THIRD DIVISION

[ G.R. No. 157177, February 11, 2008 ]

BANK OF THE PHILIPPINE ISLANDS, Petitioner, vs. JESUSA P. REYES and CONRADO B. REYES,
Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul the
Decision[1] of the Court of Appeals (CA) dated October 29, 2002 as well as its Resolution [2] dated February
12, 2003, which affirmed with modification the Decision of the Regional Trial Court (RTC) of Makati,
Branch 142, in Civil Case No. 91-3453,[3] requiring Bank of Philippine Islands (petitioner) to return to
spouses Jesusa P. Reyes and Conrado B. Reyes (respondents) the amount of P100,000.00 plus interest
and damages.

The conflicting versions of the parties are aptly summarized by the trial court, to wit:
On December 7, 1990 at around 2:00 p.m., plaintiff Jesusa Reyes together with her daughter, Joan Reyes,
went to BPI Zapote Branch to open an ATM account, she being interested with the ongoing promotions of
BPI entitling every depositor with a deposit amounting to P2,000.00 to a ticket with a car as its prize to be
raffled every month.

She was accommodated, in lieu of the bank manager Mr. Nicasio, by Cicero Capati (Pats) who was an
employee of the bank and in charge of the new accounts and time deposits characteristically described as
having homosexual inclinations. They were entertained by Capati and were made to sit at a table occupied
by a certain Liza.

Plaintiff informed Capati that they wanted to open an ATM account for the amount of P200,000.00,
P100,000.00 of which shall be withdrawn from her exiting savings account with BPI bank which is account
no. 0233-2433-88 and the other P100,000.00 will be given by her in cash.

Capati allegedly made a mistake and prepared a withdrawal slip for P200,00.00 to be withdrawn from her
existing savings account with said bank and the plaintiff Jesusa Reyes believing in good faith that Capati
prepared the papers with the correct amount signed the same unaware of the mistakes in figures.

While she was being entertained by Capati, her daughter Joan Reyes was filling up the signature cards and
several other forms.

Minutes later after the slips were presented to the teller, Capati returned to where the plaintiff was seating
and informed the latter that the withdrawable balance could not accommodate P200,000.00.

Plaintiff explained that she is withdrawing the amount of P100,000.00 only and then changed and correct
the figure two (2) into one (1) with her signature super-imposed thereto signifying the change, afterwhich
the amount of P100,000.00 in cash in two bundles containing 100 pieces of P500.00 peso bill were given
to Capati with her daughter Joan witnessing the same. Thereafter Capati prepared a deposit slip for
P200,000.00 in the name of plaintiff Jesusa Reyes with the new account no. 0235-0767-48 and brought
the same to the teller's booth.

After a while, he returned and handed to the plaintiff her duplicate copy of her deposit to account no.
0235-0767-48 reflecting the amount of P200,000.00 with receipt stamp showing December 7, as the date.

Plaintiff and daughter then left.

On December 14, 1990, Mrs. Jesusa received her express teller card from said bank.

Thereafter on December 26, 1990, plaintiff left for the United States (Exhs. “T”, “U”- “U-1”) and returned
to Manila on January 31, 1991 (Exhs. “V”-“V-1”).

When she went to her pawnshop, she was made aware by her statement of account sent to her by BPI
bank that her ATM account only contained the amount of P100,000.00 with interest.

She then sent her daughter to inquire, however, the bank manager assured her that they would look into
the matter.

On February 6, 1991, plaintiff instructed Efren Luna, one of her employees, to update her savings account
passbook at the BPI with the folded deposit slip for P200,000.00 stapled at the outer cover of said
passbook. After presenting the passbook to be updated and when the same was returned, Luna noticed
that the deposit slip stapled at the cover was removed and validated at the back portion thereof.
Thereafter, Luna returned with the passbook to the plaintiff and when the latter saw the validation, she
got angry.

Plaintiff then asked the bank manager why the deposit slip was validated, whereupon the manager
assured her that the matter will be investigated into.

When no word was heard as to the investigation made by the bank, Mrs. Reyes sent two (2) demand
letters thru her lawyer demanding return of the missing P100,000.00 plus interest (Exhs. “B” and “C”).
The same was received by defendant on July 25, 1991 and October 7, 1991, respectively.

The last letter prompted reply from defendant inviting plaintiff to sit down and discuss the problem.

The meeting resulted to the bank promising that Capati will be submitted to a lie detector test.

Plaintiff, however, never learned of the result of said test. Plaintiff filed this instant case.

