THIRD DIVISION

PHILIPPINE FREE PRESS, INC., G.R. No. 132864

Petitioner,
Present:

PANGANIBAN, J., Chairman

SANDOVAL-GUTIERREZ,
- versus - CORONA,
CARPIO-MORALES, and
GARCIA, JJ.
Promulgated:

COURT OF APPEALS (12th Division) and

LIWAYWAY PUBLISHING, INC., October 24, 2005
Respondents.

x---------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Philippine
Free Press, Inc. seeks the reversal of the Decision[1] dated February 25, 1998 of the Court of
Appeals (CA) in CA-GR CV No. 52660, affirming, with modification, an earlier decision of the
Regional Trial Court at Makati, Branch 146, in an action for annulment of deeds of sale thereat
instituted by petitioner against the Presidential Commission for Good
Government (PCGG) and the herein private respondent, Liwayway Publishing, Inc.

As found by the appellate court in the decision under review, the facts are:

xxx [Petitioner] . . . is a domestic corporation engaged in the publication of Philippine Free

Press Magazine, one of the . . . widely circulated political magazines in the Philippines.
Due to its wide circulation, the publication of the Free Press magazine enabled [petitioner]
to attain considerable prestige prior to the declaration of Martial Law as well as to achieve
a high profit margin. . . .

Sometime in . . . 1963, [petitioner] purchased a parcel of land situated at No. 2249, Pasong
Tamo Street, Makati which had an area of 5,000 square meters as evidenced by . . . (TCT)
No. 109767 issued by the Register of Deeds of Makati (Exh. Z). Upon taking possession
of the subject land, [petitioner] constructed an office building thereon to house its various
machineries, equipment, office furniture and fixture. [Petitioner] thereafter made the
subject building its main office . . . .

During the 1965 presidential elections, [petitioner] supported the late President Diosdado
Macapagal against then Senate President Ferdinand Marcos. Upon the election of the late
President Ferdinand Marcos in 1965 and prior to the imposition of Martial law on
September 21, 1972, [petitioner] printed numerous articles highly critical of the Marcos
administration, exposing the corruption and abuses of the regime. The [petitioner] likewise
ran a series of articles exposing the plan of the Marcoses to impose a dictatorship in the
guise of Martial Law . . . .

In the evening of September 20, 1972, soldiers surrounded the Free Press Building, forced
out its employees at gunpoint and padlocked the said establishment. The soldier in charge
of the military contingent then informed Teodoro Locsin, Jr., the son of Teodoro Locsin,
Sr., the President of [petitioner], that Martial Law had been declared and that they were
instructed by the late President Marcos to take over the building and to close the printing
press. xxx.

On September 21, 1972 . . ., Teodoro Locsin, Sr. was arrested [and] . . . . was brought to
Camp Crame and was subsequently transferred to the maximum security bloc at Fort
Bonifacio.

Sometime in December, 1972, Locsin, Sr. was informed . . . that no charges were to be
filed against him and that he was to be provisionally released subject to the following
conditions, to wit: (1) he remained (sic) under city arrest; xxx (5) he was not to publish
the Philippine Free Press nor was he to do, say or write anything critical of the Marcos
administration . . . .

Consequently, the publication of the Philippine Free Press ceased. The subject building
remained padlocked and under heavy military guard (TSB, 27 May 1993, pp. 51-52;
stipulated). The cessation of the publication of the ... magazine led to the financial ruin of
[petitioner] . . . . [Petitioners] situation was further aggravated when its employees
demanded the payment of separation pay as a result of the cessation of its operations.
[Petitioners] minority stockholders, furthermore, made demands that Locsin, Sr. buy out
their shares. xxx.

On separate occasions in 1973, Locsin, Sr. was approached by the late Atty. Crispin Baizas
with offers from then President Marcos for the acquisition of the [petitioner]. However,
Locsin, Sr. refused the offer stating that [petitioner] was not for sale (TSN, 2 May 1988,
pp. 8-9, 40; 27 May 1993, pp. 66-67).

A few months later, the late Secretary Guillermo De Vega approached Locsin, Sr.
reiterating Marcoss offer to purchase the name and the assets of the [petitioner].xxx

Sometime during the middle of 1973, Locsin, Sr. was contacted by Brig. Gen. Hans Menzi,
the former aide-de-camp of then President Marcos concerning the sale of the [petitioner].
Locsin, Sr. requested that the meeting be held inside the [petitioner] Building and this was
arranged by Menzi (TSN, 27 May 1993, pp. 69-70). During the said meeting, Menzi once
more reiterated Marcoss offer to purchase both the name and the assets of [petitioner]
adding that Marcos cannot be denied (TSN, 27 May 1993, p. 71). Locsin, Sr. refused but
 Menzi insisted that he had no choice but to sell. Locsin, Sr. then made a counteroffer that
he will sell the land, the building and all the machineries and equipment therein but he will
be allowed to keep the name of the [petitioner]. Menzi promised to clear the matter with
then President Marcos (TSN, 27 May 1993, p. 72). Menzi thereafter contacted Locsin, Sr.
and informed him that President Marcos was amenable to his counteroffer and is offering
the purchase price of Five Million Seven Hundred Fifty Thousand (P5, 750,000.00) Pesos
for the land, the building, the machineries, the office furnishing and the fixtures of the
[petitioner] on a take-it-or-leave-it basis (TSN, 2 May 1988, pp.42-43; 27 May 1993, p.
88).

On August 22, 1973, Menzi tendered to Locsin, Sr. a check for One Million (P1,
000,000.00) Pesos downpayment for the sale, . . . Locsin, Sr. accepted the check, subject
to the condition that he will refund the same in case the sale will not push through. (Exh.
7).

On August 23, 1973, the Board of Directors of [petitioner] held a meeting and reluctantly
passed a resolution authorizing Locsin, Sr. to sell the assets of the [petitioner] to Menzi
minus the name Philippine Free Press (Exhs. A-1 and 1; TSN, 27 May 1993, pp. 73-76).

On October 23, 1973, the parties [petitioner, as vendor and private respondent, represented
by B/Gen. Menzi, as vendee] met . . . and executed two (2) notarized Deeds of Sale
covering the land, building and the machineries of the [petitioner]. Menzi paid the balance
of the purchase price in the amount of . . . (P4,750,000.00) Pesos (Exhs. A and (; B and
10;TSN, 27 May 1993, pp. 81-82; 3 June 1993, p. 89).

Locsin, Sr. thereafter used the proceeds of the sale to pay the separation pay of [petitioners]
employees, buy out the shares of the minority stockholders as well as to settle all its
obligations.

On February 26, 1987, [petitioner] filed a complaint for Annulment of Sale against
[respondent] Liwayway and the PCGG before the Regional Trail Court of Makati, Branch
146 on the grounds of vitiated consent and gross inadequacy of purchase price. On motion
of defendant PCGG, the complaint against it was dismissed on October 22, 1987. (Words
in bracket and underscoring added)

In a decision dated October 31, 1995,[2] the trial court dismissed petitioners complaint and granted
private respondents counterclaim, to wit:

WHEREFORE, in view of all the foregoing premises, the herein complaint for annulment
of sales is hereby dismissed for lack of merit.

On [respondent] counterclaim, the court finds for [respondent] and against [petitioner] for
the recovery of attorneys fees already paid for at P1,945,395.98, plus a further P316,405.00
remaining due and payable.

SO ORDERED. (Words in bracket added)

 In time, petitioner appealed to the Court of Appeals (CA) whereat its appellate recourse
was docketed as CA-G.R. C.V. No. 52660.

As stated at the outset hereof, the appellate court, in a decision dated February 25, 1998, affirmed
with modification the appealed decision of the trial court, the modification consisting of the
deletion of the award of attorneys fees to private respondent, thus:

WHEREFORE, with the sole modification that the award of attorneys fees in favor of
[respondent] be deleted, the Decision appealed from is hereby AFFIRMED in all respects.

SO ORDERED.

Hence, petitioners present recourse, urging the setting aside of the decision under review

which, to petitioner, decided questions of substance in a way not in accord with law and applicable

jurisprudence considering that the appellate court gravely erred:

I

xxx IN ITS MISAPPLICATION OF THE DECISIONS OF THE HONORABLE COURT

THAT RESULTED IN ITS ERRONEOUS CONCLUSION THAT PETITIONER'S
CAUSE OF ACTION HAD ALREADY PRESCRIBED.

II

xxx IN CONCLUDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES

PRECEDING THE EXECUTION OF THE CONTRACTS OF SALE FOR THE
PETITIONER'S PROPERTIES DID NOT ESTABLISH THE FORCE, INTIMIDATION,
DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

A. xxx IN CONSIDERING AS HEARSAY THE TESTIMONIAL EVIDENCE

WHICH CLEARLY ESTABLISHED THE THREATS MADE UPON
PETITIONER AND THAT RESPONDENT LIWAYWAY WILL BE USED AS
THE CORPORATE VEHICLE FOR THE FORCED ACQUISITION OF
PETITIONER'S PROPERTIES.

B. xxx IN CONCLUDING THAT THE ACTS OF THEN PRESIDENT MARCOS

DURING MARTIAL LAW DID NOT CONSTITUTE THE FORCE,
INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED
PETITIONER'S CONSENT.

C. xxx IN RESOLVING THE INSTANT CASE ON THE BASIS OF MERE

SURMISES AND SPECULATIONS INSTEAD OF THE UNDISPUTED
EVIDENCE ON RECORD.
 III

xxx IN CONCLUDING THAT THE GROSSLY INADEQUATE PURCHASE PRICE

FOR PETITIONER'S PROPERTIES DOES NOT INDICATE THE VITIATION OF
PETITIONER'S CONSENT TO THE CONTRACTS OF SALE.

IV

xxx IN CONCLUDING THAT PETITIONER'S USE OF THE PROCEEDS OF THE

SALE FOR ITS SURVIVAL CONSTITUTE AN IMPLIED RATIFICATION [OF] THE
CONTRACTS OF SALE.

xxx IN EXCLUDING PETITIONER'S EXHIBITS X-6 TO X-7 AND Y-3 (PROFFER)

WHICH ARE ADMISSIBLE EVIDENCE WHICH COMPETENTLY PROVE THAT
THEN PRESIDENT MARCOS OWNED PRIVATE RESPONDENT LIWAYWAY,
WHICH WAS USED AS THE CORPORATE VEHICLE FOR THE ACQUISITION OF
PETITIONER'S PROPERTIES.

The petition lacks merit.

Petitioner starts off with its quest for the allowance of the instant recourse on the submission that
the martial law regime tolled the prescriptive period under Article 1391 of the Civil Code, which
pertinently reads:

Article 391. The action for annulment shall be brought within four years.

This period shall begin:

In cases of intimidation, violence or undue influence, from the time the defect of the
consent ceases.
xxx xxx xxx

It may be recalled that the separate deeds of sale[3] sought to be annulled under petitioners basic
complaint were both executed on October 23, 1973. Per the appellate court, citing Development
Bank of the Philippines [DBP] vs. Pundogar[4], the 4-year prescriptive period for the annulment of
the aforesaid deeds ended in late 1977, doubtless suggesting that petitioners right to seek such
annulment accrued four (4) years earlier, a starting time-point corresponding, more or less, to
the date of the conveying deed, i.e., October 23, 1973. Petitioner contends, however, that the 4-
year prescriptive period could not have commenced to run on October 23, 1973, martial law being
then in full swing. Plodding on, petitioner avers that the continuing threats on the life of Mr.
Teodoro Locsin, Sr. and his family and other menacing effects of martial law which should be
considered as force majeure - ceased only after the February 25, 1986 People Power uprising.
Petitioner instituted its complaint for annulment of contracts on February 26, 1987. The
question that now comes to the fore is: Did the 4-year prescriptive period start to run in late
October 1973, as postulated in the decision subject of review, or on February 25, 1986, as
petitioner argues, on the theory that martial law has the effects of a force majeure[5], which, in
turn, works to suspend the running of the prescriptive period for the main case filed with the trial
court.

Petitioner presently faults the Court of Appeals for its misapplication of the doctrinal rule laid
down in DBP vs. Pundogar[6] where this Court, citing and quoting excerpts from the ruling in Tan
vs. Court of Appeals [7], as reiterated in National Development Company vs. Court of
Appeals, [8]wrote

We can not accept the petitioners contention that the period during which authoritarian rule
was in force had interrupted prescription and that the same began to run only on February
25, 1986, when the Aquino government took power. It is true that under Article 1154 [of
the Civil Code] xxx fortuitous events have the effect of tolling the period of
prescription. However, we can not say, as a universal rule, that the period from September
21, 1972 through February 25, 1986 involves a force majeure. Plainly, we can not box in
the "dictatorial" period within the term without distinction, and without, by necessity,
suspending all liabilities, however demandable, incurred during that period, including
perhaps those ordered by this Court to be paid. While this Court is cognizant of acts of the
last regime, especially political acts, that might have indeed precluded the enforcement of
liability against that regime and/or its minions, the Court is not inclined to make quite a
sweeping pronouncement, . . . . It is our opinion that claims should be taken on a case-to-
case basis. This selective rule is compelled, among others, by the fact that not all
those imprisoned or detained by the past dictatorship were true political oppositionists, or,
for that matter, innocent of any crime or wrongdoing. Indeed, not a few of them were
manipulators and scoundrels. [Italization in the original; Underscoring and words in
bracket added]

According to petitioner, the appellate court misappreciated and thus misapplied the correct thrust
of the Tan case, as reiterated in DBP which, per petitioners own formulation, is the following:[9]

The prevailing rule, therefore, is that on a case-to-case basis, the Martial Law regime may
be treated as force majeure that suspends the running of the applicable prescriptive period
provided that it is established that the party invoking the imposition of Martial Law as
a force majeure are true oppositionists during the Martial Law regime and that said party
 was so circumstanced that is was impossible for said party to commence, continue or
to even resist an action during the dictatorial regime. (Emphasis and underscoring in
the original)

We are not persuaded.

It strains credulity to believe that petitioner found it impossible to commence and succeed
in an annulment suit during the entire stretch of the dictatorial regime. The Court can grant that
Mr. Locsin, Sr. and petitioner were, in the context of DBP and Tan, true oppositionists during the
period of material law. Petitioner, however, has failed to convincingly prove that Mr. Locsin, Sr.,
as its then President, and/or its governing board, were so circumstanced that it was well-nigh
impossible for him/them to successfully institute an action during the martial law years. Petitioner
cannot plausibly feign ignorance of the fact that shortly after his arrest in the evening of
September 20, 1972, Mr. Locsin, Sr., together with several other journalists[10], dared to file suits
against powerful figures of the dictatorial regime and veritably challenged the legality of the
declaration of martial law. Docketed in this Court as GR No. L-35538, the case, after its
consolidation with eight (8) other petitions against the martial law regime, is now memorialized
in books of jurisprudence and cited in legal publications and case studies as Aquino vs. Enrile.[11]

Incidentally, Mr. Locsin Sr., as gathered from the ponencia of then Chief Justice Querube
Makalintal in Aquino, was released from detention notwithstanding his refusal to withdraw from
his petition in said case. Judging from the actuations of Mr. Locsin, Sr. during the onset of martial
law regime and immediately thereafter, any suggestion that intimidation or duress forcibly stayed
his hands during the dark days of martial law to seek judicial assistance must be rejected.[12]

Given the foregoing perspective, the Court is not prepared to disturb the ensuing ruling
of the appellate court on the effects of martial law on petitioners right of action:

In their testimonies before the trial court, both Locsin, Sr. and Locsin, Jr. claimed that they
had not filed suit to recover the properties until 1987 as they could not expect justice to be
done because according to them, Marcos controlled every part of the government,
including the courts, (TSN, 2 May 1988, pp. 23-24; 27 May 1993, p. 121). While that
situation may have obtained during the early years of the martial law administration, We
could not agree with the proposition that it remained consistently unchanged until 1986, a
span of fourteen (14) years. The unfolding of subsequent events would show that while
dissent was momentarily stifled, it was not totally silenced. On the contrary, it steadily
simmered and smoldered beneath the political surface and culminated in that groundswell
of popular protest which swept the dictatorship from power.[13]
 The judiciary too, as an institution, was no ivory tower so detached from the ever changing
political climate. While it was not totally impervious to the influence of the dictatorships
political power, it was not hamstrung as to render it inutile to perform its functions
normally. To say that the Judiciary was not able to render justice to the persons who sought
redress before it . . . during the Martial Law years is a sweeping and unwarranted
generalization as well as an unfounded indictment. The Judiciary, . . . did not lack in gallant
jurists and magistrates who refused to be cowed into silence by the Marcos administration.
Be that as it may, the Locsins mistrust of the courts and of judicial processes is no excuse
for their non-observance of the prescriptive period set down by law.

Corollary to the presented issue of prescription of action for annulment of contract voidable on
account of defect of consent[14] is the question of whether or not duress, intimidation or undue
influence vitiated the petitioners consent to the subject contracts of sale. Petitioner delves at
length on the vitiation issue and, relative thereto, ascribes the following errors to the appellate
court: first, in considering as hearsay the testimonial evidence that may prove the element
of "threat" against petitioner or Mr. Locsin, Sr., and the dictatorial regime's use of private
respondent as a corporate vehicle for forcibly acquiring petitioners properties; second, in
concluding that the acts of then President Marcos during the martial law years did not have a
consent-vitiating effect on petitioner; and third, in resolving the case on the basis of mere
surmises and speculations.

The evidence referred to as hearsay pertains mainly to the testimonies of Messrs. Locsin, Sr. and
Teodoro Locsin, Jr. (the Locsins, collectively), which, in gist, established the following facts: 1)
the widely circulated Free Press magazine, which, prior to the declaration of Martial Law, took
the strongest critical stand against the Marcos administration, was closed down on the eve of
such declaration, which closure eventually drove petitioner to financial ruin; 2) upon Marcos
orders, Mr. Locsin, Sr. was arrested and detained for over 2 months without charges and, together
with his family, was threatened with execution; 3) Mr. Locsin, Sr. was provisionally released on
the condition that he refrains from reopening Free Press and writing anything critical of the
Marcos administration; and 4) Mr. Locsin, Sr. and his family remained fearful of reprisals from
Marcos until the 1986 EDSA Revolution.

Per the Locsins, it was amidst the foregoing circumstances that petitioners property in
question was sold to private respondent, represented by Gen. Menzi, who, before the sale,
allegedly applied the squeeze on Mr. Locsin, Sr. thru the medium of the Marcos cannot be
denied and [you] have no choice but to sell line.

The appellate court, in rejecting petitioners above posture of vitiation of consent,

observed:

It was under the above-enumerated circumstances that the late Hans Menzi, allegedly
acting on behalf of the late President Marcos, made his offer to purchase the Free Press. It
must be noted, however, that the testimonies of Locsin, Sr. and Locsin, Jr. regarding
Menzis alleged implied threat that Marcos cannot be denied and that [respondent] was to
be the corporate vehicle for Marcoss takeover of the Free Press is hearsay as Menzi already
passed away and is no longer in a position to defend himself; the same can be said of the
offers to purchase made by Atty. Crispin Baizas and Secretary Guillermo de Vega who are
also both dead. It is clear from the provisions of Section 36, Rule 130 of the 1989 Revised
Rules on Evidence that any evidence, . . . is hearsay if its probative value is not based on
the personal knowledge of the witness but on the knowledge of some other person not on
the witness stand. Consequently, hearsay evidence, whether objected to or not, has no
probative value unless the proponent can show that the evidence falls within the exceptions
to the hearsay evidence rule (Citations omitted)

The appellate courts disposition on the vitiation-of-consent angle and the ratio therefor
commends itself for concurrence.

Jurisprudence instructs that evidence of statement made or a testimony is hearsay if

offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence
is excluded precisely because the party against whom it is presented is deprived of or is bereft of
opportunity to cross-examine the persons to whom the statements or writings are
attributed.[15] And there can be no quibbling that because death has supervened, the late Gen
Menzi, like the other purported Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-
examine the Locsins for the threatening statements allegedly made by them for the late President.
Like the Court of Appeals, we are not unmindful of the exception to the hearsay rule provided in
Section 38, Rule 130 of the Rules of Court, which reads:

SEC. 38. Declaration against interest. The declaration made by a person deceased or
unable to testify, against the interest of the declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to the declarant's own interest, that a reasonable
man in his position would not have made the declaration unless he believed it to be true,
may be received in evidence against himself or his successors-in-interest and against third
persons.

However, in assessing the probative value of Gen. Menzis supposed declaration against
interest, i.e., that he was acting for the late President Marcos when he purportedly coerced Mr.
Locsin, Sr. to sell the Free Press property, we are loathed to give it the evidentiary weight
petitioner endeavors to impress upon us. For, the Locsins can hardly be considered as
disinterested witnesses. They are likely to gain the most from the annulment of the subject
contracts. Moreover, allegations of duress or coercion should, like fraud, be viewed with utmost
caution. They should not be laid lightly at the door of men whose lips had been sealed by
death.[16] Francisco explains why:

[I]t has been said that of all evidence, the narration of a witness of his conversation with a
dead person is esteemed in justice the weakest. One reason for its unreliability is that the
alleged declarant can not recall to the witness the circumstances under which his statement
were made. The temptation and opportunity for fraud in such cases also operate against the
testimony. Testimony to statements of a deceased person, at least where proof of them will
prejudice his estate, is regarded as an unsafe foundation for judicial action except in so far
as such evidence is borne out by what is natural and probable under the circumstances
taken in connection with actual known facts. And a court should be very slow to act upon
the statement of one of the parties to a supposed agreement after the death of the other
party; such corroborative evidence should be adduced as to satisfy the court of the truth of
the story which is to benefit materially the person telling it. [17]

Excepting, petitioner insists that the testimonies of its witnesses the Locsins - are not hearsay
because:

In this regard, hearsay evidence has been defined as the evidence not of what the witness
knows himself but of what he has heard from others. xxx Thus, the mere fact that the other
parties to the conversations testified to by the witness are already deceased does [not]
render such testimony inadmissible for being hearsay. [18]

xxx xxx xxx

The testimonies of Teodoro Locsin, Sr. and Teodoro Locsin, Jr. that the late Atty. Baizas,
Gen. Menzi and Secretary de Vega stated that they were representing Marcos, that Marcos
cannot be denied, and the fact that Gen. Menzi stated that private respondent Liwayway
was to be the corporate vehicle for the then President Marcos' take-over of petitioner Free
Press are not hearsay. Teodoro Locsin, Sr. and Teodoro Locsin, Jr. were in fact testifying
to matters of their own personal knowledge because they were either parties to the
said conversation or were present at the time the said statements were made. [19]

Again, we disagree.

Even if petitioner succeeds in halving its testimonial evidence, one-half purporting to quote
the words of a live witness and the other half purporting to quote what the live witness heard
from one already dead, the other pertaining to the dead shall nevertheless remain hearsay in
character.
The all too familiar rule is that a witness can testify only to those facts which he knows of his own
knowledge. [20]
There can be no quibbling that petitioners witnesses cannot testify respecting
what President Marcos said to Gen. Menzi about the acquisition of petitioners newspaper, if any
there be, precisely because none of said witnesses ever had an opportunity to hear what the two
talked about.

Neither may petitioner circumvent the hearsay rule by invoking the exception under the
declaration-against-interest rule. In context, the only declaration supposedly made by Gen. Menzi
which can conceivably be labeled as adverse to his interest could be that he was acting in behalf
of Marcos in offering to acquire the physical assets of petitioner. Far from making a statement
contrary to his own interest, a declaration conveying the notion that the declarant possessed the
authority to speak and to act for the President of the Republic can hardly be considered as a
declaration against interest.
Petitioner next assails the Court of Appeals on its conclusion that Martial Law is not per se a
consent-vitiating phenomenon. Wrote the appellate court: [21]

In other words, the act of the ruling power, in this case the martial law administration, was
not an act of mere trespass but a trespass in law - not a perturbacion de mero hecho but
a pertubacion de derecho - justified as it is by an act of government in legitimate self-
defense (IFC Leasing & Acceptance Corporation v. Sarmiento Distributors Corporation,
, citing Caltex (Phils.) v. Reyes, 84 Phil. 654 [1949]. Consequently, the act of the
Philippine Government in declaring martial law can not be considered as an act of
intimidation of a third person who did not take part in the contract (Article 1336, Civil
Code). It is, therefore, incumbent on [petitioner] to present clear and convincing evidence
showing that the late President Marcos, acting through the late Hans Menzi, abused his
martial law powers by forcing plaintiff-appellant to sell its assets. In view of the largely
hearsay nature of appellants evidence on this point, appellants cause must fall.

According to petitioner, the reasoning of the appellate court is "flawed" because:[22]

It is implicit from the foregoing reasoning of the Court of Appeals that it treated the forced
closure of the petitioner's printing press, the arrest and incarceration without charges of
Teodoro Locsin, Sr., the threats that he will be shot and the threats that other members of
his family will be arrested as legal acts done by a dictator under the Martial Law regime.
The same flawed reasoning led the Court of Appeals to the erroneous conclusion that such
acts do not constitute force, intimidation, duress and undue influence that vitiated
petitioner's consent to the Contracts of Sale.
The contention is a rehash of petitioners bid to impute on private respondent acts of force and
intimidation that were made to bear on petitioner or Mr. Locsin, Sr. during the early years of
martial law. It failed to take stock of a very plausible situation depicted in the appellate courts
decision which supports its case disposition on the issue respecting vitiation. Wrote that court:

Even assuming that the late president Marcos is indeed the owner of [respondent], it does
not necessarily follow that he, acting through the late Hans Menzi, abused his power by
resorting to intimidation and undue influence to coerce the Locsins into selling the assets
of Free Press to them (sic).

It is an equally plausible scenario that Menzi convinced the Locsins to sell the assets of the
Free Press without resorting to threats or moral coercion by simply pointing out to them
the hard fact that the Free Press was in dire financial straits after the declaration of Martial
Law and was being sued by its former employees, minority stockholders and creditors.
Given such a state of affairs, the Locsins had no choice but to sell their assets.[23]

Petitioner laments that the scenario depicted in the immediately preceding quotation as a case of
a court resorting to mere surmises and speculations, [24]
oblivious that petitioner itself can only
offer, as counterpoint, also mere surmises and speculations, such as its claim about
Eugenio Lopez Sr. and Imelda R. Marcos offering enticing amounts to buy Free Press.[25]

It bears stressing at this point that even after the imposition of martial law, petitioner, represented
by Mr. Locsin, Sr., appeared to have dared the ire of the powers-that-be. He did not succumb to,
but in fact spurned offers to buy, lock-stock-and-barrel, the Free Press magazine, dispatching
Marcos emissaries with what amounts to a curt Free Press is not for sale. This reality argues
against petitioners thesis about vitiation of its contracting mind, and, to be sure, belying the
notion that Martial Law worked as a Sword of Damocles that reduced petitioner or Mr. Locsin, Sr.
into being a mere automaton. The following excerpt from the Court of Appeals decision is self-
explanatory: [26]

Noteworthy is the fact that although the threat of arrest hung over his head like the Sword
of Damocles, Locsin Sr. was still able to reject the offers of Atty. Baizas and Secretary De
Vega, both of whom were supposedly acting on behalf of the late President Marcos,
without being subjected to reprisals. In fact, the Locsins testified that the initial offer of
Menzi was rejected even though it was supposedly accompanied by the threat that Marcos
cannot be denied. Locsin, Sr. was, moreover, even able to secure a compromise that only
the assets of the Free Press will be sold. It is, therefore, quite possible that plaintiff-
appellants financial condition, albeit caused by the declaration of Martial Law, was a major
factor in influencing Locsin, Sr. to accept Menzis offer. It is not farfetched to consider that
Locsin, Sr. would have eventually proceeded with the sale even in the absence of the
alleged intimidation and undue influence because of the absence of other buyers.
Petitioners third assigned error centers on the gross inadequacy of the purchase price, referring
to the amount of P5,775,000.00 private respondent paid for the property in question. To
petitioner, the amount thus paid does not even approximate the actual market value of the assets
and properties,[27] and is very much less than the P18 Million offered by Eugenio
Lopez.[28] Accordingly, petitioner urges the striking down, as erroneous, the ruling of the Court of
Appeals on purchase price inadequacy, stating in this regard as follows: [29]

Furthermore, the Court of Appeals in determining the adequacy of the price for the
properties and assets of petitioner Free Press relied heavily on the claim that the audited
financial statements for the years 1971 and 1972 stated that the book value of the land is
set at Two Hundred Thirty-Seven Thousand Five Hundred Pesos (P237,500.00). However,
the Court of Appeals' reliance on the book value of said assets is clearly misplaced. It
should be noted that the book value of fixed assets bears very little correlation with
the actual market value of an asset. (Emphasis and underscoring in the original).

With the view we take of the matter, the book or actual market value of the property at the time
of sale is presently of little moment. For, petitioner is effectively precluded, by force of the
principle of estoppel ,[30] from cavalierly disregarding with impunity its own books of account in
which the property in question is assigned a value less than what was paid therefor. And, in line
with the rule on the quantum of evidence required in civil cases, neither can we cavalierly brush
aside private respondents evidence, cited with approval by the appellate court, that tends to
prove that-[31]

xxx the net book value of the Properties was actually only P994,723.66 as appearing in
Free Press's Balance Sheet as of November 30, 1972 (marked as Exh. 13 and Exh. V),
which was duly audited by SyCip, Gorres, and Velayo, thus clearly showing that Free Press
actually realized a hefty profit of P4,755,276.34 from the sale to Liwayway.

Lest it be overlooked, gross inadequacy of the purchase price does not, as a matter of civil
law, per se affect a contract of sale. Article 1470 of the Civil Code says so. It reads:
Article 1470. Gross inadequacy of price does not affect a contract of sale, except as it may
indicate a defect in the consent, or that the parties really intended a donation or some other
act or contract.

Following the aforequoted codal provision, it behooves petitioner to first prove a defect in the
consent, failing which its case for annulment contract of sale on ground gross inadequacy of price
must fall. The categorical conclusion of the Court of Appeals, confirmatory of that of the trial
court, is that the price paid for the Free Press office building, and other physical assets is not
unreasonable to justify the nullification of the sale. This factual determination, predicated as it
were on offered evidence, notably petitioners Balance Sheet as of November 30, 1972 (Exh. 13),
must be accorded great weight if not finality.[32]

In the light of the foregoing disquisition, the question of whether or not petitioners undisputed
utilization of the proceeds of the sale constitutes, within the purview of Article 1393 of the Civil
Code,[33] implied ratification of the contracts of sale need not detain us long. Suffice it to state in
this regard that the ruling of the Court of Appeals on the matter is well-taken. Wrote the appellate
court: [34]

In the case at bench, Free Presss own witnesses admitted that the proceeds of the 1973 sale
were used to settle the claims of its employees, redeem the shares of its stockholders and
finance the companys entry into money-market shareholdings and fishpond business
activities (TSN, 2 May 1988, pp. 16, 42-45). It need not be overemphasized that by using
the proceeds in this manner, Free Press only too clearly confirmed the voluntaries of its
consent and ratified the sale. Needless to state, such ratification cleanses the assailed
contract from any alleged defects from the moment it was constituted (Art. 1396, Civil
Code).

Petitioners posture that its use of the proceeds of the sale does not translate to tacit
ratification of what it viewed as voidable contracts of sale, such use being a matter of [its financial]
survival,[35] is untenable. As couched, Article 1393 of the Civil Code is concerned only with the
act which passes for ratification of contract, not the reason which actuated the ratifying person to
act the way he did. Ubi lex non distinguit nec nos distinguere debemus. When the law does not
distinguish, neither should we. [36]

Finally, petitioner would fault the Court of Appeals for excluding Exhibits X-6 to X-7 and Y-3
(proffer). These excluded documents which were apparently found in the presidential palace or
turned over by the US Government to the PCGG, consist of, among others, what appears to be
private respondents Certificate of Stock for 24,502 shares in the name of Gen. Menzi, but
endorsed in blank. The proffer was evidently intended to show that then President Marcos owned
private respondent, Liwayway Publishing Inc. Said exhibits are of little relevance to the resolution
of the main issue tendered in this case. Whether or not the contracts of sale in question are
voidable is the issue, not the ownership of Liwayway Publishing, Inc.
 WHEREFORE, the petition is DENIED, and the challenged decision of the Court of
Appeals AFFIRMED.

Costs against petitioner.

THIRD DIVISION

[G.R. No. 191696, April 10, 2013]

ROGELIO DANTIS, Petitioner, v. JULIO MAGHINANG, JR., Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the
January 25, 2010 Decision1 and the March 23, 2010 Resolution2 of the Court of
Appeals (CA), in CA-G.R. CV No. 85258, reversing the March 2, 2005 Decision3 of
the Regional Trial Court, Branch 18, Malolos, Bulacan (RTC), in an action for
quieting of title and recovery of possession with damages.

