[G.R. No. 109780. August 17, 1998.
] The Supreme Court ruled that what is decisive in a
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. RODOLFO BERNALDEZ @
"Dolfo," accused-appellant.
Mario Abella Encinareal for accused-appellant.
Solicitor General for plaintiff-appellee.
SYNOPSIS
The Regional Trial Court of Ligao, Albay, convicted
accused-appellant of the crime of rape committed
against his 10-year old niece, Maria
Teresa Bernaldez and was sentenced to suffer the
penalty of reclusion perpetua. The prosecution
evidence showed that complainant, then ten years
old, was raped by her uncle at his house. After the
rape, her uncle gave her P5.00 and threatened her not
to tell anybody otherwise he would kill her parents,
brothers and sisters. Complainant further claimed that
appellant had been abusing her since she was five
years of age, and these repeated acts were done in
the same place. Appellant interposed the defense of
alibi, in that at the time of the alleged rape, he was
working as a mechanic/mill operator in the rice mill of
his employer located 2-1/2 to 3 kilometers from his
house.
rape charge is the complainant's positive identification
of the accused as the malefactor. Bare denial and alibi
are insufficient to overcome the positive identification
made by the prosecution witness. In this case, the
complainant positively identified the appellant as the
person who raped her on 29 August 1990 and who
had been sexually abusing her many times since she
was 5 years old. Appellant's house was only about 2-
1/2 to 3 kilometers away from his place of work and
could be reached in 30 minutes by walking. Thus,
even if indeed appellant went to work on 29 August
1990, it was not physically impossible for him to have
been at his house where the rape was committed.
Complainant's statements before the police and her
testimony on the rape incident contained delicate
details which could be given by her alone and could
only be based on real experience rather than on
imagination. The prevailing rule is that the testimony
of rape victims who are young and immature deserves
full credence. Since complainant was undisputedly
below 12 years old when the rape was committed,
then any carnal knowledge of her, even if consented,
would be rape under the third paragraph of Article 335
of the Revised Penal Code.
The appealed decision is affirmed, with the
modification ordering appellant to pay the victim civil
indemnity of P50,000.00 and moral damages of
P50,000.00.
SYLLABUS
1. CRIMINAL LAW; RAPE; PRECISE TIME OF THE
COMMISSION OF RAPE IS NOT AN ESSENTIAL
ELEMENT OF THE CRIME. — Indeed, we have ruled
that the precise time of the commission of the crime is
not an essential element of rape. It is settled that even
a variance of a few months between the time set out
in the indictment and that established by the evidence
during trial has been held not to constitute an error so
serious as to warrant reversal of a conviction solely on
that score. The failure of the complainant to state the
exact date and time of the commission of rape is a
minor matter and can be expected when the witness
is recounting the details of a humiliating experience
which are painful and difficult to recall in open court
and in the presence of other people. Moreover, the
date of the commission of the rape is not an essential
element of the crime.
2. ID.; MEDICAL EXAMINATION IS NOT
INDISPENSABLE IN A PROSECUTION FOR RAPE.
— The trial court erred in giving weight to the medical
certificate issued by Dr. De la Paz despite the failure
of the latter to testify. The certificate could be admitted
as an exception to the hearsay rule. However, since it
involved an opinion of one who must first be
established as an expert witness, it could not be given
weight or credit unless the doctor who issued it be
presented in court to show his qualifications. Here, a
distinction must be made between admissibility of
evidence and probative value thereof. Nevertheless,
a medical examination is not indispensable in a
prosecution for rape. The lone testimony of the victim
is sufficient if credible.
3. ID.; FORCE OR INTIMIDATION NEED NOT BE
PROVED IN THE INSTANT CASE; REASON. — It
was unnecessary for the trial court to consider the
issue of force or intimidation. Since MARIA TERESA
was undisputedly below 12 years old on 29 August
1990, when the rape was committed, then any carnal
knowledge of her, even if consented, would be rape
under the third paragraph of Article 335 of the Revised
Penal Code.
4. ID.; RAPE VICTIM ENTITLED TO AN INDEMNITY
OF P50,000.00 BUT TRIAL COURT'S AWARD OF
EXEMPLARY DAMAGES IS INCORRECT. — Per
current case law, a rape victim is entitled to an
indemnity of P50,000. She can also recover moral
damages pursuant to Article 2219, and exemplary
damages if the commission of the crime was attended
by one or more aggravating circumstances pursuant
to Article 2230, both of the Civil Code. No aggravating
circumstance was proved in this case; hence, the trial
court's award of exemplary damages is incorrect.
Under the circumstances in this case, we deem fit to
award the complainant an indemnity of P50,000 and
moral damages in the amount of P50,000.
DECISION
DAVIDE, JR., J :p
This is an appeal from the decision 1 of Branch 14 of
the Regional Trial Court (RTC) of Ligao, Albay,
convicting accused-appellant
RODOLFO BERNALDEZ of rape committed against
his 10-year-old niece MARIA
TERESA BERNALDEZ. 2
The complaint 3 for rape was filed before the 6th
Municipal Circuit Trial Court (MCTC) of Polangui-
Libon, Albay, on 3 September 1990 by Pedro
B. Bernaldez, the younger brother of the appellant
and father of the victim. RODOLFO was forthwith
arrested and detained in jail.
cda
After due proceedings in the MCTC, which found a
probable cause against RODOLFO, 4 the Office of the
Provincial Prosecutor of Albay filed with the RTC of
Ligao, Albay, an information 5 charging him with the
crime of rape committed as follows:
That in the morning of August 29, 1990, at
Sitio Mabatia, Barangay Sugcad,
Municipality of Polangui, Province of
Albay, Philippines, and within the
jurisdiction of this Honorable Court, said
accused, with lewd design, did then and
there wilfully, unlawfully and feloniously
have carnal knowledge of her 10-year old
niece MARIA THERESA BERNALDEZ, to
her damage and prejudice.
The case was docketed as Criminal Case No.
2763 and raffled to Branch 14 of said court.
RODOLFO entered a plea of innocence at his
arraignment. 6
At the trial on the merits, the prosecution presented as
its witnesses MARIA TERESA and her father
Pedro Bernaldez. Dr. Nancy de la Paz, who examined
MARIA TERESA and issued the medical certificate,
failed to testify. 7 For its part, the defense had as its
witnesses RODOLFO; Delfin Paular, the overseer of
the rice mill where RODOLFO allegedly worked; and
Melita Sasota, the teacher of MARIA TERESA.
The evidence for the prosecution is summarized by
the Office of the Solicitor General (OSG) in the Brief
for the Appellee as follows:
Through complainant's testimony, the
prosecution was able to establish that in
the morning of August 29, 1990,
complainant, then [ten] years old, was
raped by accused-appellant, her uncle,
being the full-blooded brother of her father,
at his house in Sitio Mabatia, Barangay
Sugcad, Polangui, Albay. She narrated
that she was carried by her uncle upstairs
who then removed her clothes and let her
lie down on the floor. While she was lying
down, her uncle opened the zipper of his
pants and laid on top of her, inserted his
penis inside her vagina and made a push
and pull movement while on top of her.
After a while, a sticky and warm object
came out from his penis. After the rape,
accused-appellant gave her P5.00 and
threatened her not to tell anybody
otherwise, he would kill her parents,
brothers and sisters. (TSN, March 1, 1991,
pp. 6-7). Complainant further claimed that
accused-appellant had been abusing her
since five (5) years ago and these repeated
acts were done in the same place, with
accused-appellant always warning and
threatening her not to tell anybody. (TSN,
supra, pp. 10-12).
On [August] 30, 1990, or the very next day
after the last rape incident, complainant
was sent by her father to go to accused-
appellant's house in order to borrow
P10.00 from him. However, complainant
refused to go prompting her father to beat
her. It was only then that she revealed to
her father the cause of her reluctance and
narrated to him the repeated rape and
assaults of her uncle. Immediately after
learning of the rape, her parents brought
complainant to the Polangui Police Station
to report the incident and file the complaint
(TSN, supra p. 7). Complainant then
executed a Sworn Statement before the
police investigator (Exhs. A, A-I and A-2).
Afterwards, she was brought for treatment
to Pio Duran Memorial District Hospital, a
government hospital where she was
examined by Dr. Maria Nancy de la Paz
who issued a Medical Certificate dated
September 3, 1990 (Exh. B). She likewise
identified her Birth Certificate (Exh. C).
Asked to identify her attacker, she readily
identified accused-appellant in open court
(TSN, supra, pp. 8-9). llcd
Pedro Bernaldez, father of the
complainant, testified that he is the
younger brother of accused-appellant who
lives in a separate house about two (2)
"medium hills" away. He confirmed that he
only discovered the rape on his daughter
when she revealed to him the reason for
her reluctance or fear in going to her
uncle's (accused-appellant's) place when
he sent her to borrow P10.00 from him on
[August] 30, 1990. He likewise confirmed
that the victim told him of the repeated
rapes by her uncle since five (5) years ago,
the last time being that done on [August]
29, 1990. These, his daughter revealed
after he hit her with his belt several times
for refusing to go as instructed. Fearing
that something wrong would result if he
directly confronted his brother, he decided
to report the matter to the police authorities
instead, which he immediately did. He also
executed a Sworn Statement before the
Polangui Police Station police investigator
on September 2, 1990 (Exh. E). He further
stressed that he had a good relationship
with his brother and had no quarrel with
him. (TSN, supra, pp. 17-21). 8

RODOLFO had alibi for his defense. According to him
he could not have committed the crime charged
because from 6:00 a.m. to 5: 00 p.m. of 29 August
1990, when the rape was allegedly committed, he was
working as a mechanic/mill operator in the rice mill of
William Cu, located 2 1/2 to 3 kilometers from his
house. 9 He was charged with rape because in the
evening of 28 August 1990, he saw one "Rodolfo"
wearing only "briefs" near the door of the house of his
brother Pedro. Half a meter away from that man was
Pedro's wife (MARIA TERESA's mother), who was
then lying down on the floor wearing a sando and a
skirt. The next day, Pedro had a drinking spree with
this "Rodolfo"; "when he was already drunk," he filed
the case against herein accused-appellant
RODOLFO. 10
Delfin Paular, the overseer at the rice mill where
RODOLFO was allegedly working, testified that
RODOLFO arrived at the rice mill at around 6:00 a.m.
of 29 August 1990, and stayed there until 6:00 p.m.
because nobody was available to "relieve" him. 11
Melita Sasota, MARIA TERESA's teacher at North
Central School, Polangui, Albay, testified that MARIA
TERESA was present in her class on 29 August 1990
because her record of attendance was "clean" and not
marked "absent." MARIA TERESA must have been
already in school at around 6:30 a.m. and was inside
the classroom when the bell rang at 7:15 a.m.
However, Melita could not remember what time
MARIA TERESA left school after the morning session
and to where the latter went, although she saw the
latter again at the start of the afternoon session until it
ended at 4:20 p.m. 12
In its decision of 19 January 1993, the trial court found
RODOLFO guilty beyond reasonable doubt of the
crime of rape and sentenced him to suffer the penalty
of reclusion perpetua. It also ordered him to pay
MARIA TERESA P50,000 representing moral and
exemplary damages, and to pay the costs.
The trial court held that the testimony of MARIA
TERESA, who positively identified RODOLFO as the
malefactor, was sufficient to prove RODOLFO's guilt.
RODOLFO, as an uncle, had a great influence over
MARIA TERESA, who, admittedly, was less than 12
years of age when the offense was committed;
besides, there was intimidation consisting of the threat
to kill her parents and brothers and sisters. Moreover,
no reason or motive existed for MARIA TERESA or
her father to fabricate the charge. Both RODOLFO
and Pedro Bernaldez admitted in open court that they
had "no quarrel with each other," as their families were
close-knit. 13
As to Melita Sasota's testimony that MARIA TERESA
attended her class on 29 August 1990, the trial court
ruled that, as buttressed by a long line of decisions,
the specific date of commission of the offense was not
so material for as long as evidence could show that
accused had actually committed the offense; and that
the accused could be convicted even if there was a
mistake as to the date of the commission of the
offense as long as the evidence showed with sufficient
clarity that a crime was committed and the accused
was responsible therefor.
Finally, the trial court gave weight to the medical
certificate (Exhibit "B") issued on 3 September 1990
by Dr. De la Paz, who was a government doctor at the
time. In considering the medical certificate despite the
failure of Dr. De la Paz to testify thereon, the trial court
reasoned that such document, being an act done by
a public officer, was presumed to be done regularly
unless proved otherwise. It concluded that the finding
of "[o]ld lacerations at 3:00 and 9 o'clock" and "newly-
healed lacerations at 11 o'clock" on the hymen of
MARIA TERESA proved that someone had carnal
knowledge of her. Nevertheless, a medical
examination was not an indispensable requisite in the
prosecution for rape. LexLib
In view of the penalty imposed, appeal from the
decision should have been to this Court. 14 But
RODOLFO's appeal was to the Court of
Appeals; 15 hence, the record of the case was
transmitted to that court. 16 On 23 April 1993, the
record of the case was forwarded to this Court. 17
It was only on 27 March 1996 that RODOLFO's
counsel, Atty. Mario Abella Encinareal, filed the
Appellant's Brief. He did so only after he had been
fined twice in the amounts of P500 and P1,000, and
ordered arrested and confined in the cell of the
National Bureau of Investigation (NBI).
In his Appellant's Brief, RODOLFO contends that the
trial court committed serious and grave error in
convicting him of the crime of "multiple rape," which
was not charged in the information. He also attacks
the ruling of the trial court that the specific date of
commission of the offense was not so material so long
as evidence could show that the accused had actually
committed the offense. According to him, "while the
precise time of the commission of the crime need not
be alleged in the complaint or information,
nevertheless, it must be sufficiently definite and
certain to give the accused an opportunity to prepare
for his defense"; for unless the accused is informed of
the day, or about the day, he may be, to an extent,
deprived of the opportunity to defend himself. 18
RODOLFO likewise argues that he could not have
sexually abused MARIA TERESA on 29 August 1990
because (a) he was at his place of work from as early
as 6:00 a.m. until 5:00 p.m.; and (b) MARIA TERESA
attended her classes the whole day of 29 August
1990, from 7:15 a.m. until the dismissal of classes in
the afternoon. Moreover, MARIA TERESA imputed
the crime of rape against him just to escape from more
severe beatings from her father for her refusal to obey
an errand.
On the other hand, the OSG maintains that
RODOLFO was convicted of rape committed on 29
August 1990, and not of multiple rape. His conviction
was supported by the straightforward and candid
testimony of MARIA TERESA on the details of the
rape. The motive imputed to MARIA TERESA is
flimsy, illogical, and irrational; and so is the insinuation
that the case was filed against RODOLFO to cover up
the alleged infidelity of his sister-in-law (MARIA
TERESA's mother).
The appeal is without merit.
RODOLFO was not convicted of multiple rape, but of
one rape committed on 29 August 1990, as alleged in
the information. This is very clear from the following
finding of the trial court:
The prosecution, as can be observed, tried
to convey to the court that the victim Maria
Teresa Bernaldez ha[d] been repeatedly
abused by the accused, her uncle and
brother of his father, repeatedly for the past
five (5) years the latest of which was on the
faithful [sic] morning of August 29,
1990. No evidence, however, was
Presented by the Prosecution on how and
when Maria Teresa was abused the past
five (5) years except that of August 29,
1990. 19
and the dispositive portion of the decision, which
reads:
WHEREFORE, premises considered, the
Court finds the accused
RODOLFO BERNALDEZ alias DOLFO,
GUILTY beyond reasonable doubt of the
crime of Rape. Accordingly, he is hereby
sentenced to suffer the penalty of
Reclusion Perpetua together with the
accessory penalties provided for by law,
and to pay the aggrieved party P50,000.00
representing moral and exemplary
damages, and to pay the costs. 20
As to RODOLFO's lament on the trial court's
statement that the specific date of the commission of
the offense charged in the information is not material,
it is enough to quote Section 11 of Rule 110 of the
Rules of Court; thus:
SEC. 11. Time of the commission of the
offense. — It is not necessary to state in
the complaint or information the precise
time at which the offense was committed
except when the time is a material
ingredient of the offense, but the act may
be alleged to have been committed at any
time as near to the actual date at which the
offense was committed as the information
or complaint will permit.
Indeed, we have ruled that the precise time of the
commission of the crime is not an essential element
of rape. 21
In this case, the allegation in the information of the
time of the commission of the offense is specific, i.e.,
"in the morning of 29 August 1990." RODOLFO
admits its sufficiency when he states: prcd
A careful reading of the information clearly
show[s] that accused- appellant was
charged of [sic] having committed the
crime of rape on August 29, 1990, a
precise designation of the commission of
the crime as determined by the Public
Prosecutor. The plain and clear meaning of
August 29, 1990, only embraces a period
of twenty four (24) hours when used with
respect to time. . . .
In fact, at no time before the trial court did the defense
question the sufficiency of the information.
Even granting arguendo that the prosecution failed to
prove the allegation in the information that the rape
was committed "in the morning of August 29, 1990,"
any variance in the evidence as to the time the crime
was committed is insignificant, if not, irrelevant.
Besides, the record fails to reveal that RODOLFO
objected to the testimony of MARIA TERESA as to the
time of the commission of the crime. His counsel did
not even object to the questions as to the number of
times RODOLFO had been abusing MARIA
TERESA. 22
It is settled that even a variance of a few months
between the time set out in the indictment and that
established by the evidence during trial has been held
not to constitute an error so serious as to warrant
reversal of a conviction solely on that score. 23 The
failure of the complainant to state the exact date and
time of the commission of rape is a minor matter and
can be expected when the witness is recounting the
details of a humiliating experience which are painful
and difficult to recall in open court and in the presence
of other people. 24 Moreover, the date of the
commission of the rape is not an essential element of
the crime. 25
The ruling in U.S. v. Dichao 26 cited by RODOLFO is
not applicable because the statement of the time of
the commission of the offense in the information
(between October 1910 to August 1912) was
indefinite and uncertain and was, therefore, held to be
fatally defective because it deprived the accused of
the opportunity to adequately prepare for his defense.
We now proceed to the central issue of this case:
whether RODOLFO is guilty of the crime charged.
We reiterate these guiding principles in reviewing rape
cases: (1) an accusation for rape can be made with
facility; it is difficult to prove but more difficult for the
person accused, though innocent, to disprove; (2) in
view of the intrinsic nature of the crime of rape where
only two persons are usually involved, the testimony
of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must
stand or fall on its own merits and cannot be allowed
to draw strength from the weakness of the evidence PROSECUTOR BIRATA:
for the defense. 27 What is decisive in a rape charge Q What happened?
is the complainant's positive identification of the
accused as the malefactor. 28 Bare denial and alibi Witness:
are insufficient to overcome the positive identification A He was removing my clothes.
made by the prosecution witness. 29
Q After he removed you clothes, what
In this case, MARIA TERESA, a 10-year-old Grade III happened?
pupil, 30 positively identified RODOLFO as the person
A He was inserting his penis to my vagina.
who raped her on 29 August 1990, 31 and who had
been sexually abusing her "many times" since she ATTY. ENCINAREAL: Objection, Your
was 5 years old. She testified as follows: Honor.

[PROSECUTOR BIRATA]: COURT: Continue.

Q On August 29, 1990, do you remember PROSECUTOR BIRATA:

if you were in the house of your Q In what part of the house did he actually
Uncle, Rodolfo Bernaldez? put his penis to your vagina?
[WITNESS]: A Upstairs.
A Yes, sir. Q When your uncle was doing that to you,
Q The house of your uncle, were there other people?
Rodolfo Bernaldez, is in Barangay A None. cdasia

Sugcad, Polangui, Albay, is that

correct?
A Yes, sir.
Q While you were there in the house of
your uncle on August 29, 1990,
what did Rodolfo Bernaldez, your
uncle do to you?
ATTY. ENCINAREAL: No basis, Your
Honor.
COURT:
Q When your uncle inserted his penis to
your vagina, what happened?
WITNESS:
A Something came out from his organ.
Q What is that something?
A Something which is sticky.
 PROSECUTOR BIRATA:
Q How many times have your uncle done
this to you?
WITNESS:
A Many times. 32
She affirmed the sworn statements which she gave to
the police:
PROSECUTOR BIRATA:
Q Now I am going to read to you the
question and answer No. 8. "Kung
ikaw ba inaabuso ng iyong tiyuhin
na si Rodolfo Bernaldez ano naman
ang ginagawa sa iyo." Answer. "Ako
po ay kanyang binubuhat patungo
sa itaas ng kanyang bahay at doon
niya ako hinuhubaran ng panti at
ako kanyang ipinapahihiga sa sahig
ng kanyang bahay at habang ako ay
nakahiga siya naman ay binababa
ang kanyang siper ng kanyang
pantalon at inilalabas ang kanyang
titi at dahandahan ito pinapasok sa
akong kiki at doon ay humihindayog
na pababa at paitaas ang kanyang
poit hanggang sa doon mayroong
lumalabas na mainit na galing sa
kanyang titi." Do you remember
having [been] asked that question
and having [given] the same answer
to that question?
WITNESS:
A Yes, sir. 33
During the cross-examination, MARIA TERESA
asserted that the answers in her sworn statement
were given by her, not by the police investigator. 34
Against this story of MARIA TERESA, RODOLFO had
nothing but alibi. For the defense of alibi to prosper,
the requirements of time and place must be strictly
met. It is not enough to prove that the accused was
somewhere else when the crime was committed; he
must also demonstrate that it was physically
impossible for him to have been at the crime scene at
the time the crime was committed. 35
Initially, there is some surface appeal on the proffered
alibi because according to RODOLFO and his witness
Delfin Paular, he was out of his house the whole day
of 29 August 1990, from 6:00 a.m. to 5:00 p.m. Also,
Melita Sasota testified that on the basis of her school
record, MARIA TERESA was in her class the whole
day of 29 August 1990. However, their testimonies
have not convincingly proved that MARIA TERESA
never went to RODOLFO's house on 29 August 1990
and that it was physically impossible for RODOLFO to
have been in his house when the rape was committed.
Sasota admitted that she did not know where MARIA
TERESA went after the morning session, much less
after the dismissal of her class in the
afternoon. 36 Moreover, we entertain serious doubt as
to the reliability of Sasota's record (Exhibit "2") and her
testimony regarding MARIA TERESA's attendance
and presence in school throughout the whole day Of
29 August 1990. First, Pedro Bernaldez declared that
on that day MARIA TERESA did not go to school; she
was in their house when he left for work and when he
came home. 37 Second, and more significantly, for 1
March 1991, Sasota's school record of attendance did
not show that MARIA TERESA was absent or tardy
on that day. Yet, on that date, MARIA TERESA was
in court and testified in the rape case.
Delfin Paular's testimony does not inspire belief
either. He admitted that he did not actually keep a
record of the day-to-day list of personnel working for
Mr. Cu because somebody was assigned to do it, and
that he was only an "overseer." 38 He also revealed
that RODOLFO was not in the list of personnel
because he was only a substitute for his brother
Pedro Bernaldez, who was the one listed as
employee of the rice mill. 39 Obviously, his testimony
was contrived for the alibi of RODOLFO.
Moreover, RODOLFO's house was only about 2 1/2
to 3 kilometers away from his place of work and could
be reached in 30 minutes by walking. 40 Thus, even if
indeed he went to work on 29 August 1990, it was not
physically impossible for him to have been at his
house where the rape was committed.
RODOLFO's belated theory that MARIA TERESA
fabricated the charge of rape to stop her father from
further beating her for her refusal to go to RODOLFO's
house to borrow money is incredible. For one, it was
never shown that MARIA TERESA had been known
to be a liar or a disobedient child. If she refused to go
to the house of RODOLFO, it must have been for a
compelling reason. Her having been raped by him
was, by any measure, an overwhelming compelling
reason not to go to RODOLFO's house. For another,
it is unthinkable that MARIA TERESA, a girl of tender
age, inexperienced in the ways of the world, would
concoct a tale of defloration by no less than an uncle
just to avoid further beatings from her father.
MARIA TERESA's statements before the police and
her testimony on the rape incident contained delicate
details which could be given by her alone and could
only be based on real experience rather than on
imagination. Surely, from the time she first disclosed
the rape, that is, in the morning of 30 August 1990,
until she gave her statements to the police on 2
September 1990 and appeared before the municipal
trial court judge, she had sufficient time to reflect on
the seriousness of the charge. Several months later,
she affirmed in court the same allegations of rape. We
cannot discern any plausible reason for her to falsely
accuse her uncle of so grave a wrong unless it was
the truth.
The prevailing rule is that the testimony of rape victims
who are young and immature deserves full
credence. 41 Indeed, "no woman, especially of tender
age, would concoct a story of defloration, allow an
examination of her private parts, and thereafter
pervert herself by being subjected to a public trial if
she was not motivated solely by the desire to have the
culprit apprehended and punished." 42
Curiously, the alleged ill-motive on the part of MARIA
TERESA was not the motive RODOLFO disclosed in
his testimony What he told the court was that the case
was filed to stop him from revealing to the public the
alleged incident showing that MARIA TERESA's
mother had an illicit affair with her neighbor, a certain
Rodolfo. RODOLFO, however, abandoned this claim,
for he must have realized that it was too incredible.
Pedro Bernaldez would unlikely sacrifice the honor
and reputation of his family and the future of his young
daughter, and implicate his brother to whom he
usually ran for economic support just to cover up the
alleged incident involving his wife. Neither would he
use her daughter as an engine of malice, especially if
by doing so her daughter would be subjected to
embarrassment and even life-long stigma. 43 Then,
too, it is hard to believe that a rape victim, like MARIA
TERESA, and her family would publicly disclose the
rape incident and thus sully their honor and reputation
in the community unless it was true. 44
The trial court erred in giving weight to the medical
certificate issued by Dr. De la Paz despite the failure
of the latter to testify. The certificate could be admitted
as an exception to the hearsay rule. 45 However, since
it involved an opinion of one who must first be
established as an expert witness, 46 it could not be
given weight or credit unless the doctor who issued it
be presented in court to show his qualifications. Here,
a distinction must be made between admissibility of
evidence and probative value thereof. Nevertheless,
a medical examination is not indispensable in a
prosecution for rape. 47 The lone testimony of the
victim is sufficient if credible.
Finally, it was unnecessary for the trial court to
consider the issue of force or intimidation. Since
MARIA TERESA was undisputedly below 12 years old
on 29 August 1990, when the rape was committed,
then any carnal knowledge of her, even if consented,
would be rape under the third paragraph of Article 335
of the Revised Penal Code. Said article pertinently
provides:
ART. 335. When and how rape is
committed. — Rape is committed by
having carnal knowledge of a woman
under any of the following
circumstances: cdrep
3. When the woman is under twelve
years of age, even though neither of
the circumstances mentioned in the
two preceding paragraphs shall be
present.
Per current case law, a rape victim is entitled to an
indemnity of P50,000. 48 She can also recover moral
damages pursuant to Article 2219, and exemplary
damages if the commission of the crime was attended
by one or more aggravating circumstances pursuant
to Article 2230, both of the Civil Code. No aggravating
circumstance was proved in this case; hence, the trial
court's award of exemplary damages is incorrect.
Under the circumstances in this case, we deem fit to
award the complainant an indemnity of P50,000 and
moral damages in the amount of P50,000.
WHEREFORE, the 19 January 1993 Decision of
Branch 14 of the Regional Trial Court of Ligao, Albay,
in Criminal Case No. 2763 finding
RODOLFO BERNALDEZ, alias "Dolfo," guilty beyond
reasonable doubt of the crime of rape, and sentencing
him to suffer the penalty of reclusion perpetua is
AFFIRMED with the modification ordering him to pay
the victim civil indemnity of P50,000 and moral
damages of P50,000.
Costs against accused-appellant.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing,
JJ ., concur.
(People v. Bernaldez, G.R. No. 109780, [August 17,
|||

