Beruflich Dokumente
Kultur Dokumente
FACTS: The Spouses Soriano employed Lea and Wendy Salingatog as the yayas of their two
children: Kathleen and Angela. Angela, then 5 years old, met appellant Jenny Rose Basilan when the
latter visited her niece Wendy in the Soriano residence. Jenny Rose was, thus, no stranger to
Angela. On September 3, 1998, after the class of Angela has ended, Alma and Jenny Rose, who
were then outside the school campus, approached Angela and told her that her parents were waiting
for her at a restaurant. Angela initially refused to go with the two women, but because Alma held on
to her hand so tightly and poked a knife at her, Angela had no choice but to go with them. Upon
learning that their daughter had not arrived home from school, the spouses Soriano informed the
school staff, which reported the incident to the police force. After series of investigations and
monitoring of phone calls from Alma who was demanding ransom money for the release of Angela,
the police operatives accosted Alma in her residence and was able to rescue Angela. When informed
that his daughter had already been rescued, William Soriano, Angelas father rushed to the police
headquarters where he and Angela were reunited. Angela identified Alma as her kidnapper. An
information for kidnapping for ransom was filed against Alma and Jenny Roses, who later admitted
that she was one of Almas cohorts. In a police line-up, Angela identified Jenny Rose as one of her
kidnappers. The trial court found the accused guilty of the crime charged. On appeal, the appellants
aver that the trial courts reliance on Angelas testimony is misplaced because the records do not
show that Angela had the capacity to distinguish right from wrong when she testified in open court.
The appellants point out that she was merely six years old at the time. Although Angela took an
oath before she testified, the trial judge failed to ask any questions to determine whether or not
she could distinguish right from wrong, and comprehend the obligation of telling the truth before
the court. Hence, appellants argue that one of the standards in determining the credibility of a
child witness was not followed.
ISSUE: WON the testimony of Angela should be excluded.
HELD: NO. Section 1, Rule 132 of the Revised Rules of evidence provides that the examination of
witnesses shall be under oath or affirmation. An oath is defined as an outward pledge, given by the
person taking it that his attestation or promise is made under an immediate sense of his
responsibility to God. The object of the rule is to affect the conscience of the witness and thus
compel him to speak the truth, and also to lay him open to punishment for perjury in case he
willfully falsifies. A witness must be sensible to the obligation of an oath before he can be
permitted to testify. It is not, however, essential that he knows how he will be punished if he
testify falsely. Under modem statutes, a person is not disqualified as a witness simply because he is
unable to tell the nature of the oath administered to a witness.
In order that one may be competent as a witness, it is not necessary that he has a definite
knowledge of the difference between his duty to tell the truth after being sworn and before, or
that he be able to state it, but it is necessary that he be conscious that there is a difference. It
cannot be argued that simply because a child witness is not examined on the nature of the oath and
the need for her to tell the whole truth, the competency of the witness and the truth of her
testimony are impaired. If a party against whom a witness is presented believes that the witness is
incompetent or is not aware of his obligation and responsibility to tell the truth and the
consequence of him testifying falsely, such party may pray for leave to conduct a voire
reclusion perpetua and to indemnify Michelle Dolorical in the amount of P30,000.00 and as well as to
pay her P40,000.00 as moral damages.
In this appeal, Guamos raises a lone assignment of error:
The trial court erred in finding the accused guilty beyond reasonable doubt of the
crime of rape.
Appellant Guamos also asserts that the testimony of Michelle laying the sexual assault upon her at
his feet should not have been admitted because her testimony had not been subjected to crossexamination. This is a novel argument made possible by the curious way in which that crossexamination was handled by Guamos' counsel.
reverse, and to elicit all important facts bearing upon the issue." It is also the duty of the witness
to answer questions put to him or her, subject to certain exceptions. In the instant case, defense
counsel did not ask the Court to enforce his right and to compel the witness (Michelle) to perform
her duty. As noted earlier, the trial judge had instructed defense counsel to simplify his questions.
Defense counsel, for his part, neither complained about this directive nor complied with it.