The Facts

The case draws its origin from a complaint4 for quieting of title and recovery of
possession with damages filed by petitioner Rogelio Dantis (Rogelio) against
respondent Julio Maghinang, Jr. (Julio, Jr.) before the RTC, docketed as Civil Case
No. 280-M-2002. Rogelio alleged that he was the registered owner of a parcel of
land covered by Transfer Certificate of Title (TCT) No. T-125918, with an area of
5,657 square meters, located in Sta. Rita, San Miguel, Bulacan; that he acquired
ownership of the property through a deed of extrajudicial partition of the estate of
his deceased father, Emilio Dantis (Emilio), dated December 22, 1993; that he had
been paying the realty taxes on the said property; that Julio, Jr. occupied and built
a house on a portion of his property without any right at all; that demands were
made upon Julio, Jr. that he vacate the premises but the same fell on deaf ears;
and that the acts of Julio, Jr. had created a cloud of doubt over his title and right of
possession of his property. He, thus, prayed that judgment be rendered declaring
him to be the true and real owner of the parcel of land covered by TCT No. T-
125918; ordering Julio, Jr. to deliver the possession of that portion of the land he
was occupying; and directing Julio, Jr. to pay rentals from October 2000 and
attorneys fees of P100,000.00.

He added that he was constrained to institute an ejectment suit against Julio, Jr.
before the Municipal Trial Court of San Miguel, Bulacan (MTC), but the complaint
was dismissed for lack of jurisdiction and lack of cause of action.
In his Answer,5 Julio, Jr. denied the material allegations of the complaint. By way of
an affirmative defense, he claimed that he was the actual owner of the 352 square
meters (subject lot) of the land covered by TCT No. T-125918 where he was living;
that he had been in open and continuous possession of the property for almost
thirty (30) years; the subject lot was once tenanted by his ancestral relatives until
it was sold by Rogelios father, Emilio, to his father, Julio Maghinang, Sr. (Julio,
Sr.); that later, he succeeded to the ownership of the subject lot after his father
died on March 10, 1968; and that he was entitled to a separate registration of the
subject lot on the basis of the documentary evidence of sale and his open and
uninterrupted possession of the property.

As synthesized by the RTC from the respective testimonies of the principal

witnesses, their diametrically opposed positions are as
follows:chanroblesvirtuallawlibrary

Plaintiff Rogelio Dantis testified that he inherited 5,657 square meters of land,
identified as Lot 6-D-1 of subdivision plan Psd-031421-054315, located at Sta. Rita,
San Miguel, Bulacan, through an Extrajudicial Partition of Estate of Emilio Dantis,
executed in December 1993 which land was titled later on under his name, Rogelio
Dantis, married to Victoria Payawal, as shown by copy of Transfer Certificate of Title
No. T-125918, issued by the Register of Deeds of Bulacan on September 29, 1998,
declared for taxation purposes as Tax Declaration with ARP No. C20-22-043-07-
046. According to him, defendant and his predecessor-in-interest built the house
located on said lot. When he first saw it, it was only a small hut but when he was
about 60 years old, he told defendant not to build a bigger house thereon because
he would need the land and defendant would have to vacate the land. Plaintiff,
however, has not been in physical possession of the premises.

Defendant Julio Maghinang, Jr., presented by plaintiff as adverse witness, testified

that he has no title over the property he is occupying. He has not paid realty taxes
thereon. He has not paid any rental to anybody. He is occupying about 352 square
meters of the lot. He presented an affidavit executed on September 3, 1953 by
Ignacio Dantis, grandfather of Rogelio Dantis and the father of Emilio Dantis. The
latter was, in turn, the father of Rogelio Dantis. The affidavit, according to affiant
Ignacio Dantis, alleged that Emilio Dantis agreed to sell 352 square meters of the
lot to Julio Maghinang on installment. Defendant was then 11 years old in 1952.

Defendant Julio Maghinang, Jr. likewise testified for the defendants case as follows:
He owns that house located at Sta. Rita, San Miguel, Bulacan, on a 352 square
meter lot. He could not say that he is the owner because there is still question
about the lot. He claimed that his father, Julio Maghinang (Sr.), bought the said lot
from the parents of Rogelio Dantis. He admitted that the affidavit was not signed by
the alleged vendor, Emilio Dantis, the father of Rogelio Dantis. The receipt he
presented was admittedly a mere photocopy. He spent P50,000.00 as attorneys
fees. Since 1953, he has not declared the property as his nor paid the taxes
thereon because there is a problem.6

On March 2, 2005, the RTC rendered its decision declaring Rogelio as the true
owner of the entire 5,657-square meter lot located in Sta. Rita, San Miguel,
Bulacan, as evidenced by his TCT over the same. The RTC did not lend any
probative value on the documentary evidence of sale adduced by Julio, Jr.
consisting of: 1) an affidavit allegedly executed by Ignacio Dantis (Ignacio),
Rogelios grandfather, whereby said affiant attested, among others, to the sale of
the subject lot made by his son, Emilio, to Julio, Sr. (Exhibit 3)7; and 2) an
undated handwritten receipt of initial downpayment in the amount of P100.00
supposedly issued by Emilio to Julio, Sr. in connection with the sale of the subject
lot (Exhibit 4).8 The RTC ruled that even if these documents were adjudged as
competent evidence, still, they would only serve as proofs that the purchase price
for the subject lot had not yet been completely paid and, hence, Rogelio was not
duty-bound to deliver the property to Julio, Jr. The RTC found Julio, Jr. to be a
mere possessor by tolerance. The dispositive portion of the RTC decision
reads:chanroblesvirtuallawlibrary

WHEREFORE, Judgment is hereby rendered as follows:

1. quieting the title and removing whatever cloud over the title on the
parcel of land, with area of 5,647 sq. meters, more or less, located at
Sta. Rita, San Miguel, Bulacan, covered by Transfer Certificate of Title
No. T-125918 issued by the Register of Deeds of Bulacan in the name
of Rogelio Dantis, married to Victoria Payawal;cralawlibrary

2. declaring that Rogelio Dantis, married to Victoria Payawal, is the true

and lawful owner of the aforementioned real property; and

3. ordering defendant Julio Maghinang, Jr. and all persons claiming under
him to peacefully vacate the said real property and surrender the
possession thereof to plaintiff or latters successors-in-interest.

No pronouncement as to costs in this instance.

SO ORDERED.9

Julio, Jr. moved for a reconsideration of the March 2, 2005 Decision, but the motion
was denied by the RTC in its May 3, 2005 Order.10 Feeling aggrieved, Julio, Jr.
appealed the decision to the CA.

On January 25, 2010, the CA rendered the assailed decision in CA-G.R. CV NO.
85258, finding the appeal to be impressed with merit. It held that Exhibit 4 was
an indubitable proof of the sale of the 352-square meter lot between Emilio and
Julio, Sr. It also ruled that the partial payment of the purchase price, coupled with
the delivery of the res, gave efficacy to the oral sale and brought it outside the
operation of the statute of frauds. Finally, the court a quo declared that Julio, Jr.
and his predecessors-in-interest had an equitable claim over the subject lot which
imposed on Rogelio and his predecessors-in-interest a personal duty to convey
what had been sold after full payment of the selling price. The decretal portion of
the CA decision reads:chanroblesvirtuallawlibrary
IN VIEW OF THE FOREGOING, the decision appealed from is reversed. The heirs of
Julio Maghinang Jr. are declared the owners of the 352-square meter portion of the
lot covered by TCT No. T-125968 where the residence of defendant Julio Maghinang
is located, and the plaintiff is ordered to reconvey the aforesaid portion to the
aforesaid heirs, subject to partition by agreement or action to determine the exact
metes and bounds and without prejudice to any legal remedy that the plaintiff may
take with respect to the unpaid balance of the price.

SO ORDERED.11
The motion for reconsideration12 filed by Rogelio was denied by the CA in its March
23, 2010 Resolution. Unfazed, he filed this petition for review on certiorari before
this Court.

Issues:

The fundamental question for resolution is whether there is a perfected contract of

sale between Emilio and Julio, Sr. The determination of this issue will settle the
rightful ownership of the subject lot.

Rogelio submits that Exhibit 3 and Exhibit 4 are devoid of evidentiary value and,
hence, deserve scant consideration. He stresses that Exhibit 4 is inadmissible in
evidence being a mere photocopy, and the existence and due execution thereof had
not been established. He argues that even if Exhibit 4 would be considered as
competent and admissible evidence, still, it would not be an adequate proof of the
existence of the alleged oral contract of sale because it failed to provide a
description of the subject lot, including its metes and bounds, as well as its full
price or consideration.13cralawvllred

Rogelio argues that while reconveyance may be availed of by the owner of a real
property wrongfully included in the certificate of title of another, the remedy is not
obtainable herein since he is a transferee in good faith, having acquired the land
covered by TCT No. T-125918, through a Deed of Extrajudicial Partition of
Estate.14 He asserts that he could not be considered a trustee as he was not privy
to Exhibit 4. In any event, he theorizes that the action for reconveyance on the
ground of implied trust had already prescribed since more than 10 years had lapsed
since the execution of Exhibit 4 in 1953. It is the petitioners stance that Julio, Jr.
did not acquire ownership over the subject lot by acquisitive prescription
contending that prescription does not lie against a real property covered by a
Torrens title. He opines that his certificate of title to the subject lot cannot be
collaterally attacked because a Torrens title is indefeasible and must be respected
unless challenged in a direct proceeding.15cralawvllred

The Courts Ruling

In the case at bench, the CA and the RTC reached different conclusions on the
question of whether or not there was an oral contract of sale. The RTC ruled that
Rogelio Dantis was the sole and rightful owner of the parcel of land covered by TCT
No. T-125918 and that no oral contract of sale was entered into between Emilio
Dantis and Julio Maghinang, Sr. involving the 352-square meter portion of the said
property. The CA was of the opposite view. The determination of whether there
existed an oral contract of sale is essentially a question of fact.

In petitions for review under Rule 45, the Court, as a general rule, does not venture
to re-examine the evidence presented by the contending parties during the trial of
the case considering that it is not a trier of facts and the findings of fact of the CA
are conclusive and binding upon this Court. The rule, however, admits of several
exceptions. One of which is when the findings of the CA are contrary to those of the
trial court.16 Considering the incongruent factual conclusions of the CA and the RTC,
this Court is constrained to reassess the factual circumstances of the case and
reevaluate them in the interest of justice.

The petition is meritorious.

It is an age-old rule in civil cases that he who alleges a fact has the burden of
proving it and a mere allegation is not evidence.17 After carefully sifting through the
evidence on record, the Court finds that Rogelio was able to establish a prima facie
case in his favor tending to show his exclusive ownership of the parcel of land
under TCT No. T-125918 with an area of 5,657 square meters, which included the
352-square meter subject lot. From the records, it appears that TCT No. T-125918
is a derivative of TCT No. T-256228, which covered a bigger area of land measuring
30,000 square meters registered in the name of Emilio Dantis; that Emilio died
intestate on November 13, 1952; that Emilios five heirs, including Rogelio,
executed an extra-judicial partition of estate on December 22, 1993 and divided
among themselves specific portions of the property covered by TCT No. T-256228,
which were already set apart by metes and bounds; that the land known as Lot 6-
D-1 of the subdivision plan Psd-031421-054315 with an area of 5,657 sq. m. went
to Rogelio, the property now covered by TCT No. T-125918; and that the property
was declared for realty tax purpose in the name of Rogelio for which a tax
declaration was issued in his name; and that the same had not been transferred to
anyone else since its issuance.

In light of Rogelios outright denial of the oral sale together with his insistence of
ownership over the subject lot, it behooved upon Julio, Jr. to contravene the
formers claim and convince the court that he had a valid defense. The burden of
evidence shifted to Julio, Jr. to prove that his father bought the subject lot from
Emilio Dantis. In Jison v. Court of Appeals,18 the Court
held:chanroblesvirtuallawlibrary

Simply put, he who alleges the affirmative of the issue has the burden of proof, and
upon the plaintiff in a civil case, the burden of proof never parts. However, in the
course of trial in a civil case, once plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs
prima facie case, otherwise, a verdict must be returned in favor of plaintiff.
Moreover, in civil cases, the party having the burden of proof must produce a
preponderance of evidence thereon, with plaintiff having to rely on the strength of
his own evidence and not upon the weakness of the defendants. The concept of
preponderance of evidence refers to evidence which is of greater weight, or more
convincing, that which is offered in opposition to it; at bottom, it means probability
of truth.19

Julio, Jr. failed to discharge this burden. His pieces of evidence, Exhibit 3 and
Exhibit 4, cannot prevail over the array of documentary and testimonial evidence
that were adduced by Rogelio. The totality of Julio, Jr.s evidence leaves much to be
desired.

To begin with, Exhibit 3, the affidavit of Ignacio, is hearsay evidence and, thus,
cannot be accorded any evidentiary weight. Evidence is hearsay when its probative
force depends on the competency and credibility of some persons other than the
witness by whom it is sought to be produced. The exclusion of hearsay evidence is
anchored on three reasons: 1) absence of cross-examination; 2) absence of
demeanor evidence; and 3) absence of oath.20cralawvllred

Jurisprudence dictates that an affidavit is merely hearsay evidence where its

affiant/maker did not take the witness stand.21 The sworn statement of Ignacio is of
this kind. The affidavit was not identified and its averments were not affirmed by
affiant Ignacio. Accordingly, Exhibit 3 must be excluded from the judicial
proceedings being an inadmissible hearsay evidence. It cannot be deemed a
declaration against interest for the matter to be considered as an exception to the
hearsay rule because the declarant was not the seller (Emilio), but his father
(Ignacio).

Exhibit 4, on the other hand, is considered secondary evidence being a mere

photocopy which, in this case, cannot be admitted to prove the contents of the
purported undated handwritten receipt. The best evidence rule requires that the
highest available degree of proof must be produced. For documentary evidence, the
contents of a document are best proved by the production of the document itself to
the exclusion of secondary or substitutionary evidence, pursuant to Rule 130,
Section 322.

A secondary evidence is admissible only upon compliance with Rule 130, Section 5,
which states that: when the original has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. Accordingly, the offeror of the
secondary evidence is burdened to satisfactorily prove the predicates thereof,
namely: (1) the execution or existence of the original; (2) the loss and destruction
of the original or its non-production in court; and (3) the unavailability of the
original is not due to bad faith on the part of the proponent/offeror. Proof of the
due execution of the document and its subsequent loss would constitute the basis
for the introduction of secondary evidence.23 In MCC Industrial Sales Corporation v.
Ssangyong Corporation,24 it was held that where the missing document is the
foundation of the action, more strictness in proof is required than where the
document is only collaterally involved.
Guided by these norms, the Court holds that Julio, Jr. failed to prove the due
execution of the original of Exhibit 4 as well as its subsequent loss. A nexus of
logically related circumstance rendered Julio, Jr.s evidence highly suspect. Also, his
testimony was riddled with improbabilities and contradictions which tend to erode
his credibility and raise doubt on the veracity of his evidence.

First, the claim of Julio, Jr. that Emilio affixed his signature on the original of Exhibit
4 in 1953 is highly improbable because record shows that Emilio died even before
that year, specifically, on November 13, 1952. Excerpts from Julio, Jr.s testimony
relative to this matter are as follows:chanroblesvirtuallawlibrary

Atty. Vicente Millora

(On Cross-examination)

Q: You dont remember how old you were when this according to you you
witnessed Emilio Dantis signed this?
A: Eleven years old, Sir.

Q: So that was 1953?

A: Yes, Sir.

Q: And you were then?

A: I was born October 1942, Sir.

Q: You were eleven (11) years old?

A: Yes, Sir.

Q: And you mean to say that you witnessed the signing allegedly of the original of
Exhibit 4 when you were eleven (11) years old?
A: Yes, Sir.

Q: And you remember what was signed in this receipt. From your memory can you
tell the title of this Exhibit 4?
A: What I can say that it is a Sale, Sir.

Q: So, when you said that you witnessed an alleged sale you are referring to
Exhibit 4?
A: Yes, Sir.25 (Emphasis supplied)

Second, Julio, Jr.s testimony pertinent to the alleged loss of the original of Exhibit
4 is laden with inconsistencies that detract from his credibility. His testimony
bears the earmarks of falsehood and, hence, not reliable. Julio, Jr. testified in this
wise:chanroblesvirtuallawlibrary

Atty. Roldan Villacorta

(On Direct examination)
Q: Mr. Witness, I noticed that this document marked as Exhibit 4 is only a
photocopy, where is the original of this document?
A: The original was with the safekeeping of my parents because of the lapse of
time the original was misplaced, Sir.26

The above testimony of Julio, Jr. tends to give the impression that the original of
the document was lost while it was in the possession of his parents. During cross-
examination, however, he testified that it was lost while it was in his possession.

Atty. Vicente Millora

(On Cross-examination)

Q: x x x Where did you keep that document?

A: I was the one keeping that document because I live in different places, [the
said] it was lost or misplaced, Sir.

Q: In other words, it was lost while the same was in your possession??
A: Yes, Sir.27 (Emphasis supplied)

Still, later, Julio, Jr. claimed that his sister was the one responsible for the loss of
the original of Exhibit 4 after borrowing the same from him.

Atty. Vicente Millora

(On Cross-examination)

Q: So, who is your sister to whom you gave the original?

A: Benedicta Laya, Sir.

Q: In other words now, you did not lost the document or the original of Exhibit 4
but you gave it to your sister, am I correct?
A: I just lent to her the original copy, Sir.

Q: So, you lent this original of Exhibit 4 to your sister and your sister never
returned the same to you?
A: Yes, Sir, because it was lost, that was the only one left in her custody.

Interpreter:cralaw

Witness referring to the xerox copy.

Atty. Vicente Millora

Q: In other words, it was your sister who lost the original, is that correct?
A: Yes, Sir, when I lent the original.28 (Emphasis supplied)

The Court also notes the confused narration of Julio, Jr. regarding the last time he
saw the original of Exhibit 4.
Atty. Vicente Millora
(On Cross-examination)

Q: And when did you last see the original?

A: When my mother died in 1993 that was the last time I tried to see the original
of the document after her interment, Sir.

Q: Where did you see this document?

A: From the safekeeping of my mother, Sir.29cralawvllred

xxxx

Q: When did you get this Exhibit 4 now, the photocopy from your sister?
A: When the interment of my mother in September 1993, Sir.

Q: Now, let us reform. Which one did you get after the interment of your mother,
this Exhibit 4 or the original?
A: I asked that xerox copy because I have lost the original and I could not find the
same, Sir.

Q: So, from the safe of your mother after her interment, what used you found and
got this Exhibit 4?
A: Yes, Sir, from my sister.

Q: So, not from your mother safe?

A: The original was taken from the safe of my mother, Sir.

Q: So after your mothers death you never saw the original?

A: I did not see it anymore because the original was lost before she died,
Sir.30(Underscoring supplied)

Third, it is quite strange that two receipts were prepared for the initial payment of
P100.00 in connection with the sale of the subject lot. The Court notes that the
contents of Exhibit 4 were similar to those of Annex A31 of Julio, Jr.s Answer,
dated June 9, 2002. Annex A, however, was typewritten and the name of the
recipient indicated therein was a certain Cornelio A. Dantis, whose identity and
participation in the alleged sale was never explained.

Fourth, apart from the lone testimony of Julio, Jr., no other witness who knew or
read Exhibit 4, much less saw it executed, was presented. In the absence of any
shred of corroborative evidence, the Court cannot help but entertain doubts on the
truthfulness of Julio, Jr.s naked assertion.

Assuming, in gratia argumenti, that Exhibit 4 is admissible in evidence, there will

still be no valid and perfected oral contract for failure of Julio, Jr. to prove the
concurrence of the essential requisites of a contract of sale by adequate and
competent evidence.
By the contract of sale, one of the contracting parties obligates himself to transfer
the ownership of, and to deliver, a determinate thing, and the other to pay therefor
a price certain in money or its equivalent.32 A contract of sale is a consensual
contract and, thus, is perfected by mere consent which is manifested by the
meeting of the offer and the acceptance upon the thing and the cause which are to
constitute the contract.33 Until the contract of sale is perfected, it cannot, as an
independent source of obligation, serve as a binding juridical relation between the
parties.34 The essential elements of a contract of sale are: a) consent or meeting of
the minds, that is, consent to transfer ownership in exchange for the price; b)
determinate subject matter; and c) price certain in money or its equivalent.35 The
absence of any of the essential elements shall negate the existence of a perfected
contract of sale.36cralawvllred

Seemingly, Julio, Jr. wanted to prove the sale by a receipt when it should be the
receipt that should further corroborate the existence of the sale. At best, his
testimony only alleges but does not prove the existence of the verbal agreement.
Julio, Jr. miserably failed to establish by preponderance of evidence that there was
a meeting of the minds of the parties as to the subject matter and the purchase
price.

The chief evidence of Julio, Jr. to substantiate the existence of the oral contract of
sale is Exhibit 4. For a better understanding and resolution of the issue at hand,
Exhibit 4 is being reproduced here:chanroblesvirtuallawlibrary

Alamin ng sino mang

Makababasa

Akong si Emilio Dantis may sapat na Gulang may asawa naninirahan sa Sta Rita
San Miguel Bul. ay kusang nagsasasay ng sumosunod.

Na ako Tumanggap Kay Julio Maghinang ng P100.00 peso cuartang Pilipino, bilang
paunang bayad sa Lupa niyang nilote sa akin 400 apat na raan mahigit na metro
cudrado.

Testigo Tumangap,
Emilio a Dantis

A perusal of the above document would readily show that it does not specify a
determinate subject matter. Nowhere does it provide a description of the property
subject of the sale, including its metes and bounds, as well as its total area. The
Court notes that while Julio, Jr. testified that the land subject of the sale consisted
of 352 square meters, Exhibit 4, however, states that its more than 400 square
meters. Moreover, Exhibit 4 does not categorically declare the price certain in
money. Neither does it state the mode of payment of the purchase price and the
period for its payment.

In Swedish Match, AB v. Court of Appeals,37 the Court ruled that the manner of
payment of the purchase price was an essential element before a valid and binding
contract of sale could exist. Albeit the Civil Code does not explicitly provide that the
minds of the contracting parties must also meet on the terms or manner of
payment of the price, the same is needed, otherwise, there is no sale.38 An
agreement anent the manner of payment goes into the price so much so that a
disagreement on the manner of payment is tantamount to a failure to agree on the
price.39 Further, in Velasco v. Court of Appeals,40 where the parties already agreed
on the object of sale and on the purchase price, but not on how and when the
downpayment and the installment payments were to be paid, this Court
ruled:chanroblesvirtuallawlibrary

Such being the situation, it cannot, therefore, be said that a definite and firm sales
agreement between the parties had been perfected over the lot in question. Indeed,
this Court has already ruled before that a definite agreement on the manner of
payment of the purchase price is an essential element in the formation of a binding
and enforceable contract of sale. The fact, therefore, that the petitioners delivered
to the respondent the sum of P10,000.00 as part of the down-payment that they
had to pay cannot be considered as sufficient proof of the perfection of any
purchase and sale agreement between the parties herein under Art. 1482 of the
new Civil Code, as the petitioners themselves admit that some essential matter
the terms of payment still had to be mutually covenanted.41

The CA held that partial performance of the contract of sale giving of a

downpayment coupled with the delivery of the res - took the oral contract out of
the scope of the Statute of Frauds. This conclusion arose from its erroneous finding
that there was a perfected contract of sale. The above disquisition, however, shows
that there was none. There is, therefore, no basis for the application of the Statute
of Frauds. The application of the Statute of Frauds presupposes the existence of a
perfected contract.42 As to the delivery of the res, it does not appear to be a
voluntary one pursuant to the purported sale. If Julio, Jr. happened to be there, it
was because his ancestors tenanted the land. It must be noted that when Julio, Jr.
built his house, Rogelio protested.

WHEREFORE, the petition is GRANTED. The assailed January 25, 2010 Decision
and the March 23, 2010 Resolution of the Court Appeals, in CA-G.R. CV No. 85258,
are REVERSED and SET ASIDE. The March 2, 2005 Decision of the Regional Trial
Court of Malolos, Bulacan, Branch 18, in Civil Case No. 280-M-2002,
is REINSTATED.

SO ORDERED.

THIRD DIVISION

PHILIPPINE REALTY G.R. No. 156251

HOLDINGS CORPORATION,
 Petitioner,

Present:

YNARES-SANTIAGO, J.,

Chairperson,

- versus - AUSTRIA-MARTINEZ,

CALLEJO, SR.,

CHICO-NAZARIO, and

NACHURA, JJ.

Promulgated:

FIREMATIC PHILIPPINES,

INC.,

Respondent. April 27, 2007

x--------------------------------------------------x

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R.
CV No. 63791 and its Resolution[2] dated November 19, 2002.

The Antecedents
 On December 12, 1989, Philippine Realty and Holdings Corporation (PRHC), entered into a
Construction Agreement[3] with Firematic Philippines, Inc. (Firematic) for the installation of a sprinkler
system in the proposed Tektite Towers, located at Tektite Road corner Pearl Avenue, Mandaluyong,
Metro Manila.The project had two phases - Phase I (Tower I) and Phase II (Tower II)

The scope of the work to be done by Firematic is provided in Article II of the Contract, thus:

1.0 The CONTRACTOR, in consideration of the payments to be made by OWNER,

of certain sums of money in the manner hereinafter specified, shall fully and faithfully
deliver, perform and undertake to finish and supply all the materials, tools, equipment,
supervision and to do all the skills and labor necessary or proper for the due completion
of the Sprinkler System for the above-mentioned project, and does hereby warrant and
guarantee that the said work and labor shall be performed in the most proper and
workmanlike manner and in full conformity with the corresponding plans and
specifications duly prepared therefor and/or the pertinent contract documents.

2.0 The work of the CONTRACTOR shall include, but shall not be limited to
ordering materials, following-up of orders, checking the quantity and quality of materials
within the premises of the construction site, and rejecting or returning defective
materials.

3.0 The CONTRACTOR is hereby expressly required to refer to all

Mechanical, Plumbing, Electrical, Structural and Architectural plans and specifications and
shall investigate any possible interference and conditions affecting its contract work.

4.0 All materials supplied by the CONTRACTOR shall be in conformity with the
Sprinkler System specifications prepared by R. Villarosa Architects.

5.0 It is not intended that the drawings shall show every pipe, fittings, and valve.
All such items, whether or not those parts have been specifically mentioned or indicated
on the drawings, shall be furnished and installed by CONTRACTOR, if necessary to
complete the system in accordance with the best practice of Sprinker System and to the
satisfaction of the OWNER.[4]

Under Article I of the Contract, the following documents were incorporated into the agreement:
 1.0 Sprinkler System Plans: FP-1 to FP-18, all consisting of eighteen (18) sheets as
prepared by R. Villarosa Architects.

2.0 Fire Protection Specification consisting of Forty-nine (49) pages.

3.0 Bid Documents consisting of the following:

a) Invitation to Bid One (1) sheet;

b) Instruction to Bidders Three (3) sheets;

c) Bid Proposals of Firematic Phils., Inc. consisting of Three (3) pages

dated Oct. 31, 1989;

d) Bid Bulletin No. 1 Fourteen (14) sheets;

e) Letter of Intent dated November 21, 1989 duly signed by the Owner and
the Contractor consisting of Two (2) sheets.[5]

Article IX of the Contract enumerates the responsibilities of Firematic relative to the supply and
installation of the sprinkler supplies:

1.0. The CONTRACTOR shall remove all portions of work which the OWNER or its
representative may condemn as in any way having failed to conform with the
corresponding Sprinkler Systems plans and specifications, and the CONTRACTOR shall
properly make good all such work so condemned by the OWNER. The cost of making good
any/all work shall be solely borne by the CONTRACTOR.

xxxx

7.0. The CONTRACTOR warrants the Sprinkler System installations under this
contract to be free from faults or defects in materials and workmanship for a period of
One (1) year from the date of initial operations. Faults caused by or due to ordinary wear
and tear or those caused by the OWNER or its employees are excluded from this
guarantee.
 The CONTRACTOR further warrants all equipment and accessories thereto to be
free from defects in materials and faulty workmanship for a period of One (1) year from
the date of initial operation.

The equipment or parts thereof which are found defective within the said period
of guarantee shall be replaced by the CONTRACTOR at no cost to the OWNER.

On December 11, 1990, PRHC informed[6] Firematic that it had decided to delete Phase II (Tower
II) from the original contract, and consequently, the contract price for Phase I was reduced
to P22,153,424.52.[7] However, by reason of the change orders approved by PRHC, the contract price was
increased to P24,773,376.48.[8]

On December 13, 1990, PRHC and Firematic entered into another Construction
Agreement[9] under which the latter undertook to supply, deliver and install the fire alarm system for
Phase I of the Tektite Project for a total contract price of P3,780,000.00. This agreement contains
substantially the same terms and conditions as the earlier contract for fire sprinklers.

The Technical Specification for Fire Protection[10] (which is an integral part of the contract)
provides, among others:

1.02. QUALIFICATIONS

xxxx

D. LISTED AND APPROVED:

When the words listed and approved appear in the Contract Documents, or the
Standard Specifications and Codes, they shall be interpreted to require products to bear
labels indicating the listing, or approval of items of equipment, components, devices,
assemblies and apparatus; by an internationally recognized testing laboratory for the
specific service intended.
 1.03. STANDARD SPECIFICATIONS AND CODES:

xxxx

1. NFPA-20; Centrifugal Fire Pumps[11]

The contract price and terms of payment for the project are as follows:

The OWNER shall pay the CONTRACTOR for the full, faithful and complete
performance of the works called for under this agreement, a fixed amount of
PESOS: THIRTY THREE MILLION NINE HUNDRED NINETY FIVE THOUSAND FORTY ONE &
24/100
(P33,995,041.24) ONLY, the manner of payment of which shall be in accordance with
Article V hereof. The contract price shall not be subject to escalation, except due to work
addition approved by the Owner and the Architect and due to official increase in
minimum wage as covered by the Labor Cost Adjustment Clause below. x x x It is
understood that there shall be no escalation in the price of materials. x x x.

ARTICLE IV ADJUSTMENT OF CONTRACT PRICE

The OWNER or ARCHITECT may, without invalidating this Agreement or the

Contract Documents, order at anytime in writing additional work or alterations by
correcting, altering or deducting from the work to be undertaken or being undertaken by
the CONTRACTOR. All such work shall be evidenced by Change Orders signed by the
OWNER and shall be executed under the conditions hereof and of the Contract
Documents.

No claims for additions or deductions to the Contract Price herein stipulated by

reason of extra or alteration shall be valid unless ordered in writing by the Owner. The
value of any extra work or alterations shall be separately agreed upon by the parties in
writing.
 Any value of Change Orders approved shall be considered as part of the Contract
and to be included in progress billing.

ARTICLE V TERMS OF PAYMENT

3.0. No payment made hereunder shall be construed as a waiver of any claim

against the CONTRACTOR by the OWNER for any faulty workmanship, materials used or
defect in work completed.

On March 30, 1992, Firematic requested[12] PRHC for financial assistance due to its tight business
credit and rising costs. Consequently, the purchases of materials for the project were directly paid by
PRHC.

Firematic submitted to PRHC the Catalogue of Peerless Fire Pumps,[13] and PRHC approved the use
of 500 GPM (12 LB-F model) Peerless Vertical Turbine Fire Pumps.[14] To facilitate the purchase of the
approved model and specifications of the fire pumps from Technotrade Industrial Sales, Inc., and pursuant
to the financial assistance earlier requested by Firematic, the latter presented to PRHC for approval
Purchase Order No. 108[15] dated August 6, 1992. PRHC approved the purchase order. The subject
materials were delivered and eventually installed by Firematic.

On the other hand, the Technical Specifications for Fire Alarm and Detection System[16] provides:

2.01. FIRE ALARM CONTROL PANEL (FACP):

xxxx

B. The FACP shall be solid state design with full capability for sensing automatic
detectors, and manual stations and have the provision for integrating with security
system.[17]
 Paragraph 9 of Bid Bulletin No. 1[18] dated September 10, 1990 provides that the requirement for
interfacing with Security System Section under Section 2.01(B) is actually for interfacing with the Building
Management System (BMS).[19]

The materials were installed by Firematic. The project became operational and was turned over
to PRHC, which then issued the Certificate of Completion.[20] The Municipal Mayor issued a Certificate of
Occupancy in favor of PRHC on January 12, 1993.[21]

In the meantime, PRHC requested the Connel Bros. Co., Philippines for a quotation of the Peerless
UL/FU Fire pump similar to those installed by Firematic in Tektite Tower I.[22] However, Connel Bros.
Philippines, Inc. replied by letter dated September 2, 1993 that it would be difficult for them to trace
whether they had records of transactions with Technotrade-USA, because the pump model and serial
number that PRHC furnished were not of Peerless origin.[23]

Meanwhile, on October 14, 1993, Firematic billed PRHC P1,402,559.93 for the balance of the
amount of the automatic sprinkler supplies installed.[24]However, PRHC rejected the claim. On October
20, 1993, PRHC, through counsel, sent a letter[25] to Firematic claiming that, based on its Purchase Order,
the brand Peerless should have been used; however, the manufacturer of the brand (Peerless Pump Co.,
USA), did not have any record of having manufactured the pumps that Firematic delivered and installed
on the Tektite Towers project.

Firematic did not respond to the letter. Instead, its managing director, Ms. Jojie Gador, went to the Fire
Department of the City of Pasig and inquired about the fire incident that occurred at Tower II while
construction was ongoing.[26] In response to the inquiry, the City Fire Marshall issued a
report[27] dated June 10, 1994 stating that said fire could have turned into a conflagration size without
the swift response of the company guards on duty plus the existing firefighting equipment installed
thereat.