1998], 355 PHIL 740-758)

[G.R. Nos. 93808-09. April 7, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. BELARMINO DIVINA alias
"Bejar" and MECRITO BAGA y 2. ID.; ID.; WITNESSES; CREDIBILITY; NOT
HIYOG, accused-appellants.
[G.R. No. 94073-74. April 7, 1993.]
BELARMINO DIVINA, petitioner, vs. PEOPLE
OF THE PHILIPPINES and JUDGE
ROSENDO B. BANDAL, JR., Presiding
Judge, Regional Trial Court of Negros
Oriental, Branch 34, respondents.
The Solicitor General for plaintiff-appellee.
Ramon C. Barrameda for accused-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FINDINGS OF
FACT OF TRIAL JUDGE; GENERALLY ACCEPTED.
— On the question of credibility, this Court will not as
a general rule disturb the findings of the trial judge
unless he has plainly overlooked certain facts of
substance and value that, if considered, might affect
the result of the case. The reason is the opportunity
available to the trial court — but not to the appellate
court — to observe the witnesses on the stand and to
assess their credibility not only by the nature of their
testimony but also by their demeanor under
questioning.
IMPAIRED BY FAILURE TO DISCLOSE AT ONCE
THE IDENTITY OF ACCUSED. — The rule is well-
established that the failure to reveal or disclose at
once the identity of the accused does not necessarily
affect much less impair, the credibility of the witness.
The initial reluctance of witnesses to volunteer
information about a criminal case and their
unwillingness to be involved in criminal investigations
due to fear of reprisal is common and has been
judicially declared not to affect credibility. In the case
at bar, it is a fact that one of the accused,
Belarmino Divina, has been the OIC Barangay
Captain of Anhawan since 1986 up to May, 1988. It
cannot be gainsaid that although the incident
happened after his term, having held said position, he
has a strong influence in said place. It was natural for
the victim to fear for his life as explained by him. In
addition thereto, the incident also resulted in the death
of Concepcion Baillo, wife of Ambrocio Baillo and
mother of Jaime and Rogelio Baillo. We have held that
"(a)lthough there is a natural tendency to seek the
ends of justice for the treacherous killing of a dearly
departed, mourning and rites for the dead take priority
as dictated by our culture. Moreover, the injuries
sustained by the victim Jaime Baillo, both physical
and emotional, and the necessary period of
recuperation after his discharge from the hospital are
enough reasons to understand the delay in the filing
of the complaint.
3. CRIMINAL LAW; CONSPIRACY; NOT
ESTABLISHED BEYOND REASONABLE DOUBT. —
On the issue of conspiracy, We hold that it was not
established beyond reasonable doubt. Nowhere in the
trial court's decision was there any mention of any act
of the accused that may be construed as an overt act
in the furtherance of conspiracy. Absent such an
evidentiary basis, We cannot accept the finding of
implied conspiracy. We have held that: ". . ., albeit no
formal agreement is necessary to prove conspiracy
and the same way be inferred from the circumstances
attending the commission of the crime, yet conspiracy
must be established by the same quantum of
evidence as any other ingredient of the offense. Such
evidence must show intentional participation in the
transaction with a view to the furtherance of the
common design or purpose. The same degree of
proof necessary to establish the crime is required to
establish a finding of criminal conspiracy, that is, proof
beyond reasonable doubt. It cannot be established by
conjectures but by positive and conclusive evidence.
Since conspiracy must be proved beyond
peradventure of a doubt, it follows that it cannot be
appreciated where the facts can be consistent with the
non-participation of the accused in the fancied cabal."
In the case at bar, no conspiracy may be deduced
where there is no evidence to show the participation
of accused Mecrito Baga in the shooting incident. The
lone eyewitness Jaime Baillo testified that while he
was hiding behind the hagonoy plants, he saw
accused Belarmino Divina holding a gun and together
with Mecrito Baga, approached the lifeless body of his
mother. The mere presence of accused Mecrito Baga
does not prove his participation in the killing. The
mere fact of being with Divina does not of itself
establish conspiracy.
4. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT
PREVAIL OVER POSITIVE IDENTIFICATION OF
ACCUSED. — The well-settled rule is that alibi is one
of the weakest defenses that can be resorted to by an
accused, not only because it is inherently weak and
unreliable but also because of its easy fabrication. We
have repeatedly held that the defense of alibi cannot
prevail over the positive identification of the accused
by witnesses for the prosecution and that to establish
it, the accused must show that he was at some other
place for such a period of time that it was impossible
for him to have been at the place where the crime was
committed at the time of its commission. Record
shows that the victim Jaime Baillo while hiding behind
the hagonoy plant saw accused
Belarmino Divina approach the dead body of his
mother Concepcion Baillo and uttered "PUSIL RAY
TAMBAL SA MGA TESTIGOS SA CONTRA SA
MGA DIVINA" which means "ONLY THE GUN CAN
SILENCE THOSE WITNESSES AGAINST THE
DIVINAS." In addition thereto, accused
Belarmino Divina in his cross examination admitted
that the house of his father-in-law where he was
allegedly drinking tuba with his friends is only about
two and a half (2 1/2) kilometers from where the
victims Concepcion Baillo and Jaime Baillo were shot
at. Hence, it was not physically impossible for
accused Belarmino Divina to be at the place where
the crime was committed. Moreover, although motive
is unnecessary when the assailant has been positively
identified, in this case, accused Belarmino Divina has
the motive to commit the crime charged because the
victim Concepcion Baillo was shown to be a witness
against the former's brothers in another criminal case.
5. ID.; ID.; POLICE BLOTTER; ENTRIES THEREIN
NOT INCLUSIVE. — A police blotter is a book which
records criminal incidents reported to the police.
Entries in official records, as in this case of a police
blotter, are only prima facie evidence of the facts
therein stated. They are not conclusive. It is
undisputed that the alleged time of the commission of
the crime, i.e., 7:40 in the evening of June 17, 1988,
was supplied only by the parish priest Fr. Badoy who
was neither present when the shooting incident
happened nor presented as a witness during the trial.
The information supplied is therefore hearsay and
does not have any probative value.
6. ID.; CRIMINAL PROCEDURE; BAIL; NOT
AVAILABLE TO ACCUSED UNDER
SO ADMINISTRATIVE CIRCULAR NO. 2-92. — With
regards to G.R. Nos. 94073-74, We are constrained
to deny accused Belarmino Divina's petition for
certiorari in line with this Court's Administrative
Circular No. 2-92 dated January 20, 1992 "Re:
Cancellation of Bail Bond of Accused Convicted of
Capital Offense in the Regional Trial Court," pertinent
provisions of which are quoted hereunder: "The basic
governing principle on the right of the accused to bail
is laid down in Section 3 of Rule 114 of the 1985 Rules
on Criminal Procedure, as amended, which provides:
"Sec. 3. Bail, a matter of right; exception. — All
persons in custody shall before final conviction, be
entitled to bail as a matter of right, except those
charged with a capital offense or an offense which,
under the law at the time of its commission and at the
time of the application for bail, is punishable by
reclusion perpetua, when the evidence of guilt is
strong." Pursuant to the aforecited provision, an
accused who is charged with a capital offense or an
offense punishable by reclusion perpetua, shall no
longer be entitled to bail as a matter of right even if he
appeals the case to this Court since his conviction
clearly imports that the evidence of his guilt of the
offense charged is strong." Accused
Belarmino Divina was convicted by the Regional Trial
Court of the crime of murder which is an offense
punishable by reclusion perpetua. Pursuant to
SCAdministrative Circular No. 2-92, he is no longer
entitled to bail even if he appeals to Us since his
conviction clearly imports that the evidence of his guilt
is strong.
DECISION Municipality of Dauin, Province of Negros
Oriental, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, conspiring and
CAMPOS, JR., J : p
confederating together and mutually
In G.R. Nos. 93808-09, accused helping one another, with intent to kill,
evident premeditation and treachery, did
BELARMINO DIVINA alias "Bejar" and MECRITO
then and there willfully, unlawfully and
BAGA y HIYOG appealed from the feloniously attack, assault and shoot
judgment ** rendered by the Regional Trial Court, 7th Concepcion Baillo with the use of a firearm
Judicial Region, Branch 35 of Dumaguete City which said accused were then armed and
convicting both accused for murder and frustrated provided, thereby inflicting upon the body
murder for the death of Concepcion Baillo and the of Concepcion Baillo a gunshot wound at
gunshot wounds sustained by Jaime Baillo. her back which directly caused her death
immediately thereafter.
In G.R. Nos. 94073-74, accused
BELARMINO DIVINA alias "Bejar" filed a petition for
certiorari alleging that the trial court committed grave Contrary to Article 248 of the Revised
abuse of discretion amounting to lack or in excess of Penal Code." 1
jurisdiction for disapproving his property bond
because it consists of unregistered or untitled land.LLphil
The information for Frustrated Murder in Criminal
Case No. 8362 dated September 9, 1988, alleged:
On July 30, 1990, this Court resolved to consolidate
the two abovementioned cases. "That in the evening of June 17, 1988, at
Barangay Malungcay Daku, municipality of
In G.R. Nos. 93808-09, the accused Dauin, Province of Negros Oriental,
BELARMINO DIVINA alias "Bejar" and MECRITO Philippines, and within the jurisdiction of
BAGA y HIYOG were charged with murder and this Honorable Court, the above-named
frustrated murder in the two informations as follows. accused, with evident premeditation and
treachery, and with intent to kill, conspiring
The Information for Murder in Criminal Case No. 8342 and confederating together and acting
dated August 30, 1988, alleged: under the same accord and purpose, did
then and there willfully, unlawfully and
"That on or about the 17th day of June,
feloniously, with the use of a gun, shoot
1988, at Barangay Malungcay Daku,
 one JAIME BAILLO inflicting upon the
latter the following injuries, to wit:
1. Gunshot wound of entrance 0.5-1 cm.
long posterior chest wall lower left
penetrating abdominal cavity with injury to
the liver left lobe thru & thru.
2. Hemoperitoneum approximately 250 cc.
with metallic foreign body at submuscular
area, epigastrium.
3. Retro peritoneal hematoma.
4. Gunshot wound of entrance 0.5 cm. left
buttock upper portion.
5. Gunshot wound of exit left inguinal area.
6. Pneumonia both lower lung fields.
thus the offenders performing all the acts
of execution which would have produced
the crime of MURDER, as a consequence
but which, nevertheless, did not produce it
by reason of causes independent of the will
of the perpetrators, that is, by the timely
medical assistance rendered to the victim
that prevented his death.
Contrary to Article 248 in relation to Article
6 of the Revised Penal Code." 2
On May 18, 1990, the court a quo rendered its
decision convicting both accused for murder and
frustrated murder, the dispositive portion of which
reads:
"WHEREFORE, accused
BELARMINO DIVINA alias "Bejar" and
MECRITO BAGA Y HIYOG are hereby
found guilty beyond reasonable doubt of
the crimes of Murder, qualified by
treachery, in Criminal Case No. 8342 for
the killing of Concepcion Baillo; and for
Frustrated Murder, also qualified by
treachery, in Criminal Case No. 8362, for
the deadly wounds inflicted on Jaime
Baillo, and the Court hereby imposes the
following penalties to wit:
1. For the Murder of
Concepcion Baillo in Criminal Case
No. 8342, accused
Belarmino Divina and co-accused
Mecrito Baga are hereby sentenced
to suffer the imprisonment of
RECLUSION PERPETUA.
Accused shall also jointly and
solidarily indemnify the heirs of the
deceased victim the sum of THIRTY
THOUSAND PESOS (P30,000.00),
and to pay the costs;
2. For the Frustrated Murder
of Jaime Baillo in Criminal Case No.
8362, accused
Belarmino Divina and co-accused
Mecrito Baga are hereby
sentenced, after applying the
Indeterminate Sentence Law, as
amended, to suffer an imprisonment
 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, and to pay the costs.
property bond. On the same date, the trial court in its
Order dated June 29, 1990, directed the said
accused-appellant to put up a titled property as
property bond otherwise, he may put up a surety bond
or a cash bond. 4
LibLex

Accused-appellant's motion for reconsideration of the

Also considering the fact that the two (2)
accused are charged with a capital offense
and taking into account their conviction
today where it can no longer be said that
the evidence against them is not strong,
and considering that the possibility of their
jumping bail and evading arrest is not now
remote, the two accused are likewise
hereby ordered to be detained at the
Negros Oriental Detention and
Rehabilitation Center without prejudice to
their filing an appeal, if so, unless they
could put up an additional bail bond in the
amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00) each.
SO ORDERED." 3
On July 16, 1990, the accused-appellants
Belarmino Divina and Mecrito Baga filed an appeal
with this Court which was docketed as G.R. Nos.
93808-09.
Pursuant to the trial court's decision, accused-
appellant Belarmino Divina on June 29, 1990 filed an
Urgent Ex-parte Motion for Approval Of Bail Bond
before the trial court offering untitled properties as
aforesaid Order was denied. 5
Hence, accused-appellant Belarmino Divina filed with
this Court a petition for certiorari with urgent prayer for
approval of bail bond, docketed as G.R. Nos. 94073-
74.
In G.R. Nos. 93808-09, accused-appellants contend
that the court a quo erred in finding that their guilt has
been proven beyond reasonable doubt and in
convicting them of the crime charged. 6
The prosecution's version, as culled by the Solicitor
General, is as follows:
"In the evening of June 17, 1988 at around
6:30 o'clock in the afternoon, Mr. Ambrocio
Baillo, his thirteen (13) year old son Jaime
Baillo and his wife Concepcion Baillo just
came from the "tabuan" (flea market) at
Barangay Anhawan, Dauin, Negros
Oriental and were heading for home at
Barangay Daku, Dauin, Negros Oriental
(TSN, January 3, 1984, pp. 4-5; TSN, April
10, 1989, pp. 4-5). Just after crossing the
Maayong-tubig river and while walking one
behind the other (Ambrocio, Jaime then
Concepcion) along the trail, suddenly and
without any warning, they were shot from
behind (Ibid.). Concepcion, being hit and
mortally wounded, fell down and cried
"agi!" (Ibid.). Jaime also fell down because
he was hit at the back and at the left hip.
Ambrocio was not hurt. Upon seeing his
wife and son fall, he instructed his son
Jaime to hide as he was going to get a
vehicle (TSN, April 10, 1989, pp. 5-7).
Immediately, Ambrocio ran away and
proceeded directly to their house and told
his other son Rogelio to go and see his
mother and younger brother Jaime who
were shot at Malungcay Daku (Ibid., p. 7).
Then Ambrocio reported the incident to the
police of Dauin and to the parish priest
(Father Badoy) whose truck they used to
return to the place of the incident (Ibid., p.
8). Policemen Ikoy Tubil and Dadoy Elumir
rode on the truck while Ambrocio rode with
June Alta Marino on the latter's motorcycle
(Ibid., p. 9).
Meantime, at the scene of the incident,
Jaime, upon being instructed by his father
Ambrocio, was able to crawl and hide
himself behind a hagonoy plant despite the
wounds he sustained (TSN, January 3,
1989, p. 5). While hiding, two (2) men
whom he recognized as their neighbors -
Belarmino Divina and Mecrito Baga
(accused-appellants) approached the
lifeless body of his mother (Ibid.)
Then Belarmino Divina, with a gun, said in
the dialect: "PUSIL RAY TAMBAL SA MGA
TESTIGOS SA CONTRA SA
MGA DIVINA" which means "ONLY THE
GUN CAN SILENCE THOSE
WITNESSES AGAINST THE DIVINAS".
(Ibid., p. 6). (The records show that victim
Concepcion Baillo was a witness against
the Divinas in another pending case.)
Meanwhile, Rogelio Baillo, after being told
by his father of the incident, immediately
proceeded to Malungcay-Daku, the place
of the incident (TSN, April 10, 1989, p. 33).
Upon arrival, he was told by his brother
Jaime that Belarmino Divina and Mecrito
Baga had approached the dead body of
their mother Concepcion Baillo with
Belarmino holding a gun (Ibid., p. 35).
Rogelio saw wounds at the arms and at the
back of his mother and he was not able to
talk with her anymore (Ibid., pp. 36). He
also observed that Jaime sustained
wounds at his left hip and at the back
(Ibid.).
llcd
Thereafter, at about 10:00 o'clock that
same evening, Ambrocio Baillo arrived
with the truck of Fr. Badoy accompanied by
policemen Ikoy Tubil and Dadoy Elumir
and, Jun Alta Marino, a teacher in
Malungcay Daku. Ambrocio noticed that
his wife Concepcion was already dead
while his son Jaime was alive (Ibid., pp. 9-
 10). Ambrocio further observed that his
wife Concepcion sustained six (6) wounds
at the back and both her arms were
lacerated (Ibid.). His son Jaime also
sustained gunshot wounds at the back and
at the left hip (Ibid.). They then loaded the
dead body of Concepcion on the truck and
brought her to their house while Jaime was
brought to the provincial hospital for
treatment (Ibid.). Jaime was operated
twice. As testified to by the attending
physician, Dr. Nerissa Calumpang, Jaime
could have died were it not for the timely
medical attention (TSN, April 11, 1989, pp.
2-18). Jaime was discharged only after two
(2) weeks of confinement after which, he
temporarily lived with their relatives at
Valencia (a nearby municipality) because
of fear that he might be killed by the
Divinas (TSN, March 29, 1989, p. 18)." 7
Accused-appellants, Belarmino Divina and Mecrito
Baga interpose the defense of denial and alibi.
Accused Belarmino Divina's defense as contained in
his Brief is as follows:
"Accused Belarmino Divina has been
living in his parents-in-law's house at
Anhawan, Dauin, Negros Oriental, since
January, 1984. (TSN, January 13, 1990, p.
2). He was the OIC Barangay Captain of
Anhawan since 1986 up to May, 1988
(ibid., p. 3).
On June 17, 1988, from 7:00 a.m. to 11:00
a.m., he was plowing in his farm, after
which he ate his lunch. At about 3:00 p.m.
of the same day, he went to the "tabu-an",
(a flea market) about 40 meters from his in-
law's house where he met Sabino
Sarense, Dedio Tubil, Porferio Tubil,
Alberto Deloria and Nicolas Sarense. At
about 3:30 p.m., the group, including
accused Divina, played volley-ball. The
group finished playing at about 4:00 p.m.
after which they ate bread. At about 5:30
p.m. accusedDivina invited the group to his
in-law's house where he also lives with his
family, to drink tuba. The group was joined
by Tony Regalado and Lucero Regalado,
accusedDivina's brothers-in-law. They
drank tuba until 7:00 p.m. that night after
which accused Divina with his family,
Dedio Tubil and Porferio Tubil stayed
around to view the TV.
Sabino Sarense, after the group stopped
drinking at 7:00 p.m., left together with his
son Nicolas Sarense and Alberto Deloria.
The rest of their group, Dedio Tubil,
Porferio Tubil and accused Divina with his
family were watching the TV. At about 8:00
p.m., Dedio and Porferio Tubil also left.
Accused Divina came to know of the killing
of Concepcion Baillo the following day,
June 18, 1988. Since that day
accused Divina never heard of the identity
 of the suspect until he was arrested on July
26, 1988, as the suspect himself at about
4:00 p.m., at the Poblacion of Dauin while
waiting for transportation going to
Anhawan where he lives." 8
On the other hand, Mecrito Baga's defense is as
follows:
"Mecrito Baga and Douglas Divina were
plowing the latter's field on June 17, 1988,
starting from 7:00 o'clock in the morning
until 11:00 o'clock that morning and from
2:00 o'clock in the afternoon at 5:00 o'clock
in the afternoon that same day. They
rested for a while in the house of
Douglas Divina and at about 6:00 o'clock
p.m. Mecrito Baga with his mother
Nicolasa Baga joined the Divina family in
praying the Holy Rosary which prayer had
been going on for the last six months. After
the prayer which ended at about 7:00
o'clock in the evening, accused Mecrito
Baga and his mother joined
the Divina family for supper. After supper,
Mecrito Baga joined Guillermo Divina,
Douglas Divina and Restituto Delvo in
drinking tuba. At about 9:00 o'clock in the
evening, Mecrito Baga and his mother left
the residence of DouglasDivina.
Mecrito Baga learned about the killing of
Concepcion Baillo and the wounding of her
son the following day, June 18, 1988, but
he never heard of any suspect, not until
July 25, 1988, when he was arrested by
four policemen in his house." 9
This appeal hinges on the credibility of the lone
eyewitness and victim Jaime Baillo.
On the question of credibility, this Court will not as a
general rule disturb the findings of the trial judge
unless he has plainly overlooked certain facts of
substance and value that, if considered, might affect
the result of the case. The reason is the opportunity
available to the trial court — but not to the appellate
court — to observe the witnesses on the stand and to
assess their credibility not only by the nature of their
testimony but also by their demeanor under
questioning. 10
Accused-appellants allege that the testimony of the
lone eyewitness, Jaime Baillo, is far from credible for
being conflicting, uncorroborated, unreliable and
inconclusive. In support of this contention, accused-
appellants point out that Jaime Baillo upon admission
in the hospital on the night of the incident allegedly
told Dr. Calumpang that he (Jaime) was shot by an
unknown assailant. 11
Dr. Calumpang's testimony on cross examination is
quoted as follows:
"ATTY. BARRAMEDA:
Q And did he tell you who shot him?
 A No. By an unknown assailant.
Q That was what he said?
A Yes, Sir.
Q Unknown assailant?
A Yes, Sir.
Q That is very clear to you that he was shot
by an unknown assailant?
A Witness nodding her head.
Q Please vocalize your answer. Yes, he
said that?
A Yes, your honor.
". . ."." 12 (Emphasis Ours.)
A reading of the above-quoted testimony shows that
the response of the doctor to the question: "Did he tell
you who shot him?" was "No". The phrase "by an
unknown assailant" was merely volunteered by the
doctor which can be taken to mean that the assailant
was unknown to her but not necessarily unknown to
the victim, Jaime Baillo. The succeeding question
propounded by the defense counsel, to wit "That is
very clear to you that he was shot by an unknown
assailant?" calls for a statement of an opinion and not
a statement of fact.
It is the duty of the defense counsel to propound
questions that will not result in two or more
interpretations as what happened in this case. The
resulting inconsistencies were the product of the kind
of questions propounded by defense counsel.
As to the alleged testimony of one Feliciano Parao
given in another criminal case that the victim Jaime
Baillo allegedly told him that it was
Guillermo Divina and DouglasDivina, brothers of
Belarmino Divina, who shot him and his mother, the
said testimony cannot but be considered as hearsay
for Feliciano Parao was not presented as witness
during the trial of this case. His testimony has no
probative value. The trial court was correct in rejecting
said statements.
The defense makes a big issue of the fact that the
prosecution witnesses Ambrocio Baillo, Jaime Baillo
and Rogelio Baillo reported the identities of the
accused only after one month and nine days have
elapsed despite the fact that the accused's identities
were already known to them on the very night of the
incident. 13
The rule is well-established that the failure to reveal or
disclose at once the identity of the accused does not
necessarily affect much less impair, the credibility of
the witness. 14 The initial reluctance of witnesses to
volunteer information about a criminal case and their
unwillingness to be involved in criminal investigations
due to fear of reprisal is common and has been
judicially declared not to affect credibility. 15
In the case at bar, it is a fact that one of the accused,
Belarmino Divina, has been the OIC Barangay
Captain of Anhawan since 1986 up to May, 1988. It
cannot be gainsaid that although the incident
happened after his term, having held said position, he
has a strong influence in said place. It was natural for
the victim to fear for his life as explained by him.
In addition thereto, the incident also resulted in the
death of Concepcion Baillo, wife of Ambrocio Baillo
and mother of Jaime and Rogelio Baillo. We have held
that "(a)lthough there is a natural tendency to seek the
ends of justice for the treacherous killing of a dearly
departed, mourning and rites for the dead take priority
as dictated by our culture. 16
Moreover, the injuries sustained by the victim Jaime
Baillo, both physical and emotional, and the
necessary period of recuperation after his discharge
from the hospital are enough reasons to understand
the delay in the filing of the complaint.
Both accused interposed the defense of alibi and
denial. It is Our view that the trial court was correct in
convicting accused Belarmino Divina on the strength
of the testimony of the lone eyewitness Jaime Baillo
but in the case of the accused Mecrito Baga, We find
the evidence of the prosecution not sufficient to
establish his guilt beyond reasonable doubt. LexLib
On the issue of conspiracy, We hold that it was not
established beyond reasonable doubt. Nowhere in the
trial court's decision was there any mention of any act
of the accused that may be construed as an overt act
in the furtherance of conspiracy. Absent such an
evidentiary basis, We cannot accept the finding of
implied conspiracy.17
We have held that:
". . ., albeit no formal agreement is
necessary to prove conspiracy and the
same way be inferred from the
circumstances attending the commission
of the crime, yet conspiracy must be
established by the same quantum of
evidence as any other ingredient of the
offense. Such evidence must show
intentional participation in the transaction
with a view to the furtherance of the
common design or purpose. The same
degree of proof necessary to establish the
crime is required to establish a finding of
criminal conspiracy, that is, proof beyond
reasonable doubt. It cannot be established
by conjectures but by positive and
conclusive evidence. Since conspiracy
must be proved beyond peradventure of a
doubt, it follows that it cannot be
appreciated where the facts can be
consistent with the non-participation of the
accused in the fancied cabal." 18
In the case at bar, no conspiracy may be deduced
where there is no evidence to show the participation
of accused Mecrito Baga in the shooting incident. The
lone eyewitness Jaime Baillo testified that while he
was hiding behind the hagonoy plants, he saw
accused Belarmino Divina holding a gun and together
with Mecrito Baga, approached the lifeless body of his
mother. The mere presence of accused Mecrito Baga
does not prove his participation in the killing. The
mere fact of being withDivina does not of itself
establish conspiracy. 19
Having found that no conspiracy attended the
commission of the crime and that the prosecution
failed to establish the guilt of accused Mecrito Baga
beyond reasonable doubt, We are constrained to
acquit him of the crime charged.
With regards to accused Belarmino Divina, his
conviction must be sustained.
The well-settled rule is that alibi is one of the weakest
defenses that can be resorted to by an accused, not
only because it is inherently weak and unreliable but
also because of its easy fabrication. We have
repeatedly held that the defense of alibi cannot prevail
over the positive identification of the accused by
witnesses for the prosecution and that to establish it,
the accused must show that he was at some other
place for such a period of time that it was impossible
for him to have been at the place where the crime was
committed at the time of its commission. 20
Record shows that the victim Jaime Baillo while hiding
behind the hagonoy plant saw accused
Belarmino Divina approach the dead body of his
mother Concepcion Baillo and uttered "PUSIL RAY
TAMBAL SA MGA TESTIGOS SA CONTRA SA
MGA DIVINA" which means "ONLY THE GUN CAN
SILENCE THOSE WITNESSES AGAINST THE
DIVINAS."
In addition thereto, accused Belarmino Divina in his
cross examination admitted that the house of his
father-in-law where he was allegedly drinking tuba
with his friends is only about two and a half (2 1/2)
kilometers from where the victims Concepcion Baillo
and Jaime Baillo were shot at. 21 Hence, it was not
physically impossible for accused Belarmino Divina to
be at the place where the crime was committed.
Moreover, although motive is unnecessary when the
assailant has been positively identified, 22 in this case,
accused Belarmino Divina has the motive to commit
the crime charged because the victim Concepcion
Baillo was shown to be a witness against the former's
brothers in another criminal case.
Accused Belarmino Divina argues that as stated in
the police blotter, the shooting incident happened at
around 7:40 o'clock in the evening of June 17, 1988
and not 6:30 o'clock as claimed by the prosecution
witnesses. It was therefore, not possible for the victim
Jaime Baillo to have seen the accused without the aid
of a lighted torch.cdrep
We do not agree. A police blotter is a book which
records criminal incidents reported to the police.
Entries in official records, as in this case of a police
blotter, are onlyprima facie evidence of the facts
therein stated. They are not conclusive. 23 It is
undisputed that the alleged time of the commission of
the crime, i.e., 7:40 in the evening of June 17, 1988,
was supplied only by the parish priest Fr. Badoy who
was neither present when the shooting incident
happened nor presented as a witness during the trial.
The information supplied is therefore hearsay and
does not have any probative value.
With regards to G.R. Nos. 94073-74, We are
constrained to deny accused Belarmino Divina's
petition for certiorari in line with this
Court's Administrative Circular No. 2-92 dated
January 20, 1992 "Re: Cancellation of Bail Bond of
Accused Convicted of Capital Offense in the Regional
Trial Court," pertinent provisions of which are quoted
hereunder:
"The basic governing principle on the right
of the accused to bail is laid down in
Section 3 of Rule 114 of the 1985 Rules on
Criminal Procedure, as amended, which
provides:
"Sec. 3. Bail, a matter of
right; exception. — All persons in
custody shall before final conviction,
be entitled to bail as a matter of
right, except those charged with a
capital offense or an offense which,
under the law at the time of its
commission and at the time of the
application for bail, is punishable by
reclusion perpetua, when the
evidence of guilt is strong."
Pursuant to the aforecited provision, an
accused who is charged with a capital
offense or an offense punishable by
reclusion perpetua, shall no longer be
entitled to bail as a matter of right even if
he appeals the case to this Court since his
conviction clearly imports that the evidence
of his guilt of the offense charged is
strong." (Emphasis Supplied.)
Accused Belarmino Divina was convicted by the
Regional Trial Court of the crime of murder which is
an offense punishable by reclusion perpetua.
Pursuant to SCAdministrative Circular No. 2-92, he is
no longer entitled to bail even if he appeals to Us since
his conviction clearly imports that the evidence of his
guilt is strong.
We therefore find no reason to dwell on the issue
raised in said petition.
WHEREFORE, premises considered, judgment is
hereby rendered ACQUITTING accused MECRITO
BAGA of the crime of Murder in Criminal Case No.
8342 and of Frustrated Murder in Criminal Case No.
8362 for failure of the prosecution to prove his guilt
beyond reasonable doubt. The convictions of accused
BELARMINO DIVINAin Criminal Cases Nos. 8342
and 8362 are AFFIRMED with the modification that he
be ordered to indemnify the heirs of the victim
Concepcion Baillo in the amount of P50,000.00 in
consonance with prevailing jurisprudence.
The petition for certiorari filed by accused
BELARMINO DIVINA is DISMISSED for lack of merit.
SO ORDERED.
(People v. Divina, G.R. Nos. 93808-09, 94073-74,
|||

