion for reconsideration.
Petitioner and private respondent were the defendant and plaintiff
respectively, in Civil Case No. 16882.
The factual antecedents of this case were summarized by the trial court in its
decision in Civil Case No. 16882; thus:
Based on plaintiffs evidence, it appears that plaintiff is a depositor
in good standing of defendant bank's branch at Sucat, Paraaque,
under current checking account no. 210-0053-60. Plaintiff claims
that on March 23 and 24, 1987, three (3) checks all payable to cash
and all drawn against plaintiffs aforementioned current account
were presented for encashment at defendant's Sucat Paraaque
branch, to wit: Security Bank check nos. 466779 and 466777, both
dated March 23, 1987 in the amount of P150,000.00 and
P130,000.00, respectively; and Security Bank Check no. 466780
dated March 24, 1987 in the amount of P20,000.00. (Exhs. A, A-1 to
A-3, B, B-1 to B-3, C, C-1 to C-3) Plaintiff also claims that due to
defendant bank's gross negligence and inexcusable negligence in
exercising ordinary diligence in verifying from plaintiff the
encashment of plaintiff's checks whose amount exceed P10,000.00
and in determining the forgery of drawer's signatures, the
aforesaid three (3) checks were encashed by unauthorized persons
to the damage and prejudice of the plaintiff corporation(the said 3
checks were encashed without the authorization from the
depositor). (Exhs, D, D-l, D-2) Plaintiff then requested the
defendant to credit back and restore to its account the value of the
checks which were wrongfully encashed in the amount of
P300,000.00 but despite due demand the defendant failed to pay
its liability. (Exhs. F, F-l, F-2) Finally, plaintiff claims that per findings
of the PC Crime Laboratory, the signatures of Co Yok Teng and Yu
Chun Kit, the authorized [signatories] of plaintiff were forged.
(Exhs.E, E-1, to E-4, G, G-1, G-2, H, I, I-1, I-2)
Upon the other hand, the defendant bank claims that on June 19,
1985 the plaintiff corporation opened savings account no. 3220-
0529-79 and current account no. 3210-0053-60 with defendant
bank's branch in Sucat, Paraaque, Metro Manila. In order to make
the said current and savings account operational, the plaintiff
herein provided the defendant with the requisite specimen
signature cards which in effect authorized defendant bank to
honor withdrawals on the basis of any two of three signatures
affixed thereon, specifically those of Mr. Dee Kong, Mr. Co Yok
Teng and Mr. Chun Yun Kit, the president, treasurer and general
manager, respectively, of plaintiff corporation. (Exhs. 3, 4)
Subsequently, plaintiff executed an automatic transfer agreement
authorizing defendant bank to transfer cleared funds from
plaintiff's savings account to its current account at any time
whenever funds in the current account are insufficient to meet
withdrawals therefrom or are below the stipulated minimum
balance. (Exhs. 5, 6, 6-A) Defendant also claims that the savings
account pass book and the check booklets were kept by the
plaintiff in its filing cabinet but on March 23, 1987 the plaintiff
herein discovered that the door of his office was forced open
including that of the filing cabinet where the check booklets and
other bank documents were being kept by the plaintiff. (pp. 32-33,
TSN of August 15, 1988) Defendant further claims that the incident
was not reported to the police authorities by the plaintiff nor was
there any advise given to defendant bank and that on the same
day of the discovery by plaintiff of the burglary, said plaintiff
nevertheless made three separate deposits in a total amount of
P374,554.10. (Exhs. 1, 1-A, 1-B, 2-A, 2-B) Defendant also claims that
immediately after the said deposit of P374,554.10 has been made
by the plaintiff, three checks namely: check no. 466779 dated
March 23, 1987 in the amount of P130,000.00; check no. 466779
dated March 23, 1987 of P150,000.00 and check no. 466780 dated
March 24, 1987 in the amount of P20,000.00 which [were] all
payable to cash were successively presented to defendant bank
for encashment which was given due course by the latter after said
checks have passed through the standard bank procedure for
verification the check signatures and the regularity of the material
particular of said checks. (pp. 6, 19, 20, 39, TSN of February 1, 1989,
p. 21, TSN of August 15, 1988)
4

On the basis of such factual environment, the trial court found no
preponderance of evidence to support private respondent's complaint. The
private respondent failed to show that the signatures on the subject checks
were forged. It did not even present in court the originals of the checks.
Neither did it bother to explain its failure to do so. Thus, it could be presumed
that the original checks were willfully suppressed and would be adverse to
private respondent's case if produced. Moreover, the signatures on the checks
were not compared with the specimen signatures appearing on the specimen
signatures cards provided by the private respondent upon opening its current
account with petitioner. Thus, the opinion of the expert witness is not worthy
of credit. Besides, the private respondent failed to present Mr. Co Yok Teng,
one of the signatories of the checks in question, to deny the genuineness of
the signatures.
The trial court was convinced that the petitioner bank had exercised due care
and diligence in determining the authenticity of the checks in question before
they were encashed. It was rather the private respondent that had been
negligent in the care and custody of the corporate checks. After the incident in
question occurred, the private respondent should have reported the matter to
the police authorities or to the bank in order that the latter could "undertake
stringent measure to counteract any attempt to forge the corporate checks."
But private respondent did not. Hence, private respondent should be the one
to bear the loss.
In view of such findings, the trial court is missed the complaint for lack of merit.
On appeal, the Court of Appeals reversed the decision of the trial court and
ordered the petitioner to reimburse the private respondent the sum of
P300,000, plus interest at the rate of 21/2 % per month from 24 March 1987 until
full payment thereof, as well as attorney's fees equivalent to 25% of the
principal obligation.
The Court of appeals held that it was not necessary for the private respondent
to prove that the signatures on the three checks in question were forged of the
following admissions set forth in petitioner's answer:
14. Plaintiff was guilty of negligence substantially contributing to
the unauthorized signatures or for forgery of the signatures on the
checks mentioned in the complaint.
xxx xxx xxx
15. The alleged forged signatures on the checks were sufficiently
adroit as to escape detection even under the officer's scrutiny.
xxx xxx xxx
20.3 Anna P. Naval and Roberto N. Gabutao verbally admitted that
the checks were forged.
xxx xxx xxx
21. Anna Naval and Roberto Gabutao are now facing charges for
estafa thru Falsification of Commercial Documents under Criminal
Case No. 30004 pending with the Regional Trial Court, National
Capital Judicial Region, sitting at Makati, Metro Manila.
According to the Court of Appeals, the expert witness, contrary to the trial
court's finding, was able to examine the signatures on the original checks and
compared them with the standard signatures of the signatories. The
photographic enlargements of the questioned checks, which she identified in
court, were in fact taken from the original checks. With the bank's admission in
its answer, as well as the unrebutted testimony of the expert witness and of
Chun Yun Kit, there could be no doubt that the signatures on the questioned
checks were forged.
The Court of Appeals likewise held that the petitioner must be the one to bear
the consequences of its failure to detect the fogery. Besides, petitioner was
"less than prudent" in the treatment of private respondent's account. It did not
observe its arrangement with the private respondent that it would inform the
latter whenever a check of more than P10,000 would be presented for
encashment. Neither did it ask the payee to present an identification card or to
bring someone who could attest to identity of the payee.
After its motion for reconsideration was denied
5
by the Court of Appeals,
petitioner filed this petition contending that the Court of Appeals erred in
holding that
I
. . . THE SIGNATURES ON THE CHECKS IN QUESTION WERE
FORGED.
II
. . . WHETHER THE SIGNATURES WERE FORGED IS NO LONGER AN
ISSUE IN THE CASE CONSIDERING THE AFFIRMATIVE DEFENSES
SET FORT IN PETITIONER'S ANSWER.
III
. . . THE PETITIONER ITSELF WAS NEGLIGENT AND THAT
RESPONDENT EXERCISED DUE CARE IN THE CUSTODY OF ITS
CHECKS AND OTHER RELATED DOCUMENTS.
IV
. . . RESPONDENT IS ENTITLED TO REIMBURSEMENT OF
P300,000.00 PLUS INTEREST THEREOF AS WELL AS ATTORNEY'S
FEES.
In the first assigned error, the petitioner alleges that the best evidence of the
forgery were the original checks bearing the alleged forged signatures of
private respondent's officers. In spite of the timely objection made by the
petitioner, the private respondent introduced in evidence mere photocopies of
the questioned checks. The failure to produce the originals of the checks was a
fatal omission inasmuch as there would be no evidentiary basis for the court to
declare that the instruments were forgeries. Likewise such failure amounted to
a willful suppression of evidence, which created a presumption that its
production would be unfavorable to respondent's case.
6
It could also be
presumed that "the checks in question [were] genuine checks regularly issued
by the respondent in the course of its business, bearing the genuine signatures
of the officers whom it authorized to sign in its behalf." Also, an unfavorable
inference could be drawn from the unexplained failure of private respondent
to call as its witness Mr. Co Yok Teng, whose signature was among those
allegedly forged.
Petitioner further contends that the opinion of private respondent's expert
witness, Crispina V. Tabo, Senior Document Examiner of the PC Crime
Laboratory, has no weight and deserves no consideration. Tabo did not use as
basis of her analytical study the standard signatures of Chun Yun Kit and Co
Yok Teng on the specimen signature cards provided by the private respondent
upon opening Current Account No. 3210-0523-60 with the petitioner. It was to
be against these standard signatures appearing on the specimen cards that
petitioner was to honor checks drawn against private respondent's account.
What Tabo utilized for comparisons were signatures that were not even
authenticated by Chun Yun Kit and Co Yok Teng. Neither was it proved that the
supposed standard signatures had been written "closely proximate" to the
date of the questioned checks. Moreover, the "requested signatures" on the
long bond paper written post litem motam could not be accepted as standards
of comparison "because of the ease with which they [could] be disguised to
intentionally differentiate them from those being challenged."
8

As to the second assigned error, petitioner maintains that its Answer contained
a specific denial of private respondent's allegation of forgery. It could set in its
answer affirmative and negative defenses alternatively even if they were
inconsistent with each other.
9

With respect to its third assigned error, petitioner asserts that it exercised due
care and diligence in the payment of private respondent's checks by first
verifying in accordance with standard bank practices and procedures the
genuineness of the signatures and endorsements. Upon the other hand, the
private respondent, in the management of its business affairs, fell short of the
diligence and the ordinary prudence required under the circumstances. It
should have advised petitioner of the alleged burglary that petitioner could
have applied stricter rules in the processing of checks drawn against private
respondent's account, but it did not bother to do so. Neither did it reconcile its
account balances with the petitioner in order to forestall the happening of the
forgery.
In the last assigned error, the petitioner alleges that in view of the reasons it
stated in the first and third assigned errors the petitioner cannot be obliged to
pay the amount of P300,000 plus interest. On the contrary, petitioner is
entitled to an award of attorney's fees because private respondent's complaint
was "insincere, baseless, and intended to harass, annoy and defame [it]."
10