In a letter[28] dated March 2, 1994, Connel Bros. stated that Peerless Pump Co. never had direct
negotiation with Technotrade, and as such, the latter is not a dealer of Peerless pump.

On January 12, 1995, Firematic sent its final billing[29] and a demand letter[30] prepared by its
counsel to PRHC for the payment of the latters balance of the contract price amounting to P3,919,283.13,
including the unacted charge order attached thereto.
 In answer to the final billing of Firematic, PRHC denied[31] liability for the following reasons:

1.[The] installation is incomplete and has not been fully commissioned.

2. [The] Fire Alarm Panels could not be interfaced with Building Management
System as required in [the] contract x x x.

3. [The] Fire Alarm Panels do not follow the specifications required in the
contract.

In a letter[32] dated March 6, 1995, PRHC informed Firematic that all the fire pumps and
accessories supplied by it shall be removed, and the cost of replacement, including the labor cost of the
installation, would be chargeable to its account. Again, Firematic failed to respond.[33]

In the meantime, PRHC purchased the replacement for the defective materials installed by
Firematic, as evidenced by the following Purchase Orders: (1) P.O. dated November 15, 1993 for pumps
obtained from Connel Bros. Company Pilipinas, Inc. amounting to US$ 61,925.00;[34] (2) P.O. dated
October 25, 1994 for fire and jockey pumps installation amounting to P318,750.00; [35] and (3) P.O. dated
October 4, 1995 for materials purchased from Electro Systems, for a total amount of P450,000.00.[36] The
Peerless pumps bought by PRHC to replace the pumps Firematic had installed were higher in terms of
capacity.[37]

As a result of the continued refusal of PRHC to pay its unpaid obligation, Firematic filed a
Complaint for Collection for Sum of Money plus Damages[38]against PRHC. The case was raffled to Branch
66 of the Regional Trial Court of Makati, and was docketed as Civil Case No. 95-394.

Firematic alleged in its complaint that when it followed up its final billings and retention money,
the PRHC, under new management, refused to pay its obligation. It further claimed that the PRHCs reason,
that the sprinkler system and fire alarm system were defective was so flimsy because the sprinkler and fire
alarm systems were certified to be in good condition. Firematic also asserted that because of PRHCs
continued refusal to settle its valid and outstanding obligations, it suffered actual damages in the amount
of P5,897,736.44; temperate or moderate damages in a reasonable amount of P500,000.00; and attorneys
fees equivalent to 25% of the amount recoverable. The complaint contained the following prayer:
WHEREFORE, Premises Considered, it is respectfully pray (sic) of the Honorable
Court that after trial a judgment be rendered ordering the defendant
 1. To pay the amount of P5,897,736.44 plus legal interest of 1% per month until
fully paid from the filing of this complaint;

2. To pay temperate or moderate damages of P500,000.00;

3. To pay attorneys fees in the amount equivalent to 25% of the amount

recovered;

4. To pay the cost of suit.

Further prays for such other reliefs and damages under the premises.[39]

In its Answer,[40] PRHC countered that plaintiff had no cause of action, and that the complaint is
premature because the case should have been submitted first to arbitration. It also alleged that out of the
total amount of P23,400,869.41 billed by Firematic, it already paid the total sum of P22,098,302.45.
However, after such payment, it discovered that Firematic had violated the terms and conditions of the
contract, and that the actual works completed in accordance with the technical specifications amounted
only to P21,915,869.41. It likewise claimed that there was in fact an overpayment of P182,433.04 insofar
as the fire sprinkler contract was concerned. As to the fire alarm contract, PRHC alleged that it paid a total
sum of P3,247,966.49, but it turned out that the works actually completed in accordance with the
specifications of the contract amounted only to P2,857,655.10. PRHC insisted that Firematic committed
fraud in the performance of its obligations under the two contracts in (1) actually delivering and installing
pumps that were not genuine Peerless products, non-UL listed and non-FM approved; (2) supplying and
installing Mitech brand instead of Firescan 5027 as approved during the bidding; (3) installing fire alarm
control and data gathering panels that were not compatible with each other; and (4) installing a fire alarm
system that could not be connected or interfaced with the Building Management System.

In its Reply,[41] Firematic alleged that the provision on arbitration had force and effect only during
the execution and performance of the agreement or contract and not after its termination. It further
asserted that the total contract price, including the change orders, increased to P25,277,559.75 but PRHC
only paid P21,087,191.89; thus, there was a balance of P4,190,367.86. It likewise contended that though
there was an approved specification, revisions were made due to unavailability of
materials. Consequently, with the conformity and approval of PRHC of the description specified under
P.O. 108, the latter made direct orders from Technotrade; PRHC also made direct payments to it. Firematic
pointed out that the materials delivered were under warranty for one (1) year, and since PRHC had no
complaints after the lapse of the warranty, it was under the impression that the materials had met the
specifications. It insisted that PRHC could not complain that the fire alarm system could not be interfaced
with its system because it was the latters responsibility to provide for an interface device.

On September 1, 1998, PRHC filed a Motion for Leave to Amend Answer to Conform to
Evidence[42] which Firematic opposed. On October 26, 1998, the trial court granted the motion and
thereby admitted the Amended Answer.[43] In its Amended Answer, PRHC claimed that, with respect to
the fire sprinkler system, the actual works completed by Firematic amounted to

only P20,613,302.45. Thus, it (PRHC) made an overpayment of P1,485,000.00. As to the fire alarm system,
the works actually completed in accordance with the technical specifications amounted to
only P2,597,966.49. Again, there was an overpayment of P650,000.00.

By way of counterclaim, PRHC averred that Firematics violation of the contract and its
misrepresentation caused the former to suffer actual damages in the amount of P2,135,000.00,
$61,925.00 and P450,000.00; the baseless and unfounded suit caused it to suffer besmirched reputation,
for which Firematic should be ordered to pay moral damages in the amount of P20,000.00; for the public
good and to deter others similarly minded from committing fraud in the performance of the contract,
Firematic should be ordered to pay exemplary damages in the amount of P10,000.00; and since the
unfounded suit compelled PRHC to obtain the services of counsel, Firematic should be made to pay 25%
of the amount recovered as attorneys fees.[44]

After trial on the merits, the RTC ruled in favor of PRHC. The fallo of the decision[45] reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing the above

complaint and ordering the plaintiff to pay the defendant the amount of $61,925.00
or P1,610,050.00 (at P26.00 per dollar exchange rate when the Peerless pump were
bought) representing the purchase price of the genuine Peerless fire pumps, P318,750.00
representing the amount to install the replacement fire pumps, P450,000.00 representing
the amount of supply and installation of replacement fire alarm panels plus P25,000.00
as attorneys fees.

SO ORDERED.[46]
 The RTC concluded that in failing to deliver genuine Peerless Pumps as agreed upon, and to install
fire alarm system that could be interfaced with the system, Firematic failed to comply with the technical
specifications of the contracts.[47]

Aggrieved, Firematic appealed to the CA, raising the following errors:

I.

THE HONORABLE COURT ERRED IN FINDING PLAINTIFF-APPELLANT OF HAVING FAILED TO

DELIVER AND TRANSFER TO DEFENDANT-APPELLEE SPRINKLER SYSTEM AND FIRE ALARM
SYSTEMS IN ACCORDANCE WITH THE CONTRACTS.

II.

THE HONORABLE COURT ERRED IN FINDING THE PEERLESS FIRE PUMPS AS FAKE.

III.

THE HONORABLE COURT ERRED IN FINDING PLAINTIFF-APPELLANT OF HAVING FAILED TO

COMPLY WITH THE TECHNICAL SPECIFICATIONS OF THE FIRE ALARM SYSTEM CONTRACT.

IV.

DEFENDANT IS LIABLE TO PLAINTIFF-APPELLANT FOR THE DAMAGES PRAYED FOR.[48]

On July 10, 2002, the CA rendered judgment reversing the decision of the RTC. The fallo reads:
WHEREFORE, the foregoing considered, the Decision appealed from is hereby
ANNULLED. The appellee is hereby ORDERED to pay, in view of the above premises and
computations, the sum of P852,566.96, with legal interest from 7 March 1995, the date
the complaint was filed.[49]
 The CA declared that PRHCs belated claim was highly doubtful since PRHC had ordered the pumps
from Technotrade, albeit through the Firematic, and were inspected and scrutinized by its consultants
who are experts in their fields.[50] The appellate court likewise agreed with Firematic that the documents
presented in evidence by PRHC to prove that the pumps supplied by Technotrade were not genuine
Peerless pumps are inadmissible for being hearsay.[51]According to the CA, it is possible that it was not
the appellant but Technotrade that was guilty of fraud in supplying dubious pumps to PRHC.[52]

However, the CA affirmed the findings of the RTC that appellant committed a breach of contract
in installing the fire control panels because of its failure to comply with the requirement of interfacing
with its system. Since PRHC was constrained to incur P450,000.00 to undo the work of Firematic, it was
convinced that the unfinished work amounted to P1,372,507.07.

Thus, the appellate court held that Firematic was liable to PRHC for a total amount
of P1,822,507.07, while PRHC had an unpaid obligation to Firematic amounting to P2,675,074.03
representing the balance of the contract price. The appellate court concluded that PRHC owed
Firematic P852,566.96.[53]

On August 2, 2002, Firematic and PRHC filed their Motion for Reconsideration and
Clarification[54] and Motion for Partial Reconsideration,[55]respectively.

On November 19, 2002, the CA issued the following Resolution:[56]

WHEREFORE, premises considered, the Decision of 10 July 2002 is hereby MODIFIED, and
instead of P852,566.96, the appellee is hereby ORDERED to pay appellant P762,658.71
with legal interest from 07 March 1995.

The main Decision STANDS in all other respects.

No costs.

SO ORDERED.[57]

PRHC, now petitioner, seeks to have the appellate courts ruling reversed on the following grounds:
 1. The Court of Appeals committed reversible error when it came out with a conclusion
based on a manifestly mistaken inference or based on misapprehension of facts,
inasmuch as its findings are contradictory to the evidence on record. Specifically, the
Court of Appeals committed reversible error when it ruled that the fire pumps supplied
and delivered by FIREMATIC to PHILREALTY conformed to the technical specifications of
the sprinkler system contract despite evidence to the contrary.

2. The Court of Appeals committed reversible error when it again came out with a
conclusion based on a manifestly mistaken inference. Specifically, the Court of Appeals
committed reversible error when it unjustifiably disregarded petitioners evidence
showing the supplied pumps as fakes and not of Peerless origin, on the ground that said
evidence is hearsay.

3. The Court of Appeals committed reversible error when it came out with a conclusion
based on a manifestly mistaken inference and based on misapprehension of
facts.Specifically, the Court of Appeals erred that the issuance of a Certificate of
Completion proved the genuineness of fire pumps and the compliance with the technical
specifications of the contract.[58]

The threshold issue raised is whether or not the fire pumps supplied and delivered by respondent
to petitioner conformed to the technical specifications of the contract.

Petitioner argues that while it is true that the particular model of the pumps for the fire control
system was not specified in the technical specifications for fire protection, the qualifications of the pumps
were nevertheless provided that the pumps should be listed and approved by an internationally
recognized testing laboratory for the specific service intended.[59] Pursuant to such specification,
respondent in fact submitted for approval the brochure of Peerless Pumps. Petitioner further insists that
it was respondent who brought the source of the fake peerless pumps into the picture, and as such, it
should be the one to return the defective materials. It insists that the direct payment made by petitioner
did not relieve respondent from its responsibility under the contract. Moreover, petitioner asserts,
because respondent failed to dispute its claim and present proof that the fire pumps delivered were
genuine, it had impliedly admitted that the fire pumps were not original Peerless pumps. Petitioner
further contends that the issuance of the certificate of completion and the fact that the fire pumps were
used did not cure their defects.
For its part, respondent contends that the fire pumps were inspected, examined and tested by petitioners
technical staff, and that the latter found them to be operational. Thus, it cannot now be permitted to
belatedly complain. According to respondent, petitioner admitted that when the fire pumps were
changed, the replacement pumps installed by the latter were higher in terms of capacity. Respondent
likewise reiterates that the evidence presented by petitioner to prove that the fire pumps were not
genuine is inadmissible in evidence for being hearsay. It claimed that the CA erred in ordering petitioner
to pay to it the principal amount of
only P852,566.96. Respondent maintains that, as shown by the evidence on record, petitioner owed
it P10,399,418.89 for the fire sprinkler supplies and fire alarm system. It further contends that the
decision of the CA should be modified, and prays for the following relief:

1.) The herein Petition for Review on Certiorari filed by Petitioner Philippine Realty &
Holdings Corporation be dismissed for lack of merit;

2.) Petitioner be ordered to pay Respondent the following to wit:

a.) Ten Million Three Hundred Ninety Nine Thousand Four Hundred Eighteen & 87/100
(P10,399,418.89) Pesos, for the fully completed installation of the Fire Sprinkler System
and Fire Alarm System, ten (10%) percent retention and (sic) plus legal interest of twelve
(12%) percent per annum from July 10, 2002 as and by way of actual damages;

b.) Five Hundred Thousand (P500,000.00) Pesos as and by way of exemplary,

nominal or moderate damages;

c.) Attorneys fees at the rate of Twenty (sic) (25%) percent of the award of
actual damages above-mentioned;

d.) Such other reliefs and remedies as may be just and equitable under the
premises.[60]

However, it is an established rule that an appellee (respondent) who is not also an appellant
(petitioner) may assign error where the purpose is to maintain the judgment on other grounds, but he
cannot seek modification or reversal of the judgment or affirmative relief unless he has also appealed (or
filed a separate petition).[61] Thus, due to respondents failure to institute a separate petition before this
Court, the CA decision must perforce be considered final and binding as to it.

Petitioner insists that the fire pumps supplied and installed by respondent are not of Peerless
origin because of the following: (1) respondent failed to present proofs of the genuineness of the
pumps; (2) respondent failed to answer petitioners letters requiring it to present the aforesaid proofs,
thus, estoppel by silence applies; and (3) the manufacturer of the Peerless pumps verbally informed
Connel Bros. that the subject fire pumps are not of Peerless origin.

We do not agree.

Well-settled is the rule that the party alleging fraud or mistake in a transaction bears the burden
of proof. The circumstances evidencing fraud are as varied as the people who perpetrate it in each case.
It may assume different shapes and forms; it may be committed in as many different ways. Thus, the law
requires that fraud be established, not just by preponderance of evidence, but by clear and convincing
evidence.[62]

In this case, petitioner relied on the principle of estoppel by silence, as well as on Letter No. L/93-
272[63] and Letter No. L/94-043[64] of Connel Bros. to prove that the fire pumps, which respondent
supplied and installed, were not genuine. The aforesaid letters are quoted hereunder:

Letter No. L/93-272

December 15, 1993

PRHC PROPERTY MANAGERS, INC.

5th Floor, Tektite Towers,

Tektite Road, Ortigas Center,

Pasig, Metro Manila

Attention: Mr. Ed B. Banaag, Vice President

Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I

Gentlemen:

With reference to your letter dated November 15, 1993, please find
attached a (sic) copy of facsimile message dated December 15,
1993 from our principal, Peerless Pump, USA.
Please take note that they normally trace the authenticity of the pump
through the pump model and pump serial number. It would be then
difficult for the factory to trace whether they have indeed records of
transactions with Technotrade-USA because the pump model and serial
number that you furnished us are not of Peerless origin.

We also enclosed a copy of our Letter No. L/93-063 dated November

16, 1993 for your reference.

We hope the above explanation will enlighten your clarification.

Very truly yours,

E.L. STA. MARIA, JR.

Asst. Vice President

Machineries Department

ELS:LTV

Att.: a/s

Letter No. L/94-043

March 2, 1994

PRHC PROPERTY MANAGERS, INC.

5/F Tektite Towers, Tektite Road

Ortigas Center, Pasig, M.M.

Attention: MR. EDUARDO B. BANAAG

Vice President

Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I

Gentlemen:

We apologize for the delay in our reply to your letter of December 16,
1994 regarding your clarification on the above subject.

Please find attached a (sic) copy of our Letter No. F/93-071

dated December 20, 1993 addressed to our principal wherein we
enclosed your above stated letter .

However, inspite of constant follow-ups and reminder, we could not

have a confirmation from our principal on your requested information.

Mr. John Kahren, Peerless Pumps Director for International Sales,

verbally advised that they have no access or capability to verify whether
there is such an organization named Technotrade operating in
the U.S.A. They can only confirm that they never had direct negotiation
with Technotrade in record and as such, Technotrade is not a dealer of
Peerless pump.

We hope the above statement will in any way answer your requested
clarification.

Very truly yours,

E.L. STA. MARIA, JR.

Asst. Vice President

Machineries Department

ELS: LTV
 Att.: a/s

However, petitioner failed to present the signatory of the letters (E.L. Sta. Maria, Jr.) to testify on
the veracity of the contents of the letters; thus, respondent was not given the opportunity to cross-
examine him. It also appears that the person who signed the letters had no personal knowledge of the
facts stated therein, as he claimed that he had been verbally advised that the manufacturer of Peerless
pumps never had direct negotiation with Technotrade, and as such, the latter is not a dealer of the pumps.

Well-entrenched is the rule that a private certification is hearsay where the person who issued
the same was never presented as a witness. The same is true of letters. While hearsay evidence may be
admitted because of lack of objection by the adverse partys counsel, it is nonetheless without probative
value.[65]Stated differently, the declarants of written statements pertaining to disputed facts must be
presented at the trial for cross-examination.[66] The lack of objection may make an incompetent evidence
admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay
evidence whether objected to or not has no probative value.[67]

Petitioner asserts that respondent impliedly admitted that the fire pumps it installed were not of
Peerless origin because of its failure to dispute petitioners accusation and to present proofs that the fire
pumps delivered were genuine. Thus, petitioner contends that estoppel by silence applies to respondent.

The principle of estoppel in pais applies wherein one, by his acts, representations or admissions,
or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces
another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he
will be prejudiced if the former is permitted to deny the existence of such facts.[68]

We find the principle inapplicable in the present case. Acording to respondents Managing
Director Jojie S. Gador, she did not completely keep silent on petitioners accusation. She testified that
when petitioner refused to pay respondent, she went to the Fire Department of the City of Pasig and
made an inquiry regarding the fire incident that took place at the Tektite project.[69] In answer to this
inquiry, the Fire Department issued a Certification[70] stating, inter alia, that the office[71] was very much
delighted because the management of Tektite Tower had substantially complied with the safety
requirements of Presidential Decree No. 1185.[72] In making such inquiry, respondent in effect denied
petitioners accusation that the fire pumps it had installed were defective; as such, the principle of
estoppel by silence does not apply.
Because good faith is presumed, respondent was not obliged to present proofs of the genuineness of the
fire pumps it supplied and installed. The burden of proof to show that the pumps were not genuine fell
upon petitioner. However, the records show that petitioner failed to discharge this burden. Clearly, the
evidence relied upon is not sufficient to overturn (1) the presumption of good faith; (2) that private
transactions have been fair and regular;[73] and (3) that the ordinary course of business had been
followed.[74]

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the RTC
dated July 10, 2002, in CA-G.R. CV No. 63791, and its Resolution dated November 19, 2002,
are AFFIRMED.

SO ORDERED.

THIRD DIVISION

[G.R. No. 129534 & 141169[1]. June 6, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NESTOR MACANDOG, EDDIE

MACANDOG, RENATO MACANDOG and BERNARDO IBAEZ, accused.
NESTOR MACANDOG, accused-appellant.

DECISION
GONZAGA-REYES, J.:

Accused-appellant Nestor Macandog together with co-accused Eddie Macandog, Renato Macandog
and Bernardo Ibanez were charged with the crimes of FRUSTRATED MURDER (Criminal Case No. 5985)
and MURDER (Criminal Case No. 5986) in two separate Informations[2] filed before the Regional Trial
Court of Legaspi City, Branch 3, which respectively read as follows:
1. Criminal Case No. 5985 - Frustrated Murder

That at or about 8:00 P.M. of the 19th day of July 1992 at Brgy. San Roque, Municipality of Jovellar,
Province of Albay, Philippines and within the jurisdiction of this Honorable Court, said accused with
intent to kill and armed with long rifles and bolos, conspiring and confederating with each other, did then
and there, willfully, unlawfully and feloniously with evident premeditation, treachery and abuse of
superior strength, shoot one EMILIO ATIVO, hitting him in the lower left temple and passing thru his
right cheek, thus the perpetrators performed all the acts of execution which would produce the felony of
murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of
their will, that is, due to the timely medical attention accorded the victim, to his damage and prejudice.
2. Criminal Case No. 5986 - Murder

That at or about 8:00 P.M. of the 19th day of July 1992 at Brgy. San Roque, Municipality of Jovellar,
Province of Albay, Philippines and within the jurisdiction of this Honorable Court, said accused with
intent to kill and armed with long rifles and bolos, conspiring and confederating with each other did then
and there, willfully, unlawfully and feloniously with evident premeditation, treachery and abuse of
superior strength, shot to death one GLORIANO BAGAMASBAD, to the damage and prejudice of his
legal heirs.

Upon arraignment on April 26, 1993[3] accused Nestor Macandog, assisted by counsel, pleaded NOT
GUILTY to the charges against him. On October 26, 1993, accused Eddie Macandog was arrested and upon
his arraignment on November 17, 1993[4] also pleaded not guilty. The other co-accused have remained at
large.
The evidence for the prosecution established the following facts: At around 8:00 oclock in the evening
of July 19, 1992, Emilio Ativo was having a drinking spree with Juan Ativo and Gloriano Bagamasbad at
the latters house at San Roque, Jovellar. Albay.[5] Suddenly, a shot rang out and the bullet hit the left face
of Emilio causing him to lie flat on the ground. Emilio then saw accused Eddie Macandog pointing his rifle
at him while Renato Macandog and Bernardo Ibanez were standing near the house holding their
bolos.[6] Two more shots were fired and Gloriano Bagamasbad was hit and fell to the ground. A few minutes
after, sensing that all the accused had already left, Emilio, with blood oozing from his wounded face, helped
Gloriano, who was also wounded on his back, stood up and they both proceeded to the nearby house of
Ederlina Abardo, Glorianos sister.[7] While they were at a distance of about 7 to 8 meters to the house of
Ederlina, they stopped as Gloriano was so weak and could hardly walk. At that instance, Emilio asked
Gloriano if the latter knew the person who shot him, to which Gloriano replied Nestor Macandog.[8] Emilio
then shouted for help.
Ederlina Abardo testified that at around 8:00 p.m. of July 19, 1992, she was inside her house located
a few meters from the house of Gloriano when she heard three (3) gunshots. [9] She peeped through the
closed window of her house and saw Nestor Macandog and Eddie Macandog with long firearms slung over
their shoulders, while Bernardo Ibanez and Renato Macandog who were holding bolos, were coming from
the direction where the house of Gloriano was located and walking towards the Centro or Poblacion of
Jovellar.[10] After a while, she heard her brother Gloriano call her name; thus she went down her house and
saw Gloriano and cousin Emilio Ativo lying on the street bathing in their own blood. [11] With the help of
Emilio, Ederlina lifted Gloriano and brought him to her house. She then asked Gloriano the persons who
shot him to which the latter replied that he was shot by Eddie and Nestor Macandog because of a land
dispute.[12] She intimated that the Macandogs were ejected from two parcels of land owned by their family
by virtue of a decision in a forcible entry case filed by her mother, Paz Bagamasbad, against the
Macandogs. Ederlina added that after talking to Gloriano for 30 minutes, her brother expired. Emilio Ativo
however, was brought to the Albay Provincial Hospital for treatment on the following day. She then
reported the incident to the police authorities of Jovellar, Albay and to the Human Rights Commission.
Dr. Joana Manatlao, Albay Rural Health Physician, conducted the autopsy on the cadaver of the victim
Gloriano Bagamasbad on July 20, 1992 and issued an autopsy report with the following findings:[13]

Wound, gaping, measuring 10 x 27 cms, extending from the distal third of right arm to the distal
third of right forearm with exposure of muscles and bones at this side and transaction of right radial
artery and vein was noted.

Wound, 3 x 5.5 cms located at the 6th ICS right anterior axillary line, 2.5 cms away from the right
lower quadrant of right breast. On further examination, it penetrated the inferior border of the lower
 lobe of the right lung. There was maceration of the superior pole of the right lobe of the
liver. Hemothorax and hemoperitoneum was also noted.

Wound, 0.5 x 0.5 cm, left paravertebral line, between level of T10 and T11.

The cause of death was cardiorespiratory arrest due to hemorrhagic shock due to gunshot wounds.

Teresita Bagamasbad, widow of victim Gloriano, testified on the expenses she incurred as a result of
her husbands death and asked for P50,000 damages.[14]
Paz Bagamasbad, mother of deceased Gloriano, testified that on June 3, 1992, the herein accused
together with their relatives armed with firearms forcibly entered her parcels of land located at San Roque,
Jovellar, Albay[15] which prompted her to file a forcible entry case against them before the Municipal Trial
Court of Camalig[16] where a decision dated April 20, 1993 was rendered in her favor.[17]
On the other hand, accused Nestor Macandog interposed the defense of alibi. He averred that from
6:00 oclock to 9:00 oclock in the evening of July 19, 1992, he was watching betamax in the house of Gabriel
Arcangel situated at Barangay Mercado;[18] that the last time he was in Barangay San Roque was in 1986
and since then had not returned back as he was wanted by the NPA for being a rebel returnee;[19] that
Barangay Aurora is about six (6) kms. away from Brgy. San Roque and would take two hours to go there
at nighttime.[20]
GABRIEL ARCANGEL corroborated the alibi interposed by accused Nestor Macandog that the
latter was in his house on July 19, 1992 at around 6:45 P.M. viewing betamax.[21]
ANTONIO ARISPE of PAGASA, Legaspi City was presented to show the weather condition in
Albay on July 19, 1992. He testified that on July 19, 1992 Public Storm Signal No. 1 was in effect over the
Bicol Region due to the presence of Tropical Storm Ditang; that the weather condition was light to moderate
and rain fell over the area almost the whole twenty-four-hour period with very low visibility from almost
zero to not more than 1,000 meters during periods of rain stoppage;[22] that the illumination was too low
due to overcast skies and falling precipitation.[23]
EMILIO ATIVO was presented by the defense as hostile witness; he was asked to confirm his sworn
statement given to the police authorities stating that he only saw Eddie Macandog, with long firearm while
Renato Macandog and Bernardo Ibaez were holding bolos on the night of the incident.
After a joint trial, the court a quo on December 27, 1996 rendered its decision[24], the dispositive portion
of which reads as follows:[25]

WHEREFORE, in view of the foregoing considerations, this Court finds accused EDDIE MACANDOG
and NESTOR MACANDOG GUILTY BEYOND REASONABLE DOUBT of the crime of
FRUSTRATED MURDER as charged in Criminal Case No. 5985. Accused NESTOR MACANDOG is
hereby sentenced to suffer taking into consideration the mitigating circumstance of voluntary surrender, to
an indeterminate penalty ranging from six (6) years and one (1) day of prision mayor as minimum, to
twelve (12) years and one (1) day of reclusion temporal as maximum. With respect to accused EDDIE
MACANDOG, no mitigating or aggravating circumstance having been appreciated for or against him, he
is hereby sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as
maximum. Both accused are ordered to indemnify the victim Emilio Ativo the amount of P55,000.00 as
hospitalization and medical expenses incurred by Emilio Ativo for the injuries suffered by him and the
amount of P20,000.00 representing loss of income in consequence thereof as a farmer.
Likewise, this Court finds both accused EDDIE MACANDOG AND NESTOR MACANDOG GUILTY
BEYOND REASONABLE DOUBT of the crime of MURDER as charged in Criminal Case No. 5986
and are hereby sentenced to suffer the penalty of reclusion perpetua. They are further ordered to
indemnify the heirs of the victim Gloriano Bagamasbad the following amounts:

a) P50,000.00 as civil indemnity;

b) P50,000 as moral damages, and
c) P35,000.00 as expenses related to the death and burial of the victim Gloriano Bagamasbad.
The trial court rejected the defense of alibi and denial raised by accused Nestor and Eddie Macandog
stating that they failed to show physical impossibility of their presence at the scene of the crime. It also
found the ante-mortem statement of Gloriano to have fully met the requirements of a valid dying declaration
hence admissible; that there was the presence of conspiracy among the accused, i.e., that the prosecution
had shown that the two accused with intent to kill and armed with long rifles and bolos conspired with each
other to kill Gloriano Bagamasbad and Emilio Ativo.
Accused Eddie Macandog did not appeal hence his conviction in the two criminal cases had become
final and executory. On the other hand, accused Nestor Macandog filed his notice of appeal for his
conviction only in Criminal Case No. 5986 for murder,[26] thus the decision in Criminal Case No. 5985
(frustrated murder) from which he had not appealed has also become final and executory.
In his brief, accused-appellant Nestor Macandog alleges that the trial court gravely erred in convicting
him despite insufficiency of evidence as his guilt was not proved beyond reasonable doubt; and in finding
that he conspired with the other accused in this case.[27]
Accused-appellant Nestor Macandog claims that the trial court relied heavily on the dying declaration
of deceased Gloriano Bagamasbad despite the fact that not all the requisites for the admissibility of a dying
declaration had been met. Appellant further alleges that it was highly improbable for the deceased Gloriano
Bagamasbad to have seen the one who fired at him considering that the attack was so sudden and unexpected
and after being hit, he was immediately thrown flat to the ground, thus the deceased was not a competent
witness. Accused-appellant also points out that he was not among the persons seen by victim Emilio Ativo
after the shooting incident.
The appeal has no merit.
When the issue is one of credibility of witnesses, the appellate courts will generally not disturb the
findings of the trial court, considering that it is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying during the trial, unless it had
plainly overlooked certain facts of substance and value that if, considered, might affect the result of the
case.[28] A review of the records of the case and the arguments raised by accused-appellant in his brief
provide no cogent reason why we should deviate from the factual finding of the trial court that accused-
appellant Nestor Macandog and co-accused Eddie Macandog were the ones who shot the deceased Gloriano
Bagamasbad.
We agree with the trial court when it upheld the admissibility of the dying declaration of Gloriano, to
wit:[29]

However, to be valid and admissible in evidence, the following requisites must concur:

(a) that the declaration must concern the cause and surrounding circumstances of the declarants
death;
 (b) that at the time the declaration was made, the declarant was under a consciousness of an
impending death;
(c) that the declarant is competent as a witness; and
(d) that the declaration is offered in a criminal case in which the declarant is the victim.

It is evident from the facts that a valid dying declaration is present in these cases and therefore the dying
declaration of Gloriano Bagamasbad is admissible.

First, the declaration of Gloriano concerns the cause and surrounding circumstances of his death, that he
was shot by accused Eddie and Nestor Macandog because of a land dispute (TSN, Pages 31-32, June 3,
1993, Ederlina Abardo); second, at the time the declaration was made, Gloriano was under the
consciousness of an impending death. As a matter of fact, he died within thirty (30) minutes after making
his declaration. (TSN, Pages 31-32, & 71, June 3, 1993, Ederlina Abardo); third, that at the time Gloriano
made his declaration, he was a competent witness since he was still conscious and could still speak
competently although he was already dying, and fourth, the declaration of Gloriano was offered in a
criminal case for Murder in which he was himself the victim.