[April 7, 1993])
[G.R. No. L-48727. September 30, 1982.]
PEOPLE OF THE
PHILIPPINES, plaintiff-
appellee, vs. JOSEPH LEONES y
DUCUSIN alias JESSIE, defendant-
appellant.
The Solicitor General for plaintiff-appellee.
Sta. Maria, Castro & Associates for defendant-
appellant.
SYNOPSIS
Irene, a salesgirl in the store owned by appellant's
parents, accused appellant of having allegedly raped
her one afternoon after he and his sister had forced
her to take three tablets which rendered her semi-
conscious. Charged with rape in the Court of First
Instance, appellant interposed the defense of denial
and alibi. Medical examination conducted on Irene
about two or three hours after the alleged rape
disclosed healing lacerations of the hymen, absence
of sperm cells and unclotted blood at the vaginal
cavity. On the other hand, complainant testified that
on the date of the alleged rape she was having her
menstrual period. The trial court convicted the
appellant of rape. Hence, the present appeal.
The Supreme Court held that the moral certainty or
degree of proof which produces conviction in our
unprejudiced mind has not been established by the
prosecution and the constitutional mandate that the
accused is presumed innocent must prevail.
Judgement REVERSED and appellant is
ACQUITTED.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; PRIMA
FACIE EVIDENCE; ENTRIES IN OFFICIAL
RECORDS. — The written entries in the clinical case
record, Exh. "2", showing the date of her admission In
the hospital on April 22, 1973, her complaint of vaginal
bleeding and the diagnosis of "Healing lacerated wide
at 2 o'clock and 10 o'clock hymen" areprima
facie evidence of the facts therein stated, the said
entries having been made in official records by a
public officer of the Philippines in the performance of
his duty especially enjoined by law, which is that of a
physician in a government hospital (Rule 130, Sec. 38
of the Rules of Court).
2. CRIMINAL LAW; RAPE; WEIGHT OF
UNCORROBORATED TESTIMONY OF INJURED
WOMAN. — Rape is a most detestable crime. It
should be severely and impartially punished. But a
rape charged is easy to make, hard to prove and
harder to defend by the party accused, though
innocent. Experience has shown that unfounded
charges of rape have frequently been preferred by
woman actuated by some sinister, ulterior or
undisclosed motive. Convictions for such crime
should not be sustained without clear and convincing
proof of guilt. On more than one occasion, it has been
pointed out that in crimes against chastity, the
testimony of the injured woman should not be
received with precipitate credulity. When the
conviction depends on any vital point upon her
uncorroborated testimony, it should not be accepted
unless her sincerity and candor are free from
suspicion. A little insight into human nature is of
outmost value in judging matters of this kind (Cornelio
Flores, 26 Phil. 262; Barbo, 56 SCRA 459; Bay, 27
Phil. 495; Pantaleon Ramos, 35 Phil. 671; Fernando
Fausto, 51 Phil. 852, cited in Aquino, The Revised
Penal Code, 1977 Ed., Vol. III, pp. 1679-1680).
DECISION
GUERRERO, J : p
This is an appeal from the decision of the Court of First
Instance of La Union, Branch I, convicting the
accused-appellant, Joseph Leones y Ducusin, of the
crime of rape charged in the following information, to
wit:
"The undersigned offended party after
having been duly sworn to an oath in
accordance with law hereby accuses
JOSEPH LEONES y DUCUSIN alias
Jessie of the crime of RAPE, committed as
follows:
"That on or about the 22nd day of April,
1973, in the Municipality of San Fernando,
Province of La Union, Philippines, and
within the jurisdiction of this Honorable
Court, said accused Joseph Leones y
Ducusin alias Jessie, by means of violence
and use of force compelled the offended
party to swallow tablets and consequently
thereafter while she fell into semi-
consciousness the said accused wilfully,
unlawfully and feloniously have carnal
knowledge of the complainant Irene Dulay
against her will in the house of the
accused.
"CONTRARY TO LAW, with the
aggravating circumstance of abuse of
confidence.
"San Fernando, La Union, May 8, 1973.
(SGD.) IRENE DULAY
Offended Party
WITH MY CONFORMITY:
(SGD.) GAUDENCIO DULAY
(Father of the Offended Party)"
 and sentencing him to suffer the penalty
of reclusion perpetua and to pay the costs.
The facts are narrated in the People's brief as follows:
"Complainant Irene Dulay was a salesgirl
employed in the store of Mr. & Mrs.
Pepito Leones at San Fernando, La Union
where she resided.
"On April 22, 1973, the complainant who
had headache stayed in her room. Earlier
that day, the members of
the Leones family, including the accused-
appellant JosephLeones and his sister
Elizabeth, had gone to nearby beach resort
for a picnic:
"At about past noon the appellant and
Elizabeth returned to their house. While
there, the appellant and Elizabeth entered
the room where complainant was lying
down and forced her to take three tablets
dissolved in a spoon which according to
them were aspirin. The complainant
refused to take the tablets but was forced
to do so when the appellant held her mouth
while his sister pushed the medicine. Then
the appellant and Elizabeth left the room
and after a while the complainant felt dizzy.
"Later, the appellant returned to the
complainant's room and took of her panty.
Then the appellant went on top of her. The
complainant tried to push him but as she
was weak and dizzy, the appellant
succeeded in abusing her (pp. 2-8, 15-16,
tsn, June 27, 1975).
"At about 4:30 P.M. of the same date,
Natividad Leones, the stepmother of the
appellant, found the complainant
unconscious near her room without any
panty on. She was then taken to the La
Union Provincial Hospital by the driver of
the Leones family (pp. 3-5, tsn, June 10,
1976).
"When admitted to the hospital at about
6:00 P.M. of the same date (April 22,
1973), the complainant was
semiconscious, incoherent and hysterical.
She refused to talk and to be examined by
the doctors. She was irritated when
approached by a male figure (Exhibit 'B',
Records, pp. 280-281). The complainant
was first attended to by Dr. Antonino
Estioco who found out that she had vaginal
bleeding (Exhibit '2', Records, p. 786). The
complainant was then referred to Dr. Fe
Cayao who was informed by Dr. Estioco
that she might have been a victim of rape
(p. 28, tsn, May 15, 1974). In the presence
of the complainant's father, Dr. Cayao
examined her on April 26, 1973 after which
she issued a medical certificate with the
following findings:
'1. Presence of erythema of the vestibular
portion of external genitalia;
 '2. Healing lacerations of the hymen at 2
o'clock and 10 o'clock;
'3. Easily admit one finger with pain;
'4. Unclotted blood at the vaginal cavity;
'5. Smear exam for sperm cell-negative;
D'plococci — negative.
Florence test — reagent not
available.'(Exhibit 'A', Records, p. 3),
"Because of the lack of facilities in the
hospital, Dr. Cayao was not able to make
any examination to determine whether
drug was given to the complainant. (pp. 23-
24, tsn, May 15, 1974." 1
The accused-appellant denied the charge imputed to
him, claiming that at the time of the alleged rape
between 2:00 o'clock and 3:00 o'clock p.m. on April
22, 1973, he was at the beach resort with the other
members of the family, namely his sister Elizabeth, his
stepmother Natividad Leones, his younger brothers
and sisters named Marivic, Theresa, Carol, Pinky and
Bongbong together with other companions, for a
picnic and had lunch thereat, swimming and picture-
taking.
As indicated earlier, the trial court, holding that
"viewed from all legal aspects of this case, in the light
of the recorded evidence, . . . is fully convinced that
the crime of rape charged in the criminal complaint
was committed by the accused. The evidence
presented by the prosecution is not only clear and
convincing but has established the guilt of the
accused beyond reasonable doubt."
From this sentence, the accused appeals to Us,
strongly submitting that the trial court erred in finding
him guilty of the crime charged since the evidence
presented against him did not prove his guilt beyond
reasonable doubt. cdrep
At the outset, We note a number of significant facts
from the recorded evidence of the prosecution which
materially and substantially debunks and derails the
theory of the Government and correspondingly
impresses considerable merit to the defense.
1. The clinical case record of Irene Dulay's
admission and confinement at the Provincial
Hospital of La Union, marked Exhibit "2", contain
entries which totally and completely belie the claim
of the complainant that she was raped by the
accused in the afternoon of April 22, 1973. The
same is reproduced hereunder:
"LA UNION PROVINCIAL
HOSPITAL
San Fernando, La Union
CLINICAL CASE RECORD
Fiscal Yr.: 1973 Physician: ________
Adm. No.: 275 Admitted by: Dr.
Estioco
File No. or Rec. No.
________ Approved by: ________
Ped.: City Free: Operation:
Surg: Transient free: _____________________________
Dept. Obs.: Classif. Govt. free; ____________
Med.: Prvt. free: Anesthesia:
EENT: Hosp. pay: _____________________________
C.U. Off. Hosp. pay: ____________
Dental: Off. Prvt. pay: History written by: APPROVED:
Name of Patient: Irene Dulay
Maiden (SGD.) ESTIOCO (unintelligible)
name:___________________ (Resident Physician) Dept. Head"
Residence: San Fernando, La Union
In case of accident or death notify
Natividad Leones, (employer) The entry written in the above clinical record when
Charge Hosp. Acct. Irene Dulay was admitted under the item "Complaints"
to:___________________________ reads: Vaginal Bleeding, and below this entry appears
______ the Diagnosis — Healing lacerated wide at 2 o'clock
Age: 16 yrs. Single: Married; and 10 o'clock hymen. Assuming that the victim was
Widowed: Nationality Fil. raped between 2 and 3 o'clock p.m., April 22, 1973
Admitted: 6:00 P.M. 4-22- (the same day she was admitted in the hospital), then
1973 Assgd PR: I Bed by Dr. the lacerations of the hymen at 2 o'clock and 10
Estioco o'clock would not have been described and indicated
Transf: P.M ____19 ____ to Dept: PR to be Healing in the clinical case record. It would be
Ward #: ____ Bed # ____ described as "laceration fresh" or by similar words like
Complaints: Vaginal bleeding
"bloody or new lacerations." There is no instant
_____________________________
_____________________ formula, technique or process known to medical
Diagnosis in full: science or by human experience to hasten the healing
Healing lacerated wide at 2 o'clock of a lacerated hymen within three (3) hours or so after
and 10 o'clock hymen. defloration.
Results: Rec.: Disposition: Disch:
Citing from the book, Legal Medicine by Pedro P.
Imprv: Disd:
Unimprov: Abcond: 3:45 P.M. Solis, M.D., Ll B., Medico Legal Officer, National
Died: Transf Hosp. 5-12-73 Bureau of Investigation, Department (now Ministry) of
Justice, We have the following comment on: LibLex
 "Healing time of laceration of the
hymen:
Superficial laceration of the hymen may
heal in two or three days.
More extensive tear may require longer
time, usually seven to ten days.
Complicated types and those with
intervening infection may cause delay in
the healing depending upon the extent of
the involvement of the surrounding tissue
and the degree of infection. Complicated
laceration may even require surgical
intervention." (p. 302, italics supplied.)
Since there was found laceration, wide, at 2 o'clock
and 10 o'clock of the hymen which was then already
healing on April 22, 1973, it follows reasonably that
the defloration occurred several days before, which
may have happened when Irene Dulay took a week-
long vacation to her hometown in Pugo, La Union (tsn,
p. 10, June 27, 1975) and there is evidence that she
had a suitor named Ferdinand Sarmiento who is from
nearby Agoo, La Union. And when she returned to the
house of her employer in San Fernando, La Union,
she had already chest and stomach pains and a
headache.
The written entries in the clinical case record, Exh. "2",
showing the date of her admission in the hospital on
April 22, 1973, her complaint of vaginal bleeding and
the diagnosis of "Healing lacerated wide at 2 o'clock
and 10 o'clock hymen" are prima facie evidence of the
facts therein stated, the said entries having been
made in official records by a public officer of the
Philippines in the performance of his duty especially
enjoined by law, which is that of a physician in a
government hospital. (Rule 130, Sec. 38, Rules of
Court). In the case at bar, Dr. Antonino Estioco was
the admitting physician but unfortunately, he was not
presented as a witness for the government.
In connection with Exhibit "2", there is one piece of
damaging evidence which not only derogates the
theory of the prosecution but also cannot be explained
by the government, and that is the frank testimony of
Dr. Fe Cayao herself, thus:
"Q The question is: did you not discover
through reading the clinical history
of the patient that the woman was
not complaining of alleged rape?
A It was not indicated here that she was
complaining of an alleged rape.
Q There was not a single word in the
clinical record of the victim that she
was the victim of an alleged rape, is
that correct?
A Yes." (tsn, pp. 27-28, May 15, 1974)
2. From the same clinical case record, Exhibit "2", it
appears clearly that the alleged victim, Irene Dulay,
was having her menstrual period when she was
supposedly raped for the Complaint indicated that she
had vaginal bleeding. She herself admitted in her
testimony that on April 22, 1973, she was having her
menstruation. (tsn, p. 9, June 27, 1975).
It is quite abnormal and unnatural, almost unheard of
in human experience and behavior that a man would
have sexual intercourse with a woman then having
her menstrual period, as was the admitted condition
of the complainant when she was allegedly abused by
the accused. And because of this universal
abhorrence, taboo and distaste to have sexual contact
with a menstruating female and this is so however
passionate and lustful the man way be unless he is
depraved or demented. We cannot believe that the
accused-appellant, a young fourth year college
student of civil engineering studying in Baguio City,
would break or violate such a taboo by drugging the
complainant girl with the help of her sister and
afterwards have sex relations with her in her
menstrual condition.
3. When the complainant was investigated by the
police, she declared in her affidavit, Exhibit "5", the
following answers to these questions:
"5. Q Why are you in this office?
A I came here with the purpose of giving
my voluntary statement in
connection with the incident that
happened to me in the house of my
employer and I want to file a formal
complaint against the persons who
offended me, sir.
6. Q Who are those persons who offended
you, if you know?
A They are Joseph alias Jessie and
Elizabeth both surnamed Leones,
the son and daughter of Mr.
Pepito Leones, my employer.
7. Q When did that incident happened?
A At about between the hours of 2:00 &
3:00 in the afternoon of April 22,
1973, sir.
8. Q What did these Joseph and
Elizabeth Leones do against you?
A Because I was suffering headache at
that time because it was the first day
of my menstrual period, they were
inviting me to go with them to
Wallace and I told them that I have
a headache then later they forced
me to take in aspirin tablets, three
(3) tablets then after a few seconds,
I begun to feel dizzy and
halfconscious.
9. Q Do you know if what you have forcely
taken and given by the two, Joseph
and Elizabeth were really aspirin
tablets?
 A I do not know, but they were white in
color similar to aspirin tablets but
after I have taken them I felt dizzy
then unconscious.
10. Q In what manner did
Joseph Leones and
Elizabeth Leones force you to take
in the tablets?
A At about that time and date I mentioned
above, I was then lying on my bed
in my room at their residence, then
Jessie and Elizabeth came in.
Joseph alias Jessie took hold of my
throat with one hand and pressed it
hard that I was almost choked up,
his other hand held my both cheeks
his thumb and forefinger pressed
hard to forcely open my mouth while
Elizabeth held a spoon containing
the three (3) tablets then I was told
by them to swallow the pills. I could
not resist so I swallowed the pills
then later I felt dizzy as if the world
was turning around."
Thus, it would appear from the above recorded
evidence that the accused Joseph Leones and his
sister Elizabeth, helped and conspired with each other
in the commission of the crime of rape against the
offended party, an assumption that is hardly
believable for it would lead to the absurd conclusions
that Elizabeth was a principal by cooperation and that
both Joseph and Elizabeth had planned the rape for
they conveniently provided themselves beforehand
with the necessary drug.
It further appears in the record that the Philippine
Constabulary in La Union did not believe the
existence of rape when Felicidad Boado reported the
incident (tsn, p. 25, June 18, 1974), which disbelief
may reasonably be attributed to the unnatural and
unusual version of the complainant that another of her
own sex had conspired and confabulated in the
commission of the alleged defilement. cdrep
4. The complainant, Irene Dulay, had declared in her
affidavit, Exhibit "5", in answer to question No. 9 that
after she had taken the tablets that were white in color
similar to aspirin tablets, she felt dizzy, then
unconscious. In her testimony at the trial, however,
she testified that after she had taken the tablets, she
felt dizzy and felt the removal of her panty and that
when he went on top of her, he inserted his private
parts into her private parts (tsn, pp. 6-7, June 27,
1975), but on cross-examination, she said that she
became unconscious when Joseph Leones was
already on top of her (tsn, p. 22, June 27, 1975). If she
became unconscious when Leoneswas on top of her
and yet she felt pain when he placed his private parts
into hers, then this is incredible for how could she
have known what was done to her and how she felt
when she was already unconscious as admitted by
her.
5. The record is replete with testimonies of the very
witnesses of the prosecution itself revealing the
irrational, if not immoral behavior and conduct of the
complainant which cuts deep into the morality,
character and credibility of the complaining witness.
To cite a few of her immoral acts, when the police
came to visit her, Irene Dulay took hold of the penis,
of the policeman (Testimony of Felicidad Boado, tsn,
p. 20, June 18, 1974). Whenever she sees a man, she
goes after him and takes hold of his hand and places
it in her private part (Testimony of Leonida Dulay, p.
5, tsn, Sept. 20, 1974). Sometimes she is seated,
sometimes she is standing and there are moments
that she goes around and whenever she sees a man,
she calls for him and says "darling Jessie" (Cross-
examination of Leonida Dulay, tsn, p. 14, Sept. 20,
1974). She even said "have sexual intercourse with
me," making particular mention of the person who
wanted to do that to her as Joseph Leones (Cross-
examination of Leonida Dulay, tsn, pp. 27-28, Sept.
20, 1974). There are times when she gets a pillow and
imitates the sexual act (tsn, p. 29, Sept. 20, 1974).
There are moments when she takes hold of a pillow,
embraces it, and makes movements imitating the
sexual act (tsn, Testimony of Leonida Dulay, p. 5,
Sept. 20, 1974).
6. The circumstances of persons, time and place
attendant in the commission of the crime do not build
up the case for the People. On the contrary, We find
facts and circumstances which contradict and
contravene the theory of the prosecution, rendering it
highly improbable and questionable. Thus, the room
of the complainant where the alleged rape was
committed was at the ground floor of the house where
her employer lives with his family and maintains a
canteen at the premises, the room being very near the
washing place and had a door with only wooden
jalousies. There were several persons present in the
house at the time of the alleged rape and they were
Evelyn Estigoy, the secretary of Natividad Leones, the
cook Inocencia Gangad and her daughter, Marites.
With the presence of these persons at the premises
and the complainant's room was not secluded nor
completely closed, the opportunity to commit the rape
is hardly present. More than that the alleged time
being between 2:00 o'clock and 3:00 o'clock in the
afternoon and with the supposed attendance of the
perpetrator's elder sister, Elizabeth the element of
secrecy had been totally ignored or disregarded which
is quite unbelievable and incredible in such a crime as
rape.prcd
Indeed, rape is a most detestable crime. It should be
severely and impartially punished. But a rape charge
is easy to make, hard to prove and harder to defend
by the party accused, though innocent. Experience
has shown that unfounded charges of rape have
frequently been preferred by women actuated of rape
have frequently been preferred by women actuated by
some sinister, ulterior or undisclosed motive.
Convictions for such crime should not be sustained innocent must prevail and, therefore, the accused-
without clear and convincing proof of guilt. On more appellant, Joseph Leones, is entitled to an acquittal.
than one occasion, it has been pointed out that in
WHEREFORE, IN VIEW OF ALL THE FOREGOING,
crimes against chastity, the testimony of the injured
the judgment of conviction is hereby REVERSED and
woman should not be received with precipitate
the accused Joseph Leones y Ducusin is
credulity. When the conviction depends on any vital
ACQUITTED of the crime charged.
point upon her uncorroborated testimony, it should not
be accepted unless her sincerity and candor are free Costs de oficio.
from suspicion. A little insight into human nature is of
SO ORDERED.
utmost value in judging matters of this kind. (Cornelio
Flores, 26 Phil. 262, 268; Ignacio Landicho, 8 ACR (People v. Leones y Ducusin, G.R. No. L-48727,
|||

580 Rafael Lacson, CA 53 O.G. 1823; Francisco [September 30, 1982], 202 PHIL 703-714)
Salvador, CA 52 O.G. 7290; Lago, CA 45 O.G. 1356;
Barbo, 56 SCRA 459; Bay, 27 Phil. 495; Pantaleon
Ramos, 35 Phil. 671; Brocal, CA 36 O.G. 857;
Topacio, CA 36 O.G. 1358; Fernando Fausto, 51 Phil.
852; cited in Aquino, The Revised Penal Code, 1977
Ed., Vol. III, pp. 1679-1680).
After carefully analyzing and weighing the evidence
presented by the prosecution in the light of the legal
principles above outlined and now well-established in
Our jurisprudence and guided by a little insight into
human nature, We are persuaded and convinced that
the guilt of the accused has not been proven beyond
reasonable doubt. That moral certainty or degree of
proof which produces conviction in an unprejudiced
mind (Rule 133, Section 2, Rules of Court) has not
been established by the prosecution. The
constitutional mandate that the accused is presumed
[G.R. No. L-32243. April 15, 1988.]
THE PEOPLE OF THE
PHILIPPINES, plaintiff-
appellee, vs. EUGENIO CRISOSTOMO, ac
cused-appellant.
The Solicitor General for plaintiff-appellee.
Jose Ma. Abola for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; DEATH
CERTIFICATE; PRIMA FACIE EVIDENCE
CAUSE OF DEATH. — In this jurisdiction such death
certificate and notes issued by said municipal health
officer in the regular performance of his duty are prima
facie evidence of the cause of death of the victim.
2. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE;
TREACHERY; CONSTRUED. — There is treachery
when the offender commits any of the crimes against
the person, employing means, method or forms in the
execution thereof which tend directly and specially to
insure its execution, without risk to himself arising
from the defense which the offended party might
make.
3. ID.; ID.; ID.; SUDDENNESS OF ATTACK, NOT
SUFFICIENT; REQUISITES. — The suddenness of
the attack does not, of itself, suffice to support the
findings ofalevosia. There must be evidence that the
mode of attack was consciously adopted by the
appellant to make it impossible or hard for the person
attacked to defend himself or retaliate.
4. ID.; ID.; ID.; ID.; REQUISITE MET IN CASE AT
BAR. — In the present case, the appellant admitted
that he had a previous altercation with the victim
wherein he was hit by the deceased with a bottle
because of certain differences they had in a billiard
hall although he claimed to have resumed friendly
relations with the victim thereafter. Nevertheless, at
the time of the incident, the appellant went through the
motion of inviting the victim to join him in a drinking
spree which the victim declined and then suddenly,
OF
without any ceremony, he shot the victim while his
(the victim's) back was turned. The appellant used a
gun, a lethal weapon to insure his design to kill the
victim. He fired at him at a short distance aiming at a
vital spot of his body. The victim was unarmed. From
the environmental circumstances of the
case, alevosia has been fully established.
5. ID.; ALTERNATIVE CIRCUMSTANCE;
INTOXICATION. — Under Article 15 of the Revised
Penal Code, intoxication of the offender shall be taken
into consideration as a mitigating circumstance when
the offender committed a felony in a state of
intoxication, if the same is not habitual or subsequent
to the plan to commit said felony. Otherwise when
habitual or intentional, it shall be considered as an
aggravating circumstance.
6. ID.; MITIGATING CIRCUMSTANCE;
VOLUNTARY SURRENDER; REQUISITES. — The
requisites of voluntary surrender are: (a) that the of
fender had not actually been arrested; (b) that the
offender surrendered himself to a person in authority
or the latter's agent; and (e) that the surrender was
voluntary.
7. ID.; ID.; VOLUNTARY PLEA OF GUILTY;
REQUISITES. — The requisites of the mitigating
circumstance of voluntary plea of guilty are: (1) that
the offender spontaneously confessed his guilt; (2)
that the confession of guilt was made in open court,
that is, before the competent court that is to try the
case; and (3) that the confession of guilt was made
prior to the presentation of evidence for the
prosecution.
DECISION
GANCAYCO, J : p
On Christmas day, December 25, 1967, between 6:00
and 7:00 o'clock in the evening at Sto. Rosario,
Hagonoy, Bulacan, while Eugenio Crisostomo was
passing near the house of Romeo Geronimo, he met
the latter and invited him to have a drink in the place
of a friend. Romeo declined the offer. Suddenly
Eugenio rushed towards Romeo who was then
standing near a store facing the street with his back
towards Eugenio and shot him with a .22 caliber
revolver at a distance of one (1) meter. The bullet
entered about two (2) inches below the axilia (armpit)
and came out on the right side of the chest about one
(1) inch to the sternum. Romeo fell to the ground
mortally wounded while Eugenio ran away. By-
standers who were near the place such as Delfin
Lopez, Ernesto Trillana, Apolonio Santos and Manuel
Tamayo and others who were all friends of both the
victim and assailant came to the aid of the fallen victim
and brought him to the Reyes Hospital at the
Poblacion of Hagonoy where the doctor pronounced
the victim dead upon arrival. Thus, they brought the
victim's body to his home.
An information for murder was filed by the provincial
fiscal in the Court of First instance (CFI) of Bulacan
against Eugenio Crisostomo charging him of the
crime of murder as follows:
"That on or about the 25th day of
December, 1967, in the municipality of
Hagonoy, province of Bulacan, Philippines,
and within the jurisdiction of this Honorable
Court, the said accused
Eugenio Crisostomo, armed with a firearm
and with intent to kill one Romeo Felipe
Geronimo, did then and there wilfully,
unlawfully and feloniously, with evident
premeditation and treachery, attack,
 assault and shoot the said Romeo Felipe Not satisfied therewith the accused now interposed
Geronimo with the firearms he was then this appeal alleging that the court committed the
provided, hitting the latter on the chest, following assigned errors:
causing serious physical injuries thereon,
which directly caused the death of the said "I
Romeo Felipe Geronimo." THE LOWER COURT ERRED IN
After the arraignment wherein accused entered a plea FINDING THAT DEFENDANT-
of not guilty and again during the trial, the accused APPELLANT HAS ADMITTED HAVING
KILLED ROMEO GERONIMO, INSTEAD
signified his intention to withdraw his plea of not guilty
OF LIMITING ITS FINDING TO THE
to the charge of murder and to substitute it with a plea
TRUE EXTENT OF HIS ADMISSION.
of guilty to a lesser charge of homicide and prayed
that he be allowed to prove the mitigating II
circumstances. The same plea was made by the THE LOWER COURT ERRED IN
accused after the prosecution had rested its case but FINDING THAT THERE IS EVIDENCE
the fiscal did not agree. Thus the court denied the BEYOND REASONABLE DOUBT THAT
petition.
LLphil DEFENDANT-APPELLANT KILLED
ROMEO GERONIMO. INSTEAD OF
A decision was rendered on March 28, 1969 FINDING THAT NO EVIDENCE HAD
convicting the accused of the offense charged, the BEEN PRESENTED AS TO THE ACTUAL
dispositive portion of which reads as follows: CAUSE OF DEATH. THERE HAVING
"IN VIEW OF THE FOREGOING BEEN NO AUTOPSY PERFORMED ON
CONSIDERATIONS, the court finds the THE BODY OF ROMEO GERONIMO.
accused EUGENIO CRISOSTOMO guilty III
beyond reasonable doubt of the crime of
MURDER, punished under Art. 248 of the THE LOWER COURT ERRED IN
Revised Penal Code, without any FINDING THAT DEFENDANT-
modifying circumstance and hereby APPELLANT HAD ACTED WITH
sentences him to Reclusion Perpetua, with TREACHERY.
the accessories of the law; to indemnify the IV
heirs of the deceased in the sum of
TWELVE THOUSAND PESOS THE LOWER COURT ERRED IN NOT
(P12,000.00); and to pay the costs." FINDING THAT DEFENDANT-
 APPELLANT IS ENTITLED TO THE Testifying in his defense the appellant claims that at
MITIGATING CIRCUMSTANCE OF the time of the incident when he saw the victim he
DRUNKENNESS. played a joke on him by drawing his gun from his waist
V and pointing the same to the victim but the gun
suddenly went off, its bullet hitting the victim. Taken
THE LOWER COURT ERRED IN NOT by surprise he fled.cdll