Defendant on the other hand claimed that Bank of the Philippine Island admitted that Jesusa Reyes had
effected a fund transfer in the amount of P100,000.00 from her ordinary savings account to the express
teller account she opened on December 7, 1990 (Exhs. “3” to “3-C”), however, it was the only amount she
deposited and no additional cash deposit of P100,000.00 was made. That plaintiff wanted to effect the
transfer of P200,000.00 but the balance in her account was not sufficient and could not accommodate the
same. Plaintiff thereafter agreed to reduce the amount to be withdrawn from P200,000.00 to P100,000.00
with plaintiff’s signature superimposed on said corrections; that the original copy of the deposit slip was
also altered from P200,000.00 to P100,000.00, however, instead of plaintiff signing the same, the clerk-
in-charge of the bank, in this case Cicero Capati, signed the alteration himself for Jesusa Reyes had
already left without signing the deposit slip. The documents were subsequently machine validated for the
amount of P100,000.00 (Exhs. “2” and “4”).

Defendant claimed that there was actually no cash involved with the transactions which happened on
December 7, 1990 as contained in the bank’s teller tape (Exhs.”1” to “1-C”).

Defendant further claimed that when they subjected Cicero Capati to a lie detector test, the latter passed
the same with flying colors (Exhs. “5” to “5-C”), indicative of the fact that he was not lying when he said
that there really was no cash transaction involved when plaintiff Jesusa Reyes went to the defendant bank
on December 7, 1990; defendant further alleged that they even went to the extent of informing Jesusa
Reyes that her claim would not be given credit (Exh. “6”) considering that no such transaction was really
made on December 7, 1990. [4]
On August 12, 1994, the RTC issued a Decision[5] upholding the versions of respondents, the dispositive
portion of which reads:
WHEREFORE, premises considered, the Court finds in favor of the plaintiff Jesusa P. Reyes and Conrado
Reyes and against defendant Bank of the Philippine Islands ordering the latter to:

1. Return to plaintiffs their P100,000.00 with interest at 14% per annum from December 7,
1990;
2. Pay plaintiffs P1,000,000.00 as moral damages;

2. Pay plaintiffs P350,000.00 as exemplary damages;

3. Pay plaintiffs P250,000.00 for and attorney's fees.[6]

The RTC found that petitioner's claim that respondent Jesusa deposited only P100,000.00 instead of
P200,000.00 was hazy; that what should control was the deposit slip issued by the bank to respondent,
for there was no chance by which respondent could write the amount of P200,000.00 without petitioner's
employee noticing it and making the necessary corrections; that it was deplorable to note that it was
when respondent Jesusa's bankbook was submitted to be updated after the lapse of several months when
the alleged error claimed by petitioner was corrected; that Article 1962 of the New Civil Code provides
that a deposit is constituted from the moment a person receives a thing belonging to another with the
obligation of safely keeping it and of returning the same; that under Article 1972, the depositary is obliged
to keep the thing safely and to return it when required to the depositor or to his heirs and successors or to
the person who may have been designated in the contract.

Aggrieved, petitioner appealed to the CA which in a Decision dated October 29, 2002 affirmed the RTC
decision with modification as follows:
Nonetheless, the award of 14% interest per annum on the missing P100,000.00 can stand some
modification. The interest thereon should be 12% per annum, reckoned from May 12, 1991, the last day
of the five day-grace period given by plaintiff-appellees' counsel under the first demand letter dated May
6, 1991 (Exhibit B), or counted from May 7, 1991, the date when defendant-appellant received said letter.
Interest is demandable when the obligation consist in the payment of money and the debtor incurs in
delay.
Also, we have to reduce the P1 million award of moral damages to a reasonable sum of P50,000.00. Moral
damages are not intended to enrich a plaintiff at the expense of a defendant. They are awarded only to
enable the injured party to obtain means, diversion, or amusements that will serve to alleviate the moral
suffering he has undergone, by reason of the defendant's culpable action. The award of moral damages
must be proportionate to the suffering inflicted.

In addition, we have to delete the award of P350,000.00 as exemplary damages. The absence of malice
and bad faith, as in this case, renders the award of exemplary damages improper.

Finally, we have to reduce the award of attorney's fees to a reasonable sum of P30,000.00, as the
prosecution of this case has not been attended with any unusual difficulty.