Contrary to appellants claim that Gloriano was not a competent witness because he was not able to see
his assailants, the testimonies of Ederlina Abardo, to whom the dying declaration was given, which was
also heard by Emilio Ativo, clearly showed that Gloriano was categorical in pointing to appellant Nestor
Macandog and Eddie Macandog as the persons who shot him. Gloriano even provided for the reason why
the accused shot him, i.e., because of a land dispute between his family and the family of the accused. Thus
Ederlina testified as follows:[30]
Q: Now having found Emilio Ativo and Gloriano Bagamasbad bathing in their own blood, outside
your house, what did you do?
A: Because Gloriano Bagamasbad could not stand up anymore, we lifted him, sir.
Q: Where did you bring his body?
A: We brought his body inside my house, sir.
PROSECUTOR TOLOSA:
Q: And how about Emilio Ativo?
WITNESS:
A: Emilio was able to walk in going inside my house, sir.
Q: Now, what transpired next when Gloriano Bagamasbad and Emilio were already inside your house
and both of them bloodied?
A: While Gloriano Bagamasbad was inside my house, we were able to talk with each other for around
thirty (30) minutes, sir, after which, he expired.
Q: What did you and Gloriano Bagamasbad talk about?
A: I asked him what happened to him and he answered me that he was shot, sir.
Q: And what else did you ask of him?
A: I asked him who shot him and according to him he was shot by Eddie and Nestor Macandog, sir.
Q: What else did you ask him?
 WITNESS:
A: I ask him why Eddie and Nestor Macandog shot him.
PROSECUTOR TOLOSA:
Q: What was his reply?
A: According to him this is the case of our land where they said blood will spill.
Q: What is that case about regarding the land as mentioned by Gloriano Bagamasbad?
ATTY. GIANAN:
Objection, your honor. This is supposed to be trial of a case for murder and frustrated murder, your
honor.
COURT:
Witness may answer.
WITNESS:
A: This was a case over the land wherein the Macandogs and cousins entered our property and so my
brother filed a case against them, sir.
On some clarification from the Court:[31]
COURT:
Q: According to you, your brother was serious. Was he dying?
WITNESS:
A: He was already in a serious condition, your honor, because of the wounds that were inflicted on his
body. He was almost dying of the wounds that he had, your honor.
Q: Now, one last question. Was he conscious that he was dying?
A: Yes, your honor. He was still conscious that time. He was almost dying, your honor. And he even
said Maybe I am dying already.
Emilio Ativo, also a victim in the same shooting incident and who was with Gloriano when they went
to Ederlinas house, heard the conversation between Gloriano and Ederlina and testified as follows: [32]
Q: Now, what did you do since Gloriano was already very weak before he reach the house of
Ederlina?
A: I shouted and sought help.
Q: Was there any help or assistance given you after you called for?
A: Ederlina, sir.
Q: By the way, at that time how far were you already from the house of Ederlina?
A: From the place where Im seated up to that door, sir, which is around 7 to 8 meters, more or less.
PROSECUTOR TOLOSA:
Q: Now, what help did Ederlina give you and Gloriano?
WITNESS:
A: Gloriano Bagamasbad was lifted by Ederlina Bagamasbad and I just walk, sir.
Q: Towards where did Ederlina bring this Gloriano Bagamasbad?
A: Inside her house, sir.
Q: How about you, where did you proceed?
A: I also got inside the house of Ederlina, sir.
Q: Now, what did Ederlina do after bringing Gloriano Bagamasbad inside her house?
A: Ederlina investigated Gloriano Bagamasbad, sir.
Q: By the way, do you know if Ederlina hold any position in the barangay?
A: Shes a Barangay Councilwoman, sir.
PROSECUTOR TOLOSA:
Q: Councilwoman of Barangay San Roque?
WITNESS:
A: Yes, sir.
Q: And this is within the Municipality of Jovellar?
A: Yes, sir.
Q: Now, this house where you, Juan Ativo and Gloriano Bagamasbad drank is also within the area of
Barangay San Roque?
A: Yes, sir.
Q: Now, you said that Ederlina is a Barangay Councilwoman who investigated Gloriano, were you
also present when she profounded questions to Gloriano?
A: Yes, sir, I was also around.
Q: And what were the questions asked to Gloriano Bagamasbad by Ederlina Bagamasbad?
A: Ederlina asked Gloriano, who shot you, and he answered it was Nestor.
Q: What other questions did Ederlina ask?
WITNESS:
A: Why were you shot?
PROSECUTOR TOLOSA:
Q: And was there a reply from Gloriano?
A: Gloriano answered because of land dispute between Nestor and Gloriano.
Q: Now, what happened that evening to Gloriano Bagamasbad?
A: He died, sir.
Q: Do you know how many minutes after he was brought inside the house of Ederlina when Gloriano
died?
A: Yes, sir.
 Q: How many minutes?
A: Around one-half (1/2) hour, sir.
The positive declaration of the deceased as to the identity of his assailants, given with the
consciousness that death is imminent is undoubtedly entitled to great weight considering the seriousness of
his wounds and his very weak physical condition as shown by the fact that death supervened thirty minutes
after his disclosure to Ederlina. Under the circumstances, there was a great improbability that Gloriano
would have trifled with the truth.[33]
Appellants claim that he was not among those persons seen by prosecution witness Emilio Ativo
during the shooting incident is not convincing, and does not detract from Glorianos dying declaration. It
bears stress that although Emilio Ativo testified that he had not seen appellant, he also stated that there were
other persons aside from Eddie and Renato Macandog and Bernardo Ibanez. In fact, Emilio testified that
while the rifle of accused Eddie Macandog was pointed at him while he was lying flat on the ground, two
more shots were heard whereupon Gloriano fell to the ground, which established that another person with
a rifle was present in the place of the shooting. In his dying declaration, Gloriano categorically identified
Nestor and Eddie Macandog as the persons who shot him; such a positive identification of his own assailants
cannot be destroyed by the incompleteness of Emilios testimony.
Moreover, Ederlina Abardos testimony corroborated Glorianos declaration as to the presence of
appellant Nestor Macandog at the crime scene. She testified that on the night of July 19, 1992, the time
when the crime was committed, she heard three gunshots and when she peeped through her window, she
saw appellant Nestor Macandog and Eddie Macandog with firearms slung on their shoulders and Bernardo
Ibanez and Renato Macandog holding bolos as they passed by her house coming from the place where
Glorianos house was situated and going to Centro Jovellar, Albay. She further testified on cross examination
that the distance between her house and the road where the accused passed by was only two meters [34] and
although there was only little illumination coming from the moon, there was sufficient light coming from
her tocalor, a kind of lightning equipment made of bottle with cloth and kerosene inside [35]. She could not
have been mistaken as to the identities of the accused considering that she had known them from the time
they were born[36] because they were all residents of Barangay San Roque, Jovellar, Albay, a place where
she used to live before the shooting incident.
The fact that Ederlina is the sister of deceased Gloriano Bagamasbad does not per se make her a biased
witness. Mere relationship of the victim to a witness does not automatically impair her credibility and render
her testimony less worthy of credence where no improper motive can be ascribed to her for testifying.[37] On
the contrary, such relationship lends more credence to a witness testimony considering her natural interest
to see the guilty punished. It would be unnatural for a relative who is interested in vindicating the crime to
accuse anyone other than the real culprit.[38]
We agree with the trial courts rejection of appellants defense of alibi considering that Barangay
Mercado, the place where he was allegedly watching betamax on the night of the shooting incident, was
only six kilometers away from San Roque[39], a distance which does not preclude the physical possibility
for accused-appellant to be at the scene of the crime.
Although defense witness Gabriel Arcangel was presented to corroborate accused-appellants alibi that
he was in Barangay Mercado watching betamax on the night in question, Arcangel testified in the cross-
examination that he could not remember the other dates when appellant Nestor Macandog viewed films in
his house but he remembered the date July 19, 1992 because appellant went to his house on July 20, 1992
to tell him that he viewed the film on July 19, because he was suspected of being the one involved in the
shooting incident.[40]
 The credible testimonies of Ederlina Abardo, victim Glorianos sister, and Emilio Ativo who both
testified on the ante-mortem statements of the victim convincingly establish the guilt of accused-appellant
beyond reasonable doubt.
Although the trial court failed to discuss the presence or absence of the qualifying circumstances of
treachery, evident premeditation and abuse of superior strength which were alleged in the Information for
murder, we find that treachery attended the killing of Gloriano Bagamasbad. The sudden and unexpected
shooting of Gloriano, who was unarmed and unsuspecting as he was only having a drinking spree with his
companions at his own (Gloriano) house, insured his killing without any risk to his assailants. It rendered
the victim completely unable to defend himself.
Evident premeditation is not attendant as no proof has been adduced to show that accused had
previously planned the shooting of Gloriano Bagamasbad. Abuse of superior strength is absorbed in
treachery.[41]
We, however, hold that the aggravating circumstance of dwelling, although not alleged in the
Information, should be properly appreciated in the death of Gloriano Bagamasbad considering that he was
killed inside his house. A persons abode is regarded as a sanctuary which should be respected by
everybody.[42] This aggravating circumstance was however offset by the mitigating circumstance of
voluntary surrender as appellant appeared in the trial court before the warrant of his arrest was served upon
him.[43] In a case, it was held that the fact that the warrants had already been issued is no bar to the
consideration of this mitigating circumstance, because the law does not require that the surrender be prior
to the order of arrest.[44]
We affirm appellants conviction for murder. The killing was qualified by treachery. Considering the
presence of the aggravating circumstance of dwelling which was offset by the mitigating circumstance of
voluntary surrender, the trial court correctly imposed the penalty of reclusion perpetua, the medium period
of the penalty of reclusion temporal in its maximum period to death imposable for the crime of murder.[45]
We also affirm the trial courts award of P50,000 civil indemnity and P50,000 moral damages
considering the grief and sorrow suffered by the heirs of the deceased. However, the award for actual
damages is reduced to the amount of P9,500 for burial expenses since the only receipt presented by the
prosecution was for the payment made to Funeraria Nuestra Sra. De Salvacion of Guinobotan, Albay. To
justify an award of actual damages, it is necessary to prove with a reasonable degree of certainty, premised
upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss.[46]
We note that the notice of appeal filed by accused-appellant Nestor Macandog was only for Murder
(Criminal Case No. 5986) but the case was assigned with two docket numbers, i.e., G.R. Nos. 129534 and
141169. Hence case records should be corrected with the deletion of the later docket number.
WHEREFORE, the appealed decision convicting appellant for the crime of murder in Criminal Case
No. 5986, imposing the penalty of reclusion perpetua and awarding fifty thousand pesos (P50,000) by way
of civil indemnity and fifty thousand pesos (P50,000) moral damages is AFFIRMED with the modification
that the award of actual damages is reduced to P9,500.
The Clerk of Court is ordered to delete GR. No 141169 from the title of the case.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

EN BANC
 [G.R. No. 146865. February 18, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. ELGIN LATAYADA (at large), appellant.

DECISION
PANGANIBAN, J.:

When the evidence falls short of proving all the elements of carnapping with homicide, but
the killing is conclusively established, the accused may be convicted only of homicide when the
Information does not allege any qualifying circumstance.

The Case

For automatic review before this Court is the December 29, 2000 Decision[1] of the Regional
Trial Court (RTC) of Cagayan de Oro City (Branch 18) in Criminal Case No. 97-917, finding Elgin
Latayada guilty beyond reasonable doubt of carnapping with homicide. The decretal portion of
the Decision reads:

WHEREFORE, in view of all the foregoing considerations, the Court hereby finds accused ELGIN
LATAYADA, GUILTY beyond reasonable doubt of the crime of CARNAPPING WITH HOMICIDE,
in violation of RA 6539, known as Anti-Carnapping Act of 1972, as amended by Sec. 20 of Republic Act
7659, and there being one generic aggravating circumstance of treachery without any mitigating
circumstances, the said accused is hereby sentenced to suffer the supreme penalty of DEATH by lethal
injection. He is also directed to pay the heirs of the victim the sum of P18,899.70 as hospitalization
expenses, another P7,300.00 as burial expenses, P50,000.00 moral damages and further directed to pay
the cost of this proceeding. Let another Warrant of Arrest be issued to the convict for him to serve his
sentence. Pursuant to R.A. 7975 and Rule 122, Sec. 10 of the Rules of Court, let the entire records of this
case be forwarded to the Supreme Court for automatic review.[2]

In an Information dated March 7, 1997, appellant was charged with carnapping with homicide
as follows:

That on or about 6:00 oclock in the evening, more or less, of October 29, 1995 at Sitio Hanopolan,
Claveria, Misamis Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to gain and without the consent of the owner, did then and there, willfully,
unlawfully and feloniously take, steal and drive away one (1) unit Honda TMX Motorcycle, color blue,
bearing plate No. 9B-6096-T, with Serial Chassis No. 951-50025, with Motor No. KCOIE-028425 PH,
Model 1995, owned and belonging to Rodrigo Estrada, valued at P63,000.00 to his damage and prejudice
and in the course of the commission of the carnapping of the vehicle, accused with intent to kill, did then
and there, willfully, unlawfully and feloniously stab one Pedro Payla, the driver of the motorcycle, with
the use of a sharp bladed weapon, thus hitting the victim on different parts of his body causing his death
thereafter.[3]

During his arraignment on September 12, 1997,[4] appellant, with the assistance of his
counsel de oficio, [5] pleaded not guilty to the charge. After trial in due course, the court a
quo rendered the assailed Decision.
 The Facts

Version of the Prosecution

In its Brief, the Office of the Solicitor General (OSG) quoted from appellants Brief the
summary of the evidence for the prosecution, which is as follows:

Sometime on October 29, 1995 at about 6:00 o clock in the evening, Pedro Payla arrived at the house of
Vicenta Cordino at Sitio Hanopolan, Claveria, Misamis Oriental. Pedro Payla allegedly told Vicenta Dont
be afraid, Nang, I am the son of Lucia Payla, I was stabbed by Elgin Latayada, bring me to the hospital.
Vicenta, who was already old, then called her neighbor Joseph Tion for help and the latter responded.
Joseph treated the wounds of Pedro and asked what happened. Pedro allegedly told Joseph that Elgin
asked to be brought to Hanopolan, Claveria, Misamis Oriental. On their way, Elgin told Pedro to stop
because he wanted to answer the call of nature. After Elgin relieved himself, instead of boarding at the
back of the motorcycle, he stabbed Pedro and escaped on board the motorcycle.

When a passenger jeepney passed by, Pedro was loaded and brought to Claveria Hospital. When they
passed by a police station, the conductor of the passenger jeep reported the stabbing incident. At Claveria
Hospital, Pedros wound was treated and sutured. However, due to inadequate medical facilities at
Claveria Hospital, the doctor thereat advised Gina Payla, wife of Pedro, to bring Pedro to Cagayan de
Oro. On that same night, Pedro Payla was brought to [the] Medical Center in Cagayan De Oro City. Pedro
died on October 30, 1995.

On October 30, 1995, at around 9:00 oclock in the morning, Gina Payla, Pedros wife, was able to
converse with him. Again, Pedro pointed to appellant as his assailant and further narrated the
circumstances surrounding his stabbing.

At around 1:00 oclock in the afternoon of the same day, SPO1 Victorino Busalla arrived at the hospital
and then proceeded to take the ante-mortem statement of Pedro. Pedro could not write because of his
injuries; hence, he placed his thumb mark using his own blood in lieu of his signature on the said
statement. The same statement was signed by Gina Payla who was present when the statement was taken.
Pedro died on the same day.

The motorcycle driven by Pedro with Chassis No. 951-50025, color blue, was originally owned by
Rodrigo Estrada. He later sold the same to [Kagawad Verano] Caabay for P10,000.00. It was [Kagawad]
Caabay who had an arrangement with Pedro regarding the use of the motorcycle to transport passengers.

The motorcycle was recovered only on November 4, 1995, already cannibalized, at Cugman, Cagayan de
Oro City.

After the prosecution rested its case on June 21, 2002, appellant escaped from prison which is evidenced
by a Notice of Escape submitted to the court a quo. He has remained at large.[6](Citations omitted)

Version of the Defense

 In its Brief, the defense averred that the accused had escaped from jail after the presentation
of the prosecutions evidence[7] and therefore failed to testify.

Ruling of the Trial Court

The RTC found appellant guilty beyond reasonable doubt of carnapping with homicide. Held
as part of the res gestae were Pedro Paylas statements uttered before his death to his wife, Gina;
and to Prosecution Witnesses Joseph Tion and Vicenta Cordino that it was appellant who had
stabbed him. His Statement taken by a police officer a day after the incident and on the same
day he died, was admitted by the court a quo as a dying declaration. It admitted these pieces of
prosecution evidence as exceptions to the hearsay rule.
The lower court also ruled that circumstantial evidence indicated that appellant was
responsible for the disappearance of the motorcycle.
Further, the RTC upheld Joseph Tions testimony that on the pretext of wanting to answer the
call of nature, the accused had asked Payla to stop the motorcycle and, without any warning or
provocation, stabbed the latter on the back. Finding treachery to have qualified the killing, the
lower court imposed on the accused the supreme penalty of death.
Hence, this automatic review.[8]

The Issues

In his 7-page Brief, appellant raises this lone error for our consideration:

The trial court gravely erred in imposing the penalty of death upon the accused-appellant when x x x
treachery was not alleged in the Information either as [a] qualifying or as a generic aggravating
circumstance.[9]

In addition to the issue raised by appellant, we find it proper to review first his conviction for
carnapping with homicide, as well as the civil liabilities imposed therefor. Since an appeal in a
criminal action opens the whole case for review, it becomes the duty of this Court to correct any
error in the appealed judgment, whether it has been assigned or not.[10]

The Courts Ruling

The appeal is partly meritorious. Appellant is guilty of homicide only, not carnapping with
homicide.

First Issue:
Culpability of the Accused
 In every criminal conviction, the prosecution is required to prove two things beyond
reasonable doubt: first, the fact of the commission of the crime charged, or the presence of all the
elements of the offense; and second, the fact that the accused was the perpetrator of the crime.[11]

Elements of Carnapping
with Homicide

The charge filed against appellant for which he was convicted -- carnapping with homicide --
is punishable under Section 2, in relation to Section 14 of RA 6539[12] as amended by RA
7659.[13] Under Section 2 of RA 6539, carnapping is the taking, with intent to gain, of a motor
vehicle belonging to another without the latters consent; or by means of violence against or
intimidation of persons; or with the use of force upon things. On the other hand, Section 14 of the
same act, as amended by RA 7659, provides:

SEC. 14. Penalty for Carnapping. --- Any person who is found guilty of carnapping, as this term is
defined in Section Two of this Act, shall, irrespective of the value of the motor vehicle taken, be punished
by imprisonment for not less than fourteen years and eight months and not more than seventeen years and
four months, when the carnapping is committed without violence or intimidation of persons, or force
upon things, and by imprisonment for not less than seventeen years and four months and not more than
thirty years, when the carnapping is committed by means of violence against or intimidation of any
person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the
owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the
commission of the carnapping or on the occasion thereof. (Italics supplied)

RA 7659 introduced three amendments to the last clause of Section 14:[14] (1) the change of
the penalty from life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the
change of the phrase in the commission of the carnapping to in the course of the commission of
the carnapping or on the occasion thereof.[15]
The Court has held that the third amendment clarifies the intention of the law to make the
offense a special complex crime, in the same way that robbery with violence against or
intimidation of persons is treated under paragraphs 1 to 4 of Article 294 of the Revised Penal
Code (RPC).[16] Hence, the prosecution must prove not only that the essential requisites of
carnapping[17] were present; but also that it was the original criminal design of the culprit, and that
the killing was perpetrated in the course of the commission of the carnapping or on the occasion
thereof.[18] In the present case, the prosecution had the burden of proving that 1) appellant took
the motorcycle; 2) his original criminal design was carnapping; 3) he killed Payla; and 4) the killing
was perpetrated in the course of the commission of the carnapping or on the occasion thereof.
It is undisputed that the motorcycle driven by Payla had been taken without his consent on
October 29, 1995, and recovered days later in a cannibalized condition. The elements of taking
and intent to gain were thus established. The prosecution also proved it was appellant who had
killed him. It failed, however, to discharge its burden of proving the two other requisites of
carnapping.

Insufficiency of Proof
of Carnapping
 The trial courts finding was that there was indeed no direct evidence showing that appellant
had taken the motorcycle driven by Payla.[19] The culpability of the former was deduced from the
following pieces of circumstantial evidence: 1) the motorcycle was left with him after Payla had
run for his life; 2) as shown by the police blotter, the stabbing and carnapping incident was
immediately reported to the police; 3) the vehicle was recovered, its parts missing, five days after
the accused had been arrested on June 2, 1997 in Cugman, Cagayan de Oro City, which was
only about 25 kilometers from the scene of the crime; and 4) the accused escaped while in
detention at the provincial jail, 33 days after the prosecution had rested its case.
To be sufficient for a conviction, circumstantial evidence must prove that (1) there is more
than one circumstance; (2) the facts from which the inferences are derived have been established;
and (3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.[20] The pieces of circumstantial evidence must also constitute an unbroken
chain leading to one fair and reasonable conclusion: that the accused, to the exclusion of all
others, is the guilty person.[21]
The circumstantial evidence in the instant case is not sufficient to show that appellant is guilty
of carnapping. On the contrary, the records and the transcripts of stenographic notes of the
proceedings cast doubt on the correctness of the trial courts conclusion that after stabbing Payla,
he fled on board the motorcycle or was the last person seen with it.
First, there is no mention in the purported antemortem Statement[22] of Payla or in his
statement to his wife and the other prosecution witnesses that appellant carnapped his
motorcycle. Payla merely stated that appellant had stabbed him twice in the back and once in the
face. In fact, the former did not know why he had been stabbed, as he said in response to a query
from his wife[23] and from Joseph Tion.[24] If appellant had wanted to carnap the motorcyle, Payla
would have pointed this out as the reason for the attack. Yet, the records show that the former
intended only to kill the latter. Tion testified as follows:
PROS. B. APEPE: x x x
Q So after Pedro Payla told you that he was stabbed at the back twice by Elgin Latayada,
what else happened according to Pedro Payla, if any?
A After he was stabbed twice, he asked Elgin what is this now and Elgin Latayada answered
that [D]ont ask questions anymore, this is killing already[] and after that, Elgin stabbed
him (Pedro Payla) on his left cheek (witness pointing to portion of his left cheek below
the ear) and Pedro Payla ran away leaving his motorcycle behind.
Q Where did Payla go x x x when he ran away?
ATTY BAGABUYO:
We object, your Honor.
COURT:
On what ground?
ATTY. BAGABUYO:
He just ran away.
COURT: (to the witness)
Q Did he tell you where he ran away to?
A Yes, your Honor, to the house of Mrs. Condino.
 PROS. B. APEPE:
Q Did he tell you where was Elgin Latayada after he ran towards the direction of the
house of Mrs. Condino?
A No, sir, Elgin Latayada followed him (P. Payla) about 30 meters from where the
motorcycle was and after that distance, I dont know anymore where Elgin Latayada
proceeded.[25]
On the other hand, Gina Payla testified in this wise:
Q When your husband told you that it was Elgin Latayada who stabbed him, did you ask
him why?
A Yes, sir, I asked my husband why x x x Elgin Latayada stabbed him and he answered
[I] do not know why he stabbed me[] and I told him maybe you have a
misunderstanding with him and he told me they have no misunderstanding. In fact
my husband and Elgin Latayada are schoolmates before and in fact they are also
barkada or friend[s]. x x x [T]hat time, Elgin requested him to bring him to Hinopolan
but my husband told him []No Gaw, I cannot bring you there because I am going to
go home[] but Elgin insisted to bring him to that place and he will pay P30.00. [M]y
husband agreed and when they were in the isolated place just before the house of
Condino, Elgin told my husband Gaw, stop the motor because I am going to urinate
so my husband stopped the motor[cycle]. When Elgin rode at the back of the
motorcycle], Elgin tapped the back of my husband (witness demonstrating by
placing her two hands on her back just below the shoulder) and when my husband
started the motor[cy]cle, put more gas on the engine, right there and then Elgin
stabbed my husband (witness pointing to her back right below his left shoulder) and
after that he pulled out the knife and again stabbed him (witness pointing to her back
just below her right back) and my husband said What is this Gaw, is this killing
already? and Elgin answered Yes, Gaw, accept your last moment and after that he
was about to stab my husband x x x (witness pointing to the left side of her n[e]ck)
but my husband was able to crouch and that is why he was hit on the left cheek and
he was able to run towards the house of Condino.[26] (Italics supplied)
Second, still according to Tions testimony, appellant followed Payla for about 30 meters from
where the motorcycle stood, then stabbed the latter, who then ran to Vicenta Condinos house for
help.[27] There is no evidence showing that appellant went back to take the motorcycle; hence,
there is no basis for concluding that he stole it. On cross-examination, Tion wavered on whether
it was his neighbor -- herein appellant -- whom he had seen with the motorcycle when the former
tried to retrieve it. It is likewise unclear from the testimony of Tion whether the motorcycle was
already missing at the time. He further testified thus:
ATTY. R. BAGABUYO: (x x x)
Q You stated here in this affidavit that you went to where the motorcycle was driven by
Pedro Payla to use the same in transporting Pedro Payla to the hospital?
A Yes, sir.
Q And were you alone in going there?
A Yes, sir.
Q And you saw the motorcycle driven by Pedro Payla, is it not?
A No, sir.
Q When you said, sa diha ako na unta kuhaon ang Motor nga gimaniho ni Pedro, aron
maoy among sakyan paingon sa hospital, naa may tawo nga nagsandig sa motor
ug nag tanao kanamo nga nagpaingon dito sa motor . . . , which x x x in English
means, when I was about to get the motorcycle driven by Pedro for the purpose of
using it in transporting him (Pedro) to the hospital, I saw a person standing by the
motorcycle[,] he was looking at us. What do you mean by that?
COURT: (to the witness)
Q Before that, which is which, you told the Court just now in your last answer that the
motorcycle was not already there, you did not find the motorcycle there, but in your
affidavit, you said the motorcycle was there and there was somebody standing near
the motorcycle, which is which, which is correct? What is your answer?
A What happened, sir, was that as we were about to go to that direction, we met on the
way some people and we were not sure if these were the ones who stabbed [Payla],
so we were reluctant to proceed, thats why we did not go anymore.
Q When you say we, whom are you referring to, who was with you when you were on
the way to go there?
A The members of Mrs. Condinos household particularly her grandchildren and children.
Q How many were you who went there on the way?
A There were 4 or 5 of us, I was not so sure because they were only following me.
Q Did you not say a while ago that you were alone when you went to the motorcycle,
you went by yourself?
A Actually, it was I who suggested to go to where the motorcycle was, I went ahead and
they followed. x x x I believe it was only their apprehension as to what will happen
to me thats why they followed.
Q You told the Court that you asked Pedro Payla when you arrived at the Condinos
house or residence, you asked Pedro Payla several times who stabbed him. [And]
several times he answered, he told you that it was Elgin Latayada, you remember
telling the Court then?
A Yes, sir.
Q And you also told the Court that even before that date you already knew Elgin
Latayada for a long time because, in fact, you were neighbors, is not that correct?
A Yes, sir.
Q Alright, those people whom you met, by the way, you said you met some people when
you were on the way to where the motorcycle was, how many were they whom you
met on the way?
A Only one (1), sir.
Q This person whom you met on the way was not Elgin Latayada?
A It was not Elgin Latayada.
Q And yet, youre telling the Court that you were somewhat reluctant or worr[ied] to
proceed farther because that person you met might have been the one x x x
responsible, and yet you told the Court that what Pedro Payla told you that it was
Elgin Latayada and the person you met was not Elgin Latayada, how come? Explain
to the Court why did you think that probably this was the person thats responsible
when Pedro Payla already told you that it was Elgin Latayada and this person you
met was not Elgin Latayada? You explain to the Court.
A Actually, it did not enter my mind whether that person I met was the one responsible
or the perpetrator in Pedro Paylas wounding, that did not enter my mind.
Q [W]hen you first testified on that particular point you said there were people you met
thats why the question now did you not tell the Court a while ago that you were
reluctant to go any farther because those might be the persons?
PROS. B. APEPE:
He said he met only one (1) person.
Q Alright, let me clarify that point. Earlier on you said on the way to the motorcycle you
met some people then later on x x x, you said there was only one person you met
on the way, which statement is correct, your statement that you met some people
or your latest statement that there was only one?
A I only met one person, sir. [I]n fact, when we pass[ed], he was at a distance and I could
not clearly see who he was.
Q So, in effect, you are correcting what you said earlier that there were some people you
met because actually, there was only one person you met?
A Yes, sir.
Q And you said just now that that person is somewhat at a distance, you could not
recognize really who he was, that is what you said just now, is it not correct?
A Yes, sir.
Q Did you not tell the Court when I was asking you earlier, [and] that you sounded to be
quite sure, that that person you met was not Elgin Latayada, you told the Court that
earlier, isnt it?
A Yes, sir.
Q Now you are telling the Court that you cannot clearly see or identify and yet you told
the Court earlier that that was not Elgin Latayada?
PROS. B. APEPE:
What he said, Your Honor, was they did not actually meet each other.
COURT:
Q Yes, you said that you saw the person only from a distance thats why you could not
clearly see or identify who he was but earlier you told the Court that the one you met
was not Elgin Latayada? You try to explain to the Court.
A It was only my assumption. I based it on his physical appearance, built, the way he
carr[ied] himself, the way he walk[ed] and I thought that this is not Elgin Latayada
by the way he walk[ed].
Q Alright, proceed counsel. You have more questions?
ATTY. R. BAGABUYO:
Yes, Your Honor, based on this question and answer.
Q Now, you said you met not many but one [person] on your way to the motorcycle, is
that correct?
A Yes, sir.
Q And therefore, the person you met was not going to that motorcycle but away from the
motorcycle, correct?
A He was going up, sir.
Q In your affidavit on paragraph 6, you said you saw a person standing by the
motorcycle. Kindly look again at your affidavit?
A No, sir, this is not correct. We were on our way to the motorcycle when we met that
person.
Q Is it not a fact that before I [had] this Affidavit marked, x x x I allowed you to read it and
after reading it, I asked you whether you are going to affirm and confirm the
statement in the affidavit?
A This portion was not very clear to me (witness referring to 1-B).
Q Is it not also a fact that you x x x mentioned that you read that affidavit before you
affixed your signature?
A Yes, sir.
Q At the time x x x you read the affidavit, you read the entire contents of this affidavit
marked now as Exhibit 1, is it not?
A Yes, sir.
Q And at that time, you found the Question and Answer on paragraph 6 to be true and
correct, is it not?
A Yes, sir.
Q Now, you are saying that that is not correct, is that what you are saying?
A No, sir, the policeman who was taking this affidavit did not get me correctly upon my
statement here, maybe the policeman based this [on] the statement of Mrs. Condino
x x x that her grandchildren went to the place where the motorcycle was[. B]ut
actually, I did not go to where the motorcycle was[. Maybe] this statement here was
based by the policeman who made this affidavit on what Mrs. Condino told them.
Q But at the time when you read this one you did not tell the policeman that that is not
correct, is it not?
A I did not, sir.
 Q As a matter of fact, you did not tell anybody until now that that is not correct?
A Yes, sir.
Q What is the truth that you did not even attempt to go to where the motorcycle was, is
that the truth?
A The truth is that we tried to go to where the motorcycle was but we were only 10 meters
away from the house of the Condinos.
Q And what made you decide not to proceed?
COURT:
He already explain[ed] that.[28] (Italics supplied)
On whether the stabbing and carnapping incident was immediately reported to the police,
suffice it to state that entries in the police blotter should not be given undue significance or
probative value, for these are normally incomplete and inaccurate.[29] This dictum applies to the
present case with greater force, because the report was made by a truck conductor[30] who was a
complete stranger to the incident.
As the carnapping by appellant was not proved beyond reasonable doubt, it cannot be said
that the killing of Payla was an incident thereof, or that it was committed in the course of the
carnapping or on the occasion thereof. The provisions of the Anti-Carnapping Act are therefore
inapplicable. The killing of Payla is punishable under the Revised Penal Code, either as homicide
or as murder.[31]

Proof of Homicide Sufficient

We now go to the issue of the culpability of appellant for the killing of Payla. In his
Comment[32] to the prosecutions Formal Offer of Exhibits, the former questioned the admissibility
of the latters alleged antemortem Statement or dying declaration, which had been taken by SPO1
Victorino Q. Busalla. Asking the RTC to disregard the Statement, appellant pointed out that when
it was made, Payla was unaware of his impending death. He also averred that on it appeared a
thumbprint that allegedly belonged to Payla, but that has not been authenticated.
A dying declaration pertains to ones statement, made under a consciousness of impending
death,[33] on the cause and the surrounding circumstances thereof. It is given credence on the
premise that no one who knows of ones impending death will make a careless and false
accusation.[34]
For a dying declaration to be admissible in evidence, it must be shown that 1) death was
imminent and the declarant was conscious of that fact; 2) the declaration refers to the cause and
the surrounding circumstances of the death; 3) the declaration relates to facts that the victim was
competent to testify on; 4) the declarant thereafter died; and 5) the declaration is being offered in
a criminal case in which the declarants death is the subject of inquiry.[35]
True, Payla made no express statement showing that he was conscious of his impending
death. The law, however, does not require the declarant to state explicitly a perception of the
inevitability of death.[36] The foreboding may be gleaned from surrounding circumstances, such
as the nature of the declarants injury and conduct that would justify a conclusion that there was
consciousness of impending death.[37]
 In this case, Payla could not talk when his wife arrived at the municipal hospital where he had
first been brought.[38] He kept moaning in pain and bleeding profusely from the stab wounds on
his back, while he was being transported to the medical center in Cagayan de Oro City.[39] Within
minutes after arriving there, he lost consciousness[40] as a result of one of the stab wounds that
penetrated his lungs.[41] On the morning before he died, in his wifes presence he lamented that
he could no longer raise his children as a result of his condition.[42] He died about eight hours after
executing his written Statement before SPOI Busalla.[43]
There is no merit in the averment that the thumbmark of the victim, imprinted on his Statement
with his own blood, has not been authenticated. His wife, Gina, testified that he could not sign the
Statement because of the wound on his back below his right shoulder.[44] Thus, SPO1 Busalla
held the hand of her husband and imprinted the latters thumbmark on the Statement, [45] which
she signed [46] as a witness.
Her testimony was corroborated by SPO1 Busalla. As the police officer[47] who had taken the
Statement of the victim, the former identified the thumbprint appearing thereon as the
latters.[48] Further testifying that Payla could no longer move his hand to sign the Statement, SPO1
Busalla allegedly placed the formers right thumbprint on it, using as ink the blood drawn from the
left side of the victims face.[49]
In the light of these circumstances, the trial court did not err in admitting Paylas antemortem
Statement.