Upon the other hand, the respondent claims that petitioner should have filed
"a petition for review by certiorari and not merely a petition for review." The
determination of negligence by the Court of Appeals is a question of fact that
cannot be disturbed on appeal. Even assuming that the instant case is an
exeption to the rule limiting the appellate jurisdiction of the Supreme Court to
reviewing errors of law nonetheless, the issue of forgery was adequately
proved by preponderance of evidence.
This appeal is meritorious.
Well settled is the rule that in the exercise of our power of review the findings
of facts of the Court of Appeals are conclusive and binding on this Court.
However, there are recognized exceptions, among which is when the factual
findings of the trial court and the appellate court are conflicting.
11
The
disagreement between the trial court and the Court of Appeals in the factual
conclusion, especially with regard to the alleged forgery of the signatures on
the questioned checks and the negligence of the parties, has constrained us to
examine the evidence submitted by the parties.
On the issue of forgery, we are unable to agree with the finding of the Court of
Appeals that the petitioner admitted in its Answer
12
to the complaint the
forgery of the signatures. Far from admitting the forgery, petitioner
categorically denied that the signatures on the questioned checks were
forgeries. However, by way of an alternative affirmative defense, petitioner
contended that it had exercised reasonable degree of diligence in detecting
whether there was forgery Even assuming that the signatures on the checks
were forged, still petitioner could not be held liable for the value of the checks
because all the checks were complete and regular on their face. The alleged
forged signatures were "sufficiently adroit as to escape detection even under
the officer's scrutiny."
The Court of Appeals also erred in holding that forgery was duly established.
First, Section 3, Rule 130 of the Rules of Court was not complied with by private
respondent. The Section explicitly provides that when the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the
original document itself. This is what is known as the "best evidence" rule. The
exceptions are as follows:
1. When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
3. When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss
of time, and the fact sought to be established from them is only
the general result of the whole; and
4. When the original is a public record in the custody of a public
officer or is recorded in a public office.
In this case, the originals of the alleged forged check has to be produced since
it was shown that any of these exceptions was present. What the private
respondent offered were mere photocopies of the checks in question marked
as Exhibits "A," "B," and "C,"
13
It never explained the reason why it could not
produce the originals of the checks. Its expert witness Crispina Tabo admitted
though that the original checks were taken back by the investigating
policeman, Glen Ticson; thus:
ATTY. NARAG:
Q Do you have a copy, Madam Witness of the checks
which were submitted to you under question?
A It was only a xerox copy, because the original was
withdrawn by the investigating policeman, which is in
(sic) the name of Glenn Ticzon, sir.
Q Do you want to impress the court that the originals
of these checks were submitted to you?
A Yes, sir.
Q Do you have a copy of the originals of the checks
under (sic) standards?
A Xerox copies only, because it was also withdrawn by
the investigating policeman, who is Mr. Glenn
Ticzon.
14

Yet, the said policeman was not presented to produce the original checks.
It is true that the photocopies of the questioned checks were all identified by
private respondent's witness Yu Chun Kit during his direct testimony
15
without
objection on the part of petitioner's counsel. The latter even cross-examined
Yu Chun Kit,
16
and, at the formal offer of said exhibits, he objected to their
admission solely on the grounds that they were "irrelevant, immaterial and self-
serving."
17
The photocopies of the checks may therefore be admitted for
failure of petitioner to tender an appropriate objection
18
to their admission.
Nevertheless, their probative value is nil.
19

Then, too, .the proper procedure in the investigation of a disputed handwriting
was not observed. The initial step in such investigation is the introduction of
the genuine handwriting of the party sought to be charged with the disputed
writing, which is to serve as a standard of comparison.
20
The standard or the
exemplar must therefore be proved to be genuine.
21
For the purpose of
proving the genuineness of a handwriting Section 22, Rule 132 of the Rules of
Court provides:
Sec. 22. How the genuineness of handwriting is proved. The
handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he has
seen the person write, or has seen writing purporting to be his
upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison,
made by the witness or the court, with writings admitted or
treated as genuine by the party against whom the evidence is
offered, or proved to be genuine to the satisfaction of the judge.
In BA Finance v. Court of Appeals,
22
we had the occasion to rule that the
genuineness of a standard writing may be established by any of the following:
(1) by the admission of the person sought to be charged with the disputed
writing made at or for the purposes of the trial, or by his testimony; (2) by
witnesses who saw the standards written or to whom or in whose hearing the
person sought to be charged acknowledged the writing thereof; (3) by
evidence showing that the reputed writer of the standard has acquiesced in or
recognized the same, or that it has been adopted and acted upon by him in his
business transactions or other concerns.
We find in the records only photocopies, not the originals, of the "long bond
papers" containing the alleged specimen signatures.
23
Nobody was presented
to prove that the specimen signatures were in fact signatures affixed by Yu
Chun Kit and Co Yok Teng. Although the former took the witness stand, he was
never called to identify or authenticate his signatures on the said photocopy.
Clearly then, Section 22 of Rule 132 of the Rules of Court and the guidelines set
forth in BA Finance v. Court of Appeals
24
were not complied with.
Moreover, the so-called specimen signatures on the bond paper were not
directly turned over to Tabo by those who purportedly wrote them. They,
together with the questioned checks, were first submitted to the
Administration Branch of the PC Crime Laboratory, then endorsed to the
Questioned Document Branch. The chief of the latter branch thereafter
referred them to Tabo. Tabo never saw the parties write the specimen
signatures. She just presumed the specimen signatures to be genuine
signatures of the parties concerned. These facts were disclosed by Tabo during
her cross-examination; thus:
Q These question [sic] signatures and the specimen or
signatures or standard were just given to you by the
police of Paraaque?
A It was submitted to the Administrative Branch and the
Administrative Branch endorsed that to the Question
the Document Branch and the Chief of the Document
Branch assigned that case to me, sir That is why I
received it and examined it.
COURT:
Q How do you know that, that is the genuine signatures?
A'ITY. REVILLA
Yes, how do you know that, that is the genuine
signatures when you were not able to see him
personally write his signature?
A Because I examined the genuine signatures of Co Yok
Teng which was submitted to the office by the
investigator and it said to be genuine, and I compared
the signature whether genuine or not. And upon
comparing, all the specimen signatures were written by
one, and also comparing all the question [sic] signatures,
this one (pointing to the chart) are written by one so,
they were written, the question [sic] and specimen were
written by two different persons.
Q You did not ask the person to personally give his
signature in order that there will be basis of
comparison between standard signature and the
question [sic] signature?
A Your Honor, if the specimen signature is not
sufficient enough to arrive at a conclusion, we will tell
the investigator to let the person involved to come to
our office to write and sign his signature, if it is not
sufficient to arrive at a conclusion we let him sign.
Q So, you do not normally demand his income tax for
example, the residence certificate or other documents
which contained this undisputed signature?
A. We did not ask anymore additional specimen
because the submitted document is sufficient enough
to arrive at the conclusion.
ATTY. REVILLA:
Q So, you just relied on what were given to you by the
investigator as they informed you that these were
genuine and standard signature?
A Yes, sir.
Q And who was that person who gave you this
document?
A It was the Administrative Branch who [sic] endorsed
this document to the Documentation Branch. I do not
know the person who brought that.
Q You do not know the person who brought this
document to the Administrative branch?
A Yes, sir I do not know.
Q When you started making comparison and analysis of`
this question [sic] signatures and standard signatures,
you did not anymore require the person, Mr. CO Yok
Teng to appear personally to you?
A I did not, sir.
25

ATIY. REVILLA
Q Mrs. Tabo, like the question [sic] signature of Mr. Co
Yok Teng, you also did not personally see or observe
how Mr. Co Yok Teng write this standard signature?
A. Yes, sir
Q And this [sic] standard signatures were just
submitted to you?
A Yes, it was submitted to the office, sir.
Q And when you made the examination and analysis of
these documents the standard and the question [sic]
signature you did not require any other signature from
these two personalities except those which were
delivered to you?
A. Yes, sir.
COURT
Q When this standard signature were submitted to you,
you were just told that this is the genuine signature of
the person involved, you were just told?
A Yes, your Honor. As stated in the request it is the
genuine signature.
Q So that was your basis in claiming that this is the
genuine signature of the persons involved?
A I examined first the specimen, all the specimen
whether it was written by....
Q What are those specimen submitted to you.
A The same checks, your Honor, and the written
standard.
Q Did you confront Co Yok Teng?
ATTY. REVILLA
A She said no, your Honor.
COURT
Q Did you confront Yu Chun Kit whether those were
actually his genuine signature?
A No, your Honor.
Q So you just relied on the claim of the person who
submitted to you that these are the genuine signatures?
A Yes, your Honor.
Q And on the basis that you compare the characteristic
handwriting between the alleged genuine and question
[sic] signature?
A Yes, your Honor.
26
(Underscoring ours for emphasis).
Our review of the testimony of private respondent's expert witness, Crispina V.
Tabo, fails to convince us that she was a credible document examiner, despite
petitioner's admission that she was. She was candid enough to admit to the
court that although she had testified more or less three hundred times as an
expert, her findings were sustained by the courts in more or less ten cases only.
Thus:
Court:
Q How many times have you testified in Court?
A More or less three hundred (300) times, your Honor.
Q How many were sustained by the Court?
A More or less ten (10), sir.
Q Out of 300?
A. Yes, your Honor.
27

Besides, under the circumstances obtaining in this case, Tabo could by no
yardstick be considered to have adequate knowledge of the genuine
signatures of the parties whose signatures on the questioned checks
were claimed to be forged. That knowledge could be obtained either by
(a) seeing the person write some other documents or signatures (ex visu
scriptionis); (b) seeing documents otherwise known to him to have been
written by the person in question (ex scriptis olim visis); or (c) examining,
in or out of court, for the express purpose of obtaining such knowledge,
the documents said to have been written by the person in question (ex
comparatione scriptorum).
28
Tabo could not be a witness under the first
and the second. She tried to be under the third. But under the third, it is
essential that (a) certain specimens of handwriting were seen and
considered by her and (b) they were genuinely written by the person in
question.
29
Now, as stated above, Tabo had no adequate basis for
concluding that the alleged specimen signatures in the long bond paper
were indeed the signatures of the parties whose signatures in the checks
were claimed to have been forged. Moreover, we do not think that the
alleged specimens before her were sufficient in number.
30