APPRECIATING IN FAVOR OF
APPELLANT THE MITIGATING No doubt from the said version of the appellant he
CIRCUMSTANCE OF VOLUNTARY effectively admitted having shot the victim Romeo
SURRENDER. Geronimo. In fact he fled from the scene of the crime
VI upon realizing the gravity of what he had committed.
It is clear that it was that single shot that felled the
THE LOWER COURT ERRED IN NOT victim which was the immediate cause of his death.
APPRECIATING DEFENDANT-
APPELLANT'S OFFER TO PLEAD Indeed, during the trial and as late as after the
GUILTY TO THE CHARGE OF HOMICIDE prosecution had rested its case, the appellant offered
(THE TRUE CRIME COMMITTED IF ONE to withdraw his plea of not guilty and substitute it with
HAD IN FACT BEEN COMMITTED) AS A a plea of guilty of the lessor offense of homicide but
MITIGATING CIRCUMSTANCE. the prosecution refused to agree with his proposal.
VII Under the second assigned error the appellant claims
THE LOWER COURT ERRED IN NOT that as no autopsy was performed on the body of the
CREDITING DEFENDANT-APPELLANT victim the prosecution has not established the actual
WITH THE PRIVILEGED MITIGATING cause of death of the victim. He contends that the
CIRCUMSTANCE OF PRESENCE OF death certificate of the victim (Exhibit A) to which he
TWO ORDINARY MITIGATING offered no objection is admissible only to establish the
CIRCUMSTANCES WITHOUT THE fact of death not the cause of the death of the victim.
PRESENCE OF ANY AGGRAVATING
He further avers that the testimony of Dr. Juan Santos
CIRCUMSTANCE."
who examined the body of the victim but did not
Under the first assigned error appellant claims that the perform an autopsy shows that he did not qualify as
trial court erred in finding that he admitted having an expert witness; and even if he were an expert
killed the victim. witness there was no basis for him to render an
opinion as to the cause of death of the victim. Further,
appellant alleges that Dr. Santos mentioned two (2)
wounds of different sizes but otherwise with exactly
identical characteristics from which the possibility may
be deduced that the victim may have been shot twice,
the second time by a person other than the appellant.
These arguments are devoid of merit.
Dr. Santos, who was then the municipal health officer
of Hagonoy, Bulacan, categorically testified that the
cause of death of the deceased was a through and
through gunshot wound which was caused by a
bullet. 1 Although he may not be an expert witness, as
a physician and health officer he is certainly qualified
to give an opinion as to the cause of death of the
victim. He externally examined the body of the
deceased on the same night of the incident and found
no other sign of external violence except the gunshot
wound. 2 Under such circumstances, one need not be
an expert to render an opinion that the said gunshot
wound was the cause of death of the victim.
Contrary to the contention of the appellant, Dr. Santos
pointed out the difference between the two (2) wounds
on the body of the victim in that the left axilla wound
was only 2.5 millimeters, while the right chest wound
was 8 millimeters in diameter; that the former was
round while the latter was oval; and that the former
was deep while the latter was shallower. He denied
that the wounds were of identical appearance. 3 Dr.
Santos emphasized that the left axilla wound is the
point of entry of the bullet while the right chest wound
is its point of exit and that the said wounds were
caused by one bullet. The trajectory of the bullet was
from the left axilla to the right chest. 4 The speculation
of the appellant that the victim may have been shot
twice is thus totally without basis.
The death certificate and the notes issued by Dr.
Santos after his external examination of the body of
the victim establish the cause of death of the
deceased contrary to the contention of the
appellant. 5 In this jurisdiction such death certificate
and notes issued by said municipal health officer in
the regular performance of his duty are prima
facie evidence of the cause of death of the victim. 6
Moreover, the said death certificate is not only
confirmed by the testimony of Dr. Santos and by two
(2) eyewitnesses Manuel Tamayo and Delfin Lopez
who stated that they saw the appellant rush at the
victim and suddenly shoot him; that the victim fell
down after he was hit; and that they brought him to the
hospital but the doctor pronounced him dead on
arrival. These two witnesses are mutual friends of
both the deceased and the appellant so that their
testimonies are free from any suspicion of bias or
prejudice.
The appellant assails the findings of the court a
quo that he acted with treachery in the commission of
the offense as a third assigned error. He contends that
while it may be true that he suddenly attacked the
victim, it does not appear that he had consciously
adopted the mode of attack intended to facilitate the
perpetuation of the offense without risk to himself. In
fact appellant claims that he was drunk and as such
he could not have reflected on the special means of
the execution of the act.cdrep
There is treachery when the offender commits any of
the crimes against the person, employing means,
method or forms in the execution thereof which tend
directly and specially to insure its execution, without
risk to himself arising from the defense which the
offended party might make. 7
The suddenness of the attack does not, of itself,
suffice to support the findings of alevosia. 8 There
must be evidence that the mode of attack was
consciously adopted by the appellant to make it
impossible or hard for the person attacked to defend
himself or retaliate. 9
In the present case, the appellant admitted that he
had a previous altercation with the victim wherein he
was hit by the deceased with a bottle because of
certain differences they had in a billiard hall although
he claimed to have resumed friendly relations with the
victim thereafter. 10 Nevertheless, at the time of the
incident, the appellant went through the motion of
inviting the victim to join him in a drinking spree which
the victim declined and then suddenly, without any
ceremony, he shot the victim while his (the victim's)
back was turned. The appellant used a gun, a lethal
weapon to insure his design to kill the victim. He fired
at him at a short distance aiming at a vital spot of his
body. The victim was unarmed. From the
environmental circumstances of the case, alevosia
has been fully established. 11
Under the fourth assigned error appellant alleges that
he is entitled to the mitigating circumstance of
drunkenness. He asserts that he had been drinking
from one o'clock in the afternoon on that Christmas
day and that he had been drunk five (5) times in his
entire life so that it is not habitual.
Under Article 15 of the Revised Penal Code,
intoxication of the offender shall be taken into
consideration as a mitigating circumstance when the
offender committed a felony in a state of intoxication,
if the same is not habitual or subsequent to the plan
to commit said felony. Otherwise when habitual or
intentional, it shall be considered as an aggravating
circumstance.
The allegation of the appellant that he was drunk
when he committed the offense is self-serving and
uncorroborated. Besides, appellant admitted that at
that time he was only dizzy, 12 and that he was on the
way to another drinking spree. Obviously he had not
drunk enough. He remembers the details of the
shooting, the time it started and ended, how much
wine he imbibed and the persons who were with him.
He realized the gravity of the offense he committed so
he fled and hid from the authorities. He sought
sanctuary in the chapel of Sto. Rosario, boarded a
tricycle going to the poblacion and took a La Mallorca
bus to Manila. All these are acts of a man whose
mental capacity has not been impaired.
As the fifth assigned error appellant argues that he
should be credited with the mitigating circumstance of
voluntary surrender stating that although he hid
himself from the authorities for ten (10) days, he
voluntarily surrendered to the authorities thereafter
upon the advice of his parents.
The requisites of voluntary surrender are: (a) that the
of fender had not actually been arrested; (b) that the
offender surrendered himself to a person in authority
or the latter's agent; and (e) that the surrender was
voluntary. 13
The testimony of the appellant is not disputed by the
prosecution that while in hiding, upon the advise of his
parents, he voluntarily surrendered on January 4,
1968, so he was detained in the municipal jail of
Hagonoy. 14 The Court agrees that the appellant is
entitled to this mitigating circumstance. However, he
cannot be credited with the mitigating circumstance of
a plea of guilty to a lesser offense of the charge of
homicide as invoked under the sixth assigned error.
The requisites of the mitigating circumstance of
voluntary plea of guilty are: (1) that the offender
spontaneously confessed his guilt; (2) that the
confession of guilt was made in open court, that is,
before the competent court that is to try the case; and
(3) that the confession of guilt was made prior to the
presentation of evidence for the prosecution. 15
In the present case the appellant offered to enter a
plea of guilty to the lesser offense of homicide only
after some evidence of the prosecution had been
presented. He reiterated his offer after the prosecution
rested its case. This is certainly not mitigating. 16
In the light of the foregoing discussion, the seventh
assigned error where the appellant claims that he
should be entitled to the privileged mitigating
circumstance is consequently without merit.
The offense committed is the crime of murder as the
killing was qualified by treachery. 17 Considering that
the commission of the offense is attended by the
mitigating circumstance of voluntary surrender,
applying the Indeterminate Sentence Law, the
appellant is hereby imposed the indeterminate penalty
of imprisonment of Ten (10) Years and One (1) Day
of prision mayor as minimum, to Seventeen (17)
Years, Four (4) Months, and One (1) Day of reclusion
temporal as maximum. The indemnity for the death of
the victim is increased to P30,000.00. cdll
WHEREFORE, with the above modification as to the
penalty and indemnity, the decision appealed from is
AFFIRMED in all other respects, with costs against
accused-appellant.
SO ORDERED.
[G.R. No. 122954. February 15, 2000.]
NORBERTO FERIA Y
PACQUING, petitioner, vs.
THE COURT OF APPEALS, THE
DIRECTOR OF THE
BUREAU OF CORRECTIONS,
MUNTINLUPA, METRO MANILA (IN
PLACE OF THE JAIL
WARDEN OF THE MANILA CITY
JAIL), THE PRESIDING
JUDGE OF BRANCH II, REGIONAL
TRIAL COURT OF MANILA, and THE
CITY PROSECUTOR,
CITY OF MANILA, respondents.
Legaspi & Associates for petitioner.
The Solicitor General for respondents.
SYNOPSIS
Petitioner Feria had been under detention by
reason of his conviction of the crime of Robbery with
Homicide for the hold-up and killing of a United States
Peace Corps Volunteer. He sought to be transferred
from the Manila City Jail to the Bureau of Corrections
in Muntinlupa City after having been detained for
about twelve years. However, the transfer could not
be effected without submitting some requirements,
which led to discovering that the entire records of his
case, including the copy ofthe judgment, were
missing. Petitioner thus filed a Petition for the
Issuance of a Writ of Habeas Corpus with the
Supreme Court praying for his discharge from
confinement on the ground that his continued
detention without a valid judgment was illegal and
violative of his constitutional right to due process.
The Court ordered the lower court to conduct proper
hearings on the case. After hearing, the Regional
Trial Court of Manila dismissed the case stating that
mere loss of the records does not invalidate the
judgment nor authorize the release of the prisoner.
The proper remedy would be reconstitution of the
records, which should be filed with the courtthat
rendered the decision. Petitioner appealed before
the Court of Appeals, which affirmed the trial court's
decision. The Court of Appeals modified the
order of the trial court by ordering the transfer of the
petitioner to the Bureau of Corrections in Muntinlupa
City without submission of the requirements. The
motion for reconsideration having been denied,
petitioner went to the Supreme Court on certiorari.
Based on the records and the hearing conducted by
the trial court, there was sufficient evidence on record
to establish the fact of conviction of petitioner which
serve as the legal basis for his detention. The records
were lost after petitioner was already convicted by the
trial court of the offense charged. Further, the same
incident which gave rise to the filing of the information
for Robbery with Homicide also gave rise to another
case for Illegal Possession of Firearm, the
records of which could beof assistance in the
reconstitution of the case. This petition was denied
and the decision of the Court of Appeals was
affirmed.
SYLLABUS
1. REMEDIAL LAW; SPECIAL
PROCEEDINGS; HABEAS CORPUS; PURPOSE
THEREOF; WHEN NOT AVAILABLE. — The high
prerogative writ of habeas corpus, whose origin is
traced to antiquity, was devised and exists as a
speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient
defense of personal freedom. It secures to a prisoner
the right to have the cause of his detention examined
and determined by a court of justice, and to have the
issue ascertained as to whether he is held under
lawful authority. Consequently, the writ may also be
availed of where, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a
person, (b) the court had no jurisdiction to impose the
sentence, or (c) an excessive penalty has been
imposed, as such sentence is void as to such excess.
. . . In the present case, there is also no showing that
petitioner duly appealed his conviction of the
crimeof Robbery with Homicide, hence for all intents
and purposes, such judgment has already become
final and executory. When a court has
jurisdiction of the offense charged and of the party
who is so charged, its judgment, order, or decree is
not subject to collateral attack by habeas corpus. Put
another way, in order that a judgment may be subject
to collateral attack by habeas corpus, it must be void
for lack of jurisdiction.
2. ID.; EVIDENCE; ADMISSIONS; DECLARATION
AS TO RELEVANT FACT MAY BE GIVEN IN
EVIDENCE AGAINST THE ACCUSED; CASE AT
BAR. — Petitioner's declarations as to a relevant fact
may be given in evidence against him under Section
23 of Rule 130 of the Rules of Court. This rule is
based upon the presumption that no man would
declare anything against himself, unless such
declaration were true, particularly with respect to such
grave matter as his conviction for the
crime of Robbery with Homicide. Further, under
Section 4 of Rule 129, "[a]n admission, verbal or
written, made by a party in the course of the
proceedings in the same case, does not require proof.
The admission may be contradicted only by a showing
that it was made through palpable mistake or that no
such admission was made." Petitioner does not claim
any mistake nor does he deny making such
admissions.
3. ID.; ID.; NEWSPAPER ARTICLES; WHEN
ADMISSIBLE. — Newspaper articles amount to
"hearsay evidence, twice removed" and are therefore
not only inadmissible but without any probative value considered only as a plea of the facts therein set forth,
at all whether objected to or not, unless offered for a and the party claiming the custody must prove such
purpose other than proving the truth of the matter facts." Public respondents having sufficiently shown
asserted. In this case, the news article is admissible good ground for the detention, petitioner's release
only as evidence that such publication does exist with from confinement is not warranted under Section
the tenor of the news therein stated. 4 of Rule 102 of the Rules of Court which provides
that — "Sec. 4 When writ not allowed or discharged
4. ID.; ID.; BURDEN OF PROOF; RESTS UPON THE
authorized. — If it appears that the person alleged to
PETITIONER WHO ATTACKS ILLEGAL
be restrained of his liberty is in the custody of an
RESTRAINT, AS A GENERAL RULE; ABSENCE
officer under process issued by a court or judge or by
THEREOF IN CASE AT BAR. — As a general rule,
virtue of a judgment or order of a court of record, and
the burden of proving illegal restraint by the
that the court or judge has jurisdiction to issue the
respondent rests on the petitioner who attacks such
process, render the judgment, or make the order, the
restraint. In other words, where the return is not
writ shall not be allowed; or if the jurisdiction appears
subject to exception, that is, where it sets forth
after the writ is allowed, the person shall not be
process which on its face shows good ground for the
discharged by reason of any informality or defect in
detention of the prisoner, it is incumbent on petitioner
the process, judgment, or order. Nor shall anything in
to allege and prove new matter that tends to invalidate
this rule be held to authorize the discharge of a
the apparent effect of such process. If the
person charged with or convicted of an offense in the
detention of the prisoner is by reason of lawful public
Philippines, or of a person suffering imprisonment
authority, the return is consideredprima
under lawful judgment." In the case of Gomez vs.
facie evidence of the validity of the restraint and the
Director of Prisons, 77 Phil. 458 (1946), accused was
petitioner has the burden of proof to show that the
convicted by the trial court of the crime of rape, and
restraint is illegal. Thus, Section 13 of Rule 102 of the
was committed to the New Bilibid Prison. Pending
Rules of Court provides: "SEC. 13. When the return
appeal with the Court of Appeals, the records of the
evidence, and when only a plea. — If it appears that
case were, for reasons undisclosed, completely
the prisoner is in custody under a
destroyed or lost. Accused then filed a petition for the
warrant of commitment in pursuance of law, the
issuance of the writ of habeas corpus with the
return shall be considered prima facie evidence of the
Supreme Court. The Courtdenied the petition, ruling
cause of restraint, but if he is restrained of his liberty
thus: "The petition does not make out a case. The
by any alleged private authority, the return shall be
Director of Prisons is holding the prisoner under
process issued by a competent court in
pursuance of a lawful, subsisting judgment. The
prisoner himself admits the legality of his detention.
The mere loss or destruction of the record of the case
does not invalidate the judgment or the commitment,
or authorize the prisoner's release."
5. ID.; COURTS; POWERS AND DUTIES;
RECONSTITUTION OF JUDICIAL RECORDS;
REMEDY AVAILABLE EITHER FOR THE
PROSECUTION OR FOR THE DEFENSE; CASE AT
BAR. — The proper remedy in this case is for either
petitioner or public respondents to initiate the
reconstitution of the judgment of the case under
either Act No. 3110, the general law governing
reconstitution of judicial records, or under the inherent
power of courts to reconstitute at any time the
records of their finished cases in accordance with
Section 5 (h) of Rule 135 of the Rules of Court.
Judicial records are subject to reconstitution without
exception, whether they refer to pending cases or
finished cases. There is no sense in limiting
reconstitution to pending cases; finished cases are
just as important as pending ones, as
evidence of rights and obligations finally adjudicated.
The records were lost after petitioner, by his own
admission, was already convicted by the
trial court of the offense charged. Further, the same
incident which gave rise to the filing of the Information
for Robbery with Homicide also gave rise to another
case for Illegal Possession of Firearms, the
records ofwhich could be of assistance in the
reconstitution of the present case.
DECISION
QUISUMBING, J : p
The mere loss or destruction of the records of a
criminal case subsequent to conviction of the
accused will not render the judgment of conviction
void, nor will it warrant the release of the convict by
virtue of a writ of habeas corpus. The proper remedy
is the reconstitution of judicial records which is as
much a duty of the prosecution as of the defense. LLpr
Subject of this petition for review on certiorari are (1)
the Decision dated April 28, 1995, of the Eighth
Division of the Court of Appeals, which affirmed the
dismissal ofthe petition for habeas corpus filed by
petitioner, and (2) the
Resolution of the Court of Appeals dated December
1, 1995, which denied the Motion for Reconsideration.
As hereafter elucidated, we sustain the
judgment of respondent appellate court.
Based on the available records and the
admissions of the parties, the antecedents of the
present petition are as follows:
Petitioner Norberto Feria y Pacquing has been under
detention since May 21, 1981, up to present 1 by
reason of his conviction of the crime of Robbery with
Homicide, in Criminal Case No. 60677, by the
Regional Trial Court of Manila, Branch 2, for the
jeepney hold-up and killing of United States Peace
Corps Volunteer Margaret Viviene Carmona.
Some twelve (12) years later, or on June 9, 1993,
petitioner sought to be transferred from the Manila
City Jail to the Bureau of Corrections in Muntinlupa
City, 2 but the Jail Warden of the Manila City Jail
informed the Presiding Judge of the RTC-Manila,
Branch 2, that the transfer cannot be effected without
the submission of the requirements, namely, the
Commitment Order or Mittimus, Decision, and
Information. 3 It was then discovered that the entire
records of the case, including the copy ofthe
judgment, were missing. In response to the inquiries
made by counsel of petitioner, both the Office of the
City Prosecutor of Manila and the
Clerk of Court ofRegional Trial Court of Manila,
Branch 2 attested to the fact that the
records of Criminal Case No. 60677 could not be
found in their respective offices. Upon further
inquiries, the entire records appear to have been lost
or destroyed in the fire which occurred at the second
and third floor of the Manila City Hall on November 3,
1986.4
On October 3, 1994, petitioner filed a Petition for the
Issuance of a Writ of Habeas Corpus 5 with the
Supreme Court against the Jail Warden of the Manila
City Jail, the Presiding Judge of Branch 2, Regional
Trial Court of Manila, and the City
Prosecutor of Manila, praying for his discharge from
confinement on the ground that his continued
detention without any valid judgment is illegal and
violative of his constitutional right to due process.
In its Resolution dated October 10, 1994, 6 the
Second Division of this Court resolved —
". . . (a) to ISSUE the Writ of Habeas
Corpus; (b) to ORDER the Executive
Judge of the Regional
Trial Court of Manila to conduct an
immediate RAFFLE of this case among
the incumbent judges thereof; and (c) to
REQUIRE [1] the Judge to whom this case
is raffled to SET the case for HEARING on
Thursday, October 13, 1994 at 8:30 A.M.,
try and decide the same on the merits and
thereafter FURNISH this Court with a
copy of his decision thereon; [2] the
respondents to make a RETURN of the
Writ on or before the close of office hours
on Wednesday, October 12, 1994 and
APPEAR PERSONALLY and PRODUCE
the person of Norberto Feria y Pa[c]quing
on the aforesaid date and time of hearing
to the Judge to whom this case is raffled,
and [3] the Director General, Philippine
National Police, through his duly
authorized representative(s) to SERVE the
Writ and Petition, and make a RETURN
 thereof as provided by law and, I. WHETHER OR NOT, UNDER THE PECULIAR
specifically, his duly authorized CIRCUMSTANCES OF THIS CASE, WHERE THE
representative(s) to APPEAR RECORDS OF CONVICTION WERE LOST, THE
PERSONALLY and ESCORT the PETITIONER'S CONTINUED INCARCERATION IS
person of Norberto Feria y Pa[c]quing at JUSTIFIED UNDER THE LAW.
the aforesaid date and time of hearing."cdll
COROLLARY TO THIS, WHETHER OR
The case was then raffled to Branch 9 of the Regional NOT THE COURT OF APPEALS'
Trial Court of Manila, which on November 15, 1994, RESOLUTION, AFFIRMING THE
after hearing, issued an Order 7 dismissing the case DENIAL OF HEREIN APPELLANT'S