Counsel for appellant seeks to make much of the fact that Michelle Dolorical did not answer some
of the questions of defense counsel on cross-examination. We do not find, however, that this
failure detracts from the admissibility or credibility of Michelle's testimony. Firstly, this appears
to the Court to be a case of failure of Michelle to answer some questions rather than an obstinate
refusal to do so. In formulating those questions on cross-examination, defense counsel obviously did
not take into account that he was cross-examining a child of tender age (Michelle was approximately
nine [9] years of age at the time she gave her testimony in open court) susceptible to confusion and
probably easily intimidated.
The questions posed by defense counsel to Michelle appear to us to have been long, elaborate and
circumlocutious difficult to comprehend even for adults. Thus, at one point, the trial court directed
the defense counsel to simplify his questions. Defense counsel, after that directive from the trial
court, tried once more but did not succeed in simplifying his questions. Promptly thereafter,
defense counsel ceased cross-examination after stating for the record that Michelle was "unable to
answer the question propounded by [him]" and that such as counsel would "just leave it to the sound
discretion of the honorable court. No further questions." 9 It is clear to this Court that defense
counsel exercised no substantial effort to present intelligible questions to complaining witness
Michelle Dolorical designed to elicit straightforward answers. We consider that she, in all
probability, simply failed to grasp some of the questions put to her on cross-examinations. The
defense had made it very difficult if not practically impossible for her to answer those questions
intelligently and truthfully.
FACTS:
Philippine Remnants Co., Inc. constituted BPI as its trustee to manage, administer, and sell its real
estate property. One such piece of property placed under trust was the disputed lot at Pasig,
Metro Manila. Pedro Revilla, Jr., a licensed real estate broker was given formal authority by BPI to
sell the lot in cash for P1,000.00 per square meter. This arrangement was concurred in by the
owners of the Philippine Remnants. Broker Revilla contacted Alfonso Lim of petitioner company who
agreed to buy the land. On July 8, 1988, petitioner's officials and Revilla were given permission by
Rolando V. Aromin, BPI Assistant Vice-President, to enter and view the property they were buying.
On July 9, 1988, Revilla formally informed BPI that he had procured a buyer, herein petitioner. On
July 11, 1988, petitioner's officials, Alfonso Lim and Albino Limketkai, went to BPI to confirm the
sale. They were entertained by Vice-President Merlin Albano and Asst. Vice-President Aromin.
Petitioner asked that the price of P1,000.00 per square meter be reduced to P900.00 while Albano
stated the price to be P1,100.00. The parties finally agreed that the lot would be sold at P1,000.00
per square meter to be paid in cash. Alfonso Lim asked if it was possible to pay on terms. It was the
understanding, however, that should the term payment be disapproved, then the price shall be paid
in cash. Alfonso Lim, on the same date, July 11, 1988, wrote BPI through Merlin Albano embodying
the payment initially of 10% and the remaining 90% within a period of 90 days. Two or three days
later, petitioner learned that its offer to pay on terms had been frozen. Alfonso Lim went to BPI on
July 18, 1988 and tendered the full payment of P33,056,000.00 to Albano. The payment was
refused because Albano stated that the authority to sell that particular piece of property in Pasig
had been withdrawn from his unit. The same check was tendered to BPI Vice-President Nelson Bona
who also refused to receive payment.
An action for specific performance with damages was thereupon filed by petitioner against BPI. In
the course of the trial, BPI informed the trial court that it had sold the property under litigation
to NBS. The complaint was thus amended to include NBS.
TC: there was perfected sale between petitioner and BPI. It ordered to cancel the TCT of NBS
CA: Reversed.
ISSUES:
1
2
WON there was perfected contract of sale between petitioner and BPI. YES
WON respondent Court of Appeals erred in ruling that the statute of frauds is applicable.
YES
HELD:
1. The negotiation or preparation stage started with the authority given by Philippine Remnants to
BPI to sell the lot, followed by (a) the authority given by BPI and confirmed by Philippine Remnants
to broker Revilla to sell the property, (b) the offer to sell to Limketkai, (c) the inspection of the
property and finally (d) the negotiations with Aromin and Albano at the BPI offices.