Given the fact that Mrs. Tabo's testimony cannot inspire a conclusion that she
was an expert, it was error to rely on her representation. It is settled that the
relative weight of the opinions of experts by and large depends on the value of
assistance and guidance they furnish the court in the determination of the
issue involved.
31

On the issue of negligence, the Court of Appeals held:
[T]here is overwhelming evidence to show that appellee
(petitioner herein) was less than prudent in the treatment of
appellant's (private respondents') account. According to Chun Yun
Kit, they had an agreement with Appellee's Assistant branch
manager, Felicidad, Dimaano, that appellant should be informed
whenever a check for than P10,000.00 is presented for
encashment. Dimaano did not controvert Chun Kit's testimony on
this point. Such an arrangement was not observed by appellee
with respect to the payment of the checks in question.(Emphasis
supplied).
We do not agree. During the hearing on 1 February 1989, Felicidad Dimaano
denied having such agreement with the private respondent. Rather, the
agreement was that "all encashments over the counter of P10,000.00 and
above should be accompanied by one of the signatories" of private
respondent. But this agreement was made only on 31 March 1987, or a few
days after the encashment of the checks in question,
32

At any rate, since the questioned checks, which were payable to "cash,"
appeared regular on their face and the bank found nothing unusual in the
transaction, as the respondent usually issued checks in big amounts
33
made
payable to cash or to a particular person or to a company,
34
the petitioner
cannot be faulted in paying the value of the disputed checks.
Contrary to the finding of the Court of Appeals, the private respondent is the
one which stands to be blamed for its predicament. Chun Yun Kit testified that
in the morning of 23 March 1987, he and some employees found the doors of
their office and the filing cabinets containing the company's check booklet to
have been forcibly opened. They also found the documents in disarray. Under
these circumstances, a prudent and reasonable man would simply have to go
over the check booklet to find out whether a check was missing. But,
apparently, private respondent's officers and employees did not bother to do
so. If they did examine the booklet they could have readily discovered whether
a check was taken. The following testimony of Chun Yun Kit is apropos:
Q You said also during the last hearing that on the
morning of March 23, 1987 you found out in the
morning that the doors of the office were forced
opened?
A Yes, sir.
Q And you also testified during the last hearing that
the locked [sic] of the filing cabinet were also forced
opened?
A Yes, sir.

Q And you found out on that same time and date on
March 23, 1987 that the documents in the filing cabinet
were not in their proper position ?
A Yes, sir.
Q What did you do when you found out this [sic]
circumstances on March 23, 1987?
A We did not do anything because nothing was lost.
Q Did it not occur to you Mr. witness, that considering
that burglary was committed in your office, the doors
of your office were forced opened, the locks of the
filing cabinet were forced opened, the documents
placed in the filing cabinet were not in their proper
position, it did not occur to you to check the checks of
the company as being placed in the filing cabinet?
A When we examined the check booklet, we did not
discover anything lost.
Q You did not at all bother Mr. witness or your
treasurer to check something might have lost in the
check [sic], considering that the burglery [sic] and the
filing cabinet were forced opened?
A No, sir.
Q Did you notice anything lost?
A No, Sir.
35

Neither did any of private respondents officers or employees report the
incident to the police authorities,
36
nor did anyone advise the petitioner of
such incident so that the latter could adopt necessary measures to prevent
unauthorized encashments of private respondent's checks. Hence, as correctly
held by the trial court, it is the private respondent, not the petitioner, which
must bear the loss.
WHEREFORE, the instant petition is GRANTED the challenged decision of the
Court of Appeals in CA-G.R. CV No. 33513 is hereby REVERSED, and the decision
of the Regional Trial Court of Makati in Civil Case No. 6882 is hereby
REINSTATED.1wphi1.nt
SO ORDERED.

G.R. No. L-46000 March 18, 1985
GLICERIO AGUSTIN (Deceased) as Administrator of the Intestate Estate of
Susana Agustin, petitioner-plaintiff-appellant,
vs.
LAUREANO BACALAN and the PROVINCIAL SHERIFF OF CEBU, respondents-
defendants-appellees.