Res Gestae

No error was committed, either, when the trial court admitted the testimonies of Gina, Vicente
Condino and Joseph Tion on the declaration of Payla that it was appellant who stabbed him. The
utterances separately made by the victim to each of the witnesses were correctly appreciated as
part of the res gestae, since they had been made immediately after a startling occurrence[50] and
had complied with the following requirements: 1) the statements were spontaneous; 2) they were
made immediately before, during and after the startling occurrence; and 3) they related the
circumstances thereof.[51]
Most telling was the declaration made by Payla within minutes after the stabbing, and while
he was calling for Vicenta Condino to ask for help. Condino testified thus:
ATTY. I. LICO: x x x
Q Your residence is [in] what barangay?
A Anopolan.
Q What town?
A Claveria.
Q Do you own the house where you are living?
A Yes, sir.
Q Where were you on October 29, 1995 at about 6:00 oclock in the afternoon?
A I was in the house.
Q Do you recall if there was an unusual incident that happened at th[at] time?
 A Yes, sir.
Q Kindly relate to the Honorable Court what [was] this unusual incident that happened
on October 29, 1995 at about x x x 6:00 oclock.
A At that time, we were about to take our supper. When I was on the table, somebody
came up to the kitchen and I was afraid because I did not know him and he told
me [D]ont be afraid, Nang, I am the son of Lucia Payla, I was stabbed by Elgin
Latayada and bring me to the hospital.
Q And then what happened after that?
A I [had] my neighbor Joseph Tion called and when he arrived, I told him [he] will be the
one to bring [Payla] to the municipal hospital and [to] inform his parents because I
am old, I cannot manage anymore.[52] (Italics supplied)
Verily, the utterances of Payla to Condino were instinctively made at a time when he had no
more opportunity to concoct a fabricated version of the startling event; hence, the words he spoke
were credible.[53]
In the same category were the statements uttered by Payla to his wife, Gina; and to Tion.
The transcript of stenographic notes of the proceedings amply shows that the victim identified
appellant as the assailant, and that the former narrated details of the stabbing to his wife and to
Tion shortly after the incident.

Second Issue:
Treachery

Appellant contends that the RTC erred in appreciating treachery, since it was not alleged as
an aggravating circumstance in the Information as required by Sections 8 and 9 of the Revised
Rules of Court.[54] He argues that the maximum penalty that may be imposed on him is reclusion
perpetua, not death. The OSG agrees with his submission.
We sustain their position that treachery should not have been considered by the court a
quo. Sections 8 and 9 of Rule 110 of the Revised Rules of Court require that the complaint or
information shall state, among others, the qualifying and aggravating circumstances as follows:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying
and aggravating circumstances. If there is no designation of the offense, reference shall be made to the
section or subsection of the statute punishing it.

SEC. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language and
not necessarily those in the language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. (Italics supplied)

Indeed, a perusal of the Information in this case readily reveals that treachery was not alleged
as an aggravating or a qualifying circumstance in the commission of the crime charged.
Consistent with the new Rules, treachery may not be appreciated, because it was not alleged in
the Information.[55] It is settled that procedural rules are applicable to actions pending and
undetermined at the time they were approved, especially when they are more favorable to the
accused.[56] In the absence of any qualifying circumstance, appellant may be convicted of
homicide only.

Third Issue:
Penalty and Indemnity

Under Article 249 of the Revised Penal Code, the imposable penalty for homicide is reclusion
temporal, the range of which is 12 years and 1 day to 20 years. Since appellant escaped from
confinement after the prosecution had rested, the Indeterminate Sentence Law is not
applicable.[57] There being no aggravating or mitigating circumstances, he should be sentenced
to reclusion temporal in its medium period.[58]
As to his civil liability, prevailing jurisprudence imposes the amount of P50,000 as
indemnity ex delicto for homicide.[59] The award of actual damages in the form of hospitalization
and burial expenses, which were adequately proved by receipts,[60] is affirmed. Being adequately
supported by the evidence on record, the grant of moral damages in the amount of P50,000 is
also affirmed.
In addition, the heirs of the victim must also be indemnified for loss of earning capacity of the
deceased.[61] The widow, Gina, testified that her husbands net daily income was P250.[62] She
also testified that they had three children,[63] and that the deceased was 27 years old at the time
of his death.[64] The loss of earning capacity is thus computed as follows:[65]

Net earning capacity = life expectancy[66] x (gross annual income less

living expenses[67])
= 2 ( 80 - 27) x (P90,000[68] - P45,000)
3

= 35.33 x P45,000

= P1,589,850.00

Effect of Appellants Escape

When an appellant escapes detention pending appeal, the appeal is normally dismissed, and
the lower courts judgment thus becomes final and executory.[69] However, this Court has held
in People v. Esparas,[70] People v. Prades,[71] and People v. Raquino [72] that this rule does not
apply to death cases, in which an automatic review is mandated by law even if appellant has
absconded.[73]
WHEREFORE, the appeal is PARTLY GRANTED. The Decision of the Regional Trial Court
of Cagayan de Oro City (Branch 18) in Criminal Case No. 97-917 is hereby MODIFIED as follows:
1. Appellant is found GUILTY of HOMICIDE and is sentenced to suffer imprisonment of 14
years, 8 months and 1 day.
 2. Appellant is likewise ordered to pay to the heirs of the deceased the amount of P50,000
as civil indemnity ex delicto, P26,199 as actual damages, P50,000 as moral damages, and P1
,589,850 for loss of earning capacity.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Vitug, J., in the result.

SECOND DIVISION
THE PEOPLE OF THE PHILIPPINES, G.R. No. 177147

Appellee, [Formerly G.R. No. 147313]

Present:

SANDOVAL-GUTIERREZ,*

- versus - CARPIO,**

CARPIO MORALES,

TINGA, and

JOEMARIE CERILLA, VELASCO, JR., JJ.

Appellant.

Promulgated:

November 28, 2007

x----------------------------------------------------------------------------x

DECISION

TINGA, J.:
 For automatic review is the Decision[1] of the Court of Appeals[2] dated 26 October 2006 in CA-G.R.
CR-HC No. 00032 which affirmed with modification the Decision[3] of the Regional Trial Court (RTC) of Iloilo
City, Branch 23 dated 15 August 2000 in Criminal Case No. 496502 finding appellant Joemarie Cerilla guilty
beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua.

On 6 July 1998, an Information was filed against appellant charging him of the crime of murder
committed as follows:

That on or about April 24, 1998, in the Municipality of Leganes, Province of Iloilo,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
armed with a firearm with deliberate intent and decided purpose to kill and by means of
treachery, did then and there willfully, unlawfully and feloniously shoot Alexander Parreo
with the firearm which the accused was then provided, hitting and inflicting pellet wound
at the right back portion of his body which caused his death.

CONTRARY TO LAW.[4]

The prosecutions evidence shows that at around 6:00 pm on 24 April 1998, the victim, Alexander Parreo
(Alexander), his 14-year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house
of appellant. They were cordially welcomed and entertained by appellant and his wife.[5] An hour later, a
blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter
acknowledged.[6] On their way home, Michelle was walking ahead of Alexander with the latter closely
following his daughter. Suddenly, after walking for about 100 meters

from appellants house, Michelle heard an explosion. Michelle immediately turned her back and saw
appellant pointing a gun at Alexander who, at that moment, was staggering towards her.[7] Sendin, who
was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house
of Mrs. Parreo.[8] Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly
told her that it was appellant who shot him.[9] Twentyminutes later, Alexanders other daughter, Novie
Mae, arrived; she was also told by Alexander at that moment that it was appellant who shot him.[10]
SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the crime scene and helped
carry Alexander to an ambulance. SPO3 Dequito was able to ask Alexander who shot him to which he
answered Pato. Pato is an alias by which appellant is known.[11]

Alexanders wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who
shot him.[12] Alexander died the following day.[13]

Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an autopsy on the body of
Alexander. The autopsy report stated the cause of death to be hemorrhage secondary to pellet
wounds.[14] Testifying on his report, Dr. Doromal explained that Alexander died from a gunshot wound
which penetrated the ribs and lacerated the right lobe of the liver, colon, stomach, duodenum, and right
kidney. The entrance wound was located at the middle-back portion of the body. Seven (7) pellets were
recovered on the muscle of the upper and middle abdominal wall.[15]

The defenses evidence consists of the testimonies of appellant himself and of his wife, Madoline, his
stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3 Wilson Allona. Appellant
interposed alibi as his main defense. He claimed that Alexander, together with his daughter and Sendin,
had gone to his house on 24 April 1998 at around 6:00 p.m. where they were welcomed and offered
snacks.[16] They were having a conversation when a blackout occurred. Alexander then asked permission
to leave. After the visitors had left, appellant ordered his stepdaughter Franlin to buy candle at the store
across their house. Appellant and Madoline posted themselves at their doorway holding a flashlight to
light Franlins path. Upon Franlins return to the house, appellant heard an explosion and he immediately
closed the door. Later, the policemen

went to his house and told him that he was a suspect in the shooting of Alexander and was then brought
to the police station.[17] The following day, he was subjected to paraffin test the result of which turned out
to be negative.[18]
 Appellants testimony was corroborated by Madoline and Franlin. PO1 Javelora declared that
when he asked Alexander who shot him, the latter did not answer.[19] Likewise, PO3 Sarmiento and Allona
stated that when they went to the hospital to interrogate Alexander, the latter could not give a definite
answer as to who shot him.[20]

On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of murder and sentenced
him to suffer the penalty of reclusion perpetua. The dispositive portion of the decision read:

WHEREFORE, premises considered, and in the light of the facts obtaining and the
jurisprudence aforecited, judgement is hereby rendered finding the accused GUILTY
beyond reasonable doubt of the crime of MURDER, hereby sentencing the said accused
to the penalty of RECLUSION PERPETUA pursuant to Sec. 6 of Republic Act No. 7659[,]
amending Article 248 of the Revised Penal Code. The said accused is further condemned
to indemnify the surviving heirs of the deceased, Alexander Parreo, the sum
of P257,774.75 by way of actual damages; the amount of P30,000.00 by way of moral
damages and the sum of P50,000.00 by way of death compensation. The accused who is
detained is entitled to be credited in full with the entire period of his preventive
detention. The Jail Warden, Iloilo Rehabilitation Center is ordered to remit the said
accused to the National Penitentiary at the earliest opportunity.

SO ORDERED.[21]

The trial court regarded the victims dying declaration as the most telling evidence pointing to appellant
as the assailant.[22] It appreciated the presence of treachery in qualifying the crime to
murder because the victim was unarmed and walking on his way

home when he was suddenly and unexpectedly shot from behind by appellant.[23] The trial court ruled
that appellants alibi and denial could not prevail over the positive testimonies of credible
witnesses.[24] Moreover, it observed that appellant was not able to prove the impossibility of his presence
at the crime scene which could have proven his alibi.[25]
 In view of the penalty of reclusion perpetua imposed on appellant, the case was initially elevated
to this Court for review. However, pursuant to our ruling in People v. Mateo,[26] the case was referred to
the Court of Appeals.

The appellate court affirmed the trial courts ruling but modified the award of moral damages from Thirty
Thousand Pesos to Fifty Thousand Pesos.[27] Hence, the instant appeal.

In a Resolution dated 16 July 2007, the Court required the parties to simultaneously submit their
respective supplemental briefs if they so desired.[28] Both parties manifested that they would adopt their
briefs filed before the appellate court.[29] Thereafter, the case was deemed submitted for decision.

Appellant argues that the trial court erred in giving full credence to the testimony of the prosecution's
eyewitness, Michelle, as well as the dying declaration of Alexander considering that the circumstances
under which the crime was committed rendered the identification of the gunman impossible.

This argument essentially challenges the credibility of the witnesses, including the eyewitness, whose
testimonies were relied upon by the trial court in convicting appellant. Basic is the principle that the
findings of fact of a trial court, its calibration of the testimonies of the witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect,
if not conclusive effect. This is because the

trial court has the unique opportunity to observe the demeanor of a witness and is in the best position to
discern whether they are telling the truth. This rule holds true especially when the trial court's findings
have been affirmed by the appellate court.[30]

Appellants authorship of the crime was proven by the positive identification of an eyewitness and the
victims dying declaration.
The prosecution presented Michelle, who categorically identified appellant as the one who shot
Alexander, viz:

Q: While you and your father were walking towards home, did you remember anything
unusual that happened?

A: Yes, Maam.

Q: What was that?

A: I heard an explosion.

Q: Where were you in relation to your father when you heard that shot?

A: I was in front of my Daddy and he was at my back.

Q: You said you heard a shot, what did you do when you heard a shot?

A: When I heard the shot, I turned back and I saw Joemarie pointing to my Dad.

COURT:

Q: What did he point towards your Dad?

A: Firearm.

PROSECUTOR PADILLA:

Q: You said Joemarie was pointing a firearm to your father. Was it [a] long or short
firearm?

A: About 11 inches.
 Q: After you saw Joemarie pointing a firearm to your father, what happened next?

A: I saw my father staggering towards me and I saw Joemarie Cerilla ran.

Q: Where was he going?

A: Maybe towards his house.[31]

xxxx

Q: If this Joemarie Cerilla is inside the Courtroom, can you identify him?

A: Yes, Maam.

Q: Please point to him. (Witness pointing to the accused Joemarie Cerilla).[32]

Michelles account of how her father was shot by appellant was corroborated by the post-mortem
examination which reveals that the entrance wound is located at the back of the victim.[33] In the same
vein, the medico-legal expert concluded that the gunshot was fired at a close range, as evidenced by the
presence of a power burn measuring four (4) centimeters in diameter surrounding the periphery of the
wound [34] and penetrating his internal organs.[35]

Significantly, the eyewitnesss positive identification of appellant as the perpetrator of the crime
is fully supported the victims dying declaration.

A dying declaration is a statement made by the victim of homicide, referring to the material facts
which concern the cause and circumstances of the killing and which is uttered under a fixed belief that
death is impending and is certain to follow immediately, or in a very short time, without an opportunity
of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a
person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts
concerning the cause and circumstances surrounding his/her death.[36]

As an exception to the rule against hearsay evidence, a dying declaration or ante mortem
statement is evidence of the highest order and is entitled to utmost credence since no person aware of
his impending death would make a careless and false accusation.[37] It
is thus admissible to provide the identity of the accused and the deceased,
to show the cause of death of the deceased, and
the circumstances under which the assault was made upon him. The reasons
for its admissibility is necessity and

trustworthiness. Necessity, because the declarants death renders it impossible his taking the witness
stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it,
therefore, prevents a failure of justice. And trustworthiness, because the declaration is made in extremity,
when the party is at the point of death and when every motive to falsehood is silenced and the mind is
induced by the most powerful considerations to speak the truth. The law considers the point of death as
a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath
administered in court.[38]

Of the doctrines that authorize the admission of special classes of hearsay, the doctrine relating
to dying declarations is the most mystical in its theory and, traditionally, among the most arbitrary in its
limitations. In the United States, the notion of the special likelihood of truthfulness of deathbed
statements was widespread long before the recognition of a general rule against hearsay in the early
1700s. Not surprisingly, nearly as soon as we find a hearsay rule, we also find an exception for dying
declarations.[39]

Four requisites must concur in order that a dying declaration may be admissible, thus: first, the
declaration must concern the cause and surrounding circumstances of the declarant's death. This refers
not only to the facts of the assault itself, but also to matters both before and after the assault having a
direct causal connection with it. Statements involving the nature of the declarants injury or the cause of
death; those imparting deliberation and willfulness in the attack, indicating the reason or motive for the
killing; justifying or accusing the accused; or indicating the absence of cause for the act are
admissible.[40] Second, at the time the declaration was made, the declarant must be under the
consciousness of an impending death. The rule is that, in order to make a dying declaration admissible, a
fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in
impending death and not the rapid succession of death in point of fact that renders the dying declaration
admissible. It is not necessary that the approaching death be presaged by the personal feelings of the
deceased. The test is whether the declarant has abandoned all hopes of survival and looked on death as
certainly impending.[41] Third, the declarant is competent as a witness. The rule is that where the declarant
would not have been a competent witness had he survived, the proffered declarations will not be
admissible. Accordingly, declarations made by a child too young to be a competent witness or by a person
who was insane or incapable of understanding his own statements by reason of partial unconsciousness
are not admissible in evidence.[42] Thus, in the absence of evidence showing that the declarant could not
have been competent to be a witness had he survived, the presumption must be sustained that he would
have been competent.[43] Fourth, the declaration must be offered in a criminal case for homicide, murder,
or parricide, in which the declarant is the victim.[44] Anent this requisite, the same deserves no further
elaboration as, in fact, the prosecution had caused its witnesses to take the stand and testify in open court
on the substance of Alexanders ante mortem statement in the present criminal case for murder.

The victim communicated his ante-mortem statement to three persons who testified with
unanimity that they had been told by the victim himself that it was appellant who shot him. Michelle
recounted:

Q: You said your father moved towards you, what happened next?

A: I approached my father and cuddled him.

Q: What happened next?

A: While I was cuddling my father he said, Day, it was Joemarie who shot me.

Q: How many time he said he was shot?

A: Not once but about 10 times.[45]

 Shortly thereafter, Novie Mae arrived and was told by Alexander that it was appellant who opened
fire at him:

Q: When you reached Confessor Street, what happened?

A: I saw that my elder sister was assisting my father.

COURT:

Q: Whats the name of your sister?

A: Michelle.

COURT:

Proceed.

FISCAL:

Q: When you saw your sister Michelle assisting your father, what [sic] happened next?

A: And I immediately went near my father and asked him who shot him and he answered
it was Joemarie Cerilla who shot him.

Q: Before you reached your father, did you observe his physical appearance of what
happened to him?

A: Yes, Maam, he was supporting with his arm and when I asked him he still made a
response.
 Q: You said [that] before you approached your father[,] you saw him supporting his body,
what was his position at that time?

A: He was in a position of lying with his hand on the road and my sister was assisting him.

xxx

Q: Were you able to observe why your father was sitting on the ground and supporting
himself not to fall.

A: Yes, Maam.

Q: Why, [sic] what did you observe?

A: My father was supporting himself in order that blood will not [ooze] from his body and
his body will not fall down.[46]

SPO3 Dequito, who responded immediately to the crime scene, corroborated the testimonies of
the Alexanders children, to wit:

Q: So, what did you do when you arrived at the crime scene?

A: We advised the group to carry Mr. Parreo to the ambulance because the ambulance
was on the way and after our mobile arrived, the ambulance arrived also [sic] so
we carried Mr. Parreo to be brought to the hospital.

COURT:

Q: Meaning you loaded the victim into the ambulance?

A: Yes, Your Honor.

Q: And after he was loaded, what did you do?

A: Before the ambulance left the area, I questioned the victim who shot him and he
answered Alias Pato. I am referring to Joemarie Cerilla, the accused.

Q: The accused Cerilla, Alias Pato?

A: Yes, Your Honor.

PROSECUTOR:

Q: Can you remember the exact words uttered by the victim when you asked him who
shot him?

A: He answered me that: I questioned him, Who shot you? and he answered that it was
Cerilla and I further asked him The husband of Madoline and he answered Yes,
Alias Pato, the husband of Madoline.[47]

Likewise, Alexanders wife, Sonia, testified:

Q: You said from your house when you were told by the girls that your husband was shot,
what did you do?

A: I looked for a taxi and proceeded to the hospital.

xxx

Q: When you arrived at the hospital, where did you go first?

A: To my husband.

xxx
 Q: When you reached that hospital and your own mother led you to where Alexander
was, in what part of the hospital did you first see him.

A: Outside the operating room.

Q: What was the situation of your husband when you first saw him?

A: He was leaning on his side and many nurses attending to him and saying araguy.

xxx

Q: Between you and your husband who spoke first?

A: My husband.

Q: What were the exact words stated by your husband?

A: He told me that it was Joemarie who shot him.[48]

These statements comply with all the requisites of a dying declaration. First, Alexanders
declaration pertains to the identity of the person who shot him.Second, the fatal quality and extent of the
injuries[49] he suffered underscore the imminence of his death as his condition was so serious that his
demise occurred the following morning after a thirteen (13)-hour operation. Third, he would have been
competent to testify had he survived. Fourth, his dying declaration is offered in a criminal prosecution for
murder where he was the victim.

Other police officers were presented by the defense to refute the dying declaration. PO1 Javelora
alleged that he happened to pass by the crime scene and saw a young girl crying. The girl led him to her
father who was sitting on the roadside. He asked the victim who shot him but he did not get any
reply.[50] PO3 Allona and Sarmiento arrived at the hospital and questioned Alexander as to who shot him
but the latter told them, I am not sure because it was dark.[51] These statements cannot be construed as
a categorical statement of the victim denying knowledge as to the identity of his assailant. It can be
recalled that at the time Alexander was being questioned, he was already being readied for surgery. At
that point, he was understandably no longer fit to respond to questions. Between these two seemingly
conflicting testimonies, it is the positive identification made by Alexander in his dying declaration which
must be sustained.

Appellant insists that there was an inherent impossibility in identifying the assailant with clarity
since there was a power blackout at the time of the commission of the crime and was then a moonless
night.

The fact that the crime was committed during a blackout does not cast doubt on Alexanders and
Michelles positive identification of appellant. While the place of occurrence was dark, this did not prevent
the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close
range.

In dismissing appellants contention, the trial court rationalized:

x x x This argument deserves scant consideration. In the case of People v. Hillado,

G.R. No. 122838[,] promulgated on May 24, 1999[,] citing the case of People v. Oliano,
visibility at nighttime is possible not only at the exact minute and date when the moon is
full as indicated in the calendar. Thus, a persons nocturnal eyesight, is not necessarily
diminished just because there is no illumination from the moon, because it is a fact that
our eyes can actually adjust to the darkness so that we can still see objects clearly even
without sufficient lighting. In the case at bar, it would not be so hard for Michelle to
identify a persons fact especially if the latter as in the present case was barely two (2)
arms length away from them which is confirmed by the presence of gunpowder nitrates
on the body of the victim. We stress, that the normal reaction of the person is to direct
his sight towards the source of a startling [shot] or occurrence. As held in People v. Dolar,
the most natural reaction of the victims in criminal violence is to strive to see the looks
and faces of their assailants and to observe the manner in which the crime is
committed. Added to this is the fact that the accused Joemarie Cerilla and the victim
Alexander Parreo have known each other quite well before the incident so that
they became familiar with each others face and physical features. x x x [52]
 Moreover, the prosecution witnesses were not shown to be impelled by ill motive to testify falsely
against appellant. Besides, Susan, Michelle and Novie Mae, being immediate relatives of the deceased,
would naturally be interested in having the real culprit punished.[53]

The positive identification of appellant must necessarily prevail over his alibi.[54] It was not
physically impossible for appellant to have been present at the scene of the crime at the time of its
commission. The distance of his house, where he supposedly was, from the locus criminis is only 120-150
meters, more or less.[55]

Appellant counters that there was absence of any motive on his part to kill the victim; that it was
not clearly proven that he fired a gun, based on the paraffin test; and that he appeared calm and
composed and showed no indication of guilt when he was invited by the police officers shortly after the
commission of the crime.

Time and again, we have ruled that a negative finding on paraffin test is not a conclusive proof
that one has not fired a gun because it is possible for a person to fire a gun and yet bear no traces of
nitrates or gunpowder, as when the culprit washes his hands or wears gloves.[56] The trial court correctly
rejected the result of the paraffin test in light of the positive identification of appellant.

The trial court held that the killing was qualified by treachery because Alexander, who was
unarmed, was suddenly and unexpectedly shot from behind by appellant without any risk to the latter
from any defense which the former might make. There was no opportunity given to Alexander to repel
the assault or offer any defense of his person. There was not the slightest provocation on his part.[57] We
agree with the findings of the trial court. The presence of treachery was evident in the execution of the
crime. Appellant suddenly, and without warning, shot Alexander from his back.

Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, murder is
punishable with reclusion perpetua to death. Because the killing of Alexander, although qualified by
treachery, was not attended by any other aggravating circumstance, the proper imposable penalty
is reclusion perpetua.
 We deem it proper to further impose exemplary damages in the amount of P25,000.00 which is
recoverable in the presence of an aggravating circumstance, whether qualifying or ordinary, in the
commission of the crime.[58]

WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006, affirming with
modification the Regional Trial Court Judgment dated 15 August 2000 finding appellant, Joemari Cerilla,
guilty beyond reasonable doubt of murder, is AFFIRMED with the MODIFICATION that appellant is further
ordered to pay the heirs of Alexander Parreo P25,000.00 as exemplary damages.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26193 January 27, 1981

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
RODULFO SABIO, alias "PAPU", defendant.

MELENCIO-HERRERA, J:

Automatic review of the death penalty imposed upon the accused Rodulfo Sabio alias "Papu", by
the Court of First Instance of Cebu, Branch II, in Criminal Case No. V-10804 for Robbery with
Homicide.

On October 5, 1965, at about 5:00 o'clock in the morning, in Barrio Looc, Argao, Cebu, Catalino
Espina, 80-years old, single, owner of a small sari-sari store located in his house was found on
the second floor of his dwelling wounded on the forehead, from which injury he died three days
later.

Prosecution witness JESUSA BIRONDO a fish vendor, testified that at about 5:00 o'clock in the
morning of October 5, 1965, as she was preparing to go to the seashore, she heard a shout for
help coming from the house of her neighbor, Catalino Espina, which was located just across the
street from her house. She recognized the voice as Catalino's. When she looked out of the window
she saw the accused Rodulfo Sabio, who is nicknamed "Papu", coming out of the door of the
store at the victim's house. The accused was wearing a black shirt with sleeves up to the elbow
and dark trousers. She had known the accused since his birth because his house is located at
the seashore in Barrio Looc, just about 40 meters from her own house, and she is familiar with
his appearance because she used to see him everyday passing by her house or at the seashore.
Jesusa felt scared so she retreated from the window. Then she shouted for help. Shortly
thereafter, she saw from her window that many persons, about 50 to 100 neighbors, went to
Catalino's house. The following day after the incident, or on October 6, 1965, Jesusa told Police
Sergeant Jesus Alberca about what she heard and saw. She executed a sworn statement on the
same date. 1

CAMILO SEMILLA, a 27-year-old fisherman and grand- nephew of the victim, who had lived with
the latter since childhood, left Catalino's house at past 4:00 o'clock in the early morning of October
5, 1965 to go fishing. At the seashore, he waited for somebody to help him drag his boat to the
sea from the elevated support on which it was hoisted. The first person he saw was the accused,
Rodulfo Sabio, who came running past him about 6 meters away, towards his (Sabio's) house.
The accused was wearing a black T-shirt with sleeves reaching beyond the elbow and long
"maong" pants. Witness Camilo demonstrated that the accused had his two hands tucked inside
his shirt in front of the stomach while running. Minutes later, a certain Enok Calledo arrived and
told Camilo to go home because his granduncle "Noy Ino" had cried for help. When Camilo
reached home, he saw "Ino" (the victim) lying wounded upstairs. He was moaning and was able
to speak only when bis head was raised. When Camilo called the victim's name, the latter
responded and told Camilo to fetch a policeman. Calo noticed that the merchandise in the store
were in disarray and the tin can called "barrio, which he knew had contained the cash sales for
Sunday and Monday of about P8.00 because they counted the money the previous night, was
lying empty on the floor. When police officers Paulino Fuentes and Pedro Burgos arrived,
Patrolman Fuentes asked "Manoy Ino" questions which, together with the answers, he wrote on
a page torn from a calendar hanging somewhere in the room. 2 Patrolman Fuentes then instructed
Camilo to take the victim to the town dispensary at Argao, Cebu, where he was treated. But
because the victim's condition was considered serious he was immediately transferred to the
Southern Islands Hospital where he died three days later. 3

PAULINO FUENTES, a policeman assigned at the municipal building of Argao, Cebu, received a
report at about 5:30 o'clock in the morning of October 5, 1965, that Ino Espina was hacked in
barrio Looc He and another policeman, Pedro Burgos, proceeded to the victim's house where he
saw the latter lying on the floor, wounded and bleeding on the forehead. Patrolman Fuentes asked
the victim who had hacked him and the latter answered that it was "Papu" Sabio, son of Menes
According to said Patrolman, the person referred to was the accused, who, as well as his parents,
have been known to the witness for the past three years. Patrolman Fuentes asked the victim
why "Papu" hacked him and the latter answered that "Papu" had demanded money from him.
Patrolman Fuentes also asked the victim how much money he had lost but the latter was not able
to answer that question. Sensing that the wound was serious since it was bleeding profusely
Patrolman Fuentes decided to take down the statement of the victim. He detached a leaf from a
calendar and wrote down on it the questions he propounded as well as the answers of the victim.
He then had it thumbmarked by the victim with the latter's own blood as no ink was available.
Present at the time were Pedro Burgos, another police officer, and Camilo Semilla, the
grandnephew. Patrolman Fuentes himself and Pedro Burgos signed as witnesses.

Reproduced hereunder in full is the said statement:

Antemortem

P Kinsa may ngalan nimo.

 T Catalino Espina

P Taga diin man ikao.

T Taga Looc, Argao, Cebu

P Kinsa may nag tikbas kanimo kon nagtulis kanimo

T Si Rudolfo (Pafo) Sabyo nga anak ni Menez nga taga Looc.

P Kon ikao mamatay kinsa may responsabli sa imong

kamatayan.

T Si Pafo Sabyo ro gayod ang responsabli sa akong kamatayon

P Imo ba kining permahan o tamlaan sa imong todlo?

T Oo

Catalino Espina

(Thumbmarked)

Wit:

1. (Sgd.) Paulino Fuentes

2. (Sgd.) Pedro Burgos 4

The English translation reads:

Q What is your name?

A Catalino Espina

Q From where are you?

A From Look, Argao, Cebu.

Q Who slashed you and robbed you?

A Rodulfo Sabio (Papu) the son of Menez from Look

Q If you will die, who is responsible for your death?

A Only Papu Sabio is responsible for my death.

Q Are you going to sign this or affix your fingerprint?

 A Yes.

Brownish fingerprint

mark and across it is

written the word

CATALINO ESPINA.

Wit:

1. (Sgd.) Paulino Fuentes

2. (Sgd.) Pedro Burgos 5

Thereafter, Patrolman Fuentes advised Camilo Semilla to bring the victim to the hospital.
Patrolman Fuentes observed that the things of Catalino and the store items like canned sardines
were all in disarray while the tin can ("barro") was already opened. 6

On October 5, 1965, DR. MELITA REMOTIGUE ANO resident physician at the Southern Islands
Hospital, Surgery Department, found that the victim had suffered "compound fracture on the skull,
bilateral at the front parietal area" with "laceration and cerebral contusion." From the nature of the
injuries, she opined that the same could have been inflicted by a sharp instrument or by a bolo,
and although the laceration was not too deep as to cause instaneous death, the injury was fatal
because it had injured the brain. 7

The prosecution also offered in evidence and as part of the cross-examination of the accused a
letter dated February 17, 1966 of the Cebu Provincial Warden, 8 showing that the accused had
been previously convicted by final judgment and had served sentence for two previous crimes of
Theft committed in the years 1963 and 1964.

Testifying in his defense the accused RODULFO SABIO, 18 years old, a fisherman, claimed that
in the evening of October 4, 1965, he was at home listening to the radio till past 9:00 o'clock after
which he went to sleep until about 6:00 o'clock in the morning of the next day, October 5, 1965,
when he was awakened by his younger brother who said that certain policemen were looking for
him. The policemen took him to the municipal building and incarcerated him without asking any
question. He was released the next day, October 6, but was arrested again on November 24,
1965 at P. del Rosario Street in Cebu City. The accused admitted that he knew witness, Camilo
Semilla, because they were neighbors he denied that Camilo had seen him running by the
seashore at about 5:00 o'clock in the morning of October 5, 1965 because at that time he was
still asleep at home. The accused also admitted knowing witness, Jesusa Birondo but alleged that
she could not have seen him coming out of the door of the house of Ino Espina at about 5:00
o'clock in the morning of October 5, 1965 because at that time he was still asleep at home. 9

Defense witness JACINTO MENDEZ corroborated the accused defense of alibi by testifying that
in the evening of October 4, 1965, he slept in the house of Hermogenes Sabio, father of the
accused, because he and Hermogenes had planned to go fishing the following morning. In the
house he saw the accused and the other children of Hermogenes. When he woke up at 5:00
o'clock in the morning of the following day, October 5, he saw that the accused and the other
children were all in the house. He repaired the nets after waking up, then went out to sea with
Hermogenes at about 7:00 o'clock and came back at past 8:00 in the morning. 10

In a Decision dated April 29, 1966, the trial Court found the accused guilty of the crime of Robbery
with Homicide attend by the aggravating circumstances of disregard of respect due to the victim,
an octogenarian and recidivism, without any mitigating circumstance, and sentenced him to death;
to indemnify the heirs of the deceased in the amount of P6,000.00; and to pay the costs. The trial
Court, however, recommended that in view of the youthful age of the accused, the death penalty
be commuted to life imprisonment.