WHEREFORE, with the modifications thus indicated, the judgment appealed from is in all other respects
AFFIRMED. Without costs.[7]
In finding petitioner liable for the missing P100,000.00, the CA held that the RTC correctly gave credence
to the testimonies of respondent Jesusa and Joan Reyes to the effect that aside from the fund transfer of
P100,000.00 from Jesusa's savings account, Jesusa also made a cash deposit of P100,000.00 in the
afternoon of December 7, 1990; that it is unlikely for these two to concoct a story of falsification against a
banking institution of the stature of petitioner if their claims were not true; that the duplicate copy of the
deposit slip showed a deposit of P200,000.00; this, juxtaposed with the fact that it was not machine-
validated and the original copy altered by the bank's clerk from P200,000.00 to P100,000.00 with the
altered amount “validated,” is indicative of anomaly; that even if it was bank employee Cicero Capati who
prepared the deposit slip, Jesusa stood her ground and categorically denied having any knowledge of the
alteration therein made; that petitioner must account for the missing P100,000.00 because it was the
author of the loss; that banks are engaged in business imbued with public interest and are under strict
obligation to exercise utmost fidelity in dealing with its clients, in seeing to it that the funds therein
invested or by them received are properly accounted for and duly posted in their ledgers.

Petitioner's motion for reconsideration was denied in a Resolution dated February 12, 2003.

Hence, the present petition on the following grounds:

A. In affirming the decision of the trial court holding BPI liable for the amount of P100,000.00
representing an alleged additional deposit of respondents, the Honorable Court of Appeals
gravely abused its discretion by resolving the issue based on a conjecture and ignoring
physical evidence in favor of testimonial evidence.

B. The Court of Appeals gravely abused its discretion, being as it is contrary to law, in holding
BPI liable to respondents for the payment of interest at the rate of 12% per annum.

C. This Honorable Court gravely abused its discretion, being as it is contrary to law, in holding
BPI liable for moral damages and attorney's fees at the reduced amounts of P50,000.00 and
P30,000.00, respectively. [8]

The main issue for resolution is whether the CA erred in sustaining the RTC's finding that respondent
Jesusa made an initial deposit of P200,000.00 in her newly opened Express Teller account on December 7,
1990.

The issue raises a factual question. The Court is not a trier of facts, its jurisdiction being limited to
reviewing only errors of law that may have been committed by the lower courts.[9] As a rule, the findings
of fact of the trial court when affirmed by the CA are final and conclusive and cannot be reviewed on
appeal by this Court, as long as they are borne out by the record or are based on substantial
evidence.[10] Such rule however is not absolute, but is subject to well-established exceptions, which are:
1) when the inference made is manifestly mistaken, absurd or impossible; 2) when there is a grave abuse
of discretion; 3) when the finding is grounded entirely on speculations, surmises or conjectures; 4) when
the judgment of the CA is based on a misapprehension of facts; 5) when the findings of facts are
conflicting; 6) when the CA, in making its findings, went beyond the issues of the case, and those findings
are contrary to the admissions of both appellant and appellee; 7) when the findings of the CA are contrary
to those of the trial court; 8) when the findings of fact are conclusions without citation of specific evidence
on which they are based; 9) when the CA manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different conclusion; and 10) when the findings
of fact of the CA are premised on the absence of evidence and are contradicted by the evidence on
record.[11] We hold that this case falls under exception Nos. 1, 3, 4, and 9 which constrain us to resolve
the factual issue.

It is a basic rule in evidence that each party to a case must prove his own affirmative allegations by the
degree of evidence required by law.[12] In civil cases, the party having the burden of proof must establish
his case by preponderance of evidence,[13] or that evidence which is of greater weight or is more
convincing than that which is in opposition to it. It does not mean absolute truth; rather, it means that the
testimony of one side is more believable than that of the other side, and that the probability of truth is on
one side than on the other.[14]

Section 1, Rule 133 of the Rules of Court provides the guidelines for determining preponderance of
evidence, thus:
SECTION 1. Preponderance of evidence, how determined.- In civil cases, the party having the burden of
proof must establish his case by a preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily with the greater number.
For a better perspective on the calibration of the evidence on hand, it must first be stressed that the judge
who had heard and seen the witnesses testify was not the same judge who penned the decision. Thus, not
having heard the testimonies himself, the trial judge or the appellate court would not be in a better
position than this Court to assess the credibility of witnesses on the basis of their demeanor.

Hence, to arrive at the truth, we thoroughly reviewed the transcripts of the witnesses' testimonies and
examined the pieces of evidence on record.

After a careful and close examination of the records and evidence presented by the parties, we find that
respondents failed to successfully prove by preponderance of evidence that respondent Jesusa made an
initial deposit of P200,000.00 in her Express Teller account.