GUTIERREZ, JR., J.:
The precursor of this case was a complaint for ejectment with damages filed by
plaintiff-appellant Agustin, as adininistrator of the Intestate Estate of Susana
Agustin, against defendant-appellee Bacalan, before the City Court of Cebu.
Bacalan is a lessee of a one-door ground floor space in a building owned by the
late Susana Agustin. Due to nonpayment of rentals despite repeated demands
an action to eject him was filed.
In his complaint, the plaintiff-appellant prayed that the defendant-appellee be
ordered to immediately vacate the place in question, to pay plaintiff-appellant
the sum of P2,300.00 representing arrearages in rentals plus the corresponding
rentals until he actually vacates the place, attorney's fees, expenses, and costs.
In his answer, the defendant-appellee included a counter-claim alleging that
the present action was "clearly unfounded and devoid of merits, as it is tainted
with malice and bad faith on the part of the plaintiff for the obvious reason
that plaintiff pretty well knows that defendant does not have any rentals in
arrears due to the estate of Susana Agustin, but notwithstanding this
knowledge, plaintiff filed the present action merely to annoy, vex, embarrass
and inconvenience the defendant." He stated, "That by virtue of the
unwarranted and malicious filing of this action by the plaintiff against the
defendant, the latter suffered, and will continue to suffer, actual and moral
damages in the amount of no less than P50,000.00; P10,000.00 in concept of
exemplary damages. In addition, defendant has been compelled to retain the
services of undersigned counsel to resist plaintiffs' reckless, malicious and
frivolous claim and to protect and enforce his rights for which he obligated
himself to pay the further sum of P3,500.00 as attorney's fees."
The City Court of Cebu subsequently rendered judgment dismissing the
counterclaim and ordering the defendant to vacate the premises in question
and to pay the plaintiff the sum of P3,887.10 as unpaid back rentals and the
sum of P150.00 as attorney's fees' From this decision, the defendant filed an
appeal with Branch Ill of the Court of First Instance of Cebu. The case was
designated as Civil Case No. R-12430.
Availing of Republic Act 6031 which does away with trials de novo in appeals
before it, the Court of First Instance rendered a decision, the dispositive
portion of which reads:
WHEREFORE, based on all the foregoing considerations, the
appealed judgment is hereby set aside. Judgment is hereby
required in favor of the defendant
1. Ordering the plaintiff to pay.
a) P10,000.00 as moral damages;
b) P5,000.00 as exemplary damages;
c) P1,000.00 as attorney's fees; and
2. With costs against plaintiff.
JUDGMENT REVERSED.
No appeal was taken by the plaintiff-appellant. The decision lapsed into finality
and became executory. A writ of execution was issued by virtue of which a
notice to sell at public auction real properties belonging to the estate of Susana
Agustin was issued by the Deputy Sheriff to satisfy judgment in the case.
Plaintiff's counsel filed a motion for reconsideration, confessing his fault and
giving the reason why he failed to perfect the appeal on time. The motion was
denied.
Thereafter, with the aid of new counsel, the plaintiff-appellant filed a complaint
with Branch V, Court of First Instance of Cebu, against the defendant and the
Deputy Sheriff of Cebu for the declaration of the nullity of the above-cited
decision of Branch III, Court of First Instance of Cebu in the ejectment case on
the ground that the exercise of its appellate jurisdiction was null and void from
the beginning for the following reasons:
New counsel of plaintiff filed for the declaration of the nullitiy because of
jurisdiction.
(a) It grants relief in the total sum of P16,000.00 (exclusive of
costs) distributed thus:
P10,000.00 as moral damages
P5,000.00 as exemplary damages
P1,000.00 as attorney's fees
which is clearly beyond the jurisdiction of the City Court of Cebu;
Section 88 of the Judiciary Act of 1948, as amended by Rep. Acts
Nos. 2613 and 3828, limits the jurisdiction of the city courts in civil
cases to P10,000.00 as the maximum amount of the demand
(exclusive of interest and costs);
(b) Moreover, said Decision (Annex "G") grants moral damages to
the defendant in the sum of P10,000.00 which constitutes a grave
abuse of discretion amounting to lack of jurisdiction, there being
no evidence to support it and the subject matter of the suit in Civil
Case No. R-13504 being purely contractual where moral damages
are not recoverable.
A motion to dismiss was filed by the defendant on the grounds that the
plaintiff has no cause of action and that the court lacks jurisdiction to declare
the nullity of a decision of another branch of the Court of First Instance of
Cebu.
While rejecting the second ground for the motion to dismiss, the court
sustained the defendant and ruled:
Clearly from a reading of the complaint, the plaintiff seeks the
annulment of the decision rendered by the Third Branch of this
Court because the award exceeded the jurisdiction amount
cognizable by the City Court of Cebu and the said Branch III of this
Court has no jurisdiction to award the defendants herein (plaintiff
in Civil Case No. 12430) an amount more than P10,000.00;
It is the considered opinion of this Court that this allegation of the
herein plaintiff cannot be availed of as a ground for annulment of a
judgment. It may perhaps, or at most, be a ground for a petition
for certiorari. But then, the remedy should be availed of within the
reglementary period to appeal. Nevertheless, even if the plaintiff
did take his cause by certiorari, just the same, it would have been
futile....
xxx xxx xxx
In fine, this Court believes that the present complaint fails to allege
a valid cause of action as the same is only a clear attempt at
utilizing the remedy for the annulment of the judgment rendered
by this Court in Civil Case No. 12430 to offset the adverse effects of
failure to appeal.
Plaintiff-appellant's motion for reconsideration was denied, prompting him to
file an appeal before the Court of Appeals, which, in a resolution, certified the
same to us on the ground that it involves pure questions of law.
We ruled in Macabingkil v. People's Homesite and Housing Corporation (72 SCRA
326, citing Reyes v. Barretto-Datu, 94 Phil. 446, 448-449)-
Under our rules of procedure, the validity of a judgment or order
of the court, which has become final and executory, may he
attacked only by a direct action or proceeding to annul the same,
or by motion in another case if, in the latter case, the court had no
jurisdiction to enter the order or pronounce the judgment (section
44, Rule 39 of the Rules of Court). The first proceeding is a direct
attack against the order or judgment, because it is not incidental
to, but is the main object of, the proceeding. The other one is the
collateral attack, in which the purpose of the proceedings is to
obtain some relief, other than the vacation or setting aside of the
judgment, and the attack is only an incident. (I Freeman on
Judgments, sec. 306, pages 607-608.) A third manner is by a
petition for relief from the judgment order as authorized by the
statutes or by the rules, such as those expressly provided in Rule
38 of the Rules of Court, but in this case it is to be noted that the
relief is granted by express statutory authority in the same action
or proceeding in which the judgment or order was entered ...
The question is thus poised, whether or not the present action for the
annulment of the judgment in the ejectment case is the proper remedy after it
has become final and executory.
To this procedural dilemma, the solution lies in the determination of the
validity of the judgment sought to be annulled, for against a void judgment,
plaintiff-appellant's recourse would be proper.
There is no question as to the validity of the court's decision with respect to
the issue of physical possession of property, the defendant-appellee's right to
the same having been upheld. However, the plaintiff-appellant assails the
money judgment handed down by the court which granted damages to the
defendant-appellee. By reason thereof, he seeks the declaration of the nullity
of the entire judgment.
It is the plaintiff-appellant's contention that moral damages may not properly
be awarded in ejectment cases, the only recoverable damages therein being
the reasonable compensation for use and occupancy of the premises and the
legal measure of damages being the fair rental value of the property.
Plaintiff-appellant loses sight of the fact that the money judgment was
awarded the defendant-appellee in the concept of a counterclaim. A defending
party may set up a claim for money or any other relief which he may have
against the opposing party in a counterclaim (Section 6, Rule 6, Revised Rules
of Court). And the court may, if warranted, grant actual, moral, or exemplary
damages as prayed for. The grant of moral damages, in the case at bar, as a
counterclaim, and not as damages for the unlawful detention of property must
be upheld. However, the amount thereof is another matter.
Plaintiff-appellant raises the issue of whether or not the Court of First Instance
may, in an appeal, award the defendant-appellee's counterclaim in an amount
exceeding or beyond the jurisdiction of the court of origin.
It is well-settled that a court has no jurisdiction to hear and determine a set-off
or counterclaim in excess of its jurisdiction (Section 5, Rule 5, Revised Rules of
Court; Ago v. Buslon, 10 SCRA 202). A counterclaim beyond the court's
jurisdiction may only be pleaded by way of defense, the purpose of which,
however, is only to defeat or weaken plaintiff's claim, but not to obtain
affirmative relief (Section 5, Rule 5, Revised Rules of Court). Nevertheless, the
defendant-appellee, in the case at bar, set up his claim in excess of the
jurisdiction of the city court as a compulsory counterclaim. What is the legal
effect of such a move?
Pertinent to our disposition of this question is our pronouncement in the case
of Hyson Tan, et al. v. Filipinas Compania de Seguros, et al., (G.R. No. L-10096,
March 23, 1956) later adopted in Pindangan Agricultural Co., Inc. v. Dans (6 SCRA
14) and the later case of One Heart Club, Inc. v. Court of Appeals (108 SCRA 416)
to wit:
xxx xxx xxx
... An appellant who files his brief and submits his case to the Court
of Appeals for decision, without questioning the latter's
jurisdiction until decision is rendered therein, should be considered
as having voluntarily waives so much of his claim as would exceed
the jurisdiction of said Appellate Court; for the reason that a
contrary rule would encourage the undesirable practice of
appellants submitting their cases for decision to the Court of
Appeals in expectation of favorable judgment, but with intent of
attacking its jurisdiction should the decision be unfavorable. ...
Thus, by presenting his claim voluntarily before the City Court of Cebu, the
defendant-appellee submitted the same to the jurisdiction of the court. He
became bound thereby. The amount of P10,000.00 being the jurisdictional
amount assigned the City Court of Cebu, whose jurisdiction the defendant-
appellee has invoked, he is thereby deemed to have waived the excess of his
claim beyond P10,000.00. It is as though the defendant-appellee had set up a
counterclaim in the amount of P10,000.00 only. May the Court of First Instance
then, on appeal, award defendant-appellee's counterclaim beyond that
amount?
The rule is that a counterclaim not presented in the inferior court cannot be
entertained in the Court of First Instance on appeal (Francisco, The Revised
Rules of Court in the Philippines, Vol. III, p. 26, citing the cases of Bernardo v.
Genato, 11 Phil. 603 and Yu Lay v. Galmes, 40 Phil. 651). As explained in Yu Lay v.
Galmes "Upon an appeal to a court of first instance from the judgment of a
justice of the peace, it is not possible, without changing the purpose of the
appeal, to alter the nature of the question raised by the complaint and the
answer in the original action. There can be no doubt, therefore, of the scope of
the doctrine laid down in the several decisions of the Court. Consequently, We
hold that, upon an appeal to the Court of First Instance, the plaintiff as well as
the defendant cannot file any pleading or allegation which raises a question
essentially distinct from that raised and decided in the justice of the peace
court. "This rule was reiterated in cases from Ng Cho Cio v. Ng Diong (1 SCRA
275) to Development Bank of the Philippines v. Court of Appeals (116 SCRA 636).
Thus, the defendant-appellee's counterclaim beyond P10,000.00, the
jurisdictional amount of the city Court of Cebu, should be treated as having
been deemed waived. It is as though it has never been brought before trial
court. It may not be entertained on appeal.
The amount of judgment, therefore, obtained by the defendant-appellee on
appeal, cannot exceed the jurisdiction of the court in which the action began.
Since the trial court did not acquire jurisdiction over the defendant's
counterclaim in excess of the jurisdictional amount, the appellate court,
likewise, acquired no jurisdiction over the same by its decisions or otherwise.
Appellate jurisdiction being not only a continuation of the exercise of the same
judicial power which has been executed in the court of original jurisdiction, also
presupposes that the original and appellate courts are capable of participating
in the exercise of the same judicial power (See 2 Am. Jur. 850; Stacey Cheese
Company v. R.E. Pipkin, Appt. 155 NC 394, 71 S.E. 442, 37 LRA 606) It is the
essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create that cause (See 2
Am. Jur 850 citing Marbury v. Madison, 1 Cranch US, 137, 2 L. ed. 60).
It is, of course, a well-settled rule that when court transcends the limits
prescribed for it by law and assumes to act where it has no jurisdiction, its
adjudications will be utterly void and of no effect either as an estoppel or
otherwise (Planas v. Collector of Internal Revenue, 3 SCRA 395; Parades v.
Moya, 61 SCRA 526). The Court of First Instance, in the case at bar, having
awarded judgment in favor of the defendant-appellee in excess of its appellate
jurisdiction to the extent of P6,000.00 over the maximum allowable award of
P10,000.00, the excess is null and void and of no effect. Such being the case, an
action to declare the nullity of the award as brought by the plaintiff-appellant
before the Court of First Instance of Cebu, Branch V is a proper remedy.
The nullity of such portion of the decision in question, however, is not such as
to affect the conclusions reached by the court in the main case for ejectment.
As held in Vda. de Pamintuan v. Tiglao (53 Phil. 1) where the amount set up by
the defendant was not proper as a defense and it exceeded the inferior court's
jurisdiction, it cannot be entertained therein, but the court's jurisdiction over
the main action will remain unaffected. Consequently, the decision over the
main action, in the case at bar, must stand, best remembering that a counter-
claim, by its very nature, is a cause of action separate and independent from
the plaintiff's claim against the defendant.
WHEREFORE, the decision of the Court of First Instance of Cebu, Branch III in
Civil Case No. R-12430 for ejectment is hereby DECLARED NULL AND VOID
insofar as it awards damages on the defendant-appellee's counterclaim in
excess of P6,000.00 beyond its appellate jurisdiction. The decision in all other
respects is AFFIRMED. The order of the Court of First Instance of Cebu, Branch
V dismissing Civil Case No. R-13462 for declaration of nullity of judgment with
preliminary injunction is hereby MODIFIED, Civil Case No. R-13462 is ordered
DISMISSED insofar as the decision sought to be annulled upholds the
defendant's right to possession of the disputed property. The defendant's
counterclaim for damages is GRANTED to the extent of TEN THOUSAND
(P10,000.00) PESOS. The grant of SIX THOUSAND (P6,000.00) PESOS in excess
of such amount is hereby declared NULL and VOID, for having been awarded
beyond the jurisdiction of the court.
SO ORDERED
G.R. Nos. 108280-83 November 16, 1995
ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and
JOSELITO TAMAYO,petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
G.R. Nos. 114931-33 November 16, 1995
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD
DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants.

PUNO, J.:
The case before us occurred at a time of great political polarization in the
aftermath of the 1986 EDSA Revolution. This was the time when the newly-
installed government of President Corazon C. Aquino was being openly
challenged in rallies, demonstrations and other public fora by "Marcos
loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and
animosity between the two (2) groups sometimes broke into violence. On July
27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."
From August to October 1986, several informations were filed in court against
eleven persons identified as Marcos loyalists charging them with the murder of
Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de Leon
and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y
Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790
against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against
Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando
Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-
49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer
charging them as accomplices to the murder of Salcedo.
The cases were consolidated and raffled to the Regional Trial Court, Branch
XLIX, Manila. All of the accused pleaded not guilty to the charge and trial
ensued accordingly. The prosecution presented twelve witnesses, including
two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police
officers who were at the Luneta at the time of the incident. In support of their
testimonies, the prosecution likewise presented documentary evidence
consisting of newspaper accounts of the incident and various photographs
taken during the mauling.
The prosecution established that on July 27, 1986, a rally was scheduled to be
held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to
hold the rally but their application was denied by the authorities. Despite this
setback, three thousand of them gathered at the Rizal Monument of the
Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and
Benjamin Nuega, both members of the Integrated Bar of the Philippines, the
loyalists started an impromptu singing contest, recited prayers and delivered
speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent
of the Western Police District, arrived and asked the leaders for their permit.
No permit could be produced. Colonel Dula Torres thereupon gave them ten
minutes to disperse. The loyalist leaders asked for thirty minutes but this was
refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang
lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!"
The police then pushed the crowd, and used tear gas and truncheons to
disperse them. The loyalists scampered away but some of them fought back
and threw stones at the police. Eventually, the crowd fled towards Maria Orosa
Street and the situation later stabilized.
1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden,
Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet
and supporter of President Marcos, jogging around the fountain. They
approached her and informed her of their dispersal and Annie Ferrer angrily
ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued
jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si
Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists
replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the
police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A
commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists
attacking persons in yellow, the color of the "Coryistas." Renato took off his
yellow shirt.
2
He then saw a man wearing a yellow t-shirt being chased by a
group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the
yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists.
They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to
extricate himself from the group but they again pounced on him and
pummelled him with fist blows and kicks hitting him on various parts of his
body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to
Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate
Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him
with stones in their fists. Somebody gave Sumilang a loyalist tag which
Sumilang showed to Salcedo's attackers. They backed off for a while and
Sumilang was able to tow Salcedo away from them. But accused Raul Billosos
emerged from behind Sumilang as another man boxed Salcedo on the head.
Accused Richard de los Santos also boxed Salcedo twice on the head and
kicked him even as he was already fallen.
3
Salcedo tried to stand but accused
Joel Tan boxed him on the left side of his head and ear.
4
Accused Nilo Pacadar
punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"
5
Sumilang
tried to pacify Pacadar but the latter lunged at the victim again. Accused
Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more
fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head,
and when he tried to stand, Sison repeatedly boxed him.
6
Sumilang saw
accused Gerry Neri approach the victim but did not notice what he did.
7