on the ground that the mere loss of the records of the PETITION FOR HABEAS CORPUS IS, IN
case does not invalidate the judgment or commitment CONTEMPLATION OF LAW, A
JUDGMENT OR A SUBSTITUTE
nor authorize the release of the petitioner, and that
JUDGMENT, WHICH CAN BE UTILIZED
the proper remedy would be reconstitution of the AS A SUFFICIENT BASIS FOR HIS
records of the case which should be filed with INCARCERATION.
the court which rendered the decision.
II. WHETHER OR NOT THE
Petitioner duly appealed said Order to RECONSTITUTION OF OFFICIAL RECORDS
the Court of Appeals, which on April 28, 1995, LOST/DESTROYED SHOULD BE INITIATED BY THE
rendered the assailed Decision 8 affirming the GOVERNMENT AND ITS ORGANS, WHO ARE IN
decision of the trial court with the modification that "in CUSTODY OFSUCH, OR BY THE PRISONER, WHOSE
the interest of orderly administration of justice" and LIBERTY IS RESTRAINED.
"under the peculiar facts of the case" petitioner may Petitioner argues that his detention is illegal because
be transferred to the Bureau ofCorrections in there exists no copy of a valid judgment as required
Muntinlupa City without submission of the by Sections 1 and 2 of Rule 120 of the
requirements (Mittimus, Decision and Information) but Rules of Court, 11 and that the evidence considered
without prejudice to the reconstitution of the original by the trial court and Court of Appeals in the habeas
records. corpus proceedings did not establish
The Motion for Reconsideration of the aforesaid the contents of such judgment. Petitioner further
Order having been denied for contends that our ruling
lack of merit, 9 petitioner is now before us in Gunabe v. Director of Prisons, 77 Phil. 993, 995
on certiorari, assigning the following errors oflaw: 10 (1947), that "reconstitution is as much the duty of the
prosecution as of the defense" has been modified or
abandoned in the subsequent
case of Ordoñez v. Director of Prisons, 235 SCRA
152, 155 (1994), wherein we held that "[i]t is not the
fault of the prisoners that the records cannot now be
found. If anyone is to be blamed, it surely cannot be
the prisoners, who were not the custodians of those
records."
In its Comment, 12 the Office of the Solicitor General
contends that the sole inquiry in this habeas
corpus proceeding is whether or not there is legal
basis to detain petitioner. The OSG maintains that
public respondents have more than sufficiently shown
the existence of a legal ground for petitioner's
continued incarceration, viz., his conviction by final
judgment, and under Section 4 of Rule 102 of the
Rules of Court, the discharge of a person suffering
imprisonment under lawful judgment is not authorized.
Petitioner's remedy, therefore, is not a petition
for habeas corpus but a proceeding for the
reconstitution of judicial records.
llcd
The high prerogative writ of habeas corpus, whose
origin is traced to antiquity, was devised and exists as
a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only
sufficient defense of personal freedom. 13 It secures
to a prisoner the right to have the cause of his
detention examined and determined by
a court of justice, and to have the issue ascertained
as to whether he is held under lawful
authority. 14 Consequently, the writ may also be
availed ofwhere, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a
person, (b) the court had no jurisdiction to impose the
sentence, or (c) an excessive penalty has been
imposed, as such sentence is void as to such
excess. 15 Petitioner's claim is anchored on the first
ground considering, as he claims, that his continued
detention, notwithstanding the lack of a
copy of a valid judgment of conviction, is
violative of his constitutional right to due process.
Based on the records and the hearing conducted by
the trial court, there is sufficient evidence on record to
establish the fact of conviction of petitioner which
serves as the legal basis for his detention. Petitioner
made judicial admissions, both verbal and written, that
he was charged with and convicted of the
crime of Robbery with Homicide, and sentenced to
suffer imprisonment "habang buhay".
In its Order dated October 17, 1994, the RTC-Manila,
Branch 9, made the finding that — 16
"During the trial and on manifestation and
arguments made by the accused, his
learned counsel and Solicitor Alexander G.
Gesmundo who appeared for the
respondents, it appears clear and
indubitable that:
 (A) Petitioner had been charged with
Robbery with Homicide in Criminal Case
No. 60677, Illegal Possession of Firearm
in Criminal Case No. 60678 and Robbery
in Band in Criminal Case No. 60867 . . . In
Criminal Case No. 60677 (Robbery with
Homicide) the accused admitted in
open Court that a decision was read to him
in openCourt by a personnel of the
respondent Court (RTC Branch II)
sentencing him to Life Imprisonment
(Habang buhay) . . ." (italics supplied)
prcd
Further, in the Urgent Motion for the
Issuance of Commitment Order of the Above Entitled
Criminal Case dated June 8, 1993, 17 petitioner
himself stated that —
"COMES NOW, the undersigned accused
in the above entitled criminal case and unto
this Honorable Court most respectfully
move:
1. That in 1981 the accused was
charge of (sic) Robbery with Homicide;
2. That after four years of trial,
the court found the accused guilty and
given a Life Sentence in a promulgation
handed down in 1985; (italics supplied)
3. That after the sentence was
promulgated, the Presiding Judge told the
councel (sic) that accused has the right to
appeal the decision;
4. That whether the de officio counsel
appealed the decision is beyond the
accused comprehension (sic) because the
last time he saw the counsel was when the
decision was promulgated.
5. That everytime there is
change of Warden at the Manila City Jail
attempts were made to get the
Commitment Order so that transfer of the
accused to the Bureau of Corrections can
be affected, but all in vain;"
Petitioner's declarations as to a relevant fact may be
given in evidence against him under Section
23 of Rule 130 of the Rules of Court. This rule is
based upon the presumption that no man would
declare anything against himself, unless such
declaration were true, 18 particularly with respect to
such grave matter as his conviction for the
crime of Robbery with Homicide. Further, under
Section 4 of Rule 129, "[a]n admission, verbal or
written, made by a party in the course of the
proceedings in the same case, does not require proof.
The admission may be contradicted only by a showing
that it was made through palpable mistake or that no
such admission was made." Petitioner does not claim
any mistake nor does he deny making such
admissions.
The records also contain a certified true copy of the
Monthly Report dated January 1985 19 of then Judge
Rosalio A. De Leon, attesting to the fact that petitioner
was convicted of the crime of Robbery with Homicide
on January 11, 1985. Such Monthly Report
constitutes an entry in official records under Section
44 of Rule 130 of the Revised Rules on Evidence,
which is prima facie evidence of facts therein
stated. cdtai
Public respondents likewise presented a certified true
copy of People's Journal dated January 18, 1985,
page 2, 20 issued by the National Library, containing a
short news article that petitioner was convicted of the
crime of Robbery with Homicide and was sentenced
to "life imprisonment." However, newspaper articles
amount to "hearsay evidence, twice removed" 21 and
are therefore not only inadmissible but without any
probative value at all whether objected to or
not, 22 unless offered for a purpose other than proving
the truth of the matter asserted. In this case, the news
article is admissible only as evidence that such
publication does exist with the tenorof the news
therein stated.
As a general rule, the burden of proving illegal
restraint by the respondent rests on the petitioner who
attacks such restraint. In other words, where the
return is not subject to exception, that is, where it sets
forth process which on its face shows good ground for
the detention of the prisoner, it is incumbent on
petitioner to allege and prove new matter that tends to
invalidate the apparent effect of such process. 23 If
the detention of the prisoner is by reason of lawful
public authority, the return is considered prima
facie evidence of the validity of the restraint and the
petitioner has the burden of proof to show that the
restraint is illegal. Thus, Section 13 of Rule 102 of the
Rules of Court provides:
"SECTION 13. When the return evidence,
and when only a plea. — If it appears that
the prisoner is in custody under a
warrant of commitment in
pursuance of law, the return shall be
considered prima facie evidence of the
cause of restraint, but if he is
restrained of his liberty by any alleged
private authority, the return shall be
considered only as a plea of the facts
therein set forth, and the party claiming the
custody must prove such facts."
Public respondents having sufficiently shown good
ground for the detention, petitioner's release from
confinement is not warranted under Section 4 of Rule
102 of the Rules of Court which provides that —
"SECTION 4. When writ not allowed or
discharge authorized. — If it appears that
the person alleged to be restrained of his
liberty is in the custody of an officer under
process issued by a court or judge or by
virtue of a judgment or
order of a court of record, and that
the court or judge had jurisdiction to issue
the process, render the judgment, or make
the order, the writ shall not be allowed; or
 if the jurisdiction appears after the writ is
allowed, the person shall not be
discharged by reason of any informality or
defect in the process, judgment, or order.
Nor shall anything in this rule be held to
authorize the discharge of a person
charged with or convicted of an offense in
the Philippines, or of a person suffering
imprisonment under lawful judgment."
In the case of Gomez v. Director of Prisons, 77 Phil.
458 (1946), accused was convicted by the
trial court of the crime of rape, and was committed to
the New Bilibid Prison. Pending appeal with
the Court of Appeals, the records of the case were,
for reasons undisclosed, completely destroyed or lost.
Accused then filed a petition for the issuance of the
writ of habeas corpus with the Supreme Court.
The Court denied the petition, ruling thus:
"The petition does not make out a case.
The Director of Prisons is holding the
prisoner under process issued by a
competent court in pursuance of a lawful,
subsisting judgment. The prisoner himself
admits the legality of his detention. The
mere loss or destruction of the
record of the case does not invalidate the
judgment or the commitment, or authorize
the prisoner's release." prcd
Note further that, in the present case, there is also no
showing that petitioner duly appealed his
conviction of the crime of Robbery with Homicide,
hence for all intents and purposes, such judgment has
already become final and executory. When
a court has jurisdiction of the offense charged
and of the party who is so charged, its judgment,
order, or decree is not subject to collateral attack
by habeas corpus. 24 Put another way, in order that a
judgment may be subject to collateral attack
byhabeas corpus, it must be void for
lack of jurisdiction. 25 Thus, petitioner's
invocation of our ruling
in Reyes v. Director of Prisons, supra, is misplaced.
In the Reyes case, we granted the writ and ordered
the release of the prisoner on the ground that "[i]t
does not appear that the prisoner has been sentenced
by any tribunal duly established by a competent
authority during the enemy occupation" and not
because there were no copies of the decision and
information. Here, a copy of the mittimus is available.
And, indeed, petitioner does not raise any
jurisdictional issue.
The proper remedy in this case is for either petitioner
or public respondents to initiate the
reconstitution of the judgment of the case under
either Act No. 3110, 26 the general law governing
reconstitution of judicial records, or under the inherent
power of courts to reconstitute at any time the
records of their finished cases in accordance
with Section 5 (h) of Rule 135 of the
Rules of Court. 27 Judicial records are subject to
reconstitution without exception, whether they refer to
pending cases or finished cases. 28 There is no sense SO ORDERED.
in limiting reconstitution to pending cases; finished
(Feria y Pacquing v. Court of Appeals, G.R. No.
|||
cases are just as important as pending ones, as
evidence of rights and obligations finally 122954, [February 15, 2000], 382 PHIL 412-426)
adjudicated. 29
Petitioner belabors the fact that no initiative was taken
by the Government to reconstitute the missing
records of the trial court. We reiterate, however, that
"reconstitution is as much the duty of the prosecution
as of the defense." 30 Petitioner's
invocation of Ordoñez v. Director of Prisons, 235
SCRA 152 (1994), is misplaced since the grant of the
petition for habeas corpus therein was premised on
the loss of records prior to the filing of Informations
against the prisoners, and therefore "[t]he government
has failed to show that their continued detention is
supported by a valid conviction or by the
pendency of charges against them or by any
legitimate cause whatsoever." In this case, the
records were lost after petitioner, by his own
admission, was already convicted by the
trial court of the offense charged. Further, the same
incident which gave rise to the filing of the Information
for Robbery with Homicide also gave rise to another
case for Illegal Possession of Firearm, 31 the
records of which could be of assistance in the
reconstitution of the present case.
WHEREFORE, the petition is DENIED for
lack of merit, and the
decision of the Court of Appeals is AFFIRMED. prcd
[G.R. No. 66020. June 22, 1992.]
FLAVIO DE LEON,
GREGORIO DE LEON and
APOLONIO
SANTOS, petitioners, vs. THE PEOPL
E OF THE PHILIPPINES, and
INTERMEDIATE APPELLATE
COURT, respondents.
Casiano L. Sta. Agueda for petitioners.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF
WITNESSES; FACTUAL FINDINGS OF COURT OF
APPEALS; RULE AND EXCEPTIONS. — It is a well-
settled rule that findings of fact of the Court of Appeals
are conclusive and binding on the Supreme Court
(Fernan v. Court of Appeals, 181 SCRA 546
[1990]; De Ocsio v. Court of Appeals, 170 SCRA 729
[1989]) save only in certain instances, among them:
1) When the conclusion is a finding grounded entirely
on speculation, surmises or conjectures; 2) when the
inference made is manifestly absurd, mistaken or
impossible; and 3) when the judgment is premised on
a misapprehension of facts (Dichosov. Court of
Appeals, 192 SCRA 169, [1990]).
2. ID.; ID.; ID.; ALLEGATIONS OF PROSECUTION
WITNESSES, GIVEN MORE CREDENCE. — After a
perusal of the testimonies of Reyes and Quinto, this
Court concludes otherwise. The narrations are
straightforward and consistent. Petitioners' insistence
as to the improbability and incredibility of Reyes' and
Quinto's testimonies is misplaced. There is nothing
incredible in Reyes' capacity to observe an incident at
a distance of about ten (10) meters. There is no
showing that Reyes suffers from any infirmity that
would impair his vision. Isidro Ramos' testimony as to
the impossibility for any person in Reyes' location to
witness the alleged incident due to the fence which
obstructs the view could not be given much credence.
In the first place, Ramos cannot be altogether
regarded as a disinterested witness inasmuch as he
is the brother-in-law of Flavio de Leon's wife.
Secondly, as between the statement of Reyes on his
actual experience and the answer of Ramos to a
hypothetical question, the former should definitely be
given more weight inasmuch as it pertains to the
specific incident in question while the latter is a mere
generalization expressed by someone who even
denied his presence at the scene of the alleged
incident.
3. ID.; ID.; ID.; IMPAIRED BY MINOR
INCONSISTENCIES. — The Court of Appeals
correctly observed that the inconsistencies and
contradictions in the declarations of Reyes and Quinto
refer only to minor and collateral matters that do not
impair the credibility of the sworn statements and
testimonies. This Court has consistently held that
minor inconsistencies in the testimony of a witness do
not affect his credibility as they refer only to collateral
matters which do not touch upon the commission of
the crime itself (People v. Arbolante, G.R. No. 96713,
October 17, 1991 and other cases cited.)
4. ID.; ID.; ID.; NOT IMPAIRED BY DELAY IN
REPORTING THE INCIDENT. — It is not uncommon
for a witness who is afraid for his life not to report to
the police authorities what he has witnessed. Such
action should not detract from his credibility (People v.
Bustarde, 182 SCRA 554 [1990]; People v.
Coronado, 145 SCRA 250 [1986]), Moreover, both
witnesses explained that the group of men who
accosted the victim included barrio policemen such
that they were uncertain if going to the police was
advisable. Quinto even thought that Aguinaldo was
arrested so he did not find it proper to interfere. The
foregoing reasons sufficiently explain Reyes' and
Quinto's reaction to the incident.
5. ID.; ID.; ID.; WITNESS CANNOT BE IMPEACHED
BY EVIDENCE OF PARTICULAR WRONGFUL ACT
WITHOUT CONVICTION BY FINAL JUDGMENT;
CASE AT BAR. — A witness cannot be impeached by
evidence of particular wrongful acts; there must be a
showing of previous conviction by final judgment such
that not even the existence of a pending information
may be shown to impeach him (People v. Arceo, 187
SCRA 265 [1990]; citing Sec. 15, Rule 132 of the
Rules of Court). In the present case, Reyes and
Quinto are not shown to have been previously
convicted by final judgment. Therefore, the facts
established as to their alleged illicit activities will not
detract from their competence as witnesses.
6. ID.; CRIMINAL PROCEDURE; RIGHTS OF THE
ACCUSED; TESTIMONIES DURING PRELIMINARY
INVESTIGATION TAKEN BY QUESTION AND
ANSWER IN THE PRESENCE OF DEFENDANT OR
HIS ATTORNEY WHO HAS OPPORTUNITY TO
CROSS-EXAMINE WITNESS SHOULD BE
ADMITTED IN EVIDENCE. — The issue as to the
admissibility of the sworn statements and testimonies
of Reyes and Quinto deserves scant consideration at
this stage of the case because this Court had already
put the issue to rest when it denied the petition for
certiorari earlier filed by herein petitioners questioning
the decision of the Court of First Instance to admit the
transcripts in question. By the express provision of
section 1 (f) Rule 115 of the Rules of Court, the
testimonies given by witnesses during the preliminary
investigation of the case on trial should be admitted
into evidence when such testimony was taken by
question and answer in the presence of defendant or
his attorney, and there was an opportunity for the
defendant to cross examine the witness "who is dead
or incapacitated to testify or cannot with due diligence
be found in the Philippines" (People v. Villaluz, 125
SCRA 116 [1983]).
7. ID.; EVIDENCE; ALIBI; NOT GIVEN CREDENCE
WHERE THERE IS PHYSICAL POSSIBILITY OF
COMMISSION THEREOF; CASE AT BAR. —
Gregorio de Leon relied solely on his uncorroborated
testimony which in the light of the direct testimonies of
Reyes and Quinto can only be viewed as self-serving
statements. Apolonio Santos' alibi, on the other hand,
although corroborated by the former barrio captain
and a member of the traffic division of the Parañaque
police force, should likewise fail. It must be noted that
the police blotter of the accident which Santos
allegedly helped bring to the attention of the
authorities does not bear any indication of his
participation therein. Moreover, it is not shown that it
was physically impossible for him to have participated
in the crime considering that the alleged accident
happened in the same small barrio. The foregoing
circumstances strengthen the conclusion that Santos'
testimony cannot prevail over that of Reyes and
Quinto.
8. ID.; ID.; ID.; CANNOT PREVAIL OVER POSITIVE
IDENTIFICATION. — Well-entrenched in our
jurisprudence is the rule that alibi is a considerably
weak defense which cannot prevail over the positive
identification of the accused (People v. Bugho, G.R.
No. 91849, September 30, 1991; People v. Camarao,
188 SCRA 671 [1990], People v. Repe, 175 SCRA
422 [1989]; People v. Khan, 161 SCRA 406 [1988]).
9. ID.; ID.; GUILT BEYOND REASONABLE DOUBT;
CONVICTION MAY BE BASED ON
CIRCUMSTANTIAL EVIDENCE. — Although the
positive identification made by the key witnesses is
not on the actual killing of the deceased, all the
circumstances testified to are sufficient to convince
this Court that the petitioners are the authors of the
act charged. It is not only by direct evidence upon
which the guilt may be predicated (People v.
Cagadas, 193 SCRA 216 [1991]). The accused may
be convicted on circumstantial evidence (People v.
Torre, 184 SCRA 525 [1990]).
10. CRIMINAL LAW; INDETERMINATE SENTENCE
LAW; PENALTY IMPOSED BY LAW APPLIED IN
FULL FORCE; PERSONAL CIRCUMSTANCES OF
CONVICTS URGED TO BE GIVEN
CONSIDERATIONS. — This Court would like to
stress that it is aware of the fact that the surviving
petitioners have advanced in age, the act complained
of in the present case having been perpetrated about
twenty years ago. At present, Apolonio Santos would
be in his late seventies while Gregorio de Leon would
be in his late forties. Be that as it may, this Court's
duty to apply the full force of the law shall not be
compromised. However, it is precisely the province of
the indeterminate sentence law to give considerations
to the personal circumstances of each convict. And
after a review of the sentence which the lower court
has imposed, this Court is of the considered opinion
that the minimum and maximum periods imposed are
still applicable. This Court expresses its confidence
that the authorities shall execute this Court's decision
in a manner that shall consider the relative conditions
of each petitioner.
DECISION
GUTIERREZ, JR., J : p had entrances at the back of the deceased.
This is a petition for review seeking the reversal of the
decision of the Intermediate Appellate Court of
Appeals in A.C.-G.R. No. 23524 entitled
Flavio de Leon, et al v.People which affirmed the
decision of the Court of First Instance of Rizal, Branch
XIII convicting the petitioners of the crime of homicide
and sentencing them to suffer the indeterminate
penalty of six (6) 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 and to indemnify the heirs of the victim.
The facts as established by the trial court and adopted
by the Court of Appeals are as follows:
"From the testimony of Dr. Mariano Cueva,
Jr., Medico-legal Officer of the NBI, it was
established that a post-mortem
examination of the body of Benjamin
Aguinaldo was conducted and pictures of
the cadaver were taken (Exhibit A, A-1 to
A-5). As a result of his examination, he
found on the body of the deceased nine (9)
separate and distinct gunshot wounds,
seven (7) of which constituted entrance
and exit wounds; and two (2) entrances
wherein at the end were bullet tracks, two
(2) slugs of which were recovered and
these slugs were found to be of .45 caliber
bullets (Exhibits C and G-1). (pp. 9-18, tsn,
Jan. 9, 1973). Two of the gunshot wounds
There were two (2) fatal wounds, one (1) at
the lower lip which fractured the lower jaw
and one at the back of the body just below
the left shoulder blade which broke a rib,
perforated the left lung and heart. The
approximate distance of the assailant to
the deceased was beyond twenty-four (24)
inches since the entrace (sic) of the bullets
were clean cut (pp. 20-30, tsn, Jan. 30,
1973)
"Mariano Mata, Jr., an NBI Agent,
substantially testified that he received a
sworn complaint from one Teresa
Aguinaldo in connection with the death of
her husband Benjamin Aguinaldo (Exhibit
D). Their office conducted an investigation
and in the course thereof, they were able
to secure the sworn testimony of three (3)
witnesses, namely, Ricardo Reyes y
Ancheta; Marcelino Quinto, Jr. y Taylo;
and Eduardo Flores y Garcia (pp. 2-48, tsn,
Jan. 11, 1973) From these sworn
statements, they extracted the following:

"Ricardo Reyes pointed to Flavio de Leon,
Gregorio de Leon and Apolonio Santos as
three (3) of the five (5) men who had
forcibly taken Benjamin Aguinaldo in the
evening of March 2, 1970 and that was the
last time Aguinaldo was seen alive (Exhibit
E). Reyes identified the three (3) accused
and was corroborated by Marcelino
Quinto, Jr., who saw the three (3) accused
with Aguinaldo in a jeep which was then
driven by Flavio de Leon (Exhibit G). On
the other hand, Eduardo Flores testified
that in the evening of March 2, 1970, while
inside his house, he heard some
commotion outside but was not able to go
out to inquire about it as his wife prevented
him. The following morning, however, he
learned from Isidro Ramos that Benjamin
Aguinaldo was manhandled by
Flavio de Leon and Gregorio de Leon and
others whom he could not identify (Exh. F).
A rough sketch was prepared wherein
Reyes and Quinto indicated the position of
Aguinaldo who was being forcibly taken by
five (5) men and the relative position of the
jeep driven by Flavio de Leon while in the
vicinity of San Dionisio, Parañaque, Rizal.
The corresponding report on the result of
the investigation and a letter for the
corresponding filing of criminal charges
were sent by the NBI to the Provincial
Fiscal of Rizal (Exhibits H and I).
"Teresita Aguinaldo, wife of the victim,
Benjamin Aguinaldo, testified that on
March 2, 1970, her husband, Benjamin, left
their residence at Zapote, Bacoor, Cavite,
driving a PUJ jeepney owned by Isidro
Ramos plying the Bacoor-Cubao route.
When Benjamin Aguinaldo failed to return
that night, she made inquiries the following
morning as to the whereabouts of her
husband. She went to the house of Ricardo
Reyes at Pulang Lupa, Las Piñas,
Parañaque. She was advised to ask Isidro
Ramos to accompany her to
Flavio de Leon to find out where Benjamin
was taken. Isidro Ramos, however, denied
knowledge about the whereabouts of
Benjamin Aguinaldo Ramos thereafter
accompanied her to see
Flavio de Leon who, however, could not
give any information because he
(Flavio de Leon) was allegedly playing
mahjong on March 2, 1970 (pp. 3-13, tsn,
Feb. 26, 1973). On the way home, a school
boy from Sto. Niño informed her that a
cadaver was found on the garbage
dumping area at Wawa, Sto. Niño. She
immediately proceeded to the Municipal
Hall of Parañaque to verify the information,
but she was informed that the body had
been transferred to Funeraria Popular. She
went to said funeral parlor where she saw
the body of the man burned beyond
recognition. But she recognized the
cadaver as that of her husband who has
small toes on both the right and left feet
which are similar to Benjamin's mother (pp.
16-18, tsn, Feb. 26, 1973).
"In connection with the investigation of
both Reyes and Quinto before then
Assistant Fiscal Luis Victor, she was able
to secure the stenographic transcript of
said preliminary investigation and that both
Reyes and Quinto are now deceased.
"Aquilina Quinto testified that the last time
she saw her son Marcelino Quinto, Jr., was
on April 14, 1971, when he left for work.
Two (2) days thereafter, several men,
some of whom were in PC uniforms, told
her that her son just died. They could not
tell the cause of her son's death (pp. 209,
tsn, July 3, 1973).
"Anita Reyes testified that Benjamin
Aguinaldo is the compadre of her late
husband Ricardo Reyes. After the burial of
Benjamin Aguinaldo, the mother of
Benjamin went to their house at San
Dionisio, Parañaque, to request her
husband to testify about the death of
Benjamin. Her husband agreed to do so.
Later, a group of men, some of whom were
in PC uniforms, attempted to take her
husband Ricardo from their house, but she
vehemently refused to let go of Ricardo.
The following morning, she reported the
incident to Mrs. Rosalinda Aguinaldo, who
thereafter, provided them a place at 57
Araneta Avenue, Quezon City to live in.
Marcelino Quinto, Jr. never stayed at their
place, but he only went there whenever an
investigation was to be conducted by
Fiscal Victor. There was also another
occasion when a group of men claiming to
be CIS agents had a talk with her husband
Ricardo who later recounted to her that the
group of men had told him to desist from
testifying in favor of Mrs. Aguinaldo. It was
sometime thereafter when she was
informed by the Bacoor Police that her
husband was shot and killed at Bacoor.
Her husband was identified thru his driver's
license (pp. 4-17, tsn, May 9, 1973). Her
husband, Ricardo, was once confined at
the Bulacan Provincial Jail at Malolos for
involvement in a hold-up. Her husband's
real name was Reynaldo but he was later
baptized as Ricardo. (pp. 29-30, tsn, May
9, 1973)
"Angeles Vicencio testified that he is the
stenographer who took down the
stenographic notes of the preliminary
investigation conducted before Fiscal Luis
Victor under IS No. 70-1193, entitled
'Rosalinda Panganiban vs.
Flavio de Leon, et. al.' In this preliminary
investigation, Ricardo Reyes and
Marcelino Quinto, Jr., testified under oath
regarding the circumstances under which
they saw Benjamin Aguinaldo in the
company of the three (3) accused and with
two (2) other unidentified persons. These
two (2) prosecution witnesses were cross-
examined by counsel for all the accused.
There were six (6) sessions in this
preliminary investigation, namely, on May
7, 14, 20, and June 9, 24 and July 27,
1970, the transcripts of which were
secured by both complainant and
respondents (Exhibit L, L-1 to L-6; pp. 18-
28, tsn, Aug. 15, 1973).
"Isidro Ramos testified that he is a jeepney
operator and employer of the late
Benjamin Aguinaldo. He had no
knowledge about the abduction and killing
of Benjamin Aguinaldo. He saw Benjamin
Aguinaldo in the evening of March 2, 1970
when the latter came to remit the day's
boundary and to return the radio and
jeepney. After Benjamin left, he (Isidro
Ramos) went to sleep. He described his
house and garage. The walls of his house
fronting Daanan Street consist of eight (8)
layers of hollow blocks, and the front has a
steel gate. On the eastern side, is a wall
consisting of eight (8) layers of hollow
blocks. The fence of the garage is lower
than the jeepney, but the roof of the
jeepney could be seen outside. If one is
outside, however, he will not see
the people inside the jeepney as only the
roof could be seen.
"Rosalinda Aguinaldo testified that she is
the mother of the late Benjamin Aguinaldo
who was found dead in the garbage
dumping area in Wawa, Sto. Niño,
Parañaque. Ricardo Reyes and his family
stayed at their residence at Araneta
Avenue, Quezon City, for several months
because of the threats on Reyes' life as a
result of his testifying against the accused
in this case. During this period when Reyes
was staying with her, there were two (2)
occasions when a group of men came to
her house to inquire about the
whereabouts of Reyes (pp. 1-11, tsn, June
25, 1973).
"From the transcripts of stenographic notes
of the proceedings at the preliminary
investigation (Exhibits L, L-1 to L-6), the
following facts were testified to by Ricardo
Reyes, now deceased:
"At about 6:30 in the afternoon of March 2,
1970, he was with Benjamin Aguinaldo, a
PUJ jeep driver plying the route at
Baclaran. He had known Aguinaldo at that
time for approximately seven (7) months.
On that date, they made several trips, the
first was at Baclaran-Cubao route and
back; the second was in Quiapo (sic) and
then back to Baclaran; the third was to Sta.
Cruz; and the fourth was to Divisoria. By
the time they were back at Baclaran, it was
about quarter to 10:00 P.M. At that time,
Aguinaldo decided to return the jeepney to
its owner, Isidro Ramos at Sto. Niño. When
they were about thirty (30) meters from the
house of Ramos, Aguinaldo gave him
P0.60 to buy one-half (1/2) pack of
cigarettes. He got out of the jeep and went
to two (2) stores, but they were already
closed, so he walked towards the garage.
When he was about twenty (20) meters
away, he saw five (5) men in a jeep
approach Aguinaldo who had parked his
jeep. He moved closer and sought cover
on the fence of a house Just across the
house of Ramos about ten (10) meters
away. Four (4) men surrounded the
jeepney where Aguinaldo was and
Gregorio de Leon hit Aguinaldo with the
butt of a .45 caliber pistol. When Aguinaldo
protested, Gregorio hit him again.
Thereafter, Isidro Ramos and his wife
came out of the house and decided to
interfere, but were unable to do anything.
Apolonio Santos, a Barrio Policeman,
boarded the jeepney and helped push
Aguinaldo out of the vehicle. Aguinaldo
was dragged by Gregorio de Leon and two
(2) other men towards the other jeep where
Flavio de Leon was waiting. Apolonio
Santos at that time was holding a revolver.
Aguinaldo was placed in between the two
(2) men at the back seat with Apolonio
Santos seated beside him. Gregorio sat
beside Santos. Flavio then started the
engine and passed the portion of the road
he was hidden (sic) proceeding towards
the dumping area. He witnessed the
incident because the fence along the side
of the house of Ramos is made of hollow
blocks about two (2) and one-half (1/2) feet
high on top of it. After a few minutes he left
his hiding place and walked along Daan
Ilaya going towards the main road when he
heard five (5) shots in succession coming
from the direction of the dumping area. He
got apprehensive, and hid himself at the
compound of a school which was about
eighty (8) meters away from the dumping
area. After several minutes, he walked
towards the national road where he
boarded a jeepney and went home. He did
not report what he saw because of fear.
The following morning, that is March 3,
1970, Teresita Aguinaldo, wife of Benjamin
Aguinaldo, went to his house accompanied
by a certain Eddie to inquire about her
husband. He advised Teresita to inquire
from Mang Abio (Flavio de Leon) and in
the afternoon of the same day, Teresita
returned to him saying that Mang Abio
denied knowing where her husband was. It
was only at that moment when Teresita
was told of the incident he witnessed the
night before. Flavio de Leon is the father of
Gregorio de Leon.
"Likewise, on the basis of the transcript they were identified respectively as
presented by the prosecution, the following Flavio de Leon, Gregorio de Leon,
facts appear to have been testified to by Apolonio Santos, while the first name of
Marcelino Quinto, Jr., at the preliminary Saro could not be given. He inquired about
investigation: the first names of those people because
he received information that they will
"Sometime on March 2, 1970, he went to
liquidate all witnesses. It was only on
Wawa to look for Efren Zamora who just
March 4, 1970 when he learned that
won in a race bet, but was not able to see
Benjamin Aguinaldo died. On that date
him. That evening, he saw Mang Abio,
when he saw the wife of Benjamin with
Apolonio, Goring and Benjamin Aguinaldo
Eddie Flores waiting for a ride, he
on board a jeep. He was then at that time
approached them and told them of what he
coming out of Wawa proceeding towards
saw in the evening of March 2, 1970. The
Quirino Avenue. He recognized Benjamin
two (2) then invited him to go to the parents
Aguinaldo, so he shouted 'Ben', 'Ben ano
of Benjamin Aguinaldo at Araneta Avenue.
ang nangyayari?' Since the jeep was
Subsequently, on March 16, 1970, he was
moving slowly, it stopped and Goring
informed that he, together with Toring,
alighted from the jeep poking towards him
Fabian, Ricardo Reyes and Boy Bungi and
a .45 caliber pistol with a warning not to
another one were being hunted by Goring
interfere or he might get involved. He was
and Mang Abio. He did not know anyone of
unable to move until the jeep left towards
these peopleexcept Ricardo Reyes.
the direction of the fields (bukid). Although
According to his information, Goring
the jeep had its dim lights on, there was a
planned to liquidate them all. At first, he did
fluorescent lamp in the street and he
not believe the information. But one day,
recognized Benjamin inside the jeep with
he saw Goring riding a blue owner jeep
the accused. He did not report the incident
with two (2) companions. A stout man
to the police because he thought Benjamin
alighted with a carbine, asking for Quinto.
Aguinaldo had committed something
He became frightened, so he went to Sta.
wrong since two (2) barrio policemen were
Rita to hide. When he was told that
on board the jeep with Aguinaldo. At first,
the people looking for him were gone, he
he did not know the first names of Flavio,
proceeded to Cubao to the parents of
Goring and Apolonio and Saro. But in the
Aguinaldo, telling them that he will testify
morning of March 3, 1970, he asked a
as a witness in this case against the
tricycle driver who knew those persons and
 accused. He did not report the incident that
happened to him because the accused
were officers in the company of
policemen." (Rollo, p. 20-28)
The defense's version, on the other hand, as narrated
by the accused and summarized by the lower court is
as follows:
cdrep
"Flavio de Leon, one of the accused,
testified that as far as he can recall, he was
at their home in the evening of March 2,
1970 suffering pain due to stomach ulcer
which had afflicted him since the Japanese
occupation. He was certain that March 2
was a Monday because at that time he was
watching a TV program called 'Tawag ng
Tanghalan' and after the program, he went
to bed and woke up in the morning about
4:00 o'clock. The following day, Teresita
Aguinaldo sought his help informing him
that her husband failed to come home the
night before. He did not know this Teresita
Aguinaldo or her husband Benjamin. But
he assured his visitor that he will assist her
the moment his stomach pain ceased. It
was only after the third (3rd) day that he
was able to leave his house when he went
to see Isidro Ramos whom Teresita
claimed was the owner of the jeep which
her husband Benjamin was driving. It was
then that Ramos informed him that the
body of Benjamin Aguinaldo lay in state at
a funeral parlor in Pasay City. He came to
know of the charge against him when he
received a subpoena from the Fiscal's
Office and the accusation was against him
together with Gregorio de Leon (sic).
Apolonio Santos and two (2) other
unknown persons, charging them for the
killing of Benjamin Aguinaldo on March 2,
1970 at Barrio Sto. Niño, Parañaque, Rizal
(sic).
"He further testified that he came to know
of a person called Benjamin Aguinaldo
only during the preliminary investigation
conducted by Assistant Fiscal Luis Victor.
However, if Benjamin Aguinaldo was a
former driver of his son, Gregorio, he would
personally know Benjamin Aguinaldo. He
had never left his residence in Sto. Niño,
Parañaque, to belie the testimony of the
prosecution witness that he could not be
found thereat. He did not know of the
incident between Gregorio de Leon and
Benjamin Aguinaldo. Ricardo Reyes
implicated him in the preliminary
investigation because of a grudge which
he harbored regarding the refusal of Flavio
to pay the balance of an account for the
recovery of Flavio's jeep. Flavio's jeep was
stolen and Eduardo Flores approached
him with the information that his jeep could
be recovered for P3,000.00. He agreed to
his proposal only if the jeep would be
returned without being cannibalized. The
initial payment of P2,000.00 was paid and
the jeep was returned by Eduardo Flores,
Ricardo Reyes and one Jessie Parañaque
or Marcelino Quinto. Flavio refused to pay
the balance of P1,000.00 when he found
out that some parts of his stolen jeep were
replaced by old and worn out parts. His
refusal to pay the balance made Reyes
angry and even threatened him. Three (3)
days thereafter, Ricardo Reyes returned
not to demand for the balance but to
borrow (dilihensia) some money. Reyes
informed him that the money was
necessary to settle a matter in order to
avoid being suspected as having caused
the death of a friend, Benjamin Aguinaldo.
Flavio learned that the Benjamin referred
to by Ricardo Reyes and the Benjamin
subject of the case referred to one and the
same person. Flavio contends that this
Ricardo Reyes was a bad man, a
holdupper and also suspected as one of
those who stole his jeep. He arrived at this
conclusion on the basis of the information
given by Marcelino Quinto who told him
about this after Ricardo Reyes was found
missing, he had no particular person yet in
mind who had a hand in the theft (sic).
When Aguinaldo was found dead, his jeep
was still missing. It was Marcelino Quinto
who reported to him that Jessie
Parañaque, a certain Ricardo Reyes,
Benjamin Aguinaldo, Toning Parañaque
and many others who took this jeep (sic).
Marcelino Quinto further told him that this
Ricardo Reyes had already killed several
persons. Marcelino Quinto asked for
forgiveness for having testified falsely
against him in the Fiscal's Office. Quinto
promised to retract his testimony given in
the Fiscal's Office. Unfortunately, before
Quinto could make any retraction, he was
arrested by AMCAR and detained at Camp
Crame. Subsequently, he learned that
Marcelino Quinto died.
"Gregorio de Leon in his defense testified
that in the evening of March 2, 1970, he
was taking his supper at his house at Sto.
Niño, Parañaque. He did not go out of his
house since the following day was a
working day. The following morning, he
reported for work. He also reported for
work in the succeeding working days as
shown by his daily time record (Exhibit 16).
At the time, he was working as a market
laborer. He admitted however, that the
person in charge of the daily time record is
the Municipal Health Officer, Dr.
Felimon de Leon, a cousin of his. He never
knew a person by the name of Benjamin
Aguinaldo until he received a subpoena to
appear at the preliminary investigation
(Exhibit 14). Prior to his receipt of the
subpoena, he was never investigated by
any police agency or the NBI in connection
with the death of Benjamin Aguinaldo. At
the preliminary investigation, he learned
for the first time that Benjamin Aguinaldo suspicion that Ricardo Reyes was
was a driver of a jeepney owned by Isidro responsible for the death of Benjamin
Ramos who is his uncle and ninong. The Aguinaldo. Quinto promised to retract what
wife of Isidro Ramos and his mother are he testified to before the Fiscal, but before
sisters. The house of Isidro is located at he could do so, Quinto met his death.
Danganan Street about 200 meters from
"Apolonio Santos, the third accused
his house which is inside an alley. The
testified that in the evening of March 2,
jeepneys of Ramos are usually parked at
1970, at past 7:00 o'clock, he and the
night at the side of Ramos' house. There is
Barrio Captain of Sto. Niño, Gerardo
a fence made of hollow blocks along side
Basilio were patrolling around the barrio
the alley and a person of average height
when they chanced upon a vehicular
cannot see beyond this fence. He
accident. A scooter driven by Eddie Cariño
contended that Ricardo Reyes testified
and a tricycle driven by Sony Ompico,
against him in the preliminary
collided with each other. As barrio
investigation, because he had previously
policeman, he was instructed by their
terminated the services of Reyes in driving
barrio captain to look for Ompico who had
his PUJ jeepney as he was reliably
left the scene of the incident. An hour
informed that his jeepney was being used
thereafter, he was able to locate Ompico
by Reyes in committing hold-ups.
and the two (2) then proceeded to the
Furthermore, upon inquiry with the Pasay
scene of the accident to settle the matter
LTC agency, he found that Ricardo Reyes
since the parties involved came from their
did not have any license. With respect to
barrio. When the parties could not settle,
Marcelino Quinto, he testified that he met
they brought the parties to the Municipal
said person only at the preliminary
Hall of Parañaque accompanied by Pat.
investigation conducted by Fiscal Luis
Prudencio de Leon whom they met on
Victor. When Ricardo Reyes was reported
their way to the Police Station. At about
dead, Marcelino Quinto approached him
10:00 P.M. they reached the Police Station
one evening at the Baclaran market to
and the accident was recorded in the
inform him that since Ricardo Reyes is
Police Blotter. Thereafter, Pat. Balagtas
already dead, he did not fear anybody
brought Cariño to the hospital for treatment
anymore. Quinto informed him that
of his injuries. At about 11:00 that evening,
Ricardo Reyes had forced him to testify
he and Basilio left the Police Station to
against the de Leons and it was his
continue with their patrol. At about 11:30
that same evening, Basilio left him at the
Police Outpost where he stayed up to 5:00
o'clock in the morning of March 3, 1970.
During this time, he did not see nor hear
anything unusual that occurred. As barrio
policeman, he was only armed with a
nightstick, flashlight and whistle. He never
owned a gun. It was only in the evening of
March 3, that he learned about the body of
a man found at the garbage dumping area
at Wawa. Nobody requested him to identify
the body. Their outpost where he was, is
about one (1) and one-half (1/2) kilometers
away from the dumping area. He knew
Flavio and Gregorio de Leon but not too
closely. He knew Isidro Ramos who is the
brother-in-law of Flavio de Leon. The
house of Isidro Ramos is about fifty (50)
meters away from that of Flavio de Leon.
He knew Ricardo Reyes since he
transferred residence to Sto. Niño for the
reason that neighbors had reported that
Ricardo Reyes is engaged in nefarious
activities. He contended that Ricardo
Reyes testified against him because he
had accompanied the AMCAR agents to
the residence of Ricardo's mother located
at Francisco Garcia compound on two (2)
instances, the first was in the evening of
February 15, 1970. On this occasion, he
was then at the outpost when a car with
two (2) men, a woman and a child stopped
in front of him requesting that he
accompany them to the Garcia compound.
He boarded the car and it was then that he
was informed that the persons therein
were agents of the ANCAR and they were
looking for Ricardo Reyes who was
reported to be involved in carnapping and
hold-ups. The woman was reported to be
the wife of Ricardo Reyes. The other
incident was about the end of February,
1970, when he received news from his
barrio mates that Flavio de Leon lost his
jeep. He was, however, unable to verify
this from Flavio because they seldom meet
each other." (Rollo, pp. 28-33)
The lower court, relying primarily on the testimonies
of prosecution witnesses Ricardo Reyes and
Marcelino Quinto, rejected the alibi interposed by the
defense and rendered a decision finding all of the
accused guilty of the crime of homicide. On appeal,
the Intermediate Appellate Court, affirmed the lower
court's decision and subsequently denied the Motion
for Reconsideration filed by the accused. Hence, the
present petition.
cdll
Meanwhile, on July 2, 1988, Flavio de Leon who is
one of the petitioners herein, died. Flavio's death
occurring during the pendency of his appeal, his
criminal as well as civil liability are extinguished
(Article 89 Revised Penal Code; Tangan v. People,
155 SCRA 435 [1987]; People v. Jose, 71 SCRA 273
[1976]. The present petition, then, involves only
Gregorio de Leon and Apolonio Santos.
The petitioners raise the following assignment of
errors:
I AND
"THE RESPONDENT COURT ERRED IN
SUSTAINING THE ADMISSION BY THE
TRIAL COURT OF THE NBI SWORN
STATEMENTS AND PRELIMINARY
INVESTIGATION TESTIMONIES OF
RICARDO REYES AND MARCELINO
QUINTO, JR.
DECLARATIONS OF RICARDO REYES
AND MARCELINO QUINTO, JR. REFER
ONLY TO MINOR AND COLLATERAL
MATTERS AND IN NOT FINDING THAT,
APART FROM SAID INCONSISTENCIES
CONTRADICTIONS BEING
INDICATIVE OF WILLFUL FALSEHOODS
ON THEIR PART, THEIR
DECLARATIONS ARE INHERENTLY
IMPROBABLE AND UNWORTHY OF
CREDENCE AS WELL AS PURELY
SPECULATIVE AND CONJECTURAL.
IV