Respondent Jesusa and her daughter Joan testified that at the outset, respondent Jesusa told Capati that
she was opening an Express Teller account for P200,000.00; that she was going to withdraw and transfer
P100,000.00 from her savings account to her new account, and that she had an additional P100,000.00
cash. However, these assertions are not borne out by the other evidence presented. Notably, it is not
refuted that Capati prepared a withdrawal slip[15] for P200,000.00. This is contrary to the claim of
respondent Jesusa that she instructed Capati to make a fund transfer of only P100,000.00 from her
savings account to the Express Teller account she was opening. Yet, respondent Jesusa signed the
withdrawal slip. We find it strange that she would sign the withdrawal slip if her intention in the first place
was to withdraw only P100,000.00 from her savings account and deposit P100,000.00 in cash with her.

Moreover, respondent Jesusa's claim that she signed the withdrawal slip without looking at the amount
indicated therein fails to convince us, for respondent Jesusa, as a businesswoman in the regular course of
business and taking ordinary care of her concerns,[16] would make sure that she would check the amount
written on the withdrawal slip before affixing her signature. Significantly, we note that the space provided
for her signature is very near the space where the amount of P200,000.00 in words and figures are
written; thus, she could not have failed to notice that the amount of P200,000.00 was written instead of
P100,000.00.

The fact that respondent Jesusa initially intended to transfer the amount of P200,000.00 from her savings
account to her new Express Teller account was further established by the teller's tape presented as
petitioner's evidence and by the testimony of Emerenciana Torneros, the teller who had attended to
respondent Jesusa's transactions.

The teller's tape,[17] Exhibit “1” unequivocally shows the following data:

151159 07DEC90 1370 288A 233324299

151245 07DEC90 1601 288A 233243388

***200000.00[18]
BIG AMOUNT
151251 07DEC90 1601 288J 233243388
***200000.00
151309 07DEC90 1601 288A 233243388
***200000.00
PB BALANCE ERROR
BAL. 229,257.64
151338 07DEC90 1601 288A 233243388
***200000.00
BIG AMOUNT
151344 07DEC90 1601 288J 233243388
***200000.00
151404 07DEC90 1601 288A 233243388
***200000.00
TOD

151520 07DEC90 1601 288A 233320145

 ***2000.00
151705 07DEC90 1789 288A 233324299
***22917.00
151727 07DEC90 1601 288A 233243388
***100000.00
BIG AMOUNT
151730 07DEC90 1601 288J 233243388
***100000.00
151746 07DEC90 1601 288A 233243388
***100000.00[19]
151810 07DEC90 1370 288A 235076748
151827 07DEC90 1790 288A 235076748
***100000.00 ***100000.00[20]

151903 07DEC90 1301 288A 233282405

151914 07DEC90 1690 288A 235008955
***1778.05
152107 07DEC90 1601 288A 3333241381
***5000.00
152322 07DEC90 1601 288A 233314374
***2000.00
152435 07DEC90 1370 288A 235076764
152506 07DEC90 1790 288A 235076764
***4000.00 ***4000.00
152557 07DEC90 1601 288A 233069469
***2000.00
152736 07DEC90 1601 288A 233254584
***2000.00
152849 07DEC90 0600 288A 231017585
***3150.00 686448
152941 07DEC90 1790 288A 3135052255
***2800.00 ***2800.00
153252 07DEC90 1601 288A 233098264
(Emphasis supplied)

The first column shows the exact time of the transactions; the second column shows the date of the
transactions; the third column shows the bank transaction code; the fourth column shows the teller's
code; and the fifth column shows the client's account number. The teller's tape reflected various
transactions involving different accounts on December 7, 1990 which included respondent Jesusa's
Savings Account No. 233243388 and her new Express Teller Account No. 235076748. It shows that
respondent Jesusa's initial intention to withdraw P200,000.00, not P100,000.00, from her Savings
Account No. 233324299 was begun at 3 o'clock, 12 minutes and 45 seconds as shown in Exhibit “1-c.”