Salcedo somehow managed to get away from his attackers and wipe off the
blood from his face. He sat on some cement steps
8
and then tried to flee
towards Roxas boulevard to the sanctuary of the Rizal Monument but accused
Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process.
Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo
ako." He cried: "Pulis, pulis. Wala bang pulis?"
9

The mauling resumed at the Rizal Monument and continued along Roxas
Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged
down a van and with the help of a traffic officer, brought Salcedo to the
Medical Center Manila but he was refused admission. So they took him to the
Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained various
contusions, abrasions, lacerated wounds and skull fractures as revealed in the
following post-mortem findings:
Cyanosis, lips, and nailbeds.
Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region,
right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right
cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm.,
left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8
cm., right elbow.
Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.
Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper
lip.
Hematoma, scalp; frontal region, both sides; left parietal region;
right temporal region; occipital region, right side.
Fractures, skull; occipital bone, right side; right posterior cranial
fossa; right anterior cranial fossa.
Hemorrhage, subdural, extensive.
Other visceral organs, congested.
Stomach, about 1/2 filled with grayish brown food materials and
fluid.
10

The mauling of Salcedo was witnessed by bystanders and several press people,
both local and foreign. The press took pictures and a video of the event which
became front-page news the following day, capturing national and
international attention. This prompted President Aquino to order the Capital
Regional Command and the Western Police District to investigate the incident.
A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General
Alfredo Lim, then Police Chief, for persons who could give information leading
to the arrest of the killers.
11
Several persons, including Ranulfo Sumilang and
Renato Banculo, cooperated with the police, and on the basis of their
identification, several persons, including the accused, were apprehended and
investigated.
For their defense, the principal accused denied their participation in the
mauling of the victim and offered their respective alibis. Accused Joselito
Tamayo testified that he was not in any of the photographs presented by the
prosecution
12
because on July 27, 1986, he was in his house in Quezon
City.
13
Gerry Neri claimed that he was at the Luneta Theater at the time of the
incident.
14
Romeo Sison, a commercial photographer, was allegedly at his
office near the Luneta waiting for some pictures to be developed at that
time.
15
He claimed to be afflicted with hernia impairing his mobility; he cannot
run normally nor do things forcefully.
16
Richard de los Santos admits he was at
the Luneta at the time of the mauling but denies hitting Salcedo.
17
He said that
he merely watched the mauling which explains why his face appeared in some
of the photographs.
18
Unlike the other accused, Nilo Pacadar admits that he is
a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he
attended the rally on that fateful day. According to him, he saw Salcedo being
mauled and like Richard de los Santos, merely viewed the incident.
19
His face
was in the pictures because he shouted to the maulers to stop hitting
Salcedo.
20
Joel Tan also testified that he tried to pacify the maulers because he
pitied Salcedo. The maulers however ignored him.
21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer
opted not to testify in their defense.
On December 16, 1988, the trial court rendered a decision finding Romeo Sison,
Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as
principals in the crime of murder qualified by treachery and sentenced them to
14 years 10 months and 20 days of reclusion temporal as minimum to 20 years
of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an
accomplice. The court, however, found that the prosecution failed to prove the
guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery,
Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive
portion of the decision reads as follows:
WHEREFORE, judgement is hereby rendered in the
aforementioned cases as follows:
1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No.
86-47322, the Court finds that the Prosecution failed to prove the
guilt of the two (2) Accused beyond reasonable doubt for the
crime charged and hereby acquits them of said charge;
2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617,
the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel
Tan, guilty beyond reasonable doubt, as principals for the crime of
Murder, defined in Article 248 of the Revised Penal Code, and,
there being no other mitigating or aggravating circumstances,
hereby imposes on each of them an indeterminate penalty of from
FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS,
of Reclusion Temporal, as minimum, to TWENTY (20) DAYS,
of Reclusion Temporal, as minimum, to TWENTY (20) YEARS
ofReclusion Temporal, as Maximum;
3. In "People versus Richard de los Santos," Criminal Case No. 86-
47790, the Court finds the Accused Richard de los Santos guilty
beyond reasonable doubt as principal for the crime of Murder
defined in Article 248 of the Revised Penal Code and, there being
no other extenuating circumstances, the Court hereby imposes on
him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN
(10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as
Minimum, to TWENTY (20) YEARS of Reclusion Temporal as
Maximum;
4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the
Court finds the Accused guilty beyond reasonable doubt as
principal, for the crime of "Murder" defined in Article 248 of the
Revised Penal Code and hereby imposes on him an indeterminate
penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to
TWENTY (20) YEARS of Reclusion Temporal, as Maximum;
5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l,
the Court finds that the Prosecution failed to prove the guilt of the
Accused for the crime charged beyond reasonable doubt and
hereby acquits him of said charge;
6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-
49007, the Court finds that the Prosecution failed to prove the guilt
of the Accused beyond reasonable doubt for the crime charged
and hereby acquits them of said charge;
7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the
Court finds the said Accused guilty beyond reasonable doubt, as
accomplice to the crime of Murder under Article 18 in relation to
Article 248 of the Revised Penal Code and hereby imposes on her
an indeterminate penalty of NINE (9) YEARS and FOUR (4)
MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS,
FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as
Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos,
Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to
pay, jointly and severally, to the heirs of Stephen Salcedo the total
amount of P74,000.00 as actual damages and the amount of
P30,000.00 as moral and exemplary damages, and one-half (1/2) of
the costs of suit.
The period during which the Accused Nilo Pacadar, Romeo Sison,
Joel Tan, Richard de los Santos and Joselito Tamayo had been
under detention during the pendency of these cases shall be
credited to them provided that they agreed in writing to abide by
and comply strictly with the rules and regulations of the City Jail.
The Warden of the City Jail of Manila is hereby ordered to release
the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from
the City Jail unless they are being detained for another cause or
charge.
The Petition for Bail of the Accused Rolando Fernandez has
become moot and academic. The Petition for Bail of the Accused
Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of
merit.
The bail bonds posted by the Accused Oliver Lozano and Benjamin
Nuega are hereby cancelled.
22

On appeal, the Court of Appeals
23
on December 28, 1992, modified the decision
of the trial court by acquitting Annie Ferrer but increasing the penalty of the
rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The
appellate court found them guilty of murder qualified by abuse of superior
strength, but convicted Joselito Tamayo of homicide because the information
against him did not allege the said qualifying circumstance. The dispositive
portion of the decision reads:
PREMISES CONSIDERED, the decision appealed from is hereby
MODIFIED as follows:
1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe,
Joel Tan y Mostero and Richard de los Santos are hereby found
GUILTY beyond reasonable doubt of Murder and are each hereby
sentenced to suffer the penalty of Reclusion Perpetua;
2. Accused-appellant Joselito Tamayo y Oria is hereby found
GUILTY beyond reasonable doubt of the crime of Homicide with
the generic aggravating circumstance of abuse of superior
strength and, as a consequence, an indeterminate penalty of
TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20)
YEARS of reclusion temporal as Maximum is hereby imposed upon
him;
3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being
an accomplice to the crime of Murder.
CONSIDERING that the penalty of Reclusion Perpetua has been
imposed in the instant consolidated cases, the said cases are now
hereby certified to the Honorable Supreme Court for review.
24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of
Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua.
G.R. Nos. 114931-33 was certified to us for automatic review of the decision of
the Court of Appeals against the four accused-appellants sentenced
to reclusion perpetua.
Before this court, accused-appellants assign the following errors:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT
NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON
RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO
WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE
PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING
CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND
INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS
RANULFO SUMILANG.
III
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN
FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE
TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND
BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE
HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT THERE EXISTS CONSPIRACY AMONG THE
PRINCIPAL ACCUSED.
V
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT
DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY.
25

In their additional brief, appellants contend that:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS,
SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE
DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE
VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE
RULES OF EVIDENCE.
II
THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING
EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL
OF WHICH WERE NOT PROPERLY IDENTIFIED.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR
DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON
THE MATTER.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING
THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH
(HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE
PROCESS THE FACTUAL GROUNDS SURROUNDING THE
INCIDENT.
26

Appellants mainly claim that the Court of Appeals erred in sustaining the
testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang
and Renato Banculo, because they are unreliable, doubtful and do not
deserve any credence. According to them, the testimonies of these two
witnesses are suspect because they surfaced only after a reward was
announced by General Lim. Renato Banculo even submitted three sworn
statements to the police geared at providing a new or improved version
of the incident. On the witness stand, he mistakenly identified a
detention prisoner in another case as accused Rolando
Fernandez.
27
Ranulfo Sumilang was evasive and unresponsive prompting
the trial court to reprimand him several times.
28

There is no proof that Banculo or Sumilang testified because of the reward
announced by General Lim, much less that both or either of them ever received
such reward from the government. On the contrary, the evidence shows that
Sumilang reported the incident to the police and submitted his sworn
statement immediately two hours after the mauling, even before
announcement of any reward.
29
He informed the police that he would
cooperate with them and identify Salcedo's assailants if he saw them again.
30

The fact that Banculo executed three sworn statements does not make them
and his testimony incredible. The sworn statements were made to identify
more suspects who were apprehended during the investigation of Salcedo's
death.
31

The records show that Sumilang was admonished several times by the trial
court on the witness stand for being argumentative and evasive.
32
This is not
enough reason to reject Sumilang's testimony for he did not exhibit this
undesirable conduct all throughout his testimony. On the whole, his testimony
was correctly given credence by the trial court despite his evasiveness at some
instances. Except for compelling reasons, we cannot disturb the way trial
courts calibrate the credence of witnesses considering their visual view of the
demeanor of witnesses when on the witness stand. As trial courts, they can
best appreciate the verbal and non-verbal dimensions of a witness' testimony.
Banculo's mistake in identifying another person as one of the accused does not
make him an entirely untrustworthy witness.
33
It does not make his whole
testimony a falsity. An honest mistake is not inconsistent with a truthful
testimony. Perfect testimonies cannot be expected from persons with
imperfect senses. In the court's discretion, therefore, the testimony of a
witness can be believed as to some facts but disbelieved with respect to the
others.
34