The perfection of the contract took place when Aromin and Albano, acting for BPI, agreed to sell
and Alfonso Lim with Albino Limketkai, acting for petitioner Limketkai, agreed to buy the disputed
lot at P1,000.00 per square meter. Aside from this there was the earlier agreement between
petitioner and the authorized broker. There was a concurrence of offer and acceptance, on the
object, and on the cause thereof.
The fact that the deed of sale still had to be signed and notarized does not mean that no contract
had already been perfected. A sale of land is valid regardless of the form it may have been entered
into.
2. In Abrenica vs. Gonda (34 Phil. 739 [1916]) wherein it was held that contracts infringing the
Statute of Frauds are ratified when the defense fails to object, or asks questions on crossexamination.
In the instant case, counsel for respondents cross-examined petitioner's witnesses at length on the
contract itself, the purchase price, the tender of cash payment, the authority of Aromin and
Revilla, and other details of the litigated contract. Under the Abrenica rule, even assuming that
parol evidence was initially inadmissible, the same became competent and admissible because of the
cross-examination, which elicited evidence proving the evidence of a perfected contract. The crossexamination on the contract is deemed a waiver of the defense of the Statute of Frauds. The
reason for the rule is that as pointed out in Abrenica "if the answers of those witnesses were
stricken out, the cross-examination could have no object whatsoever, and if the questions were put
to the witnesses and answered by them, they could only be taken into account by connecting them
Moreover, under Article 1403 of the Civil Code, an exception to the unenforceability of contracts
pursuant to the Statute of Frauds is the existence of a written note or memorandum evidencing the
contract. The memorandum may be found in several writings, not necessarily in one document. The
memorandum or memoranda is/are written evidence that such a contract was entered into. While
there is no written contract of sale of the Pasig property executed by BPI in favor of plaintiff,
there are abundant notes and memoranda extant in the records of this case evidencing the
elements of a perfected contract.
the third when Gilda became too weak to struggle against the accuseds sexual advances. He
then pulled out his penis and fingered her private organ for a short while. The accused then warned
Gilda not to tell anybody, otherwise, he would kill her and all members of her family. He told her
that she was his third victim but the two did not complain. When Gilda arrived home, she told her
mother and her husband, Aquilino Flores Ambray, that she was raped by the accused.
At Midnight of March 31 1992, Gilda with her mother reported the incident to the
President of the Homeowners Association who then sent an investigator PO3 Efren Bautista, to
whom Gilda described her assailant as a tricycle driver, tall, strong, with curly hair and in army
cut with trycicle as blue in color with the name Dimple at the back. Her medico legal confirmed
presence of spermatozoa and physical injuries indicative of force applied. The accused parents
wife and children and sister in law met Gilda to ask her forgiveness but was to no avail.
DEFENSE VERSION ( Witness: Alfredo Fernandez and Teotimo Camogong)
After traveling about half a kilometer, his tricycle malfunctioned. He told Gilda that she
better walk home because her house was already near. He pushed his tricycle home, and on his way,
one Alfredo Fernandez approached him and helped him push the tricycle towards his home, and
upon arrival thereat, he told Alfredo not to leave at once. At around 9:10 p.m., they started to drink
liquor until 11:00 p.m., and after their drinking spree, he cleaned their mess and slept.
------MTC GUILTY
ISSUE:
1) WHETHER OR NOT THE COURT ERRED IN FINDING THAT ACCUSED HAS INDUBITABLY
EMPLOYED FORCE AND INTIMIDATION IN THE RAPE OF THE VICTIM.
2) WHETHER OR NOT THE COURT ERRED IN FINDING THAT ACCUSED WAS POSITIVELY
IDENTIFIED BY THE VICTIM.
3) Whether or not the accused should be convicted of 3 counts of Rape as per testimony of
Gilda on Re-direct examination instead of only one?