In this appeal, the defense has made the following:

Assignment of Errors

I. The lower Court erred in concluding that the felony of Robbery with Homicide,
instead of only Homicide, had been established by the evidence;

II. The lower Court erred in admitting Exhibit "A" of the prosecution as an
Antemortem declaration of the victim;

III. The lower Court erred in giving credence to the testimony of Jesusa BIRONDO
witness for the prosecution;

IV. The lower Court erred in finding that the defendant- appellant was the
perpetrator of the crime. 11

1. We find merit in the contention that only the crime of Homicide had been committed. The
evidence indicative of robbery consisted merely of the testimony of witness Camilo Semilla who
declared as follows:

Q. How far was Rodulfo Sabio when he passed by you running that
moment?

A. About six meters from me.

Q. Did you notice while he passed by you running, if he was holding

anything?

A. Yes, he had his hands inside his shirt.

xxx xxx xxx

Q. What did you notice inside the house upon your arrival from the
seashore?

A. I saw that the ("barro") was already empty, lying on the ground,
and the merchandise items were in disorder.
 Q. Do you know what things were placed in that thing or tin can
which you call barro

A. It contained the cash sales.

Q. That "barro" which you mentioned, where was it before you left
the house to go to the shore that dawn?

A. Beside the bed of lno

Q. You said that tin can or 'barro' where the cash sales were kept
was beside the bed, do you know more or less the amount placed
therein?

A. About P8.00.

Q. How do you know that tin can had P8.00 inside?

A. Because the previous night we counted the money.

Q. The P8.00 was the sales for how many days?

A. That was the sales for Sunday and Monday. 12

and that of Patrolman Fuentes, to wit:

Q. When you were inside the house of Catalino Espina, what else
did you find in the course of your investigation?

A. I saw that the things of Catalino Espina and the stands where the
items for sale were displayed were all in disarray.

xxx xxx xxx

Q. What other conversation did you have with Catalino Espina after
that first question?

A. I asked him why Papu hacked him, and the victim answered that
Papu demanded money from him.

Q. Could we say that the answer of the deceased Catalino Espina

was outright after the question?

A. Yes, sir.

Q. Even with the second question, is that correct?

A. Yes, sir.
 Q. Will you please let us know the third question?

A. I asked him how much money he lost, and he was not able to
answer that question.

Q. Do you know why he did not answer that question?

A. I think he did not answer that because when he was hacked he

had not yet given money to Papu.

xxx xxx xxx

Q. You stated in the direct examination that the things in the house
of the deceased Catalino Espina were in disarray, is that correct

A. Yes, sir.

Q. Will you please state before the Honorable Court the things that
were disarrayed when you went up the house of the deceased?

A. The canned sardines were disarrayed, others had dropped to the

ground; the barro was already opened, and other things in the store
were in topsy-turvy state. 13

Plainly, the evidence supportive of the charge of robbery is at best circumstantial and does not
establish beyond reasonable doubt that the accused had carried away personal- ty belonging to
the offended party. There was no eyewitness to the alleged robbery, nor was any part of the
alleged missing object recovered. The consummation of the robbery cannot be inferred nor
presumed from the circumstance that the accused was seen running "with his hands inside his
shirt", or that the "barrio", alleged to have contained cash amounting to about P8.00, was seen
on the floor, open and empty, or that the things and merchandise inside the house were in
disarray People vs. Labita et al., [99 Phil. 1068, unreported case]). A conviction for Robbery with
Homicide requires that the robbery itself be proven as conclusively as any other essential element
of a crime (People vs. Pacala, 58 SCRA 370 [1974]), it not being enough to infer said robbery
from mere suspicion and presumption (U.S. vs. Alasaas 40 Phil. 878, 881).

Where there was no eyewitness to the alleged robbery, and the evidence merely
shows that after the killing some of the things inside the house where the killing
took place, were missing, it cannot be presumed that the accused killers committed
robbery. It is necessary to prove intent to rob. This necessarily includes evidence
to the effect that the accused carried away the effects or personalty of the offend-
ed party. In the absence of evidence that the accused carried away the missing
objects, they cannot be convicted of robbery. 14 (Emphasis supplied)

Nor can the dying declaration of the victim which, in part, reads:

Q. Who slashed you and robbed you?

A. Rodulfo Sabio (Papu) the son of Menez from Lo-ok.

be admitted to establish the fact of robbery. The admission of dying declarations has always been
strictly limited to criminal prosecutions for homicide or murder 15 as evidence of the cause and
surrounding circumstances of death. 16

2. Next, the defense questions the admissibility of Exhibit "A" of the prosecution as an antemortem
statement arguing that there is no evidence showing that when the declaration was uttered the
declarant was under a consciousness of an impending death; that, in fact, the victim had hopes
of recovery or his first word to Camilo Semilla was for the latter to fetch the police. Defense
counsel argues further that there are doubts as to when said Exhibit "A" was thumb-marked
because, although it was already in existence in the morning of October 5, 1965, as alleged by
Patrolman Fuentes, the accused was never confronted with the document when he was taken in
to custody by the police for the first time from the morning of October 5 to October 6, 1965, thereby
implying that the document did not yet exist at that time.

The arguments advanced are unavailing. The seriousness of the injury on the victim's forehead
which had affected the brain and was profusely bleeding; the victim's inability to speak until his
head was raised; the spontaneous answer of the victim that "only Papu Sabio is responsible for
my death"; and his subsequent demise from the direct effects of the wound on his forehead,
strengthen the conclusion that the victim must have known that his end was inevitable. That death
did not ensue till three days after the declaration was made will not alter its probative force since
it is not indispensable that a declarant expires immediately thereafter. It is the belief in impending
death and not the rapid succession of death, in point of fact, that renders the dying declaration
admissible. 17 Further, the fact that the victim told his grandnephew Camilo Semilla to fetch the
police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes
the realization that he had so little time to disclose his assailant to the authorities. The mere failure
of the police to confront the accused cused with the antemortem declaration the first time the latter
was arrested and incarcerated from October 5 to October 6, 1965, neither militates against the
fact of its execution considering that it was evidence that the police was under no compulsion to
disclose.

3. The credibility of witness Jesusa Birondo is also assail ed by the defense alleging firstly, that it
is unbelievable that she could have really Identified the accused as the person who came out of
the victim's house considering that the distance from her window to that house was 17 meters,
and at 5:00 a.m. on October 5, 1965, it was still dark and raining secondly, there is a glaring
divergence between her testimony at the trial and her statement at the preliminary investigation,
which statement was suppressed and not made known to the trial Court; thirdly, said witness was
uncertain as to when she actually brought to the attention of the authorities the matter of her
having seen the accused; and finally, the defense asks if it were true that the accused had been
Identified by said witness to the Chief of Police even before the accused was taken into custody,
why was not the accused confronted with such fact?

For one who has known the accused since the latter's infancy and who is very familiar with the
accused's appearance because she sees him almost everyday passing by her house or at the
seashore where the accused has his house, it is not incredible that Jesusa Birondo recognized
the accused, at side view, even, at a distance of 17 meters (which was the trial Court's estimate
of the distance between Catalino Espina's house and that of Jesusa Birondo as described by the
accused) at 5:00 o'clock in the morning and even if it were raining. Besides, Jesusa's description
of the clothes that the accused was wearing was corroborated by Camilo Semilla, who also saw
the accused that same morning. The alleged divergence between Jesusa's statement at the
preliminary investigation and her testimony at the trial neither merits serious consideration since
an affidavit, "being taken ex parte is almost always incomplete and often inaccurate." 18 Besides,
the discrepancies pointed out by the defense, to wit: whether or not Jesusa saw what the accused
did after leaving the house of the victim and whether or not she went down from her house after
the incident, refer to minor details or collateral matters which do not destroy the effectiveness of
her testimony. Further, the, discrepancy as to the exact date when the witness actually disclosed
to the authorities her having seen the accused on the morning of the incident, is also a minor
detail which does not detract from the reliability of her Identification of the accused. Moreover, the
defense has not shown any ulterior motive on the part of witness Jesusa Birondo that would make
her implicate and testify falsely against the accused, who was a neighbor and an acquaintance.

4. In the fourth and last assignment of error, the defense decries the speed with which the trial
Court decided the case, alleging that the Decision was prepared and signed on April 29, 1966, or
one day after the close of trial on April 28, 1966, and was read to the accused on April 30, 1966,
without benefit of a transcript of stenographic notes nor memoranda of the parties, so that the trial
Court could not have seriously considered the merits of the case or must have prejudged it even
before the trial ended. That contention is belied, however, by the detailed findings of facts in the
Decision of the trial Court duly supported by the transcript of stenographic notes now on record.

Finally, the defense contends that the guilt of the accused has not been established beyond
reasonable doubt. The alibi put up by the accused, however, crumbles under the positive
Identification by witnesses Jesusa Birondo and Camilo Semilla and the dying declaration of the
victim, aside from the fact that because of the proximity of the house of the accused to that of the
victim, it was not impossible for the accused to have been at the scene of the crime.

In summation the accused is guilty only of Homicide, attended by the aggravating circumstances
of disregard of respect due the offended party on account of his age, and dwelling Recidivism is
not to be considered because of our finding that the crime of Robbery has not been conclusively
established.

The penalty imposable for the crime of Homicide, attended by aggravating with no mitigating
circumstances, is reclusion temporal in its maximum period or seventeen (17) years, four (4)
months and one (1) day to twenty (20) years. 19

WHEREFORE, we find the accused, Rodulfo Sabio alias "Papu", guilty of the crime of Homicide
and hereby sentence him to an indeterminate penalty of twelve (12) years of prision mayor as
minimum, to twenty (20) years of reclusion temporal as maximum; to indemnify the heirs of the
deceased, Catalino Espina in the amount of P12,000.00; and to pay the costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion Jr., Fernandez, Guerrero and De Castro, JJ.,
concur.

Barredo, * J., took no part.

Separate Opinions
ABAD SANTOS, J., dissenting:

I dissent in respect of the finding that no robbery was committed by Rodulfo Sabio for the following
reasons:

1. The tin can or "barro" which contained some P8.00 the night before the incident, was found
empty and lying on the ground of the house where the deceased had his store. It could only have
been Sabio who took the money for it was he who entered the store and hacked Catalino Espina
who died as a result thereof.

2. True, Catalino Espina could not state how much money was lost. But from inability to state the
amount lost, it does not follow that nothing was lost. The two the loss and the amount of the
loss are two entirely different concepts.

3. Naturally, Catalino could not state how much money was lost because he was hacked severely
on the forehead before the money was taken by Sabio. A man mortally wounded who did not
hand over any money to his assailant should not be expected to answer an inconsequential
question as to the amount of his loss. A man in his situation would be thinking not how much he
had lost but of his impending death.

4. There would be no motive for the killing of there was no robbery and robbery cannot be
discounted after Sabio had entered the store and attacked its owner.

Considering, however, the fact that, Rodulfo Sabio has been in detention since 1965 and the
recommendation of the trial judge that the death penalty imposed on him be commuted to life
imprisonment on account of his youth, my vote as to the appropriate penalty is reclusion perpetua.

Aquino, J., concur.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent in respect of the finding that no robbery was committed by Rodulfo Sabio for the following
reasons:

1. The tin can or "barro" which contained some P8.00 the night before the incident, was found
empty and lying on the ground of the house where the deceased had his store. It could only have
been Sabio who took the money for it was he who entered the store and hacked Catalino Espina
who died as a result thereof.

2. True, Catalino Espina could not state how much money was lost. But from inability to state the
amount lost, it does not follow that nothing was lost. The two the loss and the amount of the
loss are two entirely different concepts.

3. Naturally, Catalino could not state how much money was lost because he was hacked severely
on the forehead before the money was taken by Sabio. A man mortally wounded who did not
hand over any money to his assailant should not be expected to answer an inconsequential
question as to the amount of his loss. A man in his situation would be thinking not how much he
had lost but of his impending death.

4. There would be no motive for the killing of there was no robbery and robbery cannot be
discounted after Sabio had entered the store and attacked its owner.

Considering, however, the fact that, Rodulfo Sabio has been in detention since 1965 and the
recommendation of the trial judge that the death penalty imposed on him be commuted to life
imprisonment on account of his youth, my vote as to the appropriate penalty is reclusion perpetua.

Aquino, J., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47147 July 3, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SENEN OLA, defendant-appellant.

CORTES, J.:

On automatic review by this Court is this criminal case involving the crime of Attempted Robbery
with Homicide and Unintentional Abortion wherein the death penalty was imposed by the trial
court prior to the effectivity of the 1987 Constitution.

The accused-appellant Senen Ola, was charged before the then Court of First Instance of
Marinduque as the principal in the crime of Attempted Robbery with Homicide and Unintentional
Abortion punishable under the Revised Penal Code. His co-accused, Jose Bustamante and
Rustico Matimtim were charged only as accomplices. The amended information filed against Ola
and his co-accused reads, in part:

That on or about November 30, 1970, in the evening thereof, in the barrio of Magapua,
municipality of Mogpog, province of Marinduque, Philippines and within the jurisdiction of
this Honorable Court, the said accused did, then and there, willfully, unlawfully and
feloniously, with intent of gain, commence the commission of the crime of Robbery directly
by overt acts in the following manner, to wit: that while Jose Bustamante and Rustico
Matimtim, acting as accomplices, are stationed behind the house of one Lolita Muhi acting
as guards or lookouts, the principal, Senen Ola, climb up and enter the house of said Lolita
Muhi with the intention of committing the crime of robbery but was unable to perform all
the acts which would produce the crime of robbery as a consequence by reason of the
 fact that Lolita Muhi was awake and attempted to ask for help as a consequence of which,
the accused Senen Ola, taking advantage of his superior strength and with a bladed
weapon, assault and stab Lolita Muhi who is in the family way, inflicting upon her the
following injuries, to wit:

xxx xxx xxx

which caused her death and the abortion of the foetus in her womb.

xxx xxx xxx

(Rollo, pp. 7-8)

Upon arraignment. Ola pleaded not guilty. The other accused, Bustamante and Matimtim, pleaded
guilty to the charge. The case went into trial with respect to Ola, while judgment was reserved as
to his co-accused.

In the course of the presentation of the evidence for the prosecution, specifically, after the cross-
examination of the accused Bustamante, the accused Matimtim, through counsel, manifested his
desire to withdraw his initial plea of guilt and to enter a plea of not guilty. The trial court allowed
the change of plea "in the interest of justice." (Rollo, p. 12) Trial then proceeded with respect to
Ola and Matimtim who were thereafter convicted as principal and accomplice, respectively.

After trial, the lower court convicted the accused Ola as principal in the crime of Attempted
Robbery with Homicide and Unintentional Abortion. The death penalty was imposed by the trial
court upon a finding that the homicide committed on the occasion of the attempted robbery was
murder, (See Article 297, Revised Penal Code) qualified by abuse of superior strength and
complexed with the unintentional abortion of the victim's fetus, and therefore deserving of a higher
penalty than the prescribed penalty of reclusion temporal in its maximum period to reclusion
perpetua (Rollo, pp. 31-32). The accomplice Matimtim, whose participation was unattended by
any aggravating or mitigating circumstance, was sentenced to eight (8) years and one (1) day
of prision mayor as minimum penalty, to fourteen (14) years and one (1) day of reclusion
temporal as maximum penalty (Rollo, pp. 40-41). The other accomplice Bustamante was meted
out the penalty of four (4) years and one (1) month of prision correccional as minimum to nine (9)
years and one day of prision mayor as because of two mitigating circumstances in his favor (Rollo,
pp. 41-42). The two convicted accomplices did not appeal, hence judgment as to them became
final and they can no longer be affected by the outcome of this review (See U.S. v. Dagalea, 4
Phil. 398 (1905).

As in all cases in which the death penalty had been imposed, the complete record of this case as
well as the transcript of stenographic notes and the folder of exhibits was elevated to this Court
in accordance with Rule 122, Section 8 of the Rules of Court for automatic review (See 2nd par.
of Article 47, Revised Penal Code, as amended by Sec. 9 of the Judiciary Act of 1948 [R.A. No.
296]). While this case was under review, all death penalties already imposed were automatically
reduced to reclusion perpetua pursuant to Article III, Sec. 19 (1) of the 1987 Constitution which
states:

Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless for compelling reasons involving
 heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed
shall be reduced to reclusion perpetua

By virtue of the foregoing constitutional provision, those accused whose death penalties had been
previously affirmed by this Court shall be spared, and instead, they shall serve their respective
life sentences. On the other hand, those whose death penalties are still under review which
includes the accused-appellant Ola, can only be sentenced to the maximum penalty of reclusion
perpetua even if We affirm their respective convictions.

The accused-appellant in this case assails the judgment of conviction, first, upon the ground that
the testimony of Jose Bustamante comes from a polluted source, and therefore, must be
subjected to careful scrutiny (Brief for the Appellant, p. 22). Accused-appellant likewise points out
that the accomplice Matimtim repudiated his extrajudicial confession (Exhibit "G") and declared
that he was forced to sign the same (Id.) Finally, the defense argues that other than one testimony
of Bustamante, there is no evidence positively Identifying the accused-appellant as the author of
the crime charged, hence his defense of alibi should have been given due significance. (Id., p.
29).

The paramount concern of this Court in reviewing a judgment of conviction is to see to it that no
person is made answerable for a crime without proof of his guilt beyond reasonable doubt. This
is clearly set forth in U.S. v. Laguna, 17 Phil. 532, 540 (1910), thus:

The requirement that the Supreme Court pass upon a case in which capital punishment
has been imposed by the sentence of the trial court is one having for its object simply and
solely the protection of the accused. Having received the highest penalty which the law
imposes, he is entitled under that law to have the sentence and all the facts and
circumstances upon which it is founded placed before the highest tribunal of the land to
the end that its justice and legality may be clearly and conclusively determined. Such
procedure is merciful. It gives a second chance for life. * * *

Moreover, the Bill of Rights guarantees that any person accused of a criminal offense is presumed
innocent until the contrary is proved (Art. III, Sec. 14(2). Constitution). The quantum of evidence
required by law to overcome this constitutional presumption, and to justify any criminal conviction
is proof beyond reasonable doubt (Rule 133, Sec. 2). This is not to say that there should be
absolute certainty in every criminal conviction. The law only requires the prosecution to adduce
"that degree of proof which produces conviction in an unprejudiced mind" (Rule 133, Sec. 2 and
Rule 131, Sec. 2).

All the evidence considered by the trial court in convicting the appellant must therefore withstand
close examination by this Court. More so when, as in this case, the conviction under review stands
precariously upon the uncorroborated testimony of a confessed accomplice.

After a careful study of the record, the transcript of stenographic notes and the folder of exhibits
of this case. We find that the guilt of the defendant-appellant has not been proven beyond
reasonable doubt.1avvphi1

1. The testimony of the confessed accomplice Bustamante lacks the credibility and details
necessary to establish the guilt of the appellant beyond reasonable doubt. In convicting the
appellant, the trial court relied heavily upon the testimony of the confessed accomplice
Bustamante, which testimony was supposedly corroborated by the extrajudicial confession of the
other accomplice Matimtim (Exhibit "G") and some supporting evidence.

As We delved into the voluminous transcript of the testimonies given by the various witnesses,
We found Bustamante's testimony unsettling in its vagueness and incredibility. While stating
outright that it was Ola who climbed up the wall of the victim's house on the night that the crime
was committed (TSN, June 1, 1973, pp. 33-35), he was suspiciously vague in describing the
manner in which Ola was able to do this. Portions of his testimony on this aspect follow:

xxx xxx xxx

(Cross-examination)

Q When according to you Senen Ola stepped on the unfinished hollow blocks
fence, the next thing that he did was to climb up the house of Lolita Muhi. Please
tell the court exactly what he did when you said he climbed up. Did he climb up the
way a person climbs a coconut tree, and if not, please explain to the court.

A He stepped on the hollow blocks fence and once already close to the wall of the
house and about to climb I did not see him any more (sic) because I was looking
to (sic) the road, sir.

xxx xxx xxx

(TSN, June 1, 1973, p. 46)

xxx xxx xxx

Q Until Senen Ola, as you claim, was able to enter the house you remained standing at
the place near the unfinished hollow blocks fence wall where according to you, you, Senen
and Rustico Matimtim stayed upon arrival in that premises, is that correct?

A Yes, sir.

Q And yet you could not tell the court how Senen Ola climbed up the wall or entered that
wall thru that alleged hole, is that correct?

A He just passed thru the hole, sir. (Basta sumuot sa butas)

Q When you said that Senen Ola passed thru the hole or "sumuot sa butas," do you mean
to tell the court that Senen Ola entered thru that hole with his head first?

A Of course, the head should go first. (Siempre po ang ulo ang mauuna)

Q Did you see Senen Ola's two legs passing thru the hole?

A I just noticed that he was not outside any more (sic), sir.

xxx xxx xxx

(TSN, June 1, 1973, pp. 48-49)

With the foregoing testimony, Bustamante would like the trial court to believe that Ola climbed up
the wall and passed through a hole therein unassisted, yet he could not describe how this was
done because according to him, he was looking in another direction. But this is incredible on two
counts. In the first place, as a lookout, Bustamante must have been anxious to see that whoever
was climbing into the victim's house would be able to get inside undetected, because the slightest
miscalculation on the part of the latter could have spelled doom for all of them. Instead, he looked
away at the exact moment when Ola allegedly entered the house. In the second place, the
testimony of the police investigator, Acting Chief of Police Celso Linayao, on the size of the hole
and its relative distances from the ground and from the hollow-block fence referred to by
Bustamante, strikes a discordant note in the latter's testimony. The pertinent portion of the police
investigator's testimony is quoted below:

xxx xxx xxx

(Direct examination)

Q How high above the ground is the floor of the kitchen?

A I think it is about waste (sic) high.

Q And now high above the floor of the kitchen is the hole?

A If one has to stand on the stove, sir, his foot could reach the hole, sir.

Q But how high above the floor in the kitchen is the hole?

A Maybe up to my neck, sir.

xxx xxx xxx

Q Could a person who would stand on this hollow blocks marked Exh. 3-a enter
that hole thru?

A No, sir.

Q Why?

A The hollow blocks are lower sir, and, the distance from the wall is far, sir.

Q How far is the hole from the hollow blocks?

A About two yards, sir.

xxx xxx xxx

(TSN, October 29, 1975, pp. 11-12)

Taking the two testimonies side by side, We are disturbed by the emerging incongruity in
Bustamante's version of Ola's alleged participation in the crime charged. Even casting
aside the size of the hole in the wall, which was not given in more precise terms, and the
weakness of said wall made of "Basag na kawayan" (TSN, October 31, 1972, p. 8
[Testimony of Diosdado Muhi] it seems to Us rather difficult for anyone to pass through a
hole overhead from a lower level (the hollowblock fence) lying at a distance of about two
(2) yards (Linayao's testimony, supra). It requires nothing less than an acrobat to do this,
unassisted. We find Bustamante's testimony lacking in credibility and details. Stripped
down to its bare essentials, it cannot prop up the prosecution's theory on the manner of
the commission of the crime, much less on the Identity of the offender.

The trial court, however, ignored the evidence of the police investigator, for no apparent
reason. The lower court's decision does not go beyond expressing doubt on the integrity
of the police investigator. It offers no explanation for having given more weight to the
testimony of a confessed accomplice than to that of a police officer who investigated the
case. This Court generally desists from disturbing the conclusions of the trial court on the
credibility of witnesses, but WE may take exception in order to keep faith with the
immutable principle that every criminal conviction must be supported by proof beyond
reasonable doubt. We must, therefore, be satisfied that all relevant and competent
evidence adduced by the State and by the defense are considered, and that, if any
evidence is disregarded by reason of the incredibility of a witness, such fact must appear
in the record. In the case at bar, whatever reasons the lower court might have had in
discrediting the evidence of the police investigator, the latter should have served, at the
very least, to countercheck the accomplice's testimony, which happens to be the only
direct evidence pointing to the appellant as the perpetrator of the crime charged.

2. The extrajudicial statements of the accused Matimtim are inadmissible against the
appellant Ola for being hearsay. To buttress the testimony of Bustamante, the trial court
deemed as corroborative evidence, the extrajudicial statements of the other accomplice
Rustico Matimtim, among others. The proper test in determining the corroboration of a
testimony is to examine the other evidence with a view to ascertain if these tend to connect
the accused to the offense (People v. Alto, L-18660 and L-18661, November 29, 1968, 26
SCRA 342, 365, citing People v. Bagos and Bagos, L-6808 and L-6809, October 29,
1954). With respect to the extrajudicial statements of Matimtim (contained in Exhibit "G")
implicating Ola, the trial court should have been guided by the settled rule that:

* * * (e)xtrajudicial statements of an accused implicating a co-accused may not be

utilized against the latter unless repeated in open court. (People v. Fraga, 109 Phil.
241, 248 [1960] citing People v. Izon, 104 Phil. 690 [1958]; People v. Gomez, 101
Phil. 1056 [1957]; People v. Serrano, 105 Phil. 531 [1959].

In the instant case, the appellant never had an opportunity to cross-examine Matimtim on
the latter's incriminating statements. Not only were said statements not repeated in court,
but they were repudiated by Matimtim during his testimony wherein he claimed that he
was prevailed upon by Bustamante to implicate Ola (TSN, April 2, 1975, pp. 8-9). The
latter expressly denied the facts narrated in his confession which incriminate Ola (TSN,
January 24, 1975, pp. 7-13).

Since the appellant in this case never had the opportunity to cross-examine Matimtim on
the latter's extrajudicial statements, the same are hearsay as against said appellant
(People v. Narciso, G.R. No. L-24484, May 28, 1968, 23 SCRA 844, 852-853; People v.
Royo, G.R. No. 52038, May 31, 1982, 114 SCRA 310, 311). This particular evidence
having been objected to by the appellant's counsel upon its formal offer Original Record,
p. 147), and even repudiated by the witness (during his testimony, the same are
inadmissible as evidence of appellant's guilt. Neither can these be corroborative of
Bustamante's incriminating testimony against the appellant Ola.

This is not one of those instances when the extrajudicial statements of a co-accused might
be taken into consideration in judging the credibility of the testimony of an accomplice
where certain conditions concur, such as: a) the statements are made by several accused;
b) the same are in all material respects Identical; and c) there could have been no collusion
among the co-accused in making said statements (People v. Badilla, 48 Phil. 718, 725-
726 [1926]). These conditions do not obtain in the instant case, and therefore, said
evidence cannot be considered even in the appreciation of Bustamante's testimony.

3. The circumstantial evidence considered by the trial court in convicting the appellant Ola
do not prove anything from which We could infer his participation in the crime charged. In
addition to the extrajudicial statements of Matimtim, the trial court considered the following
circumstantial evidence in convicting the appellant Ola, to wit: a footprint found near the
stove in the kitchen of the victim's house, a hole in the wall of said kitchen, the linear cuts
or incisions found on Ola's index finger and mandible, and what the lower court considered
as the "dying gesture" of the victim, allegedly pointing to the general direction of " Ilaya, "
where both the accused Bustamante and Ola resided.

We do not agree with the trial court's conclusion that the aforecited evidence are
corroborative of Bustamante's incriminatory testimony against the appellant.
Circumstantial evidence may be characterized as that evidence which proves a fact or
series of facts from which the facts in issue may be established by inference. (People vs.
Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36, 40) This Court cannot,
by any stretch of imagination, infer from said evidence, the Identity of the victim's assailant
nor the actual participation of the appellant Ola in the crime charged.

The footprint allegedly found on the "abuhan" (near the stove) immediately after the
discovery of the crime was never measured nor Identified as Ola's, or as of the same foot
size as Ola's. The height and weight of Ola, as well as those of his co-naccused, were not
taken into account in judging the probability that any of them had indeed passed through
the hole in the wall made of light material ("basag na kawayan") without defying the law of
gravity. Significantly, the manner in which the culprit could have gained entry into the
house of the victim was not satisfactorily explained by the prosecution.

And then, the wounds on the appellant Ola's index finger and on his mandible, which were
described in the medical certificate issued by the resident physician of the Marinduque
Provincial Hospital in this manner:

xxx xxx xxx

1. Linear cut wound, left index finger medial aspect, middle portion 2 cm.
in length
 2. Linear abrasion, right mandible, 1 " in length traversing the course of the
mandible

Should there be no complication the above wound and injury would require 6-7
days treatment.

xxx xxx xxx

(Exh. "L")

A review of the evidence has revealed that the prosecution failed to connect the wounds
to the commission of the crime, The testimony of the physician, Dr. Efren J. Labay, as well
as the aforecited medical certificate (Exh. "L"), merely establish the size and location of
said wounds (TSN, March 29, 1977, pp. 12-13) found on the person of the appellant as of
December 2, 1970 (Id., pp. 9-10), or two after the commission of the crime.

However, the trial court considered the existence of said wounds as corroborative of
Bustamante's narration that Ola forcibly passed through the hole in the kitchen wall of the
victim's house (Rollo, p. 28). This inference is far-fetched. The wounds are too few and
too slight to have been caused by the rough edges of the hole in the wall made of crushed
bamboo, especially, if, as surmised, the appellant had "forcibly passed through" it. It
appears that the trial court made much out of the physician's testimony that the
wounds might have been caused by the sharp edge of a split bamboo (Rollo, p. 28). But
the witness statement on this point was not conclusive, thus:

xxx xxx xxx

(Direct examination by the prosecution)

Q Considering the location, the nature and crack of this linear cut wound on the left
forefinger, what could have caused the same?

A Any sharp instrument or object sir.

Q Could it have been caused by the sharp edge of a split bamboo?

A Yes, possible.

xxx xxx xxx

(TSN, March 29, 1977, p. 13)

(Cross-examination)

Q You said it must have been caused . . . You said it could have been caused by a sharp
instrument. Could it have been caused by a bolo?

A It is possible.
Q Could it have been caused by a knife?

A Possible.

xxx xxx xxx

(Id, pp. 15-16)

Nowhere in the aforequoted testimony can We discern anything definite as to the cause of the
wounds in question, which, by inference, would connect Ola to the crime.

Finally, We find the gesture of the dying woman too vague to be given much probative value in
determining the culpability of the appellant. The disadvantage presented by this kind of evidence
is that, unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by
words is open to various interpretations by the witness who testifies to its existence. Thus, the
evidence comes to the courts couched in the witness' second hand perception and possibly,
imbued with his personal meanings and biases. This is what makes hearsay evidence
objectionable. The second hand evidence is placed before the court without the benefit of cross-
examination by the party against whom it is brought, nor of any other means for assessing the
competence and credibility of its source.

As a matter of exception to the Hearsay Rule, statements made by the victim at the point of death
which qualify as dying declarations may be admitted by the courts (Rule 30, Sec. 31). It is not
clear from the decision under review whether the dying gesture was admitted as a dying
declaration. Without ruling on the admissibility of said evidence as a dying declaration, We find
that such an equivocal act of pointing with the hand does not in anyway corroborate Bustamante's
testimony on the Identity of Ola as the victim's assailant. Neither does it prove any other fact from
which his participation in the crime may be inferred. Whether this piece of evidence exists in the
record as a dying declaration or hearsay evidence not objected to, the same shall be treated like
any other testimonial evidence. Even as a dying declaration, it is not more sacred than the
testimony of a witness presented in court (People v. Aniel, G.R. No. L-34416, February 21, 1980,
96 SCRA 199, 211).

In the case before Us, the witness Diosdado Muhi testified that after he asked the dying victim for
the Identity of her assailant, she responded by pointing to the direction which the witness referred
to as Ilaya But that is only one of a number of ways to interpret said gesture. Any direction pointed
out from inside an enclosure may refer to a place as near as the next-door neighbor's house, or
to somewhere as far as the next barrio, for the obvious reason that both may lie along the general
direction indicated. And even if the witness' interpretation is adopted, it does not incriminate Ola
alone. All residents of that area lying in the direction of Ilaya are thus, equally suspect.

It becomes apparent that the reliance by the trial court upon the circumstantial evidence cited in
its decision as corroborative of Bustamante's testimony was misplaced. This leaves Bustamante's
testimony standing alone as basis for Ola's conviction.

4. Bustamante's own testimony incriminates himself more than it does the accused-appellant Ola.
Time and again, courts have been enjoined to exercise the greatest caution and circumspection
in appreciating the uncorroborated testimony of an accomplice (People v. Alto, L-18660 & L-
18661, November 29, 1968, 26 SCRA 342, 348-349) Coming as it does from one who is himself
not innocent, and without any other evidence to lend it credence, it must be scrutinized before it
can, by itself, support any judgment of conviction. After a painstaking review of the transcript, We
find that the testimony of Bustamante was able to prove, first of all, that he (Bustamante) was at
the scene of the crime in Barrio Magapua, Mogpog, Marinduque on that specific hour that the
victim Lolita Muhi could have been killed by an unidentified assailant (TSN, April 6, 1973, pp. 29-
36), thus giving him the "opportunity" to commit the crime himself. By his own admission, his
presence in that place was brought about by an intention to rob the victim (TSN, April 6, 1973, p.
27), which supplies the I motive" for staging the attempted robbery. Finally, while being in the
immediate vicinity of the victim's house on the night of the attempted robbery and the stabbing,
he admitted that he was armed with a double-bladed "balisong" Id, p. 33) which furnishes him
with the "means" of committing the crime.

Considering that the foregoing facts culled from Bustamante's testimony reveal the existence of
opportunity, motive and means for said witness to have actually committed the very acts he
imputed to the appellant Ola, the inescapable conclusion is that, the evidence adduced
incriminate said witness more than it does Ola. Reasonable doubt therefore militates against Ola's
conviction.