II "THE RESPONDENT COURT ERRED IN

HOLDING THAT THE TESTIMONIES OF
"EVEN ASSUMING THAT THE RICARDO REYES AND MARCELINO
RESPONDENT COURT DID NOT ERR IN QUINTO, JR. STOOD UNREBUTTED
SUSTAINING THE ADMISSION OF THE AND UNCONTRADICTED.
NBI SWORN STATEMENTS AND
PRELIMINARY INVESTIGATION V
TESTIMONIES OF RICARDO REYES "THE RESPONDENT COURT ERRED IN
AND MARCELINO QUINTO, JR., IT HOLDING THAT THE FACT THAT
ERRED IN ADOPTING THE TRIAL RICARDO REYES WAS A HOLDUPPER
COURT'S FINDING THAT SUCH AND A PERSON OF BAD REPUTE AND
STATEMENTS AND TESTIMONIES THAT MARCELINO QUINTO, JR. HAD
DESERVE TO BE GIVEN CREDENCE AN UNSAVORY REPUTATION DID NOT
AND WEIGHT. DETRACT FROM THE TRUTH OF THEIR
III TESTIMONIES.

"THE RESPONDENT COURT ERRED IN VI

HOLDING THAT THE "THE RESPONDENT COURT ERRED IN
INCONSISTENCIES AND AFFIRMING THE TRIAL COURT'S
CONTRADICTIONS IN THE
 REJECTION OF THE DEFENDANTS-
APPELLANT'S ALIBI.
VII
"THE RESPONDENT COURT ERRED IN
NOT HOLDING THAT THE GUILT OF
THE DEFENDANTS HAS NOT BEEN
PROVED BEYOND REASONABLE
DOUBT.
VIII
"THE RESPONDENT COURT ERRED IN
EVERY MANNER OR RESPECT THAT,
UNDER SETTLED JURISPRUDENCE,
JUSTIFIES REVIEW OF ITS FINDINGS
ON ISSUES OF FACT AND
CREDIBILITY." (ROLLO, p. 165-166)
It is worthy of note that except for the question as to
the admissibility of the sworn statements taken during
the NBI investigation which comprised the direct
testimony of Reyes and Quinto during the preliminary
investigation, as well as the admissibility of the rest of
the testimonies taken during the said proceeding, the
issues raised are factual.
It is a well-settled rule that findings of fact of the Court
of Appeals are conclusive and binding on the
Supreme Court (Fernan v. Court of Appeals, 181
SCRA 546 [1990];De Ocsio v. Court of Appeals, 170
SCRA 729 [1989]) save only in certain instances,
among them:
1) When the conclusion is a finding grounded entirely
on speculation, surmises or conjectures; 2) when the
inference made is manifestly absurd, mistaken or
impossible; and 3) when the judgment is premised on
a misapprehension of facts (Dichoso v. Court of
Appeals, 192 SCRA 169, [1990]).
After a very thorough review of the records, we find
that no circumstance exists to warrant a deviation
from the general rule enunciated above as to the
conclusiveness of the factual findings of the Court of
Appeals. cdphil
The petitioners admit that the contradictory and
inconsistent statements attributed to Reyes and
Quinto have no direct bearing on the commission of
the crime. They argue, however, that the manner by
and the occasion in which the contradictory
statements were uttered (Reyes' statements
regarding his age, place of birth, educational
attainment, relationship with the victim and
incarceration at the Bulacan provincial jail; Quinto's
statements regarding his previous criminal charges)
are such that they indicate the patent propensity on
the part of these claimed eyewitnesses to wilfully
falsify, prevaricate and perjure.
After a perusal of the testimonies of Reyes and
Quinto, this Court concludes otherwise. The
narrations are straightforward and consistent.
Petitioners' insistence as to the improbability and
incredibility of Reyes' and Quinto's testimonies is
misplaced. There is nothing incredible in Reyes'
capacity to observe an incident at a distance of about
ten (10) meters. There is no showing that Reyes
suffers from any infirmity that would impair his vision.
Isidro Ramos' testimony as to the impossibility for any
person in Reyes' location to witness the alleged
incident due to the fence which obstructs the view
could not be given much credence. In the first place,
Ramos cannot be altogether regarded as a
disinterested witness inasmuch as he is the brother-
in-law of Flavio de Leon's wife. Secondly, as between
the statement of Reyes on his actual experience and
the answer of Ramos to a hypothetical question, the
former should definitely be given more weight
inasmuch as it pertains to the specific incident in
question while the latter is a mere generalization
expressed by someone who even denied his
presence at the scene of the alleged incident.
The petitioners, then, question Reyes' testimony
regarding the victim being whipped on the head with
a pistol. They stress the fact that in the certificate of
post-mortem examination, there is no indication that
the victim suffered from any wound or trauma on the
head and face area. Such discrepancy could be
explained by the fact that the victim's face and other
parts of his body were burned which indicates a plan
to make identification impossible. A complete
examination, then, of the corpse of the victim is
extremely difficult.
At any rate, the Court of Appeals correctly observed
that the inconsistencies and contradictions in the
declarations of Reyes and Quinto refer only to minor
and collateral matters that do not impair the credibility
of the sworn statements and testimonies. This Court
has consistently held that minor inconsistencies in the
testimony of a witness do not affect his credibility as
they refer only to collateral matters which do not touch
upon the commission of the crime itself (People v.
Arbolante, G.R. No. 96713, October 17,
1991; People v. Velasco, 175 SCRA 442
[1989]; People v. Natipravat, 145 SCRA 483 [1986]).
The petitioners next challenge the fact that Reyes and
Quinto failed to report immediately what they claimed
to have witnessed. According to the petitioners,
Reyes should have called the aid of the barrio
residents so that the victim could be rescued. Such
action would have been too much of a demand on the
witnesses who stated that they were gripped with fear
when they were confronted with the incident. It is not
uncommon for a witness who is afraid for his life not
to report to the police authorities what he has
witnessed. Such action should not detract from his
credibility (People v. Bustarde, 182 SCRA 554
[1990]; People v. Coronado, 145 SCRA 250 [1986]),
Moreover, both witnesses explained that the group of
men who accosted the victim included barrio
policemen such that they were uncertain if going to
the police was advisable. Quinto even thought that
Aguinaldo was arrested so he did not find it proper to
interfere. The foregoing reasons sufficiently explain
Reyes' and Quinto's reaction to the incident.
It is finally suggested by the petitioners that the
testimonies of Reyes and Quinto should be totally
rejected considering the witnesses' questionable
reputation and personal background as evidenced by
the previous criminal charges against them. Reyes
even died in an encounter with the authorities while
Quinto died in the custody of anti-carnapping
(ANCAR) agents at Camp Crame.
A witness cannot be impeached by evidence of
particular wrongful acts; there must be a showing of
previous conviction by final judgment such that not
even the existence of a pending information may be
shown to impeach him (People v. Arceo, 187 SCRA
265 [1990]; citing Sec. 15, Rule 132 of the Rules of
Court). In the present case, Reyes and Quinto are not
shown to have been previously convicted by final
judgment. Therefore, the facts established as to their
alleged illicit activities will not detract from their
competence as witnesses. LLphil
Moreover, as the Appellate Court has correctly
observed:
xxx xxx xxx
"In this particular case, while both Ricardo
Reyes and Marcelino Quinto, Jr. may have
been shown to be persons of questionable
repute and that they may have a hand in
the loss of the jeep of
Flavio de Leon which must have
culminated in the death of Benjamin
Aguinaldo in the evening of March 2, 1970,
this Court cannot close its eyes to the
principle that a person must not take the
law in his hand . . ." (Rollo, p. 43)
The issue as to the admissibility of the sworn
statements and testimonies of Reyes and Quinto
deserves scant consideration at this stage of the case
because this Court had already put the issue to rest
when it denied the petition for certiorari earlier filed by
herein petitioners questioning the decision of the
Court of First Instance to admit the transcripts in
question. By the express provision of Section 1 (f)
Rule 115 of the Rules of Court, the testimonies given
by witnesses during the preliminary investigation of
the case on trial should be admitted into evidence
when such testimony was taken by question and
answer in the presence of defendant or his attorney,
and there was an opportunity for the defendant to
cross examine the witness "who is dead or
incapacitated to testify or cannot with due diligence be
found in the Philippines" (People v. Villaluz, 125
SCRA 116 [1983]).
On the defense of alibi, we quote with approval the
lower court's ruling adopted by the appellate court
insofar as petitioners Gregorio de Leon and Apolonio
Santos are concerned, in the following manner:
xxx xxx xxx the evening of March 2, 1970. These
witnesses were subjected to cross-
"This Court finds that the evidence,
examination by counsel for the accused in
for the prosecution has sufficiently
the preliminary investigation and their
established the participation of these three
testimonies linking the three (3) accused
(3) accused in the abduction of Benjamin
with the death of Benjamin Aguinaldo
Aguinaldo in the evening of March 2, 1970
stood unrebutted and uncontradicted. The
and of having caused the liquidation of said
narration given by these witnesses at the
abducted person. Their claim of not
preliminary investigation was clear and
knowing Benjamin Aguinaldo or of having
devoid of any contradictions. There is no
heard of him except during the preliminary
showing that they were coached to give
investigation is too incredible to warrant
their separate testimonies before the
belief. Benjamin Aguinaldo was the driver
Provincial Fiscal or to give their sworn
of a PUJ jeepney owned and operated by
statements before the investigating officers
Isidro Ramos. The De Leons are also in
of the NBI. Their detailed narration of the
the transportation business while Santos is
circumstances that took place on the
a Barrio Policeman. All these people must
evening of March 2, 1970 could only come
have known each other in the community
from an eyewitness. These two (2)
especially those engaged in the same
distinctly and unerringly pointed to
business. The testimonies of Ricardo
accused Flavio de Leon,
Reyes and Marcelino Quinto, Jr. at the
Gregorio de Leon and Apolonio Santos as
preliminary investigation have established
among the group of persons who were in a
in such detail sufficient facts to link these
jeep and who took Benjamin Aguinaldo
three (3) accused, Flavio de Leon,
and brought him towards the dumping area
Gregorio de Leon and Apolonio Santos, to
of Wawa, Parañaque. Rizal, where the
the death of Benjamin Aguinaldo. Although
body of said Benjamin Aguinaldo was
Marcelino Quinto, Jr. and Ricardo Reyes
finally recovered the following morning.
may have been persons of unsavory
The alibis of these three (3) accused
reputation and had previously been
cannot stand in the light of this direct
implicated in robberies and carnapping,
testimonial evidence of the two (2)
nonetheless, there has been no showing
eyewitnesses." (Rollo, pp. 41-43)
that these two (2) witnesses had
prevaricated when they gave their version Additionally, Gregorio de Leon relied solely on his
of the abduction of Benjamin Aguinaldo in uncorroborated testimony which in the light of the
direct testimonies of Reyes and Quinto can only be
viewed as self-serving statements. Apolonio Santos'
alibi, on the other hand, although corroborated by the
former barrio captain and a member of the traffic
division of the Parañaque police force, should likewise
fail. It must be noted that the police blotter of the
accident which Santos allegedly helped bring to the
attention of the authorities does not bear any
indication of his participation therein. Moreover, it is
not shown that it was physically impossible for him to
have participated in the crime considering that the
alleged accident happened in the same small barrio.
The foregoing circumstances strengthen the
conclusion that Santos' testimony cannot prevail over
that of Reyes and Quinto. prLL
Well-entrenched in our jurisprudence is the rule that
alibi is a considerably weak defense which cannot
prevail over the positive identification of the accused
(People v. Bugho, G.R. No. 91849, September 30,
1991; People v. Camarao, 188 SCRA 671
[1990], People v. Repe, 175 SCRA 422
[1989]; People v. Khan, 161 SCRA 406 [1988]).
Although the positive identification made by the key
witnesses is not on the actual killing of the deceased,
all the circumstances testified to are sufficient to
convince this Court that the petitioners are the authors
of the act charged. It is not only by direct evidence
upon which the guilt may be predicated (People v.
Cagadas, 193 SCRA 216 [1991]). The accused may
be convicted on circumstantial evidence (People v.
Torre, 184 SCRA 525 [1990]).
This case was assigned to the Third Division fairly
recently.
At this point, this Court would like to stress that it is
aware of the fact that the surviving petitioners have
advanced in age, the act complained of in the present
case having been perpetrated about twenty years
ago. At present, Apolonio Santos would be in his late
seventies while Gregorio de Leon would be in his late
forties. Be that as it may, this Court's duty to apply the
full force of the law shall not be compromised.
However, it is precisely the province of the
indeterminate sentence law to give considerations to
the personal circumstances of each convict. And after
a review of the sentence which the lower court has
imposed, this Court is of the considered opinion that
the minimum and maximum periods imposed are still
applicable. This Court expresses its confidence that
the authorities shall execute this Court's decision in a
manner that shall consider the relative conditions of
each petitioner. prLL
WHEREFORE, all the foregoing premises
considered, the challenged decision of the Court of
Appeals is hereby AFFIRMED with respect to
petitioners Gregorio de Leonand Apolonio Santos
with the sole modification that the indemnity awarded
to the complainant should be increased to P50,000.00
consonant with recent case law.
[G.R. No. 91114. September 25, 1992.]
NELLY LIM, petitioner, vs. THE COU
RT OF APPEALS, HON. MANUEL D.
VICTORIO, as Presiding
Judge of RTC-Rosales, Pangasinan,
Branch 53, and JUAN
SIM, respondents.
Quisumbing, Torres & Evangelista for petitioner.
Bince, Oficiana & Dancel for private respondent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; EVIDENCE;
PRIVILEGED COMMUNICATIONS; PHYSICIAN-
PATIENT PRIVILEGE; RATIONAL BEHIND THE
RULE. — This rule on the physician-patient privilege
is intended to facilitate and make safe full and
confidential disclosure by the patient to the
physician of all facts, circumstances and symptoms,
untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may form
a correct opinion, and be enabled safely and
efficaciously to treat his patient. It rests in public policy
and is for the general interest of the community.
2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. —
Since the object of the privilege is to protect the
patient, it may be waived if no timely objection is made
to the physician's testimony.
3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that
the privilege may be successfully claimed, the
following requisites must concur: "1. the privilege is
claimed in a civil case; 2. the person against whom
the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics; 3. such
person acquired the information while he was
attending to the patient in his professional capacity; 4.
the information was necessary to enable him to act in
that capacity; and 5. the information was confidential,
and, if disclosed, would blacken the reputation
(formerly character) of the patient."
4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites
conform with the four (4) fundamental conditions
necessary for the establishment of a privilege against
the disclosure of certain communications, to wit: "1.
The communications must originate in
a confidence that they will not be disclosed. 2. This
element of confidentiality must be essential to the full
and satisfactory maintenance of the relation between
the parties. 3. The relation must be one which in the
opinion of the community ought to be sedulously
fostered 4. The injury that would inure to the relation
by the disclosure of the communications must
be greater than the benefit thereby gained for the
correct disposal of litigation."
5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT destroys the privilege, and that under such
PRIVILEGE; SCOPE. — The physician may be circumstances the doctor may testify. Other courts
considered to be acting in his professional capacity have reached a contrary result."
when he attends to the patient for curative, preventive,
8. ID.; ID.; ID.; ID.; ID.; PRIVILEGE, WAIVED IN
or palliative treatment. Thus, only disclosures which
CASE AT BAR. — while it may be true that counsel
would have been made to the physician to enable him
for the petitioner opposed the oral request for the
"safely and efficaciously to treat his patient" are
issuance of asubpoena ad testificandum to Dr.
covered by the privilege. It is to be emphasized that "it
Acampado and filed a formal motion for the
is the tenor only of the communication that is
quashal of the said subpoena a day before the
privileged. The mere fact of making a
witness was to testify, the petitioner makes no claim
communication, as well as the date of a consultation
in any of her pleadings that her counsel had objected
and the number of consultations, are therefore not
to any question asked of the witness on the ground
privileged from disclosure, so long as the subject
that it elicited an answer that would violate the
communicated is not stated."
privilege, despite the trial court's advise that said
6. ID.; ID.; ID.; BURDEN OF PROOF AND counsel may interpose his objection to the testimony
PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED "once it becomes apparent that the testimony, sought
COMMUNICATIONS MUST PROVE REQUISITES to be elicited is covered by the privileged
THEREOF. — One who claims this privilege must communication rule." The particular portions of the
prove the presence of these aforementioned stenographic notes of the testimony of Dr. Acampado
requisites. quoted in the petitioner's Petition and Memorandum,
and in the private respondent's Memorandum, do not
7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS;
at all show that any objections were interposed. Even
PHYSICIAN-PATIENT PRIVILEGE; INFORMATION
granting ex gratiathat the testimony of Dr. Acampado
GATHERED IN PRESENCE OF THIRD PARTIES,
could be covered by the privilege, the failure to
NOT PRIVILEGED. — There is authority to the effect
seasonably object thereto amounted to a waiver
that information elicited during consultation with a
thereof.
physician in the presence of third parties removes
such information from the mantleof the privilege:
"Some courts have held that the casual presence of a
third person destroys the confidential nature of the DECISION
communication between doctor and patient and thus
DAVIDE, JR., J : p
This petition brings into focus the rule on the
confidentiality of the physician-patient relationship.
Petitioner urges this Court to strike down as being
violative thereof the resolution of public
respondent Court of Appeals in C.A.-G.R. SP No.
16991 denying due course to a petition to annul the
order of the trial court allowing a Psychiatrist of the
National Mental Hospital to testify as an expert
witness and not as an attending
physician of petitioner.
The parties are in agreement as to the following facts:
Petitioner and private respondent are lawfully married
to each other.
On 25 November 1987, private respondent filed with
Branch 53 of the Regional
Trial Court (RTC) of Pangasinan a petition for
annulment of such marriage on the ground that
petitioner has been allegedly suffering from a mental
illness called schizophrenia "before, during and after
the marriage and until the present." After the issues
were joined and the pre-trial was terminated, trial on
the merits ensued. Private respondent presented
three (3) witnesses before taking the witness stand
himself to testify on his own behalf. On 11 January
1989, private respondent's counsel announced that
he would present as his next witness the Chief of the
Female Services of the National Mental Hospital, Dr.
Lydia Acampado, a Doctor of Medicine who
specializes in Psychiatry. Said counsel forthwith orally
applied for the issuanceof a subpoena ad
testificandum requiring Dr. Acampado to testify on 25
January 1989. Petitioner's counsel opposed the
motion on the ground that the testimony sought to be
elicited from the witness is privileged since the latter
had examined the petitioner in a professional capacity
and had diagnosed her to be suffering from
schizophrenia. Over such opposition,
the subpoena was issued on 12 January 1989. LLjur
On 24 January 1989, petitioner's counsel filed an
urgent omnibus motion to quash the subpoena and
suspend the proceedings pending resolution of the
motion.
Before Dr. Acampado took the witness stand on 25
January 1989, the court heard this urgent motion.
Movant argued that having seen and examined the
petitioner in a professional capacity, Dr. Acampado is
barred from testifying under the rule on the
confidentiality of a physician-patient relationship.
Counsel for private respondent contended, however,
that Dr. Acampado would be presented as an expert
witness and would not testify on any information
acquired while attending to the petitioner in a
professional capacity. The trial court, per respondent
Judge, denied the motion and allowed the witness to
testify. Dr. Acampado thus took the witness stand,
was qualified by counsel for private respondent as an
expert witness and was asked hypothetical questions
related to her field of expertise. She neither revealed
the illness she examined and treated the petitioner for
nor disclosed the results of her examination and the
medicines she had prescribed.
Since petitioner's counsel insisted that the
ruling of the court on the motion be reduced to writing,
respondent Judge issued the following Order on the
same date:
"In his omnibus motion filed with
the Court only yesterday, January 24,
1989, petitioner seeks to prevent Dr. Lydia
Acampado from testifying because she
saw and examined
respondent Nelly Lim in her professional
capacity perforce her testimony is covered
by the privileged (sic) communication rule.
Petitioner contends that Dr. Acampado is
being presented as an expert witness and
that she will not testify on any information
she acquired in (sic) attending
to NellyLim in her professional capacity.
Based on the foregoing
manifestation of counsel for petitioner,
the Court denied the respondent's motion
and forthwith allowed Dr. Acampado to
testify. However, the Court advised
counsel for respondent to interpose his
objection once it becomes apparent that
the testimony sought to be elicited is
covered by the privileged communication
rule.
On the witness box, Dr. Acampado
answered routinary (sic) questions to
qualify her as an expert in psychiatry; she
was asked to render an opinion as to what
kind ofillness (sic) are stelazine tablets
applied to; she was asked to render an
opinion on a (sic) hypothetical facts
respecting certain behaviours of a person;
and finally she admitted she saw and
treated Nelly Lim but she never revealed
what illness she examined and treated her
(sic); nor (sic) the result of her
examination of Nelly Lim, nor (sic) the
medicines she prescribed.
WHEREFORE, the omnibus motion dated
January 19, 1989 is hereby DENIED." 1
On 3 March 1989, petitioner filed with the public
respondent Court of Appeals a petition 2
for certiorari and prohibition, docketed therein as
C.A.-G.R. SP No. 16991, to annul the aforesaid
order of respondent Judge on the ground that the
same was issued with grave abuse of discretion
amounting to lack of jurisdiction, and to prohibit him
from proceeding with the reception of Dr. Acampado's
testimony. prcd
On 18 September 1989,
the Court of Appeals promulgated a resolution 3
denying due course to the petition on the ground that
"the petitioner failed in establishing the confidential
nature of the testimony given by or obtained from Dr. Dr. Acampado is a Medical Specialist II
Acampado when she testified on January 25, 1989." and in-charge (sic) of the Female
Hence, the respondent Judge committed no grave Serviceof the National Center for Mental
abuse of discretion. In support thereof, the Health a fellow of the Philippine
respondent Court discussed the conditions which Psychiatrist Association and a
Diplomate of the Philippine
would render as inadmissible testimonial evidence
Board of Psychiatrists. She was
between a physician and his patient under paragraph summoned to testify as an expert witness
(c), Section 24, Rule 130 of the Revised and not as an attending
Rules of Court and made the following findings: physician of petitioner.
"The present suit is a civil case for After a careful scrutiny of the
annulment of marriage and the person transcript of Dr. Acampado's testimony,
whose testimony is sought to be stopped We find no declaration that touched (sic) or
as a privileged communication is a disclosed any information which she has
physician, who was summoned by the acquired from her patient, Nelly Lim,
patient in her professional capacity for during the period she attended her patient
curative remedy or treatment. The in a professional capacity. Although she
divergence in views is whether the testified that she examined and
information given by the physician in her interviewed the patient, she did not
testimony in open court on January 25, disclose anything she obtained in the
1989 was a privileged communication. We course of her examination, interview and
are of the opinion that they do not fall treatment of her patient. Given a
within the realm of a privileged set of facts and asked a hypothetical
communication because the information question, Dr. Acampado rendered an
were (sic) not obtained from the patient opinion regarding the history and
while attending her in her professional behaviour of the fictitious character in the
capacity and neither were (sic) the hypothetical problem. The facts and
information necessary to enable the conditions alleged in the hypothetical
physician to prescribe or give treatment to problem did not refer and (sic) had no
the patient Nelly Lim. And neither does the bearing to (sic) whatever information or
information obtained from the physician findings the doctor obtained from attending
tend to blacken the character of the patient the (sic) patient. A physician is not
or bring disgrace to her or invite reproach. disqualified to testify as an expert
concerning a patient's ailment, when he
can disregard knowledge acquired in
attending such patient and make answer
solely on facts related in (sic) the
hypothetical question. (Butler vs. Role, 242
Pac. 436; Supreme Court of Arizona Jan.
7, 1926). Expert testimony of a physician
based on hypothetical question (sic) as to
cause of illness of a person whom he has
attended is not privileged, provided the
physician does not give testimony tending
to disclose confidential information related
to him in his professional capacity while
attending to the patient. (Crago vs.
City of Cedar Rapids, 98 NW 354, see
Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).
The rule on privilege (sic) communication
in the relation of physician and patient
proceeds from the fundamental
assumption that the communication to
deserve protection must be confidential in
their origin. Confidentiality is not to be
blindly implied from the mere
relation of physician and patient. It might
be implied according to
circumstances of each case, taking into
consideration the nature of the ailment and
the occasion of the consultation. The
claimant of the privilege has the
burden ofestablishing in each instance all
the facts necessary to create the privilege,
including the confidential nature of the
information given." 4
Her motion to reconsider the resolution having been
denied, petitioner took this recourse under Rule
45 of the Rules of Court. In her view, the
respondent Court ofAppeals "seriously erred":
"I.
. . . in not finding that all the essential
elements of the rule on physician-patient
privileged communication under Section
21, Rule 130 of the
Rules of Court (Section 24, Rule
130 of the Revised Rules of Evidence)
exist in the case at bar.
II.
. . . in believing that Dr. Acampado 'was
summoned as an expert witness and not
as an attending physician of petitioner.'
III.
. . . in concluding that Dr. Acampado made
'no declaration that touched (sic) or
disclosed any information which she has
acquired from her patient, Nelly Lim,
during the period she attended her patient
in a professional capacity.'
IV.
. . . in declaring that 'the petitioner failed in
establishing the confidential nature of the
testimony given by or obtained from Dr.
Acampado.'" 5
We gave due course to the petition and required the
parties to submit their respective Memoranda 6 after
the private respondent filed his Comment 7 and the
petitioner submitted her reply 8 thereto. The parties
subsequently filed their separate Memoranda.
The petition is devoid of any
Respondent Court of Appeals committed
reversible error in its challenged resolution.
The law in point is paragraph (c), Section 24 of the
Revised Rules on Evidence which reads:
"SECTION 24. Disqualification by
reason of privileged communication. —
The following persons cannot testify as to
matters learned in confidence in the
following cases:
xxx xxx xxx
(c) A person authorized to
practice medicine, surgery or
obstetrics cannot in a civil case,
without the consent of the patient,
be examined as to any advice or
treatment given by him or any
information which he may have
acquired in attending such patient in
a professional capacity, which
information was necessary to
enable him to act in that capacity,
and which would blacken the
reputation of the patient."
Cdpr
This is a reproduction of paragraph (c), Section 21,
Rule 130 of the 1964 Revised Rules of Court with
two (2) modifications, namely: (a) the
inclusion of the phrase "advice or treatment given
by him," and (b) substitution of the
word reputation for the word character. Said
merit.
Section 21 in turn is a reproduction of paragraph
no
(f), Section 26, Rule 123 of the 1940
Rules of Court with a modification consisting in the
change of the phrase "which would tend to
blacken" in the latter to "would blacken." 9 Verily,
these changes affected the meaning of the
provision. Under the 1940 Rules of Court, it was
sufficient if the information would tend to
blacken the character of the patient. In the 1964
Rules of Court, a stricter requirement was
imposed; it was imperative that the
information would blacken such character. With
the advent of the Revised Rules on Evidence on 1
July 1989, the rule was relaxed once more by the
substitution of the word character with the
word reputation.There is a distinction between
these two concepts. "'Character' is what a man is,
and 'reputation' is what he is supposed to be in
what people say he is. 'Character' depends
on attributes possessed, and 'reputation' on
attributes which others believe one to possess.
The former signifies reality and the latter merely
what is accepted to be reality at present." 10
This rule on the physician-patient privilege is intended These requisites conform with the four (4)
to facilitate and make safe full and confidential fundamental conditions necessary for the
disclosure by the patient to the physician of all facts, establishment of a privilege against the
circumstances and symptoms, untrammeled by disclosure of certain communications, to wit:
apprehension of their subsequent and enforced
"1. The communications must originate in
disclosure and publication on the witness stand, to the a confidence that they will not be
end that the physician may form a correct opinion, and disclosed.
be enabled safely and efficaciously to treat his
patient. 11 It rests in public policy and is for the general 2. This element of confidentiality must be
interest of the community. 12 essential to the full and satisfactory
maintenance of the relation between the
Since the object of the privilege is to protect the parties.
patient, it may be waived if no timely objection is made 3. The relation must be one which in the
to the physician's testimony. 13 opinion of the community ought to
In order that the privilege may be successfully be sedulously fostered
claimed, the following requisites must concur: 4. The injury that would inure to the
"1. the privilege is claimed in a civil case; relation by the disclosure of the
communications must be greater than the
2. the person against whom the privilege is benefit thereby gained for the correct
claimed is one duly authorized to practice disposal oflitigation." 15
medicine, surgery or obstetrics;
The physician may be considered to be acting in
3. such person acquired the information his professional capacity when he attends to the
while he was attending to the patient in his patient for curative, preventive, or palliative
professional capacity; treatment. Thus, only disclosures which would
4. the information was necessary to enable have been made to the physician to enable him
him to act in that capacity; and "safely and efficaciously to treat his patient" are
5. the information was confidential, and, if
covered by the privilege. 16 It is to be emphasized
disclosed, would blacken the reputation that "it is the tenor only of the communication that
(formerly character) of the patient." 14 is privileged. The mere fact of making a
communication, as well as the date of a
 consultation and thenumber of consultations, are
therefore not privileged from disclosure, so long as
the subject communicated is not stated." 17
One who claims this privilege must prove the
presence of these aforementioned requisites. 18
Our careful evaluation of the submitted pleadings
leads Us to no other course of action but to agree with
the respondent Court's observation that the petitioner
failed to discharge that burden. In the first place, Dr.
Acampado was presented and qualified as an expert
witness. As correctly held by the Court of Appeals,
she did not disclose anything obtained in the
course of her examination, interview and
treatment of the petitioner; moreover, the facts and
conditions alleged in the hypothetical problem did not
refer to and had no bearing on whatever information
or findings the doctor obtained while attending to the
patient. There is, as well, no showing that Dr.
Acampado's answers to the questions propounded to
her relating to the hypothetical problem were
influenced by the information obtained from the
petitioner. Otherwise stated, her expert opinion
excluded whatever information or knowledge she had
about the petitioner which was acquired by
reason of the physician-patient relationship existing
between them. As an expert witness, her testimony
before the trial court cannot then be excluded. The
rule on this point is summarized as follows: Cdpr
"The predominating view, with some scant
authority otherwise, is that the statutory
physician-patient privilege, though duly
claimed, is not violated by permitting a
physician to give expert opinion testimony
in response to a strictly hypothetical
question in a lawsuit involving the physical
mental condition of a patient whom he has
attended professionally, where his opinion
is based strictly upon the hypothetical facts
stated, excluding and disregarding any
personal professional knowledge he may
have concerning such patient. But in order
to avoid the bar of the physician-patient
privilege where it is asserted in such a
case, the physician must base his opinion
solely upon the facts hypothesized in the
question, excluding from consideration his
personal knowledge of the patient
acquired through the physician and patient
relationship. If he cannot or does not
exclude from consideration his personal
professional knowledge of the patient's
condition he should not be permitted to
testify as to his expert opinion." 19
Secondly, it is quite clear from Dr. Acampado's
testimony that the petitioner was never interviewed
alone. Said interviews were always conducted in the
presence of a third party, thus:
"Q I am asking you, doctor, whom did you
interview?
A I interviewed the husband first, then the
father and after having the history, I
interviewed the patient, Nelly.
Q How many times did
Juan Lim and Nelly Lim go to your
office?
A Now, the two (2) of them came three (3)
times. As I have stated before, once
in the month of April of 1987 and
two (2) times for the month of June
1987, and after that, since
July of 1987, it was the
father of Nelly, Dr. Lim, who was
bringing Nelly to me until
November of 1987.
Q Now, Dr. Lim is a fellow physician?
A Yes, I understand.
Q Was there anything that he told you
when he visited with you in a clinic?
A I would say that there was none. Even if
I asked information about Nelly, I
could not get anything from Dr. Lim.
Q Now, when Dr. Lim and his daughter
went to your clinic, was there any
doctor who was also present during
that interview?
A No, sir, I don't remember any." 20
There is authority to the effect that information elicited
during consultation with a physician in the
presence of third parties removes such information
from the mantleof the privilege:
"Some courts have held that the casual
presence of a third person destroys the
confidential nature of the communication
between doctor and patient and thus
destroys the privilege, and that under such
circumstances the doctor may testify.
Other courts have reached a contrary
result." 21
Thirdly, except for the petitioner's sweeping claim —
that "(T)he information given by Dr. Acampado brings
disgrace and invite (sic) reproach to petitioner by
falsely making it appear in the eyes of the
trial court and the public that the latter was suffering
from a mental disturbance called schizophrenia —
which caused, and continues to cause, irreparable
injury to the name and reputation of petitioner and her
family," 22 — which is based on a wrong premise,
nothing specific or concrete was offered to show that
indeed, the information obtained from Dr. Acampado
would blacken the former's "character" (or
"reputation"). Dr. Acampado never disclosed any
information obtained from the petitioner regarding the
latter's ailment and the treatment recommended
therefor.prcd
Finally, while it may be true that counsel for the
petitioner opposed the oral request for the
issuance of a subpoena ad testificandum to Dr.
Acampado and filed a formal motion for the
quashal of the said subpoena a day before the
witness was to testify, the petitioner makes no claim
in any of her pleadings that her counsel had objected
to any question asked of the witness on the ground
that it elicited an answer that would violate the
privilege, despite the trial court's advise that said
counsel may interpose his objection to the testimony
"once it becomes apparent that the testimony, sought
to be elicited is covered by the privileged
communication rule." The particular portions of the
stenographic notes of the testimony of Dr. Acampado
quoted in the petitioner's Petition 23 and
Memorandum, 24 and in the private respondent's
Memorandum, 25 do not at all show that any
objections were interposed. Even granting ex
gratia that the testimony of Dr. Acampado could be
covered by the privilege, the failure to seasonably
object thereto amounted to a waiver thereof.
WHEREFORE, the instant petition is DENIED for
lack of merit.
Costs against petitioner.
SO ORDERED.
(Lim v. Court of Appeals, G.R. No. 91114,
|||

[September 25, 1992], 288 PHIL 1053-1066)