In explaining the entries in the teller's tape, Torneros testified that when she was processing respondent
Jesusa's withdrawal in the amount of P200,000.00, her computer rejected the transaction because there
was a discrepancy;[21] thus, the word “BIG AMOUNT” appeared on the tape. “Big amount” means that the
amount was so big for her to approve,[22] so she keyed in the amount again and overrode the transaction
to be able to process the withdrawal using an officer's override with the latter's approval. [23] The letter “J”
appears after Figure 288 in the fourth column to show that she overrode the transaction. She then keyed
again the amount of P200,000.00 at 3 o'clock 13 minutes and 9 seconds; however, her computer rejected
the transaction, because the balance she keyed in based on respondent Jesusa's passbook was
wrong;[24] thus appeared the phrase “balance error” on the tape, and the computer produced the balance
of P229,257.64, and so she keyed in the withdrawal of P200,000.00.[25] Since it was a big amount, she
again had to override it, so she could process the amount. However, the withdrawal was again rejected for
the reason “TOD, overdraft,”[26] which meant that the amount to be withdrawn was more than the
balance, considering that there was a debited amount of P30,935.16 reflected in respondent Jesusa's
passbook, reducing the available balance to only P198,322.48.[27]

Torneros then called Capati to her cage and told him of the insufficiency of respondent Jesusa's
balance.[28] Capati then motioned respondent Jesusa to the teller's cage; and when she was already in
front of the teller's cage, Torneros told her that she could not withdraw P200,000.00 because of overdraft;
thus, respondent Jesusa decided to just withdraw P100,000.00.[29]

This explains the alteration in the withdrawal slip with the superimposition of the figure “1” on the figure
“2” and the change of the word “two” to “one” to show that the withdrawn amount from respondent
Jesusa's savings account was only P100,000.00, and that respondent Jesusa herself signed the
alterations.

The teller's tape showed that the withdrawal of the amount of P100,000.00 by fund transfer was resumed
at 3 o'clock 17 minutes and 27 seconds; but since it was a big amount, there was a need to override it
again, and the withdrawal/fund transfer was completed. At 3 o'clock 18 minutes and 27 seconds, the
amount of P100,000.00 was deposited to respondent Jesusa's new Express Teller Account No. 235076748.

The teller's tape definitely establishes the fact of respondent Jesusa's original intention to withdraw the
amount of P200,000.00, and not P100,000.00 as she claims, from her savings account, to be transferred
as her initial deposit to her new Express Teller account, the insufficiency of her balance in her savings
account, and finally the fund transfer of the amount of P100,000.00 from her savings account to her new
Express Teller account. We give great evidentiary weight to the teller's tape, considering that it is inserted
into the bank's computer terminal, which records the teller's daily transactions in the ordinary course of
business, and there is no showing that the same had been purposely manipulated to prove petitioner's
claim.

Respondent Jesusa's bare claim, although corroborated by her daughter, that the former deposited
P100,000.00 cash in addition to the fund transfer of P100,000.00, is not established by physical evidence.
While the duplicate copy of the deposit slip[30] was in the amount of P200,000.00 and bore the stamp
mark of teller Torneros, such duplicate copy failed to show that there was a cash deposit of P100,000.00.
An examination of the deposit slip shows that it did not contain any entry in the breakdown portion for the
specific denominations of the cash deposit. This demolishes the testimonies of respondent Jesusa and her
daughter Joan.

Furthermore, teller Torneros's explanation of why the duplicate copy of the deposit slip in the amount of
P200,000.00 bore the teller's stamp mark is convincing and consistent with logic and the ordinary course
of business. She testified that Capati went to her cage bringing with him a withdrawal slip for P200,000.00
signed by respondent Jesusa, two copies of the deposit slip for P200,000.00 in respondent Jesusa's name
for her new Express Teller account, and the latter's savings passbook reflecting a balance of
P249,657.64[31] as of November 19, 1990.[32] Thus, at first glance, these appeared to Torneros to be
sufficient for the withdrawal of P200,000.00 by fund transfer. Capati then got her teller's stamp mark,
stamped it on the duplicate copy of the deposit slip, and gave the duplicate to respondent Jesusa, while
the original copy[33] of the deposit slip was left in her cage.[34] However, as Torneros started processing
the transaction, it turned out that respondent Jesusa's balance was insufficient to accommodate the
P200,000.00 fund transfer as narrated earlier.

Since respondent Jesusa had signed the alteration in the withdrawal slip and had already left the teller's
counter thereafter and Capati was still inside the teller's cage, Torneros asked Capati about the original
deposit slip and the latter told her, “Ok naman iyan,”[35] and Capati superimposed the figures “1” on “2”
on the deposit slip[36] to reflect the initial deposit of P100,000.00 for respondent Jesusa's new Express
Teller account and signed the alteration. Torneros then machine-validated the deposit slip. Thus, the
duplicate copy of the deposit slip, which bore Torneros’s stamp mark and which was given to respondent
Jesusa prior to the processing of her transaction, was not machine-validated unlike the original copy of the
deposit slip.

While the fact that the alteration in the original deposit slip was signed by Capati and not by respondent
Jesusa herself was a violation of the bank's policy requiring the depositor to sign the
correction,[37] nevertheless, we find that respondents failed to satisfactorily establish by preponderance of
evidence that indeed there was an additional cash of P100,000.00 deposited to the new Express Teller
account.

Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of
trustworthy evidence.[38] We have, on many occasions, relied principally upon physical evidence in
ascertaining the truth. Where the physical evidence on record runs counter to the testimonial evidence of
the prosecution witnesses, we consistently rule that the physical evidence should prevail.[39]

In addition, to uphold the declaration of the CA that it is unlikely for respondent Jesusa and her daughter
to concoct a false story against a banking institution is to give weight to conjectures and surmises, which
we cannot countenance.

In fine, respondents failed to establish their claim by preponderance of evidence.

Considering the foregoing, we find no need to tackle the other issues raised by petitioner.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated October 29, 2002 as
well as its Resolution dated February 12, 2003 are hereby REVERSED and SET ASIDE. The complaint
filed by respondents, together with the counterclaim of petitioner, is DISMISSED.

No costs.

SO ORDERED.

Ynares-Santiago, (Chairperson), Corona, Nachura, and Reyes, JJ., concur.

 EN BANC

[ G.R. Nos. 138874-75, February 03, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. FRANCISCO JUAN LARRAוAGA ALIAS “PACO”;
JOSMAN AZNAR; ROWEN ADLAWAN ALIAS "WESLEY", ALBERTO CAוO ALIAS "ALLAN PAHAK";
ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA ALIAS "TISOY TAGALOG"; JAMES ANTHONY UY
ALIAS "WANGWANG"; AND JAMES ANDREW UY ALIAS "MM", APPELLANTS.

DECISION

PER CURIAM:

For most of the Cebuanos, the proceedings in these cases will always be remembered as the "trial of the
century." A reading of the voluminous records readily explains why the unraveling of the facts during the
hearing before the court below proved transfixing and horrifying and why it resulted in unusual media
coverage.

These cases involve the kidnapping and illegal detention of a college beauty queen along with her comely
and courageous sister. An intriguing tale of ribaldry and gang-rape was followed by the murder of the
beauty queen. She was thrown off a cliff into a deep forested ravine where she was left to die. Her sister
was subjected to heartless indignities before she was also gang-raped. In the aftermath of the kidnapping
and rape, the sister was made to disappear. Where she is and what further crimes were inflicted upon her
remain unknown and unsolved up to the present.

Before us in an appeal from the Decision[1] dated May 5, 1999 of the Regional Trial Court, Branch 7, Cebu
City in Criminal Cases Nos. CBU 45303-45304, finding Rowen Adlawan alias "Wesley," Josman Aznar, Ariel
Balansag, Alberto Caño alias "Allan Pahak," Francisco Juan Larrañaga alias "Paco," James Andrew Uy alias
"MM," and James Anthony Uy alias "Wang Wang," appellants herein, guilty beyond reasonable doubt of
the crimes of kidnapping and serious illegal detention and sentencing each of them to suffer the penalties
of "two (2) reclusiones perpetua" and to indemnify the heirs of the victims, sisters Marijoy and Jacqueline
Chiong, jointly and severally, the amount of P200,000.00 as actual damages and P5,000,000.00 as moral
and exemplary damages.

The Fourth Amended Informations[2] for kidnapping and illegal detention dated May 12, 1998 filed against
appellants and Davidson Rusia alias "Tisoy Tagalog," the discharged state witness, read as follows:
1) For Criminal Case No. CBU-45303.[3]

"xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of
Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, all private
individuals, conniving, confederating and mutually helping with one another, with deliberate intent, did
then and there willfully, unlawfully and feloniously kidnap or deprive one Marijoy Chiong, of her liberty and
on the occasion thereof, and in connection, accused, with deliberate intent, did then and there have carnal
knowledge of said Marijoy against her will with the use of force and intimidation and subsequent thereto
and on the occasion thereof, accused with intent to kill, did then and there inflict physical injuries on said
Marijoy Chiong throwing her into a deep ravine and as a consequence of which, Marijoy Chiong died.

"CONTRARY TO LAW."

2) For Criminal Case CBU-45304:[4]

"xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, all private
individuals, conniving, confederating and mutually helping with one another, with deliberate intent, did
then and there willfully, unlawfully and feloniously kidnap or deprive one Jacqueline Chiong of her
liberty, thereby detaining her until the present.

"CONTRARY TO LAW."
On separate arraignments, state witness Davison Rusia and appellants Rowen Adlawan, Josman Aznar,
Ariel Balansag, Alberto Caño, James Andrew and James Anthony Uy pleaded not guilty. [5] Appellant
Francisco Juan Larrañaga refused to plead, hence, the trial court entered for him the plea of "not
guilty."[6] Thereafter, trial on the merits ensued.