5. There being doubt on the Identity of the appellant Ola as the principal in the crime charged, the
trial court should have acquitted him, notwithstanding the weakness of his defense. The appellant
testified that on the night that the crime was committed on November 30, 1970, he was in his
house in Barrio Malusak, Mogpog, Marinduque which was more or less two and one-half (2 1/2)
kilometers from Barrio Magapua where the victim resided (TSN, February 9, 1977, p. 22).
According to him, he had been drinking with three companions, his brother Bienvenido, Nicanor
Jamig and Eladio Dimayuga from 6:00 to 10:20 on that fateful night (TSN, February 8, 1977, pp.
8-10). Ola's alibi was corroborated by the testimony of his wife, Pilar Ola (TSN, December 15,
1976, p. 11), and that of one of his drinking companions, Eladio Dimayuga, who happened to be
in Barrio Malusak to buy a carabao (TSN, February 7, 1977, pp. 4-7).

Alibi is generally a weak defense since it is easy to concoct and difficult to disprove (People v.
Basuel, L-28215, October 13, 1972. 47 SCRA 207, 222). However, when the Identification of the
accused as the author of the crime charged is weak and unreliable, alibi assumes importance.
(See People v. Torio, L-48731, December 23, 1983, 126 SCRA 265, citing People v. Bulawin, L-
30069, September 30, 1969, 29 SCRA 710, 721). Thus, in the case before Us, where the proof
of the appellant's participation in the crime charged consists only in the uncorroborated testimony
of an accomplice, and considering that such testimony lacks details and credibility, the defense
of alibi, should have been given more weight. And even if it were true that such defense was not
satisfactorily proven, this fact alone does not justify the judgment of conviction now under review.
The burden of proving the offense charged and the Identity of the offender rests upon the
prosecution (Rule 131, Sec. 2). Failing in its task to prove that the appellant is the author of the
crime, the prosecution cannot rely upon the weakness of the defense in order to secure a
conviction (People v. Formentera, L-30892, June 29, 1984, 130 SCRA 114, 132; People v.
Somontao, L-45366-68, March 27, 1984, 128 SCRA 415, 426; People v. Basuel, 47 SCRA 222;
223).

Given the weak evidence presented by the prosecution on the participation of the appellant Senen
Ola in the crime of Attempted Robbery with Homicide and Unintentional Abortion, reasonable
doubt sets in. The prosecution's failure to overcome the constitutional presumption of innocence
entitles the appellant Ola to an ACQUITTAL.
WHEREFORE, We REVERSE the judgment of conviction meted out by the trial court. Senen Ola
is ACQUITTED of the crime charged and this Court orders his immediate release from detention.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-31961 January 9, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO ODENCIO and GUIAMELON MAMA, accused-appellants.

Manuel P. Calanog for appellants.

Office of the Solicitor General for appellee.

AQUINO, J.:

Florencio Odencio and Guiamelon Mama appealed from the decision of the Court of First Instance
of North Cotabato, finding them guilty of two separate crimes of murder, sentencing each of them
to two reclusion perpetuas, and ordering them to pay P12,000 to the heirs of Prowa Talib and
P12,000 to the heirs of Kadir Oranen (Criminal Case No. 5276).

According to the prosecution, at about seven o'clock in the evening of June 29, 1968, while Prowa
Talib (Palua Talib), a forty-year old farmer, was in the yard of his house located at Barrio
Simsiman, Pigcawayan, North Cotabato, handing a pot of rice to his wife, Setie Mamalintao, who
was near the stairs, he was felled down by a volley of shots.

Setie rushed to the aid of her husband. When she looked in the direction where the gunshots
emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas away.
Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also holding a gun
near another coconut tree around ten meters away in the yard of the house of her neighbor,
Daongan Karaing. She noticed that Kadir Oranen, who was nearby, had fallen to the ground
around three arms' length from Daongan's house. Kadir died instantly.

Setie had known for a long time Florencio and Guiamelon who were friends and neighbors also
residing in Barrio Simsiman. Setie and Guiamelon had cultivated adjacent farmlands.
While Setie was comforting her husband, he allegedly told her that he was going to die. He
directed her to remember what had happened to him and that they had seen Guiamelon Mama
and Poren armed with guns. Prior to that shooting incident, Prowa Talib had reported to the barrio
captain that Florencio Odencio had stolen his lumber.

The two assailants fled westward. At the time the incident occurred, Japal Rongot was on his way
to Talib's house. He encountered Guiamelon and Joseph Odencio with both of whom he was well
acquainted. He asked Guiamelon why there were gunshots but the latter did not make any reply.
Upon reaching Talib's house, Rongot saw Setie crying and holding Talib on her lap. Setie told
him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse which was about
two arms' length from Talib.

Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie heard, the gunshots on the
occasion in question. He hastened to Talib's house. Setie told him that Guiamelon Mama had
shot Talib. She advised her uncle not to use his flashlight because Guiamelon was still in the
vicinity. Setie also told Towa that Florencio Odencio had shot Oranen. Towa left Talib's house in
order to get assistance from his father-in-law. While crossing the trail his flashlight focussed on
Florencio Odencio with two companions leaving the scene of the crime.

Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder.
They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Saada
Talib told Saada that his assailants were Guiamelon, Florencio Odencio and Florencio's father,
Joseph Odencio. Due to the critical condition of Talib (nagaagonto), he was not able to sign his
dying declaration (Exh. B) as taken down by Patrolman Saada Talib was brought to the hospital.
He died on the following day.

In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected that
he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and that, on the
other hand, Guiamelon suspected Talib of having stolen the carabao of Damiog, the father-in-law
of Guiamelon. It was stated further in the same dying declaration that Talib had told Patrolman
Saada that he wanted to sign it but that he could not do so because of the wound in his arm.
Talib also articulated his belief that he was going to die because he could hardly breathe and his
wound was painful.

On July 1, 1968 or within forty-eight hours after taking Talib's unsigned antemortem statement,
Saada executed an affidavit reciting the circumstances surrounding the taking thereof. Saada
testified in court on Talib's dying declaration.

The autopsy disclosed that Talib sustained eight gunshot wounds in the back or posterior chest
wall. No autopsy was performed on the body of Oranen who, as noted above, died at the scene
of the crime.

On July 1, 1968, a complaint for double murder was filed in the municipal court against Guiamelon,
Florencio Odencio, Joseph Odencio and Angelico Aposaga, Poren's father-in-law. They waived
the second stage of the preliminary investigation. On September 19, 1968, an information was
filed in the Court of First Instance against Guiamelon Florencio Odencio and Joseph Odencio,
The trial court acquitted Joseph and convicted only Florencio and Guiamelon.

In his defense, Florencio, a thirty-two year-old farmer, denied that he shot Talib and that he had
a misunderstanding with Oranen and Talib with both of whom he was acquainted. Florencio
testified that he was in his house when the shooting occurred. He was arrested on the following
day, June 30, 1968. He surmised that he was implicated in the case because he did not support
Mayor Doruelo, the incumbent mayor, and, instead, he voted for Estaol, the candidate of the
Liberal Party. Florencio's alibi was corroborated by his wife and his brother-in-law, Antonio Cesar.

The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted the same line of defense.
He declared that he was also in his house when Talib was shot; that he had no misunderstanding
with Talib, who is his father's brother-in-law, being the brother of his stepmother, his father's
second wife; that he was arrested while he was attending Talib's funeral, and that he came to
know his co-accused Florencio Odencio only in jail.

The accused presented Samuel Jubilan, a Constabularly Sergeant, who testified that he was
present when Patrolman Saada interrogated Talib and that the latter declared that he was not
able to recognize his assailant because it was dark. Saada said he did not know of that
interrogation made by Jubilan.

In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused
were indubitably Identified as the assailants in Talib's dying declarations to his wife and Patrolman
Saada. Setie Mamalintao in her statement to the police declared that she was able to recognize
Florencio and Guiamelon because there was a "big torch" in front of her house and Karaing's
house (No. 19, Exh. 1, p. 11, Record).

The trial court noted that there "was a good amount of lighting in the yard of Prowa Talib because
he was preparing" supper when he was shot and that Setie was able to recognize the accused
because she had been acquainted with them for a long time. As stated above, two witnesses saw
the accused in the vicinity of Talib's house shortly after the shooting. Therefore, the contention of
appellants' counsel de oficio that they had not been sufficiently Identified as the killers cannot be
sustained.

Another contention of counsel de oficio is that the trial court erred in finding that Guiamelon and
Odencio conspired to kill Talib and Oranen. That contention is belied by the evidence. Guiamelon
and Odencio were seen pacing back and forth near Talib's house on the day of the incident (No.
27, Exh. 1). They shot the two victims in the same place and almost simultaneously, thus showing
a coordination of efforts and community of design.

On leaving the scene of the crime, they proceeded in the same direction (westward). They were
animated by the same motive, which was to liquidate the victims because the latter allegedly stole
the carabaos of the relatives of the accused. The record does not disclose any reason why Setie
Mamalintao and Patrolman Saada would frame up the appellants.

The manner in which they shot the victims shows treachery. The shooting was not the product of
momentary impulse. There was alevosia because the two malefactors, taking advantage of the
cover of night, stationed themselves in a place where they could shoot the victims with impunity
without any risk to themselves or without exposing themselves to any retaliation since the victims
did not expect to be assaulted at that time and place.

Appellants' counsel further contends that they were convicted on the basis of the wife's
uncorroborated testimony "which is open to suspicion due to inherent improbabilities'' and
"motives to falsify the truth". That contention is not correct. Talib's antemortem statement fortifies
the testimony of his widow, an eyewitness. We have stressed that two other witnesses saw the
appellants leaving the scene of the crime.

Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration
may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity,
of course, of reproducing exactly the words of the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be used as a memorandum by the witness who took
it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed., pp. 315-316.)

We are satisfied that the guilt of the appellants was proven beyond reasonable doubt. As they
were co-conspirators, they are each liable for the two murders. There being no modifying
circumstances concomitant with the commission of the two assassinations, the trial court properly
penalized each murder with reclusion perpetua (Arts. 64[1] and 248, Revised Penal Code).

The trial court's judgment is affirmed with the sole modification that the two appellants should be
held solidarity liable for the two indemnities of P12,000 each. In the service of the two reclusion
perpetuas, the forty-year limit fixed in article 70 of the Revised Penal Code should be observed.
Costs against the appellants.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-29365 March 25, 1983

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO ALCOBER GUERON and EMILIO MAGNO, defendants, TEODORO ALCOBER
GUERON, defendant-appellant,

The Solicitor General for plaintiff-appellee.

Arsenio Bonifacio for defendant-appellant.

ABAD SANTOS, J.:

In the Court of First Instance of Samar (now Regional Trial Court), an information for "double
murder" was filed against TEODORO ALCOBER GUERON and EMILIO MAGNO, Docketed as
Criminal Case No. 6996, the information reads:
 That on or about the 7th day of October, 1964, in the Municipality of Sta. Rita,
Province of Samar, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating together and helping one
another with one Jesus Magno alias Osing, who is still at large, with intent to kill,
with treachery, evident premeditation, armed with guns and at night time, did then
and there wilfully, unlawfully and feloniously attack, assault and shoot Bonifacio
Dayoc and Dalmacio Batica with said guns which the accused had conveniently
provided themselves for the purpose, thereby inflicting upon said Bonifacio Dayoc
and Dalmacio Batica several wounds on the different parts of their bodies which
wounds caused their death.

The trial court rendered the following judgment:

THEREFORE, judgment is hereby rendered finding and declaring the defendants

Teodoro Alcober Gueron and Emilio Magno guilty beyond reasonable doubt as
principals of the crime of double murder as charged, with one aggravating and no
mitigating circumstance attending; and convicts each one of them to RECLUSION
PERPETUA, with the accessory penalties, indemnify, jointly and severally, the
heirs of Bonifacio Dayoc ten thousand pesos, and those of Dalmacio Batica also
ten thousand pesos, and pay the costs.

Only Teodoro Alcober Gueron appealed. Pending appeal he has been confined at the New Bilibid
Prisons.

The People's version of the facts is as follows:

On August 9, 1964, the spouses Bonifacio Dayoc and Purificacion Comillor were
in barrio Cabacungan, Sta. Rita, Samar, to witness the cockfight and to buy salted
fish (pp. 65, 66, t.s.n., Rojas). There, Bonifacio met Emilio Magno, who was from
Burauen, Leyte, and was told that he was going to organize a 'gang' composed of
youngsters from Bagolibas, Cabacungan, Pagsulhugan and Crossing (p. 66, t.s.n.,
Rojas). Bonifacio replied that Emilio was just a newcomer in the place and a
member of his family had just died and yet he was stirring up trouble (p. 66, t.s.n.,
Rojas). Emilio retorted, 'I know you are Borenes (p. 66, t.s.n., Rojas). 'I am not
Borenes, but I am Bonifacio. Don't call me Borenes,' answered Bonifacio (P. 66,
t.s.n., Rojas). Emilio rejoined. 'Let us know each other,' and extended his hand to
shake Bonifacio's as he repeated,' Let us know each other, Borenes' (p. 66, t.s.n.,
Rojas). Bonifacio reiterated, 'I am not Boranes, I am Bonifacio' and said, 'Let us
consume the whole tuba' (p. 66, t.s.n., Rojas). After finishing his drink, Bonifacio
struck Emilio with his glass hitting him on the face (p. 66, t.s.n., Rojas). Then he
went up the table and kicked Emilio on the head who thus fell flat on the face (p.
66, t.s.n., Rojas). Bonifacio ordered Emilio to get up and fight, but the latter did not;
instead, he ran home and got a bolo (p. 66, t.s.n., Rojas). Bonifacio in turn got his
own (p. 66, t.s.n., Rojas). Emilio struck Bonifacio but did not hit him; Bonifacio
retaliated (p. 67, t.s.n., Rojas). Then Emilio ran home and did not leave his house
anymore (p. 67, t.s.n., Rojas). Because Emilio refused to come down, Bonifacio
went home with his wife (p. 67, t.s.n., Rojas).

In the morning of October 7, 1964, Teodoro Gueron came to the house of Bonifacio
Dayoc to sell him coconuts and to borrow P 60 from him (p. 67, t.s.n., Rojas).
Because Bonifacio had not yet received his salary, he told Teodoro to meet him in
the evening at sitio Crossing as he might be able to get his pay from Almendras
Enterprises, where he was working, and give him the money (p. 68, t.s.n., Rojas).
The next morning, somebody informed Bonifacio's wife that her husband
(Bonifacio) was dead on the road (p. 68, t.s.n.,Rojas). When she went to the place
to verify, she found him lying lifeless (p. 68, t.s.n., Rojas). Upon inquiring from his
companion what happened to both of them, Dalmacio Batica told her they were
shot by Teodoro Gueron, Jesus Magno and Emilio Magno the night before (p. 68,
t.s.n., Rojas).

At about 9:30 o'clock in the evening of October 7, 1964, while Antonio Beron, who
was employed as scaler at the logging camp of F.M. Cojuanco Enterprises in
Guintigian was afoot on the way home to barrio Bagolibas, Santa Rita, Samar, he
heard two gun reports after reaching sitio Crossing (pp. 27, 28, 29, 30, 31, t.s.n.,
Rojas). He continued walking, wondering whether somebody was hunting (p. 31,
t.s.n., Rojas). A little later, he met two persons walking hurriedly, whom he
recognized to be Teodoro Gueron, and Jesus Magno, when he focused his
flashlight at them the former trying to conceal something, (pp. 31, 34, 35, 36, 37.
t.s.n., Rojas; Exhibit F, p. 51, rec.). Teodoro Gueron was a former employee of the
logging company where he worked, and Jesus Magno was his friend (pp. 31, 37,
t.s.n., Rojas). When he asked where they came from, neither of them answered
him but kept on walking hurriedly (p. 32, t.s.n., Rojas; Exhibit F, p. 51, rec.) Early
next morning, Beron's mother-in-law Valentina Ronda, told him two persons had
been shot near Bagolibas, Sta. Rita, Samar and when he asked who they were,
she answered it was Bonifacio Dayoc and Dalmacio Batica (p. 33, t.s.n., Rojas).
After a hurried breakfast, Beron repaired to the place and found Bonifacio dead
being covered with a piece of cloth by his wife (p. 33, t.s.n., Rojas). When he
inquired about Dalmacio, he was told he was at his house where he was lying
wounded (p. 33, t.s.n., Rojas).

In the evening of October 7, 1964, after her husband, Jesus Q. Batica, Sr., a
teacher in barrio Bagolibas, Sta. Rita, Samar, had returned home from school
where he prepared the questions to be given during an examination, his wife,
Eustaquia A. Batica, also a teacher in the same school, heard the barking of dogs
in front of their house (pp. 5, 6, 18, 19, t.s.n., Rojas). When she opened the window
and focused a flashlight toward the road, Eustaquia saw Emilio Magno, whom she
knew since about a year before because he used to pass by in going to sitio
Crossing, wearing a red shirt, black pants and a hat, and carrying a gun in his right
hand running (pp. 19, 21, 24, 25, t.s.n.,). At once, she closed the window because
she became afraid when she saw the gun (p. 19, t.s.n., Rojas). While already in
bed, Eustaquia told her husband that she saw Emilio Magno pass by with a gun
and that while he was away she heard two gun reports, faintly coming from the
junction of the town of Basey, but her husband told her not to mind it (p. 6, 7, 12,
20, t.s.n., Rojas). 'Then they thought of his son and her stepson Dalmacio Batica,
whose house was about 30 meters away from theirs, if he was at home, and
surmised that he was out because they could not hear him coughing (pp. 7, 20,
t.s.n., Rojas). Afterwards both fell asleep (pp. 7, 21, t.s.n., Rojas).

Early in the morning of the next day, October 8, 1964, while the spouses Bernardo
Rama and Pacita Rama were on the way to the farm owned by Jesus Batica, Sr.,
to plant rice, they found his son Dalmacio on the side of the highway lying on his
left side, wounded and bleeding (pp. 46, 47, 59, 60, 61, t.s.n., Rojas). When
Bernardo asked what happened to him, Dalmacio replied that he and Bonifacio
Dayoc were shot the night before by Teodoro Gueron, Emilio Magno and Jesus
Magno (pp. 48, 49, 60, t.s.n., Rojas). Bernardo saw Bonifacio about 25 meters
away already dead and bathed in his own blood (pp. 50, 51, t.s.n., Rojas).
Dalmacio then requested the spouses to inform his father of what had befallen him
(pp. 47, 62. t.s.n., Rojas).

The spouses Jesus Batica, Sr. and Eustaquia A. Batica had just awakened when
Bernardo and his wife arrived at their house telling them that Dalmacio was in the
farm; that he told Bernardo and his wife to inform them that he was shot by Teodoro
Gueron, Jesus Magno and Emilio Magno; that he could not walk by himself alone,
hence he should be fetched; and that Bonifacio Dayoc was in the same place (pp,
8, 12, 21, 51, 59, 62, 64, t.s.n., Rojas).

Jesus Sr. lost no time in ordering his son, Jesus, Jr. to get a hammock and,
together with him, Romeo Badaa, Jesus Yerro, Dominador Armada, Francisco
Yerro, a rural policeman and other, repaired to the place where Dalmacio was (pp.
8, 22, t.s.n. Rojas). After placing him on the hammock. they brought him to his
(Dalmacio's house where his brother Jesus, Jr., the barrio captain, took his
statement in writing, which was recorded by his own father, Jesus, Sr. in the
typewriter (pp 9, 10, 22, 23, 62, 63, t.s.n., Rojas; Exhibits A, A-1 pp. 3, 47, rec.),
as follows:

Q What happened to you?

A Teddy (Teodoro Alcober), Osing (Jesus Magno) and his brother

Eming (Emilio Magno) shot me.

Q Who was with you when you were shot at?

A Boning (Bonifacio Dayoc).

Q What was your position when you were together?

A We were breast to breast. I was at his right side.

Q Where was the one who shot you?

A Above the road at the throught cut at the avocado plantation.

Q How far to you?

A More or less five Brazas.

Q Do you know that Boning is dead?

A No.
Q Did you notice if Boning was hit when you were fired at?

A I did not.

Q Why did you know the one who shot you?

A Because when we were flashlighted at I focused my flashlight at

them.

Q What happened to your flashlight?

A I did not know the moment I was hit on my thighs.

Q Where else were you hit?

A At my left arm and at my back.

Q Why were you there at our rice plantation?

A Because I managed to crawl slowly.

Q Why did you not go home?

A I could not resist due to my wounds.

Q Do you have personal grudges with those who shot you?

A None.

Q On what side were the ones who shot you?

A On our left side, near our avocado plantation.

Q What time were you shot?

A About 10:00 o'clock in the evening, October 7, 1964.

Q Where did you come from?

A From Crossing at Madi Tarcing.

Q What did you do in your Madi Tarcing?

A I paid my debt.

Q You only reached Crossing?

 A No.

Q Where else did you go?

A We went to Landing, drew our salary with Boning.

Q What time did you go to Landing?

A About 4:00 o'clock in the afternoon, October 7, 1964.

Q Do you have any grudge with those persons who shot you?

A None.

Q Did you quarrel with them? during your trip?

A None.

Q You and Boning, did you not quarrel?

A None.

Q Will you die of your wounds?

A I cannot ascertain.

Q What do you feel of your wounds?

A I feel weak and I am thirsty.

Q Can you sign these, your answers?

A Yes, sir." (Exhibit A-1, p. 47, rec.)

Afterwards they brought him to the provincial hospital in Tacloban, where he

expired at 9:20 o'clock in the morning of the next day, October 8, 1964 (Exhibit D,
p. 19; rec.; Exhibit E-I, p. 50, rec.). Cause of death was toxemia and shock due to
multiple gunshot wounds (Exhibits D, D-1, p. 19, rec.)

According to the autopsy report, the cause of Bonifacio Dayoc's death was severe
internal hemorrhage due to the injury of the right auricle of the heart (Exhibits B,
B-1, pp. 15, 16, rec.; Exhibit C, p. 15, rec.). (Brief, pp. 2- 9.)

The appellant claims that:

I. THE LOWER COURT ERRED IN ADMITTING THE AFFIDAVIT OF DALMACIO

BATICA AS PART OF THE RES GESTAE.
 II. THE LOWER COURT ERRED IN RESOLVING DOUBTS AGAINST THE
ACCUSED.

III. THE LOWER COURT ERRED IN CONSIDERING THE AGGRAVATING

CIRCUMSTANCE OF NIGHT TIME AGAINST THE ACCUSED.

None of the witnesses for the prosecution actually saw Gueron and Magno in the act of shooting
Dayoc and Batica. The testimonial evidence in respect of the shooting is purely circumstantial
with the exception of Exhibit A the affidavit of the deceased Dalmacio Batica-which has been
reproduced above.

In appreciating Exhibit A, the trial court said:

It is indeed clear that the statements contained in Exhibits "A", having been given
by the victim soon after the incident, at the time when he had not yet the least
chance of twisting the truth, especially at the critical condition in which he was then
found, informing and describing the manner of assault and naming the assailants,
were the facts of the incident. Exhibit "A", therefore, shall be, as it is hereby
admitted as part of the declaration of Jesus Batica, Sr., and the statements therein
contained as part of the res gestae, and valid as proof.

The appellant now claims that it was error for the trial court to regard Exhibit A as part of the res
gestae. We do not agree.

The hearsay rule excludes evidence that cannot be tested by cross- examination. Exhibit A would
normally be classified as hearsay because the one who executed it could not be cross-examined
on it during the trial; he was dead. But there are exceptions to the hearsay rule. One of them is
that provided in Sec. 36 of Rule 130, Rules of Court, as follows:

Sec. 36. Part of the res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with respect
to the circumstances thereof, may be given in evidence as a part of the res
gestae. So, also, statements accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as a part of the res gestae.

Bearing in mind the circumstances narrated above under which Exhibit A was executed, there
can be no doubt that it is admissible in evidence as part of the res gestae. (People vs. Portento,
48 Phil. 971 [1924]; People vs. Reyes, 52 Phil. 538 [1928]; People vs. Quianzon, 62 Phil. 162
[1935]; People vs. Reyes, 82 Phil. 563 [1949]; People vs. Mascarias, 94 Phil. 293 [1954].)

Another exception to the hearsay rule is the dying declaration. Sec. 31 of Rule 130 provides:

Sec. 31. Dying Declaration. The declaration of a dying person made under a
consciousness of an impending death, may be received in a criminal case wherein
his death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.

Exhibit A is admissible in evidence as an ante-mortem declaration considering that it was made

under consciousness of impending death; the declarant died the next day from the gunshot
wounds he sustained. (People vs. Mascarinas, 94 Phil. 293 [1954]; People vs. de Ananias, 96
Phil. 979 [1955]; Cruz vs. People, 71 Phil. 350 [1941]; People vs. Alfaro, 83 Phil. 85 [1949].)

The second assignment of error is but a consequence of the first and does not have to be
discussed.

The trial court said that "The assault was with treachery which qualified the killing as double
murder, as the means employed by the assailants, with the use of firearm, insured the execution
of the assault without risk to themselves from the defense which the victims could have made. In
the commission, the presence of the aggravating circumstance of night time is evident, the
offenders having taken advantage of the darkness to commit it with greater facility and/or
impunity. "

The appellant questions the appreciation of nocturnity. We agree for nocturnity is absorbed
by alevosia (People vs. Pardo, 79 Phil. 568 [1947]; People vs. Balagtas, 68 Phil. 675 [1939];
People vs. Ballocanag, 83 Phil. 569 [1949]; People vs. Pengzon, 44 Phil. 224 [1922]; U.S. vs.
Buncad, 25 Phil. 530 [1913]; People vs. Alfaro, 83 Phil. 85 [1949]; U.S. vs. Empeinado, 9 Phil.
613 [1908]; People vs. Enot, L-17530, Oct. 30,1962, 6 SCRA 325).

Two murders were committed which means there must be a penalty for each murder. Absent
aggravating and mitigating circumstances the appropriate penalty is reclusion perpetua for each
murder. Moreover, the civil indemnity should be P 12,000.00 for each death,

WHEREFORE, the judgment of the trial court convicting the, appellant is affirmed but modified in
that he shall suffer the penalty of two (2) reclusion perpetua and indemnify the heirs of the two
deceased in the amount of Twelve Thousand (P12,000.00) Pesos each. Costs against the
appellant.

SO ORDERED,

Fernando, C.J., Concepcion, Jr., Guerrero and Escolin, JJ., concur.

Makasiar, (Chairman), J., took no part.

Aquino, J., is on leave.

De Castro, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-31782 December 14, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TEODORO LANZA, defendant-appellant.

ANTONIO, J.:

Appeal from the decision of the Court of First Instance of Zamboanga del Norte, Criminal Case
No. 4626, finding appellant Teodoro Lanza guilty beyond reasonable doubt of the crime of Murder
and sentencing him to suffer the penalty of reclusion perpetua with the accessories of the law; to
indemnify the lawful heirs of the deceased in the sum of P12,000.00, without subsidiary
imprisonment in case of insolvency; to pay the widow of said deceased the sum of P2,000.00 as
moral damages and P500.00 as hospital and burial expenses; and to pay the costs.

In a complaint filed by the Acting Chief of Police of Dipolog, Zamboanga del Norte, dated October
10, 1966, appellant Teodoro Lanza was charged with the crime of Murder, as follows:

That on or during the 8th day of October, 1966, at around 1:00 A.M. at the
Poblacion, Dipolog, Zamboanga del Norte, Philippines and within the preliminary
jurisdiction of this Honorable Court, the above-named accused armed with a knife,
with intent to kill and with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack and wound therewith one LEONARDO
ZAMORAS at the back and as a result of which the said Leonardo Zamoras died
a few days later.

ALL CONTRARY TO LAW, with the qualifying circumstance of evident

premeditation and the generic aggravating circumstance of nighttime. (CFI
Record, p. 1).

Thereafter, or on February 8, 1967, the Provincial Fiscal of Zamboanga del Norte filed the
corresponding Information against herein appellant, who was subsequently arraigned on May 2,
1967. He entered a plea of not guilty.

The prosecution's primary evidence against herein appellant is the ante mortem statement of the
victim (Exhibit "A"), taken by Cpl. Fortunato Salaveria on October 8, 1966 at the North General
Clinic of Dipolog, Zamboanga del Norte, which reads as follows:

Q. What is your name?

A. Leonardo Zamoras, 34 years old, married and a resident of

Galas, Dipolog, Zamboanga del Norte.

Q. What happened to you?

A. I was stabbed.

Q. Who stabbed you?

 A. I was stabbed by a person who followed me from the Municipal
Building.

Q. In what particular place were you stabbed?

A. At the Shell gasoline station.

Q. Do you know the person who stabbed you?

A. I can recognize him by face.

Q. If I present the person to you can you recognize him? I am

presenting to you Teodoro Lanza is he the very person who stabbed
you last night, October 7, 1966?

A. Yes, sir.

Q. Did you have any misunderstanding prior to the incident?

A. None, sir.

Q. What must have been the motive of stabbing you, then?

A. I believe he resented (it) when I accidentally stepped on the

shoulder of his wife who happened to be lying on the concrete floor
of the Municipal Building.

Q. How many times did he stab you?

A. Only once.

Q. Do you think you will survive as a result of your wounds?

A. It all deoends. (CFI Record, pp.166-168).

Fortunato Salaveria, Police Sergeant of the Dipolog Police Force, testified that at around 10:00
o'clock in the morning of October 8, 1966, he was ordered by the Acting Chief of Police, Ciriaco
Gonzales, to take the ante mortem statement of one Leonardo Zamoras, who had been -,tabbed
and was then at the North General Clinic at Torno, Dipolog, Zamboanga del Norte. Upon arrival
at the aforesaid clinic, he found Leonardo Zamoras in critical condition. He then took the ante
mortem statement of Leonardo Zamoras (Exhibits "A", "A-1 " and "A-2") by writing in longhand
the questions and answers of the victim. This was done in the presence of several persons,
including Jose Zamoras, brother of the victim. Afterwards, Leonardo Zamoras affixed his left and
right thumbmarks on the ante mortem statement. He affirmed that all the answers therein were
gived by Leonardo Zamoras. P.G. Sales, a nurse at the clinic signed the statement as a witness
to its execution (Exhibit "A-8").

Salaveria further testified that while taking the victim's statement, he called up the Chief of Police
and requested him to bring the accused to the clinic for Identification by the victim; that at that
time Teodoro Lanza was already being detained at the municipal jail of Dipolog as a suspect in
the stabbing; that when appellant was brought infront of the victim, the latter Identified him as the
very same person who stabbed him.

On cross examination, this witness stated that when he arrived at the clinic, the victim was still
alive and lying in bed, with his eyes closed; that he called the victim by name, Identified himself
and when the latter agreed, he took the statement iii the presence of several relatives of the victim.

Basilia Luna Vda, de Zamoras, widow of the victim, testified for the prosecution, stating that in the
morning of October 8, 1966, while she was in her house, she was informed by her brother-in-law,
Artemio Zamoras, that her husband was at the North general Clinic. When she went to the clinic,
she found her husband lying on the bed. He was feverish and his clothes were bloody and he had
a wound on the back. She likewise Identified the shirt worn by her husband on the night of the
incident, showing the hole (Exhibit "C") allegedly caused by the stab wound.

Jose Zamoras, brother of the deceased, corroborated policeman, Salaveria's testimony, stating
that he stayed in the North General Clinic until the following day and was present when Cpl.
Salaveria took the ante mortem statement of his brother; that while the statement was being
taken, he was about one-half meter from Cpl. Salaveria and Leonardo Zamoras; that when asked
who stabbed him, Leonardo Zamoras pointed to Teodoro Lanza, who was present; that at that
time, the condition of his brother was "not so serious"; that the ante mortem statement was taken
at around 10:00 o'clock in the morning of October 8, 1966, and his brother died on October 9,
1966, at about 3:00 o'clock in the afternoon.

When asked whether his brother was asked each of the questions appearing on the ante
mortem statement and whether his brother answered the same, this witness replied in the
affirmative.

On cross examination, he stated that his brother could not talk from 1:00 o'clock dawn until he
was given dextrose that morning; that at around 9:00 o'clock his brother could already talk a little;
and that when their sister, Elma Zamoras, inquired as to who was responsible for his wound, he
answered that it was a man who had followed him from the municipal building.

Dr. Jose Noriega, the surgeon who attended to the victim, testified that the latter was in a state of
shock when admitted to the hospital at about 1:40 a.m. on October 8, 1966; that the victim was
able to say that he was stabbed and to indicate the painful part of his body, but thereafter he
remained incoherent until his condition was gradually improved by blood transfusion and the
administration of medical remedies; that his blood pressure was revived and returned to normal
only at about 1:00 o'clock in the afternoon of the same day; that because of such improvement
he was immediately operated upon; that in the course of the four-hour operation, it was found that
there were fatal injuries on the left kidney and fatal injuries on the great vessels of the mesentery;
that the victim died twenty four hours after surgery due to secondary hemorrhage or cerebral
embolism; and that he issued a certificate as to the cause of death of Leonardo Zamoras.