We sustain the appellate and trial courts' findings that the witnesses'
testimonies corroborate each other on all important and relevant details of the
principal occurrence. Their positive identification of all petitioners jibe with
each other and their narration of the events are supported by the medical and
documentary evidence on record.
Dr. Roberto Garcia, the medico-legal officer of the National Bureau of
Investigation, testified that the victim had various wounds on his body which
could have been inflicted by pressure from more than one hard object.
35
The
contusions and abrasions found could have been caused by punches, kicks and
blows from rough stones.
36
The fatal injury of intracranial hemorrhage was a
result of fractures in Salcedo's skull which may have been caused by contact
with a hard and blunt object such as fistblows, kicks and a blunt wooden
instrument.
37

Appellants do not deny that Salcedo was mauled, kicked and punched.
Sumilang in fact testified that Salcedo was pummeled by his assailants with
stones in their hands.
38

Appellants also contend that although the appellate court correctly
disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight
to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13."
39
Exhibit "O" is the
Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-
operatives who witnessed the rally and subsequent dispersal operation. Pat.
Flores properly identified Exhibit "O" as his sworn statement and in fact gave
testimony corroborating the contents thereof.
40
Besides, the Joint Affidavit
merely reiterates what the other prosecution witnesses testified to.
Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach
the said affidavit, they should have placed Pat. Flores on the witness stand.
Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was
being mauled at the Luneta starting from a grassy portion to the pavement
at the Rizal Monument and along Roxas Boulevard,
41
as he was being
chased by his assailants
42
and as he sat pleading with his assailants.
43
Exhibits
"W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in
local newspapers and magazines such as the Philippine Star,
44
Mr. and Ms.
Magazine,
45
Philippine Daily Inquirer,
46
and the Malaya.
47
The admissibility of
these photographs is being questioned by appellants for lack of proper
identification by the person or persons who took the same.
The rule in this jurisdiction is that photographs, when presented in evidence,
must be identified by the photographer as to its production and testified as to
the circumstances under which they were produced.
48
The value of this kind of
evidence lies in its being a correct representation or reproduction of the
original,
49
and its admissibility is determined by its accuracy in portraying the
scene at the time of the crime.
50
The photographer, however, is not the only
witness who can identify the pictures he has taken.
51
The correctness of the
photograph as a faithful representation of the object portrayed can
be proved prima facie, either by the testimony of the person who made it or by
other competent witnesses, after which the court can admit it subject to
impeachment as to its accuracy.
52
Photographs, therefore, can be identified by
the photographer or by any other competent witness who can testify to its
exactness and accuracy.
53

This court notes that when the prosecution offered the photographs as part of
its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to
their admissibility for lack of proper identification.
54
However, when the
accused presented their evidence, Atty. Winlove Dumayas, counsel for accused
Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that
his clients were not in any of the pictures and therefore could not have
participated in the mauling of the victim.
55
The photographs were adopted by
appellant Joselito Tamayo and accused Gerry Neri as part of the defense
exhibits. And at this hearing, Atty. Dumayas represented all the other accused
per understanding with their respective counsels, including Atty. Lazaro, who
were absent. At subsequent hearings, the prosecution used the photographs
to cross-examine all the accused who took the witness stand.
56
No objection
was made by counsel for any of the accused, not until Atty. Lazaro appeared at
the third hearing and interposed a continuing objection to their admissibility.
57

The objection of Atty. Lazaro to the admissibility of the photographs is
anchored on the fact that the person who took the same was not presented to
identify them. We rule that the use of these photographs by some of the
accused to show their alleged non-participation in the crime is an admission of
the exactness and accuracy thereof. That the photographs are faithful
representations of the mauling incident was affirmed when appellants Richard
de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave
reasons for their presence thereat.
58

An analysis of the photographs vis-a-vis the accused's testimonies reveal that
only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and
Joel Tan could be readily seen in various belligerent poses lunging or hovering
behind or over the victim.
59
Appellant Romeo Sison appears only once and he,
although afflicted with hernia is shown merely running after the
victim.
60
Appellant Joselito Tamayo was not identified in any of the pictures.
The absence of the two appellants in the photographs does not exculpate
them. The photographs did not capture the entire sequence of the killing of
Salcedo but only segments thereof. While the pictures did not record Sison and
Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and
Banculo
61
Appellants' denials and alibis cannot overcome their eyeball
identification.
Appellants claim that the lower courts erred in finding the existence of
conspiracy among the principal accused and in convicting them of murder
qualified by abuse of superior strength, not death in tumultuous affray.
Death in a tumultuous affray is defined in Article 251 of the Revised Penal code
as follows:
Art. 251. Death caused in a tumultuous affray. When, while
several persons, not composing groups organized for the common
purpose of assaulting and attacking each other reciprocally,
quarrel and assault each other in a confused and tumultuous
manner, and in the course of the affray someone is killed, and it
cannot be ascertained who actually killed the deceased, but the
person or persons who inflicted serious physical injuries can be
identified, such person or persons shall be punished by prison
mayor.
If it cannot be determined who inflicted the serious physical
injuries on the deceased, the penalty ofprision correccional in its
medium and maximum periods shall be imposed upon all those
who shall have used violence upon the person of the victim.
For this article to apply, it must be established that: (1) there be several
persons; (2) that they did not compose groups organized for the
common purpose of assaulting and attacking each other reciprocally; (3)
these several persons quarrelled and assaulted one another in a
confused and tumultuous manner; (4) someone was killed in the course
of the affray; (5) it cannot be ascertained who actually killed the
deceased; and (6) that the person or persons who inflicted serious
physical injuries or who used violence can be identified.
62

A tumultuous affray takes place when a quarrel occurs between several
persons and they engage in a confused and tumultuous affray, in the course of
which some person is killed or wounded and the author thereof cannot be
ascertained.
63

The quarrel in the instant case, if it can be called a quarrel, was between one
distinct group and one individual. Confusion may have occurred because of the
police dispersal of the rallyists, but this confusion subsided eventually after the
loyalists fled to Maria Orosa Street. It was only a while later after said dispersal
that one distinct group identified as loyalists picked on one defenseless
individual and attacked him repeatedly, taking turns in inflicting punches, kicks
and blows on him. There was no confusion and tumultuous quarrel or affray,
nor was there a reciprocal aggression at this stage of the incident.
64

As the lower courts found, the victim's assailants were numerous by as much
as fifty in number
65
and were armed with stones with which they hit the victim.
They took advantage of their superior strength and excessive force and
frustrated any attempt by Salcedo to escape and free himself. They followed
Salcedo from the Chinese Garden to the Rizal Monument several meters away
and hit him mercilessly even when he was already fallen on the ground. There
was a time when Salcedo was able to get up, prop himself against the
pavement and wipe off the blood from his face. But his attackers continued to
pursue him relentlessly. Salcedo could not defend himself nor could he find
means to defend himself. Sumilang tried to save him from his assailants but
they continued beating him, hitting Sumilang in the process. Salcedo pleaded
for mercy but they ignored his pleas until he finally lost consciousness. The
deliberate and prolonged use of superior strength on a defenseless victim
qualifies the killing to murder.
Treachery as a qualifying circumstance cannot be appreciated in the instant
case. There is no proof that the attack on Salcedo was deliberately and
consciously chosen to ensure the assailants' safety from any defense the victim
could have made. True, the attack on Salcedo was sudden and unexpected but
it was apparently because of the fact that he was wearing a yellow t-shirt or
because he allegedly flashed the "Laban" sign against the rallyists, taunting
them into mauling him. As the appellate court well found, Salcedo had the
opportunity to sense the temper of the rallyists and run away from them but
he, unfortunately, was overtaken by them. The essence of treachery is the
sudden and unexpected attack without the slightest provocation on the part of
the person being attacked.
66