In the main, the prosecution evidence centered on the testimony of Rusia. [7] Twenty-one
witnesses[8] corroborated his testimony on major points. For the defense, appellants James Anthony Uy
and Alberto Caño took the witness stand. Appellant Francisco Juan Larrañaga was supposed to testify on
his defense of alibi but the prosecution and the defense, through a stipulation approved by the trial court,
dispensed with his testimony. Nineteen witnesses testified for the appellants, corroborating their
respective defenses of alibi.

The version of the prosecution is narrated as follows:

On the night of July 16, 1997, sisters Marijoy and Jacqueline Chiong, who lived in Cebu City, failed to
come home on the expected time. It was raining hard and Mrs. Thelma Chiong thought her daughters
were simply having difficulty getting a ride. Thus, she instructed her sons, Bruce and Dennis, to fetch their
sisters. They returned home without Marijoy and Jacqueline. Mrs. Chiong was not able to sleep that night.
Immediately, at 5:00 o'clock in the morning, her entire family started the search for her daughters, but
there was no trace of them. Thus, the family sought the assistance of the police who continued the
search. But still, they could not find Marijoy and Jacqueline.[9]

Meanwhile, in the morning of July 18, 1997, a certain Rudy Lasaga reported to the police that a young
woman was found dead at the foot of a cliff in Tan-awan, Carcar, Cebu.[10] Officer-in-Charge Arturo Unabia
and three other policemen proceeded to Tan-awan and there, they found a dead woman lying on the
ground. Attached to her left wrist was a handcuff.[11] Her pants were torn, her orange t-shirt was raised up
to her breast and her bra was pulled down. Her face and neck were covered with masking tape.[12]

On July 19, 1996, upon hearing the news about the dead woman, Mrs. Chiong's son Dennis and other
relatives proceeded to the Tupaz Funeral Parlor at Carcar, Cebu to see the body. It was Marijoy dressed in
the same orange shirt and maong pants she wore when she left home on July 16, 1997. Upon learning of
the tragic reality, Mrs. Chiong became frantic and hysterical. She could not accept that her daughter
would meet such a gruesome fate.[13]

On May 8, 1998, or after almost ten months, the mystery that engulfed the disappearance of Marijoy and
Jacqueline was resolved. Rusia, bothered by his conscience and recurrent nightmares, [14] admitted before
the police having participated in the abduction of the sisters.[15] He agreed to re-enact the commission of
the crimes.[16]

On August 12, 1998, Rusia testified before the trial court how the crimes were committed and identified all
the appellants as the perpetrators. He declared that his conduit to Francisco Juan Larrañaga was Rowen
Adlawan whom he met together with brothers James Anthony and James Andrew Uy five months before
the commission of the crimes charged.[17] He has known Josman Aznar since 1991. He met Alberto Caño
and Ariel Balansag only in the evening of July 16, 1997.

Or, July 15, 1997, while Rusia was loafing around at the Cebu Plaza Hotel, Cebu City, Rowen approached
him and arranged that they meet the following day at around 2:00 o'clock in the afternoon. [18] When they
saw each other the next day, Rowen told him to stay put at the Ayala Mall because they would have a
"big happening" in the evening. All the while, he thought that Rowen's "big happening" meant group
partying or scrounging. He thus lingered at the Ayala Mall until the appointed time came. [19]

At 10:30 in the evening, Rowen returned with Josman. They met Rusia at the back exit of the
Ayala Mall and told him to ride with them in a white car. Rusia noticed that a red car was following
them. Upon reaching Archbishop Reyes Avenue, same city, he saw two women standing at the waiting
shed.[20] Rusia did not know yet that their names were Marijoy and Jacqueline.

Josman stopped the white car in front of the waiting shed and he and Rowen approached and invited
Marijoy and Jacqueline to join them.[21] But the sisters declined. Irked by the rejection, Rowen grabbed
Marijoy while Josman held Jacqueline and forced both girls to ride in the car. [22] Marijoy was the first one
to get inside, followed by Rowen. Meanwhile, Josman pushed Jacqueline inside and immediately drove the
white car. Rusia sat on the front seat beside Josman.

Fourteen (14) meters from the waiting shed, Jacqueline managed to get out of the car. Josman chased her
and brought her back into the car. Not taking anymore chances, Rowen elbowed Jacqueline on the chest
and punched Marijoy on the stomach, causing both girls to faint.[23] Rowen asked Rusia for the packaging
tape under the latter's seat and placed it on the girls' mouths. Rowen also handcuffed them jointly. The
white and red cars then proceeded to Fuente Osmeña, Cebu City.