[G.R. No. 123546. July 2, 1998.]
PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs.
JOERAL GALLENO, accused-
appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CONCLUSIONS
AND OPINIONS OF WITNESSES ARE RECEIVED
IN MANY CASES, AND ARE NOT CONFINED TO
EXPERT TESTIMONY, BASED ON THE PRINCIPLE
THAT EITHER BECAUSE OF THE SPECIAL SKILL
OR EXPERT KNOWLEDGE OF THE WITNESS OR
BECAUSE OF THE NATURE OF THE SUBJECT
MATTER UNDER OBSERVATION OR FOR OTHER
REASONS, THE TESTIMONY WILL AID THE
COURT IN REACHING JUDGMENT; CASE AT BAR.
— As a general rule, witnesses must state facts and
not draw conclusions or give opinions. It is the court's
duty to draw conclusions from the evidence and form
opinions upon the facts proved. However, conclusions
and opinions of witnesses are received in many
cases, and are not confined to expert testimony,
based on the principle that either because of the
special skill or expert knowledge of the witness, or
because of the nature of the subject matter under
observation, or for other reasons, the testimony will
aid the court in reaching a judgment. In the case at
bar, the trial court arrived at its conclusions not only
with the aid of the expert testimony of doctors who
gave their opinions as to the possible cause of the
victim's laceration, but also the testimony of the other
prosecution witnesses, especially the victim herself. In
other words, the trial court did not rely solely on the
testimony of the expert witnesses. Such expert
testimony merely aided the trial court in the exercise
of its judgment on the facts. Hence, the fact that the
experts enumerated various possible causes of the
victim's laceration does not mean that the trial court's
inference is wrong.
2. ID.; ID.; ID.; MUST HAVE A RELATION TO THE
FACT IN ISSUE AS TO INDUCE BELIEF IN ITS
EXISTENCE OR NON-EXISTENCE; CASE AT BAR.
— Section 4, Rule 128 of the Rules of Court provides
that "(e)vidence must have such a relation to the fact
in issue as to induce belief in its existence or non-
existence." This simply means that relevancy is
determinable by the rules of logic and human
experience. There is no precise and universal test of
relevancy provided by law. However, the
determination of whether particular evidence is
relevant rests largely at the discretion of the court,
which must be exercised according to the teachings
of logic and everyday experience. CDScaT
3. ID.; CRIMINAL PROCEDURE; WARRANT OF
ARREST; DEFECT OR ILLEGALITY IN THE
ISSUANCE OF WARRANT SHOULD BE RAISED
BEFORE ARRAIGNMENT; CASE AT BAR. — It is
settled jurisprudence that any objection involving a
warrant of arrest or procedure in the acquisition by the
court of jurisdiction over the person of the accused
must be made before he enters his plea, otherwise the
objection is deemed waived (People vs. Lopez, Jr.,
245 SCRA 95 [1995]). An accused should question
the validity of his arrest before he enters his plea in
the trial court (Filoteo, Jr. vs. Sandiganbayan, 263
SCRA 222 [1996]). He is estopped from questioning
any defect in the manner of his arrest if he fails to
move for the quashing of the information before the
trial court (People vs. Compil, 244 SCRA 135 [1995])
or if he voluntarily submits himself to the jurisdiction of
the court by entering a plea and by participating in the
trial. It does not appear in the record that accused-
appellants raised this matter before entering his plea
of "not guilty" to the charge. Further, this issue was
not even touched during the trial.
4. LEGAL AND JUDICIAL ETHICS; CODE OF
JUDICIAL CONDUCT; A JUDGE MAY PROPERLY
INTERVENE IN THE PRESENTATION OF
EVIDENCE TO EXPEDITE AND PREVENT
UNNECESSARY WASTE OF TIME AND CLARIFY
OBSCURE AND INCOMPLETE DETAILS AFTER
THE WITNESS HAS GIVEN DIRECT TESTIMONY;
CASE AT BAR. — We recently pronounced
in People vs. Malabago (265 SCRA 198 [1996]) that a
judge may properly intervene in the presentation of
evidence to expedite and prevent unnecessary waste
of time and clarify obscure and incomplete details
after the witness has given direct testimony. And such
discretion to question witnesses in order to clear
obscurities in their testimony cannot be assailed as a
specie of bias. Of course, we are aware of Rule 3.06
of the Code of Judicial Conduct provides: While a
judge may, to promote justice, prevent waste of time
or clear up some obscurity, properly intervene in the
presentation of evidence during the trial, it should
always be borne in mind that undue interference may
prevent the proper presentation of the cause or the
ascertainment of truth. And there is undoubtedly
undue interference if the judge extensively propounds
questions to the witness which will have the effect of
or will tend to build or bolster the case for one of the
parties. We have, however, carefully examined the
record and transcript of stenographic notes of the
instant case. The trial court judge, the Honorable
Salvador S. Gubaton, did propound questions but this
was done only for clarification purposes and not to
build the case for one of the parties. For instance,
accused-appellant, in his brief, refers to the questions
propounded by the trial court on his act of cajoling the
child. A perusal of the line of questioning referred to
hardly shows bias on the part of the trial court, but
pure clarification.
5. CRIMINAL LAW; REVISED PENAL CODE; RAPE;
THE IMPORTANT CONSIDERATION IS NOT THE
EMISSION OF SEMEN BUT THE PENETRATION
OF THE FEMALE GENITALIA BY THE MALE
ORGAN. — The absence of spermatozoa in the
victim's vagina does not negate the conclusion that it
was his penis which was inserted in the victim's
vagina (People vs. Canada, 253 SCRA 277 [1996]).
In rape, the important consideration is not the
emission of semen but the penetration of the female
genitalia by the male organ (People vs. Dones, 254
SCRA 696 [1996]). Verily, it is entirely probable that
climax on the part of the accused-appellant was not
reached due to the cries of pain of the victim and the
profuse bleeding of vagina. DaEATc
DECISION
PER CURIAM : p
What could be more compelling than deciding a case
which involves the sexual abuse of a five-year old
child? Equally important is the fact that the case
before us involves the highest penalty imposable by
law. Being the guardian of the most fundamental
liberties of every citizen, the Court must pass upon
every intricate detail of the case at bar to determine
whether or not accused-appellant committed the
gruesome act imputed against him. cda
Accused-appellant Joeral Galleno seeks reversal of
the judgment of Branch 14 of the Regional Trial Court
of the 6th Judicial Region stationed in Roxas City,
relying on the defense of denial. Since the case
involves the death penalty, the matter has been
elevated to this Court for automatic review.
Accused-appellant was charged in an Information
docketed as Criminal Case No. C-4629 for the crime
of Statutory Rape, reading as follows:
The undersigned Assistant Provincial
Prosecutor, upon prior authority and
approval of the Provincial Prosecutor, and
the original complaint filed by the guardian
of the offended party, accuses
JOERAL GALLENO of the crime of
STATUTORY RAPE, committed as
follows:
That on or about 5:00 o'clock in the
afternoon of August 16, 1994, at Brgy.
Balighot, Maayon, Capiz, and within the
jurisdiction of this Court, the said accused
did, then and there, wilfully and feloniously,
and without the permission of anyone,
enter the house of EVELYN OBLIGAR, a
five-year old child, and succeeded in
having carnal knowledge of her thereby
inflicting upon the latter a vaginal
laceration which caused continuous
bleeding and her admission of five (5) days
at the Roxas Memorial Hospital.
CONTRARY TO LAW.
(
p
.
 9 their children that in this corner of the world
, the wheels of justice is not asleep and its
R unforgiving hands and watchful eyes are
o as vigilant as ever.
l
(
l
p
o
p
.
.
)
4
Accused-appellant entered a plea of not guilty. 4
Thereafter, trial on the merits ensued, resulting in a -
judgment of conviction, the dispositive portion of 4
which reads: 5
,
IN THE LIGHT OF THE FOREGOING R
ESTABLISHED FACTS, the Court finds o
accused l
JOERAL GALLENO GUILTY beyond l
reasonable doubt under Section 11 o
of Republic Act No. 7659 amending Article .
335 of the Revised Penal Code. )
Accordingly, accused In flashback, let us visualize the events.
JOERAL GALLENO is sentenced to suffer
the supreme penalty of DEATH and to Evelyn Obligar Garganera is the 5-year old daughter
indemnify the victim Evelyn Obligar of Rosita Obligar Garganera who had to leave the
Garganera the sum of FIFTY THOUSAND province to find work in Manila after separating from
(P50,000.00) PESOS. her husband. Evelyn, together with her younger
Let this DECISION serve as clear signal, brother, 3-year old Eleazar, was thus left under the
warning the perverts, the misguided care and custody of their uncle, Emeterio Obligar, and
elements of our society, especially their aunt Penicola Obligar.
lackadaisical parents in their innate moral
obligation and responsibility in educating
Less than a kilometer away from their place of
residence lived accused-appellant, 19-year old
Joeral Galleno, known well to Evelyn's family due to
his frequent visits at the Obligars' abode as he was
paying court to Emeterio's eldest child, Gina.
On August 16, 1994, Emeterio and Penicola left their
residence to work at the sugarcane plantation owned
by Magdalena Dasibar. Their three children had all
earlier left for school. The only persons left in the
house were niece Evelyn and nephew Eleazar.
At around 4 o'clock in the afternoon, accused-
appellant was on his way to his Lola Esing to have his
pants tailored. Since it was drizzling, he passed by the
Obligars' residence and found the two children left to
themselves. The prosecution and the defense
presented conflicting versions on what occurred at
said residence. However, the result is undisputed.
Evelyn sustained a laceration in her vagina which
resulted in profuse, and to our mind, life-threatening
bleeding due to her tender age.
The prosecution's version of what took place at the
Obligars' residence is based on the testimony of
Evelyn herself, her uncle Emeterio, and the doctors
who examined and treated her. The Solicitor General
summarized the same in this wise:
2. Appellant took advantage of the
situation by sexually molesting Evelyn.
After lowering her shorts, he made Evelyn
sit on his lap, facing him. Then he forcibly
inserted his penis into her vagina. As
Evelyn was only five-years old while
appellant was a fully-grown man, the
penetration caused the child's vagina to
bleed, making her cry in pain. (pp. 10-11
and 18-25, tsn, Garganera, January 10,
1995).
3. Appellant tried to stop the bleeding by
applying, with his finger, the sap of "madre
de cacao" leaves on her vagina.
Unsuccessful in his attempt, he left Evelyn
grimacing and crying in pain. (pp. 14-15,
tsn, Garganera, January 10, 1995; pp. 6-7,
tsn, Obligar, February 7, 1995).
4. Shortly, Emeterio and Penicola came
home from work. The Spouses were
laborers in a sugarcane plantation about
two kilometers away from their house.
They arrived to find Evelyn crying.
Emeterio noticed that there was blood in
Evelyn's dress and she was pressing a rug
against her genital organ. (pp. 11-12, tsn,
Obligar, January 10, 1995; pp. 8-9, tsn,
Obligar, February 7, 1995).
5. Emeterio asked Evelyn what happened
but she did not answer. Emeterio spread
the child's legs and saw that her vagina
had been lacerated and blood was oozing
therefrom. He summoned a "quack" doctor
who applied herbal medicine on Evelyn's
vagina but this did not stop the bleeding.
(pp. 12-14, tsn, Obligar, January 12, 1995).
6. The following day, August 17, 1994,
Emeterio brought Evelyn to the clinic of Dr.
Alfonso D. Orosco, the Rural Health
Physician of Maayon, Capiz. Dr. Orosco
reported, upon examining Evelyn, that he
found (1) clotted blood, about 1 centimeter
in diameter, in her vaginal opening, and (2)
a vaginal laceration, measuring 1.0
centimeter x 0.5 centimeter, between the
3:00 o'clock and 6:00 o'clock position. He
also affirmed that Evelyn's vaginal
laceration could have been caused by a
blunt instrument inserted into the vagina,
that it was possible that a human penis in
full erection had been forcibly inserted into
her vagina, and that a human penis in full
erection is considered a blunt instrument.
(pp. 4-7, tsn, Orosco, November 28, 1994;
p. 14, tsn, Obligar, January 12, 1995).
7. While he was examining Evelyn, Dr.
Orosco asked Evelyn what caused her
injuries. The child told him that a penis was
inserted into her vagina and that its
insertion caused her pain. (pp. 9-10, 14
and 18-19, tsn, Orosco, November 28,
1994).
8. Since his clinic lacked the proper
medical facilities needed to treat Evelyn,
Dr. Orosco, after dressing the victim's
wound which continued to bleed, advised
Emeterio and Penicola to bring the child to
the hospital for further medical treatment.
(p. 8, tsn, Orosco, November 28, 1994; pp.
14-16, tsn, Obligar, January 12, 1995).
9. On August 18, 1994, Emeterio brought
Evelyn to the Roxas Memorial General
Hospital where she was examined by
resident physician Dr. Ma. Lourdes
Lañada. Dr. Lañada, upon examining
Evelyn, found that "there was a 3 cm.
lacerated wound at the left anterior one-
third of the vagina" and "the presence of
about 10-15 cc of blood" at the vaginal
vault. Dr. Lañada recommended that
Evelyn be admitted for confinement in the
hospital because the wound in her vagina,
which was still bleeding, had to be
repaired. Due to financial constraints,
Evelyn was not admitted into the hospital
that day and went home with Emeterio to
Barangay Balighot. (pp. 6-8. tsn, Lañada,
January 4, 1995; pp. 15-16, tsn, Obligar,
January 12, 1995).
10. Upon her examination of the victim on
August 18, 1994, Dr. Lañada opined that
"a lot of things will cause the lacerated
wound in the vagina." (p. 9, tsn, Lañada,
January 4, 1995). According to Dr. Lañada,
the vaginal laceration may be caused (1)
by trauma to the area, when a girl falls and
hits her genital area on a blunt instrument;
(2) by medical instrumentation, like the
insertion of a speculum into the vagina; or which thus required the transfusion of 255
(3) by the insertion of a blunt foreign object cc of blood. (pp. 14-16 and 26, tsn, Toledo,
into the vagina, like a finger or a penis of a December 2, 1994).
man in full erection. (pp. 8-10, tsn, Lañada,
13. Prior to her confinement in the Roxas
January 4, 1995).
Memorial General Hospital on August 19,
11. On August 19, 1994, Emeterio brought Emeterio and Penicola Obligar brought
Evelyn back to the Roxas Memorial Evelyn to the Maayon Police Station on
General Hospital where she was attended August 18, 1994, where they reported the
to by Dr. Machel Toledo, the resident crime to SPO1 Paulino Durana. That same
physician on duty, who found blood clots day, appellant was apprehended in a
and minimal bleeding in the genital area. house near the Balighot Elementary
Dr. Toledo ". . . pack(ed) the area to School and brought to the police station.
prevent further bleeding and (he) . . . (pp. 17-19, tsn, Obligar, January 12, 1995;
admitted the patient for possible repair of pp. 5-9, 16-17 and 21, tsn, Durana,
that laceration and blood transfusion January 16, 1995).
because she has anaemia 2ndary to
(
bleeding." Two hundred fifty five (255) cc
p
of blood was transfused to Evelyn and she
p
was given antibiotics to prevent infection.
.
However, she was no longer operated on
1
because the laceration had healed. Five
6
days later, Evelyn was discharged and
4
sent home with medication. (pp. 11-13, 17
-
and 26, tsn, Toledo, December 2, 1994).
1
12. Upon his examination of Evelyn on 7
August 19, 1994, Dr. Toledo disclosed that 1
the child suffered severe compound ,
laceration which could have been caused R
by a normal and fully developed penis of a o
man in a state of erection that was forcibly l
inserted into her vagina and that the l
insertion caused her vagina to hemorrhage o
 . Accused-appellant's father Raul Galleno was also
) called to the witness stand and he testified that he
Denial is presented as the defense. Accused-
appellant testified that when he arrived at the Obligar
residence that afternoon of August 16, 1994, he found
the two children, Evelyn and Eleazar (also referred to
in the record as Pilfo). While seated at the balcony,
accused-appellant was approached by Evelyn, who
knew him (tsn, April 5, 1995, pp. 5 and 8). He cajoled
her by throwing her up and down, his right hand
holding the child and his left hand covering her vagina
(Ibid., p. 21). Upon lifting up the child the first time, his
left ring finger was accidentally inserted into the
vagina of the child since his fingernail was long and
the child was not wearing any underwear.
Consequently, Evelyn began to cry because her
vagina started to bleed. Upon seeing this, he
immediately went down the house and got some bark
or leaves of a madre de cacao tree and applied the
sap on the child's wound. The bleeding ceased and
Evelyn stopped crying. Thereafter, accused-appellant
went home. (Ibid., pp. 9-10).
Accused-appellant further testified that on August 18,
1994, at around 9 o'clock in the morning, he was
arrested. On the same day, Emeterio Obligar asked
him to admit the offense so that he could be released
the next day, but accused-appellant did not do so
(Ibid., pp. 26-27).
learned about the arrest of his son on August 18, 1994
(tsn, May 12, 1995, p. 6). The following day, he went
to the house of the Obligars to ask Evelyn what
happened to her. The child allegedly answered that a
finger was accidentally inserted into her genital organ,
but that Penicola who was then present, butted into
the conversation and told Raul Galleno that the penis
of accused-appellant was likewise inserted (Ibid., p.
8).
The trial court did not accord credence to the version
of the defense, pointing out in its decision that
accused-appellant's defense of denial hinged on the
argument that the statement of Evelyn as to how she
sustained her vaginal laceration was a mere
concoction and a plain distortion of facts by her
guardian. The trial court called this a "desperate
attempt of the defense to becloud the charge of rape."
The trial court believed and accepted the testimony of
Police Officer Paulino Durana that during the
interrogation of Evelyn which he conducted at the
PNP Station of Maayon, Emeterio and Penicola
Obligar did not interfere with the responses of Evelyn,
although, true enough, it was difficult to obtain
answers from her because of her tender age.
The trial court deemed the following circumstances
significant in finding accused-appellant culpable:
1. Accused-appellant failed to explain how his left ring OF THE LACERATION IN THE
finger accidentally came in contact with Evelyn's OFFENDED PARTY'S VAGINA
vagina, while in the process of throwing her up and THE TRIAL COURT SHOWED
down. Besides, the prosecution was able to establish MANIFEST BIAS THEREBY DEPRIVING
that Evelyn was wearing shorts. And assuming for the THE ACCUSED-APPELLANT TO A FAIR
sake of argument that Evelyn was not wearing any AND IMPARTIAL TRIAL AND
pants or underwear at that time, accused-appellant DISREGARDED THE RIGHT OF THE
failed to explain how his finger could possibly ACCUSED TO BE PRESUMED
penetrate the victim's vagina by about one-fourth of INNOCENT, WHEN HE ACTIVELY
an inch (p. 23, tsn, April 5, 1995). PARTICIPATED IN THE CROSS
EXAMINATION OF THE ACCUSED
2. After satisfying his lust, accused-appellant left the
victim with her 3-year old brother, in pain and
bleeding. THE TRIAL COURT ERRED IN NOT
DECLARING THE WARRANTLESS
3. Evelyn's statement given to Dr. Ma. Lourdes ARREST OF THE ACCUSED AS
Lañada, the physician who examined her at the Roxas UNJUSTIFIED
Memorial General Hospital, that it was accused-
appellant's finger which injured her, was a THE TRIAL COURT ERRED IN
consequence of the victim's confusion. INTERPRETING THE FINANCIAL
ASSISTANCE EXTENDED BY THE
4. The formal offer of settlement made by accused- PARENTS OF THE ACCUSED TO THE
appellant's father Raul Galleno militates against the OFFENDED PARTY AS AN IMPLIED
cause of the defense. ADMISSION OF GUILT.
cda

Hence, the instant appeal and review, with accused- (

appellant assigning the following errors: p
p
THE TRIAL COURT ERRED IN GIVING .
FULL WEIGHT AND CREDENCE TO THE 8
TESTIMONIES OF THE MEDICAL 1
DOCTORS WHEN THE SAME FAILED -
TO CONCLUSIVELY AND 8
SUFFICIENTLY ESTABLISH THE CAUSE 2
 , even disclosed this to accused-appellant's father,
R Raul Galleno.
o
l We are not persuaded.
l As a general rule, witnesses must state facts and not
o
draw conclusions or give opinions. It is the court's duty
.
) to draw conclusions from the evidence and form
opinions upon the facts proved (Francisco, Pleadings
One can not escape the feeling of utmost compassion and Trial Practice, Vol. I, 1989 ed., pp. 889-890).
for any rape victim, and more especially so for a 5- However, conclusions and opinions of witnesses are
year old statutory rape victim. However, in our received in many cases, and are not confined to
consideration of the matter before us, we set aside expert testimony, based on the principle that either
emotion and observe impartiality and coldness in because of the special skill or expert knowledge of the
drawing conclusions. witness, or because of the nature of the subject matter
Under the first assigned error, accused-appellant under observation, or for other reasons, the testimony
contends that the testimony of the three expert will aid the court in reaching a judgment (Ibid., p. 886).
witnesses presented by the prosecution, namely, Dr. In the case at bar, the trial court arrived at its
Alfonso Orosco, Dr. Ma. Lourdes Lañada, and Dr. conclusions not only with the aid of the expert
Machael Toledo, which convinced the trial court that testimony of doctors who gave their opinions as to the
rape was committed against the offended party, is not possible cause of the victim's laceration, but also the
impeccable considering that they found that there was testimony of the other prosecution witnesses,
no presence of spermatozoa, and that they were not especially the victim herself. In other words, the trial
sure as to what caused the laceration in the victim's court did not rely solely on the testimony of the expert
vagina; that Dr. Lañada herself testified that Evelyn witnesses. Such expert testimony merely aided the
told her that it was the finger of accused-appellant trial court in the exercise of its judgment on the facts.
which caused the laceration. In addition, accused- Hence, the fact that the experts enumerated various
appellant banks on the victim's testimony on cross- possible causes of the victim's laceration does not
examination, that it was the finger of accused- mean that the trial court's inference is wrong.
appellant which caused the laceration; and that she
The absence of spermatozoa in the victim's vagina
does not negate the conclusion that it was his penis
which was inserted in the victim's vagina Q So that it is possible, Doctor, that the
(People vs. Cañada, 253 SCRA 277 [1996]). In rape, child may have referred to a finger
the important consideration is not the emission of that is between the legs?
semen but the penetration of the female genitalia by WITNESS
the male organ (People vs.Dones, 254 SCRA 696
[1996]). Verily, it is entirely probable that climax on the You mean the penis?
part of accused-appellant was not reached due to the PROSECUTOR OBIENDA
cries of pain of the victim and the profuse bleeding of
Yes.
her vagina.
WITNESS
As regards the inconsistencies in Evelyn's
declarations, particularly as to what really caused the It is possible.
laceration, we are convinced that the child, due to her (tsn, p.
tender age, was just confused. This is best 27, March
exemplified by the testimony of Dr. Lourdes Lañada 30, 1995.)
on cross-examination, as follows:
Of vital consideration and importance too is the
Q Now, Doctor, at the time that you unreliability, if not the outright incredulity of the version
conducted your examination, you of accused-appellant which is not in accord with
were aware that this child was only ordinary human experience. We thus can not help
five years old? expressing sentiments similar to those of the trial
A Yes, sir. court when it said:
Q And at that tender age, Doctor, is it The contention of accused
possible that the child may not know Joeral Galleno raises serious doubts to his
the difference or distinction between credibility. He failed to explain how his ring
fingers of the hands and a finger finger accidentally came in contact with the
protruding between the legs of a genitalia of Evelyn, while in the process of
person? throwing her up and down, when it was
established by the prosecution that at that
A Yes, sir, it is possible. time Evelyn was wearing shorts. Even
assuming "ex gratia argumente" that
Evelyn was pantyless, how could it be
possible for his finger to penetrate the Section 4, Rule 128 of the Rules of Court provides that
vagina for about one-fourth of an inch . . . "(e)vidence must have such a relation to the fact in
when she was in shorts. The Supreme issue as to induce belief in its existence or non-
Court, in People vs. Fulgencio Baquiran, existence." This simply means that relevancy is
20 SCRA 451, (held that) evidence, to be determinable by the rules of logic and human
believed must not only proceed from the
experience (Regalado, Remedial law Compendiun,
mouth of a credible witness, but it must be
credible in itself. Human perception can be Vol. II, 1988 ed., p. 434). There is no precise and
warped by the impact of events and universal test of relevancy provided by law. However,
testimony colored by the unconscious the determination of whether particular evidence is
workings of the mind. No better test has yet relevant rests largely at the discretion of the court,
been found to measure the value of a which must be exercised according to the teachings
witness' testimony than its conformity to of logic and everyday experience (Sibal and Salazar,
the knowledge and common experience of Compendiun on Evidence, 1995 ed., p. 6, citing Alfred
mankind. Asmore Pope Foundation vs. New York, 138 A.
( 444,106 Conn. 432).
p There is no explanation how the left ring finger
p (allegedly with a long fingernail) of accused-appellant
.
penetrated the victim's vagina by a depth of one fourth
4
2 of an inch. Admittedly, accused-appellant's right hand
- held the child while his left hand supposedly held her
4 in the vagina area. Why would he hold the child's
3 vagina if his only intention was to frolic and kid around
, with her?
R
Accused-appellant likewise failed to explain why after
o
l injuring Evelyn (and after applying to the wound the
l sap of madre de cacao), he left her in the company of
o an even younger child, the victim's 3-year old brother.
. He did not even make an effort to immediately inform
) Emeterio and Penicola of what had happened.
Instead, he went home and kept mum about the
incident.
Accused-appellant also said that after the alleged
accident, before going home, he removed Eleazar's
shorts and put them on Evelyn. Assuming this to be
true, this only shows that the child was still bleeding.
Why then would he leave the child considering that
there was no adult, to attend to her? Significantly, his
act of immediately leaving the place, when considered
in the light of the other evidence, reflects his fear
because of what he had done. The proverb "the
wicked fleeth even when no man pursueth, but the
innocent are as bold as a lion" was correctly adopted
by the trial court in drawing its conclusions.
All of these loopholes are palpable and manifest, and
clearly work against the credibility of accused-
appellant's story on which his defense is based.
Besides, the trial court's conclusions find support in
the testimony of accused-appellant's own witness, Dr.
Lourdes Lañada (who was earlier presented during
the trial as a prosecution witness), who testified that a
laceration is caused by a blunt instrument and that a
fingernail is not a blunt but a sharp instrument (tsn, pp.
32-33, March 30, 1995).
As regards accused-appellant's argument that the
victim's testimony is just a concocted story of what
really happened, we apply the rule that the revelation
of an innocent child whose chastity was abused
deserves full credence (People vs. Cagto, 253 SCRA
455 [1996]). We likewise consider the fact that her
uncle and aunt, virtually her foster parents,
themselves support her story of rape. It is unnatural
for a parent to use her offspring as an engine of
malice, especially if it will subject a daughter to
embarrassment and even stigma (People vs. Dones,
supra.).
Accused-appellant's father, Raul Galleno, tried to
destroy the credibility of Evelyn when he took the
stand and testified that the child disclosed to him that
it was accused-appellant's finger which was inserted
into her vagina. Nevertheless, this testimony cannot
prevail over the testimony of the victim, to wit:
FISCAL OBIENDA
Q You said that Joeral Galleno the
accused in this case hurt you while
you were in the farm, can you tell
the Honorable Court which part of
your body was hurt by
Joeral Galleno?
A (Witness pointing to her vagina) Here.
Q When you said you were hurt did you
bleed?
WITNESS
A Yes, Sir.
FISCAL OBIENDA
Q What was used by Joeral Galleno in FISCAL OBIENDA
hurting your sexual organ?
Q And you were brought to the Doctor and
A His (Pitoy). Penis. admitted to the hospital because of
that?
COURT
A Yes, Sir.
Make the translation of "Pitoy" into
Penis. (tsn, pp.
10-12,
Do you agree that the translation of
January
Pitoy is
10, 1995.)
Penis in English?
Under the second assigned error, accused-appellant
ATTY. DISTURA alleges that he was deprived of a fair and impartial trial
Agreeable, Your Honor. since the trial court showed bias by discounting his
testimony, and by actually participating in the cross-
FISCAL OBIENDA examination of accused-appellant.
Q What did Joeral Galleno do with his
Pitoy (Penis) to your vagina
(Putay)? We recently pronounced
in People vs. Malabago (265 SCRA 198 [1996]) that a
A It was inserted (ginsulod) to my vagina
(Putay). judge may properly intervene in the presentation of
evidence to expedite and prevent unnecessary waste
Q When Joeral Galleno inserted his penis of time and clarify obscure and incomplete details
(Pitoy) to your vagina (Putay), that after the witness has given direct testimony. And such
was the reason why it bleed? discretion to question witnesses in order to clear
A Yes, sir. obscurities in their testimony cannot be assailed as a
specie of bias.
Q And it was very painful?
Of course, we are aware of Rule 3.06 of the Code of
A Yes, Sir.
Judicial Conduct provides:
Q And you cried because of the pain?
While a judge may, to promote justice,
A Yes, Sir. prevent waste of time or clear up some
 obscurity, properly intervene in the
presentation of evidence during the trial, it
should always be borne in mind that undue
interference may prevent the proper
presentation of the cause or the
ascertainment of truth.
And there is undoubtedly undue interference if the
judge extensively propounds questions to the
witnesses which will have the effect of or will tend to
build or bolster the case for one of the parties. We
have, however, carefully examined the record and
transcript of stenographic notes of the instant case.
The trial court judge, the Honorable Salvador S.
Gubaton, did propound questions but this was done
only for clarification purposes and not to build the case
for one of the parties. For instance, accused-
appellant, in his brief, refers to the questions
propounded by the trial court on his act of cajoling the
child. A perusal of the line of questioning referred to
hardly shows bias on the part of the trial court, but
pure clarification.
In the third assigned error, accused-appellant
questions the validity of his arrest.
It is settled jurisprudence that any objection involving
a warrant of arrest or procedure in the acquisition by
the court of jurisdiction over the person of the accused
must be made before he enters his plea, otherwise the
objection is deemed waived (People vs. Lopez, Jr.,
245 SCRA 95 [1995]). An accused should question
the validity of his arrest before he enters his plea in
the trial court (Filoteo, Jr. vs. Sandiganbayan, 263
SCRA 222 [1996]). He is estopped from questioning
any defect in the manner of his arrest if he fails to
move for the quashing of the information before the
trial court (People vs. Compil, 244 SCRA 135 [1995])
or if he voluntarily submits himself to the jurisdiction of
the court by entering a plea and by participating in the
trial (People vs. De Guzman, 224 SCRA 93
[1993]; People vs. Lopez, Jr., supra).
It does not appear in the record that accused-
appellants raised this matter before entering his plea
of "not guilty" to the charge (pp. 63 & 67, Record).
Further, this issue was not even touched during the
trial.
Lastly, accused-appellant, in his fourth assigned error,
argues that the trial court misinterpreted the financial
assistance extended by his parents as an attempt to
settle the case. Accused-appellant even banks on the
alleged close relationship between Emeterio Obligar
and Raul Galleno as compadres, and the fact that
Emeterio borrowed forty pesos from Raul Galleno,
despite the fact that Emeterio already knew that
accused-appellant caused the laceration in Evelyn's
vagina.
Accused-appellant also draws attention to two
incidents involving alleged financial assistance
extended by Raul Gallono to the spouses Emeterio
and Penicola Obligar. First, Emeterio Obligar, whom
Raul Galleno said is his compadre, borrowed P40.00
for fare going to Roxas City where Evelyn was
confined. Second, on August 20, 1994,
Raul Galleno and his wife and one of the brothers of
Penicola Obligar went to Roxas Memorial General
Hospital. There he gave P400.00 financial assistance
to Penicola Obligar. Raul Galleno later admitted that
the sum of P440.00 was returned to him by the
spouses. Accused-appellant insists that these offers
of financial assistance were not attempts at an
amicable settlement but were prompted out of a
sincere desire on the part of Raul Galleno to help the
offended party.
We find no merit in the above-stated argument. It may
be inferred that Raul Galleno wanted to settle the
case by offering an amount to the spouses Obligar, to
wit:
Q Now, according to you, you were paid in
the amount of Four Hundred Pesos
(P400.00) then you expected your
Comareng Pening as financial
assistance to Evelyn Garganera,
isn't it?
A Yes, Your Honor.
Q How long after August 19, 1994, that
your Comareng Pening returned to
you the amount of Four Hundred
Pesos (P400.00)?
A A week after when Evelyn had already
checked up from the hospital.
Q It was given by you or as voluntary
financial assistance, why did you
receive the amount or the payment
returned to that amount of Four
Hundred Pesos (P400.00)?
A That was telling me that they refused
already for the settlement of the
case.
Q And that is why they returned the
amount of Four Hundred Pesos
(P400.00).
(tsn, pp.
29-30,
May 12,
1995.)
From the above-stated clarificatory questions by the
trial court, it may be gleaned that Raul Galleno no
longer had any interest in aiding the victim when he
found that the Obligar spouses would still pursue the
case against his son, accused-appellant, and hence
he found that his offer for settlement was unavailing.
Hence, on this point we likewise agree with the trial
court when it took the financial assistance to mean an
act of settling the case. This act does manifest a
father's attempt to rescue his guilty son from sure
incarceration.
The nightmare that was forced into the tender mind of
5-year old Evelyn Obligar Garganera may
unfortunately haunt her all her life. Justice may not be
able to save her from this nightmare but it can calm
and assure her that her tormentor and abuser shall
undoubtedly face retribution.
Four members of the Court — although maintaining
their adherence to the separate opinions expressed
in People vs. Echegaray (G.R. No. 117472, February
7, 1997) that Republic Act No. 7659, insofar as it
prescribes the death penalty is unconstitutional —
nevertheless submit to the ruling of the Court , by a
majority vote, that the law is constitutional and that the
death penalty should accordingly be imposed.
WHEREFORE, finding the conviction of accused-
appellant justified by the evidence on record, the
assailed decision is hereby AFFIRMED in toto.
In accordance with Section 25 of Republic Act No.
7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let the record of
the case be forthwith forwarded to the Office of the
President for the possible exercise of the pardoning
power.
SO ORDERED. LLpr

(People v. Galleno, G.R. No. 123546, [July 2, 1998],

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353 PHIL 942-961)