The qualifying circumstance of evident premeditation was alleged in the
information against Joselito Tamayo. Evident premeditation cannot be
appreciated in this case because the attack against Salcedo was sudden and
spontaneous, spurred by the raging animosity against the so-called "Coryistas."
It was not preceded by cool thought and reflection.
We find however the existence of a conspiracy among appellants. At the time
they were committing the crime, their actions impliedly showed a unity of
purpose among them, a concerted effort to bring about the death of Salcedo.
Where a conspiracy existed and is proved, a showing as to who among the
conspirators inflicted the fatal wound is not required to sustain a
conviction.
67
Each of the conspirators is liable for all acts of the others
regardless of the intent and character of their participation, because the act of
one is the act of all.
68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages,
P30,000.00 as moral and exemplary damages, and one half of the costs of the
suit. At the time he died on July 27, 1986, Salcedo was twenty three years old
and was set to leave on August 4, 1986 for employment in Saudi Arabia.
69
The
reckless disregard for such a young person's life and the anguish wrought on
his widow and three small children,
70
warrant an increase in moral damages
from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be
awarded for the death of the victim.
71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and
modified as follows:
1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and
Richard de los Santos are found GUILTY beyond reasonable doubt
of Murder without any aggravating or mitigating circumstance and
are each hereby sentenced to suffer the penalty of reclusion
perpetua;
2. Accused-appellant Joselito Tamayo is found GUILTY beyond
reasonable doubt of the crime of Homicide with the generic
aggravating circumstance of abuse of superior strength and, as a
consequence, he is sentenced to an indeterminate penalty of
TWELVE (12) YEARS of prision mayoras minimum to TWENTY (20)
YEARS of reclusion temporal as maximum;
3. All accused-appellants are hereby ordered to pay jointly and
severally the heirs of Stephen Salcedo the following amounts:
(a) P74,000.00 as actual damages;
(b) P100,000.00 as moral damages; and
(c) P50,000.00 as indemnity for the death of the
victim.
Costs against accused-appellants.
SO ORDERED
[G.R. No. 140904. October 9, 2000]
RENE S. ONG, MAGDALENO B. ALBARRACIN, JR., PETRONIO C. AALIWIN and J.
O. NERIT, petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF
APPEALS, respondents.
D E C I S I O N
MELO, J.:
Before us is a petition for certiorari and prohibition with prayer for issuance
of a writ of preliminary injunction, wherein petitioners, accused before the
Metropolitan Trial Court (MeTC) of Makati City, charge said court with having
committed grave abuse of discretion when it denied their demurrer to
evidence.
The facts of the case are as follows:
On February 8, 1993, Zeny Alfonso purchased a paper bag-making machine
for P362,000.00 from the Solid Cement Corporation. When she went to the
corporation's Antipolo plant, however, no machine could be given to her, it
appearing that the machine sold had been earlier mortgaged to a creditor,
who, unfortunately, refused to release the mortgage. Herein petitioners
offered to return the money paid by Mrs. Alfonso but she refused and instead
filed a criminal complaint with the City Prosecutor of Makati.
The City Prosecutor dismissed the complaint on the ground that liability, if
any, would be civil and not criminal in nature. This dismissal was, however,
reversed by the Department of Justice.
On October 18, 1994, an Information for estafa and other deceit based on
Article 318 of the Revised Penal Code was filed with the MeTC of Makati
City. After pre-trial, the prosecution presented as its sole witness complainant
Zeny Alfonso. The prosecution then formally offered its documentary evidence
and rested its case. The admissibility of these documents was questioned by
petitioners.
The disputed documents are alleged photo copies of (1) the approval of the
sale of the paper bag-making machine supposedly signed by petitioners; (2) an
official receipt of Solid Cement Corporation evidencing payment of
P362,000.00; (3) a plant gate pass from one J.P. Valencia dated February 16,
1993 for entry into the Antipolo compound and pull-out of the machine; (4) a
letter from one Atty. Maximino Robles demanding delivery of the machine to
the complainant; (5) a letter of Solid Cement's Rene S. Ong offering to return
P362,000.00 plus interest;(6) a letter from Atty. Robles informing Solid Cement
of complainant's refusal to accept the refund of the P362,000.00; (7) a
memorandum from five officers or employees of Solid Cement Corporation
recommending the sale of the paper bag-making-machine; (8) another gate-
pass dated December 3, 1992 from one Ramon Enriquez allowing the pull out
of the machine; (9) a letter from one Lorenzo P. Ligot thanking Solid Cement,
through one Peter Aaliwin, for the former's grant of a right of first refusal; and
(10) a copy of the resolution dated July 26, 1993 of the Provincial Prosecutor's
Office of Rizal. The defense objected to the admission of these pieces of
evidence, claiming that the same were only unauthenticated photocopies of
the originals.
On July 12, 1996, petitioners filed a motion for leave to file demurrer to
evidence, attaching thereto their demurrer. In their pleading, petitioners
stressed that all the above-mentioned documents being uncertified
photocopies bearing unidentified or unauthenticated signatures are
inadmissible in evidence. Without ruling on the motion for leave to file
demurrer, the MeTC, on August 19, 1996, held:
WHEREFORE, the instant demurrer is hereby denied and the motion to hold
departure order of all accused Granted. Let a copy of this Order be sent to the
Commissioner of Bureau of Immigration and Deportation for proper
disposition and implementation against the accused RENE ONG, MAGDALENO
ALBARRACIN, JR., PETRONIO C. AALIWIN and J.O. NERIT of Solid Cement
Corporation, No. 168 Salcedo Street, 3rd Floor, Golden Rock Building, Makati
City.
(pp. 113-114, Rollo.)
In its Order denying the demurrer to evidence, MeTC Judge Felicidad Y.
Navarro-Quiambao summarized private complainant's testimony as follows:
The prosecutor presented the private complainant Zeny Alfonso who testified
that on February 8, 1993, she was awarded by the accused the sale of a Paper
Bag Making Machine including its spare parts. On February 16, 1993, she paid in
full the purchase price of the machine including the charges for its freight to
Cebu in the amount of P362,000.00 and as a consequence of said payment she
was issued a Plant Gate Pass for the pull out of shipment of the machine to
Cebu; that the following day, she proceeded to the plant site of the Solid
Cement Corporation in Antipolo where she was told that accused Rene S. Ong
has ordered to stop and discontinue with the shipment of the machine; that on
the same day, she rushed to see Mr. Ong in Makati and she was told to wait for
a week; that on March 1, 1993, she went again to Mr. Ong who informed her to
go back to the plant site for final arrangement regarding the shipment of the
paper bag machine so she proceeded to the plant only to be told that the
machine cannot be released on order of Mr. Ong; that upon the demand of her
lawyer to the Solid Corporation for its compliance with their obligation under
the transaction, Mr. Ong offered a compromise which was turned down by her.
(pp. 112-113, Rollo.)
The MeTC, in fact, found that there was a prima facie case against
petitioners on the basis of the documents submitted by the prosecution,
stating:
The Court noted from the documentary evidence on record that the machine
subject of the transaction between the complainant and the accused is
mortgaged to another creditor, who, incidentally, refused to release the
mortgage on said subject machine. Indeed, this strongly suggest (sic) the
existence of a prima facie case that would warrant a trial on the
merits. Accordingly, the motion for hold departure order is hereby Granted.
(p. 113, Rollo.)the RTC reversed the ruling of the lower court
Acting on a petition for certiorari and prohibition filed by the accused, the
Regional Trial Court of Makati, per Judge Teofilo Guadiz, Jr., reversed the
above ruling in its order dated May 19, 1997, disposing:
WHEREFORE, in view of the foregoing, the petition is hereby granted. The
Order dated August 19, 1996 denying the Demurrer to Evidence and the Order
dated September 18, 1996, insofar as it declares the existence of cause to hold
the petitioners for further trial, are hereby set aside and declared null and
void. The respondent judge is hereby ordered to dismiss Criminal Case No.
157290 entitled People of the Philippines v. Rene Ong, et al.
(p. 159, Rollo.)
The Guadiz resolution was raised to the Court of Appeals by the People. On
April 8, 1999, the 13
th
Division thereof (Mabutas [P], Aquino, and Rivera, JJ.)
rendered a reversal decision, the dispositive portion of which reads:
The judgment of RTC in its appellate jurisdiction was reversed by the CA
WHEREFORE, premises considered, the petition is hereby GRANTED - and the
assailed resolution (dated May 19, 1997) and order (dated October 16, 1997) of
the respondent judge SET ASIDE. The writ of preliminary injunction issued by
this Court on June 5, 1998 is made permanent. The private respondents herein
are given the option to either present their evidence (in Criminal Case No.
157290 which is reinstated) before the trial court below (Metropolitan Trial
Court) or to submit the case for decision based solely on the prosecutor's
evidence.
(p. 71, Rollo.)
Petitioners submit that the Court of Appeals acted contrary to law and
jurisprudence and committed grave abuse of discretion in:
1) finding that appeal and not certiorari was the remedy that should
have been availed of by petitioners;
2) finding that RTC Judge Teofilo Guadiz, Jr. erred in evaluating the
prosecution's evidence for sufficiency and inadmissibility;
3) not finding that the RTC resolution dated May 19, 1997 was an
acquittal and not applying double jeopardy in their favor;
The petition is meritorious.
In setting aside the regional trial court's decision which ordered the MeTC
to dismiss the criminal case filed against petitioners, the Court of Appeals held
that petitioners, after the denial by the MeTC of their demurrer to evidence,
should not have filed a petition for certiorari with the regional trial court. In its
words:
As pointed out, the Supreme Court, in the case of Joseph v. Villaluz (89 SCRA
324), held that it would not annul an interlocutory order denying a motion to
dismiss in a criminal case. Appeal is the proper remedy of the petitioners in
order to have the findings of fact reviewed by a superior court (Manalo v.
Mariano, 69 SCRA 80). Such ruling was a reiteration of an earlier one in People
v. Romero (22 Phil. 565) wherein the Highest Tribunal stressed that the
question of whether or not the evidence by the prosecution is sufficient to
convince the court that the accused is guilty beyond reasonable doubt of the
crime charged, rests entirely within the sound judgment of the trial court. The
error, if any is committed by the denial of the demurrer to evidence, can only
be corrected by appeal (Cruz v. People, 144 SCRA 677).
Similarly, the Supreme Court held in People v. Court of Appeals (119 SCRA 162)
that it has been the long settled rule that certiorari does not lie to challenge the
trial court's interlocutory order denying the accused's motion to dismiss. "The
appellate courts will not review in such special civil action the prosecution's
evidence and decide in advance that such evidence has or has not yet
established the guilt of the accused beyond reasonable doubt. The orderly
procedure prescribed by the Rules of Court is for the accused to present his
evidence after which the trial court, on its own assessment of the evidence
submitted by both the prosecution and defense, will then properly render its
judgment of acquittal or conviction. If the verdict is one of acquittal, the case
ends there. But if it is one of conviction, then appeal is the proper
recourse (Cruz v. People, supra).
(pp. 64-65, Rollo.)
In other words, the position of the Court of Appeals is to the effect that
after the denial of their demurrer to evidence, petitioners instead of filing a
petition for certiorari with the regional trial court, should have presented their
evidence and in case of an adverse decision, appealed the same to the regional
trial court.
Likewise, the Court of Appeals brushed aside petitioners' invocation of
their right against double jeopardy, stating that the order of the regional trial
court dismissing the criminal case filed against petitioners did not amount to
their acquittal. Held thus the appellate court:
As aptly posited by the petitioner (The People) the requisites that must concur
for legal jeopardy to attach are: (a) a valid complaint or information; (b) a court
of competent jurisdiction; (c) the accused has pleaded to the charge; and (d)
the accused has been convicted or acquitted, or the case dismissed or
terminated without the express consent of the accused (People v. Gines, 197
SCRA 481, De la Rosa v. Court of Appeals, 253 SCRA 499). The fourth requisite is
lacking, because respondent court's resolution of May 19, 1997 is a "fruit"
emerging from a grave abuse of discretion - thus it cannot ripen to an acquittal
of the private respondents, whose demurrer to evidence had been denied by
the trial court below. It is true that an accused is presumed innocent until his
guilt is shown beyond reasonable doubt. However, after the prosecution has
adduced evidence, the constitutional presumption of innocence must yield to