HELD:
1 AND 2: YES, the two issues and the determination of the guilt of the accused depend primarily
on the credibility of the complainant Gilda Ambray, since only she and the accused witnessed the
incident when it happened. Her testimony alone, if credible, would render the accuseds conviction
inevitable
A meticulous assessment of Gildas testimony demonstrates beyond doubt the truthfulness
of her story, which she narrated in a categorical, straightforward and candid manner. Further
strengthening her credibility in recounting her ordeal at the hands of the accused was her conduct
immediately after the sexual assault. She ran home without looking back, and upon her arrival she
reported the rape to her husband and her mother at once and to the President of Homeowners
association. When the policemen brought the accused to the residence of Antonio, Gilda forthwith
pointed to the accused as the person who raped her. Gilda voluntarily submitted herself to a
medical examination at the Las Pias Hospital and then to an examination of her private parts by Dr.
Bernales of the NBI. She submitted herself to investigation and filed a complaint the following day.
The quickness and spontaneity of these deeds manifested the natural reactions of a virtuous
woman who had just undergone sexual molestation against herself, and evinced nothing more
than her instant resolve to denounce the beast who criminally abused and ravished her, and to
protect her honor. Moreover, she rejected the plea for forgiveness sought by the accuseds
parents, wife, and children, then suffered the travails of a public trial which necessarily exposed
her to humiliation and embarrassment
3) NO,
On direct examination, Gilda categorically declared that the accused tried to thrice insert
his penis into her vagina. He failed in the first and second attempts because she struggled, but
succeeded on the third because she was already weak. While it may be true that on crossexamination she testified that she was raped once, yet on re-direct examination she said that she
was raped three times, no inconsistency at all may be deduced therefrom. There was merely
confusion as to the legal qualifications of the three separate acts, i.e., Gildas answers were
conclusions of law. A witness is not permitted to testify as to a conclusion of law, among
which, legal responsibility is one of the most conspicuous. A witness, no matter how skillful, is not
to be asked or permitted to testify as to whether or not a party is responsible to the law. Law in
the sense here used embraces whatever conclusions belonging properly to the court. What is clear
is that there were, at least, two acts of attempted rape and one consummated rape, committed in
light of the testimony of Gilda. The information, however, charged the accused with only one act of
rape; hence, consistent with the constitutional right of the accused to be informed of the nature
and cause of the accusation against him, he cannot be held liable for more than what he was
charged. There can only be one conviction for rape if the information charges only one offense,
even if the evidence shows three separate acts of sexual intercourse
The trend in procedural law is to give wide latitude to the courts in exercising control over the
questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child
Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of
the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level
of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste
of time. Leading questions in all stages of examination of a child are allowed if the same will further
the interests of justice.
The Court has repeatedly stated that it is highly inconceivable for a child of tender age,
inexperienced in the ways of the world, to fabricate a charge of defloration, undergo a medical
examination of her private part, subject herself to public trial, and tarnish her family's honor and
reputation, unless she was motivated by a strong desire to seek justice for the wrong committed
against her.
Mayia's simple, positive and straightforward recounting on the witness stand of her harrowing
experience lends credence to her accusation. Her tender age belies any allegation that her
accusation was a mere invention impelled by some ill-motive. As the Court has stressed in numerous
cases, when a woman or a child victim says that she has been raped, she in effect says all that is
necessary to show that rape was indeed committed.
Mayia had a clear sight of appellants face since the rape occurred at noontime. Her proximity to
appellant during the sexual assault leaves no doubt as to the correctness of her identification for a
man and woman cannot be physically closer to each other than during the sexual act. Thus, even if
Mayia did not give the identifying marks of appellant, her positive identification of appellant
sufficed to establish clearly the identity of her sexual assailant.
Appellants claim that the police improperly suggested to Mayia to identify appellant is without
basis. True, Mayia did not identify appellant in a police line-up when Mayia identified appellant in his
cell. However, appellant, in his testimony admitted that he had two other companions in his cell.
Moreover, the Court has held that there is no law requiring a police line-up as essential to a proper
identification. Even without a police line-up, there could still be a proper identification as long as
the police did not suggest such identification to the witnesses. The records are bereft of any
indication that the police suggested to Mayia to identify appellant as the rapist.