Ciriaco D. Gonzales, Acting Chief of Police of Dipolog, confirmed the fact that although appellant
denied having stabbed Leonardo Zamoras, he nevertheless admitted to him that he followed the
victim along Rizal Avenue when his wife complained to him that the victim had stepped on her
while she was lying on the floor of the municipal building. Appellant, however, explained that he
was not able to overtake the deceased.
He further testified that shortly before 1:00 o'clock in the afternoon of October 8,1966, Cpl.
Salaveria informed him by telephone that the victim was conscious and could talk. Consequently,
he brought the accused to the clinic for Identification by the victim. When they arrived in the
hospital there were several civilians. He also saw Cpl. Salaveria, Cpl. Calibo and Pat. Limbaga in
the premises. He declared that the victim recognized him. When he asked the victim whether he
could Identify his assailant, the latter answered in the affirmative. He then brought the appellant
inside the room, and in the presence of all the people present the victim pointed to the appellant
as the person who had stabbed him. This witness likewise confirmed that Cpl. Salaveria asked
the questions and the victim, Leonardo Zamoras, gave the answers appearing in the ante
mortem statement, and that they both spoke in Cebuano, which was translated into the English
language by Cpl. Salaveria. Further, he attested to the fact that the thumbmarks appearing on the
statement were those of Leonardo Zamoras, and that he was present when the same were
affixed.

Vicente Limbaga, formerly municipal policeman of Dipolog, Zamboanga del Norte, testified that
he served in such capacity up to October 21, 1967; that at about 1:30 in the early morning of
October 9, 1966, Leonardo Zamoras arrived at the municipal building where he was detailed as
guard and reported to him about the disappearance of his Leonardo Zamoras') car; that after
making such report, Leonardo Zamoras went down to the ground floor of the municipal building;
that not long after, he heard a commotion and immediately went downstairs and found many
people lying on the floor of the municipal building because it was the town fiesta of Dipolog; that
when he inquired what was the cause of the commotion one Luisa, the wife of Teodoro Lanza,
told him that a certain short and stocky man passed by and stepped on her foot while she was
lying on the floor, and he tried to hold her shoulder and signalled her to go to a room with him and
thus caused the commotion. When he asked her why she did not report the matter to him so the
person could be investigated, she answered: 'Well, anyway, all would be known latter because
my husband followed him. Not long after, Teodoro Lanza returned and he observed that Lanza
appeared restless, kept moving from one place to another, continued whispering something to
Ms wife, could not sleep and repeatedly went to the comfort room. Afterwards, he received a
report that Leonardo Zamoras had been stabbed near the Shell gasoline station. Suspecting that
Teodoro Lanza had something to do with the stabbing, he took Lanza into his office. He recorded
the incident in the police blotter and conducted an investigation of the accused. The accused was
again investigated by the Acting Chief of Police.

The defense presented in evidence the testimonies of Pat. Edgardo Maginsay and accused
Teodoro Lanza, as well as various documentary evidence.

Pat. Edgardo Maginsay of the Dipolog Police Force testified that since February 1966, he has
been the custodian of the police blotter of the Dipolog Police Force; that he was the one who
recorded the entries in the police blotter for October 8, 1966; that said entries were made from
the records of the night blotter, which was in the care of the building guard; and that therefore,
the entries in the night blotter and of the police blotter are the same.

Appellant Teodoro Lanza alleged that on the night in question he was sleeping,
together with his family, inside the municipal building of Dipolog, his livelihood
being that of a "feriante" and he was there to maintain the shooting gallery and
some gambling devices inside the plaza where the "feria" was being held. He
declared that after midnight, he was awakened by two policemen and brought to
the office of the Chief of Police where he was asked whether he had gone out of
the building or not. When he replied that he had not, he was brought and confined
inside the municipal jail. Later the following morning he was investigated by the
police sergeant after which he was brought to the hospital by the Chief of Police
and one Pat. Centino. He was taken inside the operating room, presented before
a wounded man for Identification, but the latter, whose eyes were closed, could
not Identify him. After staying inside the operating room for half an hour, he was
returned to the municipal building.

In his brief, appellant stated that he alleged ante mortem statement could not have
been given by the victim as he was not in a position at the time of the alleged
confrontation either to talk to the investigators or to Identify his alleged assailant,
and assuming that the ante mortem statement is genuine, the same is inadmissible
as evidence of a dying declaration because at the time of its execution, the victim
had expectations or hopes of recovery. Appellant makes capital of the testimony
of Dr. Jose Noriega that from 8:00 o'clock in the morning to 12:00 noon of October
8, 1966, the victim was still bleeding and in a state of shock; the declaration of the
widow, Basilia Luna Vda. de Zamoras, that her husband could not talk to her while
he was on the hospital bed; and the statement of Jose Zamoras that upon seeing
his brother he called his name but the latter did not answer.

These arguments are not supported by the record. Counsel for the appellant cited
portions of testimonies out of context of the entire declarations. Thus, while Dr.
Jose Noriega admitted that the witness was "semi-conscious" at the time of his
admission, he was positive that the victim was able to tell him that he was stabbed.
He even complained of pain on the abdomen. He likewise stated that the condition
of the victim improved to such a degree that he was strong enough after the blood
transfusion to be operated on at around noontime of the same day. 1 As testified
to by the other witness, he was able to talk by mid-morning. Thus, his brother, Jose
Zamoras, testified that he was able to talk intelligently some hours before the
operation, although in the beginning he could not. He testified on cross
examination as follows:

Q Up to 9:00 o'clock of the same day, October 8, the same condition

could not still talk?

A. He could talk already but not yet clear.

Q. Do you mean to say he will just murmur?

A. Yes, sir.

xxx xxx xxx

Q. At 9:30 o'clock, October 8, 1966, what happened right in the

bedroom of the deceased?

A. Leonardo Zamoras was still lying in bed but could talk.

Q. Do you mean to say he could just talk by himself, nobody asking?

A. No, after he was asked.

 Q. How do you know that at 9:30 o'clock, October 8, 1966, he
talked?

A. Because we asked him some questions.

Q. Who asked the deceased some questions?

A. My sister, Elma Zamoras.

Q. What was the statement (sic) asked?

A. My sister inquired as to who was the person responsible

for his wound.

Q. What was his answer?

A. He answered that (it was) the man following him from the
municipal building.

Q. There was no name mentioned?

A. No name mentioned.

Q. And that was in a harsh voice?

A. In a natural voice. 2

Likewise, the testimony of the widow, Basilia Luna Vda. de Zamoras to the effect that her husband
did not talk to her on October 8, 1966, does not necessarily preclude the possibility that at some
other time that day the deceased was able to reveal to the police investigators the Identity of his
assailant. In fact, this witness stated on cross examination that on October 8, 1966, her husband
could talk to other persons. 3

In addition, it will be recalled that when the ante mortem statement was taken by Cpl. Salaveria,
there were several persons present, including relatives of the victim, as well as the Acting Chief
of Police who brought appellant from the jail to the bedside of the victim. These police officers
positively declared chat they were present when the victim pointed to appellant as his assailant.
No possible motive has been advanced why these witnesses should falsely incriminate the
appellant.

The next question that arises centers on the admissibility of the ante mortem statement as a dying
declaration so as to constitute an exception to the hearsay rule. An ante mortem statement is a
declaration made by a victim of a homicide while about to die, and without any hope of recovery,
concerning the facts and circumstances under which the fatal injury was inflicted and offered in
evidence at the trial of the person charged with having caused the death of the declarant. 4

In order that a dying declaration may be admissible in evidence, four (4) requisites must concur,
to wit: (1) it must concern the crime and the surrounding circumstances of the declarant's death;
(2) at the time it was made, the declarant was under a consciousness of an impending death; (3)
the declarant was competent as a witness at the time the same was executed; and (4) the
declaration is offered in a criminal case for homicide, murder or parricide in which the declarant
was the victim. 5

It is imperative, for a dying declaration to be admissible, that the same had been made under a
consciousness of impending death. 6 This is so because dying declarations, made when the
declarant had no more hope of recovery, are admissible by reason of necessity and
trustworthiness. Necessity because the declarant's death renders impossible his taking the
witness stand, and it often happens that there is no other satisfactory evidence as to the cause of
his death; and trustworthiness because the declaration is made in extremity and every motive of
falsehood is silenced, and the mind is induced by the most powerful considerations to speak the
truth. "A situation so solemn and so awful as to be considered by the law as creating an obligation
equal to that which is imposed by a positive oath in a court of justice." 7

The fact that death of the declarant did indeed occur shortly after the declaration was made is not
sufficient to render the declaration admissible, absent the requisite proof that the victim was under
the consciousness of impending death at the time the declaration was made, and he had no more
hope of recovery. A belief in the mind of the declaration, at the time the declarations are made,
that death is near is indispensable to the admission of such statements as dying declarations.
Where the text of the declaration shows that the deceased himself was in doubt as to whether he
would die or not, the dying declaration is not admissible. 8

In the instant case, the victim, when asked whether he believed he was going to die as a result of
his injuries, replied: "It all depends." Also, it appears from the records that his condition had
progressively improved from the time he was admitted to the time the statement was taken by the
police so much so that a short time thereafter he was considered strong enough to undergo an
operation. Under these circumstances, it can be concluded that the deceased was, himself,
hesitant to accept the fact of his impending death and entertained hopes of recovery, obviously
depending on the result of the scheduled operation and further medical treatment.

Notwithstanding the fact, however, that the victim's statement may not be admitted as a dying
declaration, it is nevertheless admissible as part of the res gestae against herein appellant.
In People v. Tumalip, 9 this Court held that the positive Identification of the accused by the victim,
made a few hours after he had been shot and while suffering from the agonies of his injuries,
although not an ante mortem declaration, may, however, be considered as part of the res gestae,
for it was made almost immediately after the startling occurrence.

It is well-settled that as an exception to the hearsay rule, such evidence must

comply with these requisites, an occurrence both startling and unusual in character
and an utterance made before the declarant could have any opportunity for
falsification or distortion, one moreover limited to such event as the immediate
attending circumstances. 10

Briefly stated, the spontaneous declaration must have been made while the nervous excitement
caused by the startling occurrence was still working on the declarant's mind. This may be a short
time after the incident or some hours later, as long as the influence of the startling occurrence still
persists. What is important is that the declarant must have had no opportunity to devise or contrive
anything contrary to the real facts that occurred. What the law distrusts is not after speech but
after thought. 11
 There are no limits of time within which the res gestae can be arbitrarily confined.
These limits vary in fact with each particular case. The acts or declarations are not
required to be contemporaneous with the primary fact, but they must be so
connected with it as to make the act or declaration and the main fact practically
inseparable, or be generated by an excited feeling which extends, without break
or let down, from the moment of the event they illustrate. In other words, if the acts
or declarations sprang out of the principal transaction, tend to explain it, were
voluntary and spontaneous, and were made at a time so near it as to preclude the
Idea of deliberate design, they may be regarded as contemporaneous in point of
time, and are admissible. 12

The element of time is, therefore, not controlling, but merely of importance, on the question of
spontancity. 13

The general rule is that where declarations are unconsciously associated with and related to the
homicidal deed even though separated from it by a short time, they are evidence of the character
of the deed and a part of the res gestae. No inflexible rule as to the length of the interval between
the act of killing and the act of declaration of the person killed can be formulated; in such matter,
the facts of each case stand alone and must speak for themselves. 14

From the circumstances of the case, the victim could not have had time to concoct or devise a
story different from what actually transpired, and his narration, at the first opportunity, of the
incident and his Identification of his assailant must be considered as part of the starling
occurrence, the influence of which was still working on his mind. Moreover, it is significant that
the victim did not name a specific person, as his assailant was a person not familiar to him, but
merely described him as the one who followed him from the municipal building after an altercation
which arose when he (victim) accidentally stepped on appellant's wife while she lay on the floor
of the municipal building. Appellant has failed to advance any reason or motive why the victim,
who did not know him prior to the incident, would Identify him as the perpetrator of the offense if
this were not true. It must be recalled that there were many persons sleeping in the municipal
building and yet he was singled out by the police, as a consequence of the series of events that
transpired, starting from the commotion that ensued when the victim accidentally stepped on
appellant's wife and appellant's suspicious actuations after he returned to the municipal building.
It was shortly after appellant's return that the police received information of the stabbing of the
victim.

The lower court found that the crime was committed with the qualifying circumstance of treachery
and the aggravating circumstance of evident premeditation, offset by the mitigating circumstance
of passion and obfuscation, hence it imposed upon the herein appellant the penalty of reclusion
perpetua, among others. We find no proof that evident premeditation and treachery accompanied
the commission of the crime.

Evident premeditation could not have existed because immediately after the commotion caused
by the accidental stepping on his wife, the appellant followed the victim and stabbed him. As the
trial court observed, the Shell gasoline station where the victim was stabbed was "not far from the
municipal building", 15 and, in the few minutes it took to follow and overtake the victim, the
appellant could not have had sufficient opportunity to meditate upon and determine the killing. lt
is settled that where a previous incident preceded the assault, evident premeditation is not
present. 16 and that in the absence of reflection and persistence of criminal intent, said
circumstance cannot be appreciated. 17
Similarly, treachery cannot be appreciated against the herein accused because there is no
showing whatsoever that the mode of attack employed by him was calculated to insure the
commission of the crime without risk to himself, arising from any defense that the victim may put
up. As a matter of fact, the mode of attack is not known at all, there being no eyewitness to the
stabbing incident. 18 Treachery must be shown by convincing evidence, 19 and the same degree
of proof to dispel reasonable doubt is required before any conclusion may be reached respecting
its attendance, whether as a qualifying or an aggravating circumstance, in a criminal
case. 20 Moreover, consistent with the finding that the killing was not premeditated, there can be
no treachery in the instant case because the decision to attack was arrived at on the spur of the
moment. 21

In addition, the factual circumstances obtaining in the case indicate that the victim knew that he
was being followed from the municipal building. Thus, he was able to state in the ante
mortem statement that the person who stabbed him was the one who had followed him from the
municipal building. This being the case, and considering that he was well aware of the previous
altercation between them, the victim must have been on his guard and aware that the appellant
meant him harm.

Considering the foregoing, We hold that due to the absence of any qualifying circumstance, the
crime committed is not murder but homicide, defined and penalized under Article 249 of the
Revised Penal Code, unattended by any aggravating or litigating circumstance.

We are not convinced that passion and obfuscation Should be appreciated in favor of herein
appellant so as to mitigate his criminal liability. The accidental stepping by the victim on appellant's
wife was insufficient cause for passion or obfuscation to so affect appellant's reason that he
commits a vicious crime as a result thereof. In order for such mitigating circumstance to be
appreciated, it is necessary to establish the existence of an act both unlawful and sufficient to
produce such a condition of mind that the culprit is precluded from a sober realization of the
wrongfullness of the course of action about to be taken. 22

WHEREFORE, the decision appealed from is modified; appellant Teodoro Lanza is hereby found
guilty of the crime of Homicide and sentenced to an indeterminate penalty ranging from EIGHT
(8) YEARS and ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (17) YEARS and
FOUR (4) MONTHS of reclusion temporal as maximum, with the accessory penalties provided by
law. The awards of P2,000.00 as civil indemnity, without subsidiary imprisonment, P2,000.00 as
moral damages and P500.00 as hospital and burial expenses are hereby affirmed.

SO ORDERED.

Barredo, Aquino, Concepcion, Jr., Santos and Abad Santos, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 75028 November 8, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PIOQUINTO DE JOYA y CRUZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Rodolfo P. Liwanag for accused-appellant.

FELICIANO, J.:p

In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was charged before the
Regional Trial Court, 3rd Judicial Region, Branch 14, Malolos, Bulacan with the crime of robbery
with homicide committed as follows:

That on or about the 31st day of January, 1978, in the municipality of Baliuag,
province of Bulacan, Philippines and within the jurisdiction of this Honorable Court,
the said accused Pioquinto de Joya y Cruz, did then and there wilfully, unlawfully
and feloniously, with intent of (sic) gain and without the knowledge and consent of
the owner and, by means of violence and intimidation, take, carry and cart away
two (2) rings, one (1) necklace, one (1) piece of earring, belonging to Arnedo
Valencia y Angeles and Eulalia Diamse Vda. de Salac, to their damage and
prejudice in the sum of FIVE HUNDRED FIFTY PESOS (P550.00); and that on the
occasion of the said robbery and for the purpose of enabling him to take the said
properties, the accused did then and there wilfully, unlawfully and feloniously with
treachery, evident premeditation and great advantage of superior strength, with
intent to kill, attack, assault and use personal violence upon the person of Eulalia
Diamse Vda. de Salac by stabbing and hitting the latter on her neck and other parts
of her body with pointed instrument causing injuries which directly caused the
death of the said Eulalia Diamse Vda. de Salac.

That in the commission of the offense, the following aggravating circumstances

were present (1) abuse of superior strength; (2) committed in the dwelling of the
offended party; (3) disregard of age and sex; (4) abuse of confidence.

Contrary to law. 1

At arraignment, appellant De Joya pleaded not guilty. After trial, the court a quo rendered a
decision dated 16 May 1986 convicting De Joya of the crime charged. The dispositive portion of
the decision reads:

WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond

reasonable doubt of the crime of Robbery with Homicide, committed with the
aggravating circumstances of: abuse of superior strength, old age, disregard of
sex the victim a woman 88 years old, the crime was committed in the dwelling of
the victim. The accused being 72 years old death penalty cannot be imposed
against him as provided in Article 47 of the Revised Penal Code.
 The Court therefore, sentences the accused to LIFE IMPRISONMENT; to
indemnify the heirs of the victim in the amount of P20,000.00 and to pay damages
in the amount of P550.00.

The bond of the accused is ordered cancelled and the accused to be confined
immediately in the National Penitentiary pending review of his case by the
Supreme Court.

The Clerk of Court is ordered to immediately forward the record of this case to the
Supreme Court for review.

SO ORDERED. 2

In this appeal, appellant raises a number of issues all of which, however, amount to one basic
assertion: that the lower court erred in concluding that appellant was guilty beyond reasonable
doubt of the crime charged.

The facts have been summarized in the brief of the Solicitor General in the following manner:

The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their
ten (10) year old son Alvin Valencia and Herminia Valencia's 88-year old mother,
Eulalia Diamse, are residents of Balagtas St., Baliuag, Bulacan. (TSN, June 11,
1981, p. 2). Both spouses are teachers by profession.

Arnedo Valencia teaches at the Tiaong Elementary School at Barrio Tiaong,

Baliuag, Bulacan whereas Herminia Valencia teaches in an intermediate school at
Baliuag, Bulacan. (TSN, March 11, 1980, p. 7).

In the afternoon of January 31, 1978, Herminia Salac-Valencia left for school to
teach. Her mother Eulalia Diamse was then [sitting] at their sofa watching the
television set. (TSN, October 12, 1978, p. 3).

Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the
afternoon, his classes were dismissed and he proceeded home. (TSN, March 11,
1980, p. 8).

At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's
neighbor by the name of Gloria Capulong, together with a friend, went out of the
former's house to visit a friend. While at her yard, Gloria Capulong looked back to
the direction of the Valencia's house. She noticed appellant Pioquinto de Joya
standing and holding a bicycle at the yard of the Valencia's. (TSN, June 11, 1981,
pp. 2-4).

When Alvin reached home, he saw his grandmother Eulalia Diamse lying down
prostrate and drenched with her own blood. He immediately threw his bag and ran
towards her. He then held her hands and asked her: "Apo, Apo, what happened?".
(TSN, March 11, 1980, p. 10).
. . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After saying
these words, she let go of Alvin's hand and passed away. (TSN, Ibid., pp. 14 and
17).

Alvin then called for his Nana Edeng and told her to see his lola because she was
drenched with her own blood. His Nana Edeng told him to immediately see his
mother Herminia Salac-Valencia to inform her of what happened. (TSN, Id).

Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is drenched in her
own blood." (TSN, March 11, 1980, p. 20).

Herminia immediately ran outside the school, flagged down a tricycle and went
home. Alvin followed, riding his bicycle (TSN, Id., p. 21). When she reached their
house, she found her mother lying prostrate in her own blood at their sala in front
of the television. Her mother's hands were stretched open and her feet were wide
apart. Blood was oozing out of her mother's ears. She then embraced her mother
and placed her on the sofa. She asked Alvin and the tricycle driver to call Dr. Delfin
Tolentino. (TSN, October 12,1978, pp. 25-26).

Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the
body of Eulalia Diamse. Said doctor declared that said Eulalia Diamse had a heart
attack which caused her death. When asked by Herminia Valencia why her
mother's ears were punctured, no reply was given by said doctor. Herminia
requested for a death certificate, but Dr. Tolentino did not issue one and instead
immediately left. (TSN, Ibid., pp. 27-29).

Herminia found out that the two (2) gold rings worn by her mother were missing.
The right earring of her mother was likewise missing. All of these were valued [at]
P300.00 (TSN, Id., p. 15).

That same afternoon, Herminia saw the room of the groundfloor ransacked. The
contents of the wardrobe closet (aparador) were taken out. Its secret
compartment/box was missing. And the lock of the aparador was destroyed. (TSN,
October 12, 1978, pp. 15-17).

When she went upstairs after putting her mother on a bed at the ground floor, she
found the two (2) rooms thereat in disarray. She then caused the rooms and things
photographed by a certain Ricardo Ileto (Exhibits "A" to "A-11"; TSN, October 12,
1978, p. 17).

Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to issue a
death certificate so that her mother could be embalmed. (TSN, Id., pp. 33-34).

On the same night, Herminia found a beach walk step-in (Exhibit "B") by the side
of the cabinet near the door of their room downstairs, more or less one meter from
where the victim was lying prostrate. (TSN, October 12,1978, pp. 24-25).

Herminia was able to recognize the said step-in because of its color and size, as
the other half of the pair she bought for her husband Arnedo but which she gave
 to Socorro de Joya, the wife of herein appellant, before Christmas of 1977 when
she saw the old and wornout pair of slippers of the latter. (TSN, Ibid.).

Appellant Pioquinto de Joya visited the wake only once. During the second day of
the four-day wake, Herminia saw herein appellant Pioquinto de Joya enter the
kitchen and peep under the cabinet of the (Valencia's) house. (TSN, Id.).

On February 3, 1978, a post-mortem examination was conducted by Dr. Romulo

Madrid, a medico-legal officer of the National Bureau of Investigation. Per
examination, the cause of the death arrived by Dr. Madrid was "shock, secondary
to punctured wound neck" (Exhibit "D-1") situated at the right side of the neck, just
below the right ear wherein it went out thru and thru, opposite, almost in the same
location, from one side of the neck to the opposite side. (Exhibit "D-2").

In its decision, the trial court became quite clear as to the factors which led to the judgment of
conviction against appellant. These factors, as set out in the decision of the trial court, were the
following:

In the case at bar, the prosecution relied heavily on the circumstances surrounding
the death of the victim as testified to by the witnesses and proven during the trial,
also the dying statement of the deceased, which are: Herminia testified that two
weeks before the incident the accused and the deceased quarreled over a bicycle
which the former took from their house without the consent of the latter; that Exhibit
"B" (step-in beach walk type) which was found near the cabinet one meter away
from the body of the victim was identified by Herminia as the step-in that she gave
to the wife of the accused and which she saw accused wearing on January 29,
1978 when she visited them in their house; the testimony of Gloria Capulong that
she saw the accused in the afternoon of January 31, 1978 at around 3:00 p.m. in
the yard of Herminia standing and holding a bicycle; the accused admitted,
although his wife is the sister of the husband of Herminia he never visited the
deceased during the four days that it was lying in state without any justifiable
reason and contrary to the ordinary experience of man; last but most convincing is
the dying statement of the deceased when her grandson Alvin asked her "Apo,
Apo, what happened?" and she answered, "Si Paki", then she expired. When Alvin
was asked during his testimony who is this Paki, he identified the accused. The
accused during his testimony never denied that he is called Paki.

The foregoing circumstances established during the trial plus the dying statement
of the deceased leads only to one fair and reasonable conclusion, that the accused
is the author of the crime.

Analyzing the above portion of the decision, the elements taken into account by the court in
convicting appellant De Joya of robbery with homicide may be listed as follows:

1. The dying statement made by the deceased victim to her grandson Alvin
Valencia a 10-year old boy: "Si Paqui";

2. The quarrel, which, according to Herminia Valencia, daughter of the deceased

victim, took place two weeks before the robbery and homicide, between the
 appellant and the deceased over the use of a bicycle which appellant allegedly
took from the Valencia's house without the consent of the victim;

3. The rubber slipper, one of a pair, ("step-in beach walk type") which according to
Herminia, she found near a cabinet in their house one (1) meter away from the
body of the victim, and which Herminia identified as one of the pair that she had
given to the wife of the accused the previous Christmas Season;

4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the afternoon
of 31 January 1978 in the yard of the Valencias, standing and holding a bicycle
and doing nothing;

5. The statement of appellant that he did not visit the deceased during the four-day
wake.

We turn first to the dying statement made by the victim when the 10-year old Alvin Valencia asked
his grandmother who was sprawled on the floor of their house drenched with blood: "Apo, Apo,
what happened?" The deceased victim said: "Si Paqui". After uttering those two words, she
expired. It is not disputed that "Paqui" is the nickname of appellant Pioquinto de Joya. It must be
noted at once, however, that the words "Si Paqui" do not constitute by themselves a sensible
sentence. Those two words could have been intended to designate either (a) the subject of a
sentence or (b) the object of a verb. If they had been intended to designate the subject, we must
note that no predicate was uttered by the deceased. If they were designed to designate the object
of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui"
must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's
question was not: "Apo, Apo, who did this to you?"

It has been held that a dying declaration to be admissible must be complete in itself. To be
complete in itself does not mean that the declarant must recite everything that constituted the res
gestae of the subject of his statement, but that his statement of any given fact should be a full
expression of all that he intended to say as conveying his meaning in respect of such fact. 3 The
doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's
classic work:

The application of the doctrine of completeness is here peculiar. The statement as

offered must not be merely apart of the whole as it was expressed by the declarant;
it must be complete as far it goes. But it is immaterial how much of the whole affair
of the death is related, provided the statement includes all that the declarant
wished or intended to include in it. Thus, if an interruption (by death or by an
intruder) cuts short a statement which thus remains clearly less than that which the
dying person wished to make, the fragmentary statement is not receivable,
because the intended whole is not there, and the whole might be of a very different
effect from that of the fragment; yet if the dying person finishes the statement he
wishes to make, it is no objection that he has told only a portion of what he might
have been able to tell. 4 (Emphasis supplied)

The reason upon which incomplete declarations are generally excluded, or if admitted, accorded
little or no weight, is that since the declarant was prevented (by death or other circumstance) from
saying all that he wished to say, what he did say might have been qualified by the statements
which he was prevented from making. That incomplete declaration is not therefore entitled to the
presumption of truthfulness which constitutes the basis upon which dying declarations are
received. 5

It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In
other words, the deceased was cut off by death before she could convey a complete or sensible
communication to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the
deceased had intended to name the person who had thrust some sharp instrument through and
through her neck just below her ears. But Eulalia herself did not say so and we cannot speculate
what the rest of her communication might have been had death not interrupted her. We are unable
to regard the dying statement as a dying declaration naming the appellant as the doer of the
bloody deed.

The other elements taken into account by the trial court are purely circumstantial in nature. When
these circumstances are examined one by one, none of them can be said to lead clearly and
necessarily to the conclusion that appellant had robbed and killed the deceased Eulalia Diamse.
The quarrel over the use of the bicycle which was supposed to have taken place two weeks before
Eulalia's death does not, in our view, constitute adequate proof of a motive capable of moving a
person to slay another in such a violent and gory manner. Failure to prove a credible motive where
no identification was shown at all, certainly weakens the case of the prosecution.

The testimony of Herminia Valencia about the single slipper that she found near or under the
cabinet in the living room where Eulalia Diamse was slain, can scarcely be regarded as conclusive
evidence that such slipper was indeed one of the very same pair of slippers that she had given to
appellant's wife, who was also the sister of Herminia's husband. Rubber or beach, walk slippers
are made in such quantities by multiple manufacturers that there must have been dozens if not
hundreds of slippers of the same color, shape and size as the pair that Herminia gave to
appellant's wife. And even if conclusive identification of the slippers had been offered, and it is
assumed that appellant (rather than his wife) had worn those very slippers on that fatal afternoon,
still the presence of that singular slipper did not clearly and directly connect the appellant to the
robbery or the slaying. At most, under that assumption, the presence of that slipper in the house
of the Valencias showed that the accused had gone to the house of the Valencias and there
mislaid that slipper. We note in this connection, that appellant himself had testified that he did
enter the house of the Valencias that afternoon, but after the killing of Eulalia Diamse had been
perpetrated, and there had found many persons in the house viewing the body.

The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January
1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a bicycle and doing
nothing is, by itself, not proof of any act or circumstance that would show that appellant had
perpetrated the slaying or the robbery. The behaviour of the appellant, as testified to by Gloria
Capulong, offers no basis for supposing that appellant, himself 72 years of age, had just slain an
88-year old woman by skewering her through the neck and had ransacked both floors of the
Valencia house.

Appellant's failure to present himself to pay his respects to the deceased or her immediate family
during the four-day wake, does not give rise to any inference that appellant was the slayer of
Eulalia Diamse. Appellant had explained that he had been busily at work, sewing and carrying on
his trade as a tailor. Appellant, as already noted, had dropped in the Valencias' house in the
afternoon Eulalia Diamse was killed and had viewed the body (before it was lying in state) along
with several other persons. His reluctance or inability to participate in the formal wake is not
necessarily a sign of guilt. We are unable to agree with the trial judge that such behaviour was
"contrary to the ordinary experience of man" although respect for the dead is a common cultural
trait of the Filipinos.

In the Solicitor-General's brief, it is casually contended that the circumstantial evidence against
appellant included: "the attempt on the part of appellant Pioquinto de Joya through his counsel to
settle the case amicably." 6 We have examined the testimony that the Solicitor General pointed
to in referring to a supposed attempt to settle the criminal charge amicably. That testimony, given
by Arnedo Valencia, son-in-law of the deceased Eulalia Diamse and brother-in-law of appellant
Pioquinto de Joya, was as follows:

Q You also testified that before the release of the accused from the
municipal jail, you had a conversation with him, is that right?

A Yes, air.

Q What was this conversation about?

A He called for me and took me to his counsel Atty. Aguilar and

according to him if only Atty. Aguilar can talk with me, everything
will be settled.

Q Have you seen and talked to this Atty. Aguilar?

A Yes, I went with him to Manila, sir.

Q When was this?

A The time he was fetched out of jail.

Q You are referring to the municipal jail?

A Yes, sir.

Q What did you and Atty. Aguilar discuss when you finally was able
to see Atty. Aguilar?

A When I went there, I was introduced to Atty. Aguilar and Atty.

Aguilar asked me as to what I liked to happen.

Q What did you say?

A I said if it will be settled, well and good.

Q Anything else that transpired?

A He even told me if I might be able to convince both my wife and

her sisters.

Q Did he tell you he can settle this?

 A He was very certain that he can settle this, the very reason why
he told me because I was very certain as to what happened.

Q Was the accused Pioquinto de Joya present when you were

discussing this with his lawyer?

A Yes, sir

Q He heard what his, lawyer was telling you?

A It is possible because he is only one or two meters distance away.

Q Did the accused say anything?

A None, sir. (Emphasis supplied)

We find the above testimony quite impalpable and inconclusive so far as a supposed attempt of
appellant, through his counsel, to offer a compromise on the criminal charge is concerned. We
are aware of the provision of Section 24 of Rule 130 of the Rules of Court which provides that

Sec. 24. Offer to compromise not admission. An offer of compromise is not an

admission that anything is due, and is not admissible in evidence against the
person making the offer. However, in criminal cases which are not allowed by law
to be compromised, an offer of compromise by the accused may be received in
evidence as an implied admission of guilt. (Emphasis supplied)

We do not, however, feel justified in concluding from the above testimony from a member of the
(extended) family of the deceased victim that "an offer of compromise" had been made "by the
accused" nor that "an implied admission of guilt" on the part of the appellant may be reasonably
inferred in the instant case. The trial court itself made no mention of any attempt on the part of
appellant to settle the criminal case amicably through the defense counsel; we must assume that
the trial court either did not believe that appellant had tried to compromise the criminal case or
considered that appellant could not fairly be deemed to have impliedly admitted that he had indeed
robbed and killed Eulalia Diamse. A much higher level of explicitness and specific detail is
necessary to justify a conclusion that an accused had impliedly admitted his guilt of a crime as
serious as robbery with homicide.

The totality of the case made out against appellant De Joya thus consists of an incomplete,
aborted, dying declaration and a number of circumstances which, singly or collectively, do not
necessarily give rise to a compelling inference that appellant had indeed robbed and slain Eulalia
Diamse. We consider, after prolonged scrutiny, that the sum total of the evidence in the instant
case is insufficient to induce that moral certainty of guilt which characterizes proof beyond
reasonable doubt. The conscience of the Court remains uneasy and unsettled after considering
the nature and speculative character of the evidence supporting the judgment of conviction.

The Court must, accordingly, hold as it hereby holds that appellant's guilt of the crime of robbery
and homicide was not shown beyond reasonable doubt.
ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby REVERSED and
appellant Pioquinto de Joya is hereby ACQUITTED on grounds of reasonable doubt.

It is so ordered.

Narvasa, CJ., Cruz, Grio-Aquino and Medialdea, JJ., concur