what has been so amply and persuasively demonstrated (People v. Andal, 70
SCRA 30). The respondent judge could not decide in the special civil action
before him whether or not the evidence adduced by the prosecution had
established beyond reasonable doubt the guilt of petitioners (private
respondents herein), because factual matters are not proper for consideration
in proceedings brought either as an original action for certiorari or as an appeal
by certiorari (Insular Bank of Asia and America v. Court of Appeals, 228 SCRA
420; Navarro v. Commission on Elections, 228 SCRA 596). It is, therefore,
incumbent on the part of the accused (private respondents herein) to
neutralize the evidence of the State in order to maintain the presumption of
their innocence of the crime of which they were charged. If convicted, appeal
will be their (private respondents') proper remedy to have the findings of fact
by the trial judge reviewed by a superior court (Manalo v. Mariano, et al., 69
SCRA 80).
Indeed, the rule generally prevailing is that "certiorari does not lie to review
a trial court's interlocutory order denying a motion to dismiss (or to acquit),
which is equivalent to a demurrer to evidence, filed after the prosecution had
presented its evidence and rested its case. An order denying a demurrer to
evidence is interlocutory. It is not appealable. Neither can it be the subject of a
petition for certiorari (Tadeo v. People, 300 SCRA 744 [1998])."
However, Tadeo itself states that "[f]rom such denial (of the demurrer to
evidence), appeal in due time is the proper remedy, not certiorari, in the
absence of grave abuse of discretion or excess of jurisdiction, or an oppressive
exercise of judicial authority."
Consequently, if the denial of the demurrer to evidence is attended by
grave abuse of discretion, the denial may be assailed through a petition
for certiorari. This exception was explicitly recognized by the Court in Cruz v.
People (303 SCRA 533 [1999]), where we stated that:
The general rule that the extraordinary writ of certiorari is not available to
challenge (the denial of the demurrer to evidence) may be subject to
exceptions. When the assailed interlocutory orders are patently erroneous or
issued with grave abuse of discretion, the remedy of certiorari lies.
Likewise, in Gutib v. Court of Appeals (312 SCRA 365 [1999]), we declared
that "the rule is not absolute and admits of an exception. Thus where, as in the
instant case, the denial of the motion to dismiss by the trial court was tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
aggrieved party may assail the order of denial on certiorari."
The present case presents one such exception warranting the resort to the
remedy of certiorari, the trial court judge having committed grave abuse of
discretion amounting to lack or excess of jurisdiction in denying petitioners'
demurrer to evidence. A demurrer to evidence is an objection by one of the
parties in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make out a case
or sustain the issue. The party demurring challenges the sufficiency of the
whole evidence to sustain a verdict. The court, in passing upon the sufficiency
of the evidence raised in a demurrer, is merely required to ascertain whether
there is competent orsufficient evidence to sustain the indictment or to support
a verdict of guilt (Gutib v. CA, supra).
In the instant case, there is no competent and sufficient evidence to sustain
the indictment or to support a verdict of guilt against petitioners.As pointed
out by petitioners, all documentary evidence submitted by the private
complainant were uncertified photocopies of certain documents, the
signatures on which were either unidentified or unauthenticated.
Section 20, Rule 132 of the Revised Rules of Court provides that "before any
private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
(a) by anyone who saw the document executed or written; or
(b) by evidence of the genuineness of the signature or handwriting of
the maker.
Thus, prior to the admission in evidence of a private writing, the identity
and authenticity of the document sought to be presented must first be
reasonably established. Where there is no proof as to the authenticity of the
executor's signature appearing in a private document, such private document
should be excluded (Paz v. Santiago, 47 Phil 334 [1925]).
The documentary evidence submitted by the complaining witness are
private instruments, being instruments executed by private persons without
the intervention of a public notary or of other persons legally authorized, by
which document some disposition or agreement is proved, evidenced, or set
forth (U.S. v. Orera, 11 Phil. 596 [1907]).
Being private instruments, their due and valid execution and their
genuineness and authenticity must first be established, either by the testimony
of any one who saw the writing executed or by evidence of the genuineness of
the handwriting of the maker hereof.
A painstaking perusal of the testimony of the prosecution's sole witness
reveals, however, that the due execution and authenticity of these documents
were never proved. In fact, the prosecution took no effort to prove the due
execution and authenticity of these documents during the presentation of
their sole witness. Absent such proof, these documents are incompetent as
evidence. It is elementary that this Court cannot rightly appreciate firsthand
the genuineness of an unverified and unidentified document; much less, accord
it evidentiary value (People v. Sumalpong, 284 SCRA 464 [1998]). In People v.
Gamiao (240 SCRA 254 [1995]), we declared, "[p]arenthetically, appellant failed
to present in evidence the originals or the xerox copies of the documents
hereinbefore discussed. The requirements for the admission of such secondary
evidence in court were not satisfied. The Rules of Court provide that private
documents require proof of their due execution and authentication before
they can be received in evidence. When there is no such proof, the
substitutionary documents may be excluded."
Moreover, the documents submitted are mere photocopies of the
originals. Thus, they are secondary evidence and as such are not admissible
unless there is ample proof of the loss of the originals (Section 3, Rule 130,
Revised Rules of Court). However, the loss of the originals have not been
proved by the prosecution, neither have they shown that the original is a public
record in the custody of a public office or is recorded in a public office, nor that
the same is in the custody or under the control of petitioners.
The due execution and authenticity of the documentary evidence
presented not having been proved, and since these are mere photocopies, the
loss of the originals of which was not previously established, the same are
clearly inadmissible in evidence. Being incompetent evidence, the only
evidence the prosecution could rely on to prove petitioners' guilt would be the
sole testimony of the private complainant. Unsupported by any other
evidence, said testimony is insufficient to sustain a finding of culpability.
Sufficient evidence for purposes of frustrating a demurrer thereto is such
evidence in character, weight or amount as will legally justify the judicial or
official action demanded according to the circumstances. To be considered
sufficient, therefore, the evidence must prove: (a) the commission of the
crime, and (b) the precise degree of participation therein by the accused. In the
instant case, the prosecution miserably failed to establish by sufficient
evidence the existence of the crime of estafa and other deceit.
Aside from complainant's testimony, the only evidence of petitioners'
supposed complicity in the alleged offense is the photocopy of the approval of
the sale of the paper bag-making machine, said document containing the
names of petitioners Ong, Nerit, Aaliwin, and Albarracin.As stated earlier,
however, said document is inadmissible in evidence. Thus, there is no evidence
as to their participation in the crime. In fact, among the petitioners, private
complainant had personal contact only with Ong, whom she met only after the
alleged approval of the sale of the machine. Having met Ong after the sale,
Ong could not have misrepresented anything to complainant to induce her to
part with her money. As to the others, not having had personal dealings with
private complainant, it boggles one's mind to even entertain the speculation
that they could have misrepresented anything to the latter.
With our ruling that the documentary evidence submitted by the
prosecution is inadmissible in evidence, the prosecution's evidence against
petitioners is grossly and patently insufficient to support a finding of
guilt. Withal, it was grave abuse of discretion for the MeTC to consider that
there was a prima facie case against petitioners warranting a trial on the merits
given the paucity of evidence against petitioners.
Had said court been more punctilious and thorough in its study and
preparation of the case, it could have fully appreciated the weakness of the
state evidence against petitioners, and that it was useless, not to say a waste
of time and money, but most of all unfair to the accused, to proceed with the
tedious process of trial and direct petitioners to adduce evidence in their
defense, since it was obvious from the beginning that petitioners could not be
convicted of the crime charged.
In ruling against petitioners, the appellate court also held that petitioners
could not avail of their constitutional right against double jeopardy, allegedly
because the regional trial court's reversal of the MeTC denial of their demurrer
to evidence is a "fruit" emerging from grave abuse of discretion. It declared
that Judge Guadiz could not decide in the special civil action filed before him
whether or not the evidence adduced by the prosecution had established
beyond reasonable doubt the guilt of petitioners, factual matters not being
proper for consideration in certiorariproceedings.
It is true that the prerogative writ of certiorari does not lie to correct every
controversial interlocutory order but is confined merely to questions of
jurisdiction. Its function is to keep an inferior court within its jurisdiction and to
relieve persons from arbitrary acts, meaning acts which courts or judges have
no power or authority in law to perform. It is not designed to correct
procedural errors or the court's erroneous findings and conclusions (De Vera v.
Pineda, 213 SCRA 434 [1992]).
However, certiorari can be properly resorted to where the factual findings
complained of are not supported by the evidence on record(Congregation of
the Religious of the Virgin Mary v. CA, 291 SCRA 385 [1998]). As earlier observed,
with the inadmissibility of the prosecution's documentary evidence, the trial
court's finding of a prima facie case against petitioners is glaringly unsupported
by the sole testimony of private complainant, hence the RTC resolution
reversing the MeTC's denial of the demurrer to evidence cannot be said to be
the "fruit" of grave abuse of discretion. Since the factual findings of the MeTC
are devoid of support in the evidence on record, it was proper for the RTC to
review said findings. Moreover, in order to determine whether or not there
was grave abuse of discretion in denying the demurrer to evidence, the RTC
had to inquire into the admissibility and sufficiency of the documentary and
testimonial evidence submitted by the prosecution.
With the grant by the RTC of the demurrer to evidence, the same
constituted a valid acquittal and any further prosecution of petitioners on the
same charge would expose them to being put twice in jeopardy for the same
offense. A dismissal of a criminal case by the grant of a demurrer to evidence is
not appealable as the accused would thereby be placed in double jeopardy
(See Regalado, Remedial Law Compendium, p. 441).
Lastly, it has been said that a wide breadth of discretion is granted a court
of justice in certiorari proceedings. The cases in which certiorariwill issue
cannot be defined, because to do so would be to destroy its
comprehensiveness and usefulness. So wide is the discretion of the court that
authority is not wanting to show that certiorari is more discretionary than
either prohibition or mandamus. In the exercise of our superintending control
over other courts, we are to be guided by all the circumstances of each
particular case "as the ends of justice may require." So it is that the writ will be
granted where necessary to prevent a substantial wrong or to do substantial
justice (Gutib v. CA, supra).
The case at bar presents one such instance calling for this appropriate
remedy. As discussed elsewhere, petitioners have satisfactorily demonstrated
in their demurrer that the prosecution failed to prove the crime charged
against them, hence, there remains no reason to hold them for trial. Indeed, an
accused is always presumed innocent until the contrary is
proved. Parenthetically, petitioners have the right to be protected against
hasty, malicious, and oppressive prosecution; to be secure from an open and
public accusation of a crime; and, from the trouble, expenses and anxiety of a
public trial. Similarly situated is the State, which must be shielded at all times
from useless and expensive litigations that only contribute to the clogging of
court dockets and take a heavy toll on its limited time and meager resources.
WHEREFORE, premises considered, the petition is GRANTED. The decision
of the Court of Appeals dated April 8, 1999 setting aside the Regional Trial
Court's resolution dated May 19, 1997, as well as respondent appellate court's
Resolution dated November 16, 1999 denying reconsideration of its decision,
are REVERSED and SET ASIDE. The dismissal of Criminal Case No. 157290
entitled "People of the Philippines v. Rene S. Ong, et al. is AFFIRMED, without
prejudice to the filing of an appropriate civil action.
SO ORDERED