Mayias identification in open court of appellant as her rapist dispels any doubt as to the proper
identification of appellant. Mayia positively identified and pointed to appellant as her rapist.
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party
into calling him to the witness stand. (Italics supplied)."
The prosecution also failed to show that Villanueva had an adverse interest in the case, or was
unjustifiably reluctant to testify, or had misled the prosecution into calling him to the witness
stand. Hence, Villanueva cannot be considered as a hostile witness and the prosecution is bound by
his testimony that nothing was delivered to him by Appellant.
The telling blow that devastated the case of the People of the Philippines was the presentation of
Benito Villanueva as prosecution witness. Villanueva, the other accused and the driver of the
tricycle which appellant was riding when arrested, was presented to elicit from him the identity of
the person who delivered the drugs to him. However, said witness when asked to identify the person
who delivered to him the said drugs, did not name Appellant.
The prosecution has failed to prove that appellant "sold and delivered" the dangerous drug to
Villanueva. It has also failed to prove that appellant "knew" that what she delivered was a dangerous
drug. If the prosecution was able to prove that appellant "sold and delivered" the drug to
Villanueva, it can then be presumed that appellant "knew" that the same drug was dangerous.
ARANDA ACQUITTED
Facts: Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery
with homicide upon Herminio Mansueto. Joelito was invited to the police headquarters to shed light
on the case. Later, Joelito, waiving his right to counsel, executed a "confession." When arraigned,
all the accused entered a plea of "not guilty" to the charge; whereupon, trial commenced.
The main defense interposed is one of alibi. Antonio stated that on the whole day of the incident,
he was out at sea fishing with his son. Joelito, on his part, asserted that he was in Barrio Baod. He
returned to his house, he said, only the day after. Roberto ("Ruby"), Joelito's uncle, testified that
on that fateful day, he was in Samoco Purok 2, Iligan City, and then left for Cebu on 06 December
1984 only after receiving a telegraph that Joelito was implicated in the crime.
The Regional Trial Court 14 did not give credence to the defense of alibi. It convicted the three
accused of murder instead of robbery with homicide. Finding conspiracy, the trial court ruled that
the killing was qualified by both treachery and abuse of superior strength with the latter, however,
being absorbed by the former.
The instant appeal was interposed by the three convicted appellants.
Appellant Antonio Plasencia attacks the credibility of the prosecution's lone eyewitness, Francisca
Espina, alleging that she is a pejured witness who has an axe to grind against him because his dog
had once bitten Francisca's child. Appellant Roberto Descartin, likewise challenging Francisca
Espina's credibility because of her alleged inconsistencies, faults the trial court for allowing the
witness to glance at the notes written on her palm while testifying. He also argues that his alibi,
being corroborated, should have been given weight. Appellant Joelito Descartin, in assailing the
credibility of Francisca, has noted her "jittery actuation" while giving her testimony. He also
questions the findings of the ponente for not being the presiding judge during the examination of
Francisca on the witness stand.
It is asserted that the testimony of Francisca Espina should not be given worth since, while
testifying, she would at times be seen reading some notes written on her left palm.
Issue: Whether or not the use of memory aids during an examination of a witness affects his
credibility.
Held: No. Section 16, Rule 132, of the Rules of Court states:
Sec. 16.
When witness may refer to memorandum. A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any other time when the fact was
fresh in his memory and he knew that the same was correctly written or recorded; but in such case
the writing or record must be produced and may be inspected by the adverse party, who may, if he
chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may
testify from such a writing or record, though he retain no recollection of the particular facts, if he
is able to swear that the writing or record correctly stated the transaction when made; but such
latter's pumpboat to ferry the body. Tonying paddled the pumpboat to the island of Po-Po'o where
he picked up some pieces of stones. Then, again paddling the pumpboat farther away from the
island, he ordered Joelito to start the engine of the boat. They headed for the islet of Gilotongin
(Hilotongan). On the way, Tonying filled the sack with stones and, using a rope, tied to it the body
of the victim. Tonying then unloaded their cargo into the sea.
Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on two
pumpboats in the area pinpointed to be the place where the body was dumped. On the second day of
the search, the group was informed that the body had already surfaced near the vicinity of the
search and delivered to the municipal building.
The main defense interposed is one of alibi.
The Regional Trial Court
accused of murder.
14
did not give credence to the defense of alibi. It convicted the three
Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In this
case, the exercise of that discretion has not been abused; the witness herself has explained that
she merely wanted to be accurate on dates and like details.
People vs Kempis
Doctrines: REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL
COURT; GENERALLY UPHELD ON APPEAL; REASON. The issue of credibility is to be resolved
primarily by the trial court because it is in a better position to decide the question, having heard
the witnesses and observed their deportment and manner of testifying during the trial. The trial
courts findings on the matter of credibility are thus entitled to the highest degree of respect and
will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance which would have affected the
result of the case.
UNAVAILING IN THE FACE OF POSITIVE IDENTIFICATION. The defense of alibi cannot
prevail over the positive identification of the accused.
REQUISITE TO PROSPER AS A DEFENSE. For it to prosper, it is not enough that an accused
show that he was somewhere else when the crime was committed; he must, more importantly,
demonstrate that it was physically impossible for him to have been at the scene of the crime.
Facts: Accused Teofilo Kempis, then a member of the Philippine Constabulary (PC), was initially
charged with two (2) counts of murder: for the stabbing of Antonio Miraflor and the shooting of
Lolito Rivero, grave threats and abuse of authority.
"That on or about the 15th day of September, 1988, in the Municipality of Mayorga, province of
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
with deliberate intent to kill and with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, shot (sic) and wound one LOLITO RIVERO with
an M-16 rifle with which said accused had purposely provided himself, thereby causing and inflicting
upon him gunshot wounds on his body which caused his death.
In convicting the accused, the trial court relied on the prosecutions version which, except for the
name of the victim which should read Lolito Rivero and not Rivera, is succinctly, but faithfully,
summarized in the Brief for the Appellee as follows:jgc:chanrobles.com.ph"At about 3:00 oclock in
the afternoon of September 15, 1988, Lolito Rivera was at his house located in Bgy. Talisay,
Mayorga, Leyte. Rivera had just butchered a pig and was cooking lunch for his guests which included
Carmencita Navarro, Corazon de Paz, Riveras common-law wife and Riveras sister Rosalina Adonis.
Suddenly, appellant Kempis a member of the Philippine Constabulary (PC) and a companion, Wilfredo
Bautista arrived at the yard of Riveras house on a board a motorcycle. Both were armed with
armalite rifles. Appellant insisted on bringing Rivera with them and directed Rivera who was
standing near the kitchen door to board the motorcycle. Rivera, however, declined saying that he
was cooking. Angered by such refusal, appellant successively fired his armalite rifle at Rivera
hitting the latters arm, chest and mouth while Bautista who stationed himself behind a banana tree
had his rifle Rivera died instantly.
Thereafter, appellant and Bautista boarded their motorcycle and left. Adonis went to the house of
the barangay captain to report the incident but since the latter was not there, Adonis immediately
proceeded to the Police Station at Mayorga, Leyte. Postmortem Examination shows that five of the
seven wounds inflicted on Rivera were gunshot wounds."
On the other hand, the accuseds version discloses that the incident in question actually occurred
on 16 September 1988 not on 15 September 1988 - and that he killed Lolito Rivero under
circumstances that could exempt or mitigate his liability.
"At about 3:00 oclock on September 16, 1988 not September 15, 1988 the accused, who was a
PC soldier, went to the house of one Lolito Rivero, at Barangay Talisay, Mayorga, Leyte, for the
purpose of advising the latter not to steal and create trouble in their town. Upon reaching Riveros
house, the accused met his common-law-wife Corazon de Paz Catanoy who had a visitor then by the
name of Francisca Rinoza. (Francisca Rinoza was there because she was demanding payment of
Corazons debt to her). When the accused asked from Corazon where Rivero was, she told the
accused that Rivero was in their kitchen doing something. At the time, the accused was carrying his
M-16 rifle slung on his left shoulder with its barrel pointing down. Upon reaching the door of the
kitchen, the accused did advise Rivero as he intended. Rivero told him `I will not do it again, Sir, as
I have just come out of jail. Hearing Riveros promise, the accused turned his back to leave. It was
at that juncture that Rivero immediately grabbed the accuseds M-16 rifle. They grappled for the
rifle until it went off and Rivero was hit. The latter died because of gunshot wounds."
As to the prosecutions claim that the incident occurred on 15 September 1988, the accused set up
the defense of alibi. According to him, he was in barangay Cabacungan, Dulag, Leyte specifically in
the house of Dominador Kempis from:jgc:cha"About 12:00 oclock noontime up to late afternoon."
for the wake of his cousin, Diosdado Kempis, who had been killed. Dominador Kempis testified that
the accused arrived at his house at about "1:00 oclock to 2:00 oclock" and left at about "6:00
oclock in the afternoon."
The trial court gave full faith and credit to the testimonies of the prosecution witnesses and
pronounced that Lolito Rivero was in fact shot and killed by the accused on 15 September 1988. It
brushed aside the alibi interposed by the latter because Riveros place is located in the Municipality
of Mayorga which is adjacent to the Municipality of Dulag. It is in Dulag where the accused claims
to have been for the wake of Diosdado Kempis. The court a quo observed that "it would not have
been impossible for the accused to have gone to Bgy. Talisay in Mayorga) and kill Lolito as accused
admitted he owns a motorcycle." 16 Moreover, the court declared that the accused "was positively
identified by the prosecution witnesses that he killed Lolito Rivero on September 15, 1988."
Anent the accuseds claim of self-defense, the trial court rejected the same as it was of the
opinion that the accused, being a soldier, was more knowledgeable and trained in the use of firearms
than the victim, a mere farmer, "who at the time of the incident was not even armed with a bolo or
any weapon." The court added that "even granting . . . that Lolito was able to grab the gun . . .
Lolito . . . would have not know how to use it on the accused." It further observed that although the
accused reported the killing to the police, he failed to inform the latter that he had merely acted in
self-defense.
After the promulgation of the decision on 9 October 1990, the accused seasonably filed a Motion
for Reconsideration 19 alleging therein that the trial court erred (a) in not crediting him with the
mitigating circumstance of voluntary surrender and (b) in ruling that the incident actually took place
on 16 September 1988 and not on 15 September 1988 as testified to by prosecution witnesses
Rosalina Adonis, Urbano Adonis and Carmen Navarro, and as evidenced by the death certificate of
the victim, a xerox copy of which was annexed to the motion. The prosecution opposed the motion.
20 In its Order of 8 January 1991, the trial court denied the motion. On 21 January 1991, the
accused filed his Notice of Appeal.
One of the documents identified in court during the murder trial was an Investigation
Report prepared by the Regional Inspector General. The prosecution, however, marked and offered
only in evidence a portion consisting of an entry in the Police blotter of Mayorga, Leyte. When the
trial court decided the cases against the accused, however, it took into consideration the entre
document consisting of no less than five pages.
Issue: Is the court correct in appreciating the whole document?
Held: No. the trial court should not have taken the rest into account in the formulation of its
conclusions, but only the portion offered in evidence. Sec. 17 of Rule 132 provides that "when
part of any act, declaration, conversation, writing or record is given in evidence by one party,
the whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, ant other act, declaration,
conversation, writing or record necessary to its understanding may also be given in evidence."
Thus, in order that the rest of the Investigation Report may have been considered by the trial
court, the prosecution should have offered the same in evidence.
Nevertheless this error was of no consequence. The trial courts findings on the matter of
credibility are thus entitled to the highest degree of respect and will not be disturbed on appeal in
the absence of any showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which would have affected the result of the case. Our
careful review and evaluation of the testimonies of the witnesses for the prosecution as well as for
the defense yield no cogent or compelling reason to alter the findings of fact made by the trial
court. No mitigating circumstance has been duly proven or even invoked in the appeal. Wherefore,
the appealed decision is hereby AFFIRMED.