At Fuente Osmeña, Josman parked the car near a Mercury Drug Store and urged Rusia to inquire if a van
that was parked nearby was for hire. A man who was around replied "no" so the group immediately left.
The two cars stopped again near Park Place Hotel where Rusia negotiated to hire a van. But no van was
available. Thus, the cars sped to a house in Guadalupe, Cebu City known as the safehouse of the "Jozman
Aznar Group" Thereupon, Larrañaga, James Anthony and James Andrew got out of the red car.

Larrañaga, James Anthony and Rowen brought Marijoy to one of the rooms, while Rusia and Josman led
Jacqueline to another room. Josman then told Rusia to step out so Rusia stayed at the living room with
James Andrew. They remained in the house for fifteen (15) to twenty (20) minutes. At that time, Rusia
could hear Larrañaga, James Anthony, and Rowen giggling inside the room.
Thereafter, the group brought Marijoy and Jacqueline back to the white car. Then the two cars headed to
the South Bus Terminal where they were able to hire a white van driven by Alberto. Ariel was the
conductor. James Andrew drove the white car, while the rest of the group boarded the van. They traveled
towards south of Cebu City, leaving the red car at the South Bus Terminal.

Inside the van, Marijoy and Jacqueline were slowly gaining strength. James Anthony taped their mouths
anew and Rowen handcuffed them-together. Along the way, the van and the white car stopped by a
barbeque store. Rowen got off the van and bought barbeque and Tanduay rhum. They proceeded to Tan-
awan.[24] Then they parked their vehicles near a precipice[25] where they drank and had a pot session.
Later, they pulled Jacqueline out of the van and told her to dance as they encircled her. She was pushed
from one end of the circle to the other, ripping her clothes in the process. Meanwhile, Josman told
Larrañaga to start raping Marijoy who was left inside the van. The latter did as told and after fifteen
minutes emerged from the van saying, "who wants next?” Rowen went in, followed by James Anthony,
Alberto, the driver, and Ariel, the conductor. Each spent a few minutes inside the van and afterwards
came out smiling.[26]

Then they carried Marijoy out of the van, after which Josman brought Jacqueline inside the vehicle.
Josman came out from the van after ten minutes, saying, "whoever wants next go ahead and hurry up."
Rusia went inside the van and raped Jacqueline, followed by James Andrew. At this instance, Marijoy was
to breathe her last for upon Josman's instruction, Rowen and Ariel led her to the cliff and mercilessly
pushed her into the ravine[27] which was almost 150 meters deep.[28]

As for Jacqueline, she was pulled out of the van and thrown to the ground. Able to gather a bit of
strength, she tried to run towards the road. The group boarded the van, followed her and made fun of her
by screaming, "run some more" There was a tricycle passing by. The group brought Jacqueline inside the
van. Rowen beat her until she passed out. The group then headed back to Cebu City with James Andrew
driving the white car. Rusia got off from the van somewhere near the Ayala Center. [29]

There were other people who saw snippets of what Rusia had witnessed. Sheila Singson, [30] Analie
Konahap[31] and Williard Redobles[32] testified that Marijoy and Jacqueline were talking to Larrañaga and
Josman before they were abducted. Roland Dacillo[33] saw Jacqueline alighting and running away from a
white car and that Josman went after her and grabbed her back to the car. Alfredo Duarte [34] testified that
he was at the barbeque stand when Rowen bought barbeque; that Rowen asked where he could buy
Tanduay; that he saw a white van and he heard therefrom voices of a male and female who seemed to be
quarreling; that he also heard a cry of a woman which he could not understand because "it was as if the
voice was being controlled;" and that after Rowen got his order, he boarded the white van which he
recognized to be previously driven by Alberto Caño. Meanwhile, Mario Miñoza, [35] a tricycle driver plying
the route of Carcar-Mantalongon, saw Jacqueline running towards Mantalongon. Her blouse was torn and
her hair was disheveled. Trailing her was a white van where a very loud rock music could be heard.
Manuel Camingao[36] recounted that on July 17, 1997, at about 5:00 o'clock in the morning, he saw a
white van near a cliff at Tan-awan. Thinking that the passenger of the white van was throwing garbage at
the cliff, he wrote its plate number (GGC-491) on the side of his tricycle.[37]

Still, there were other witnesses[38] presented by the prosecution who gave details which, when pieced
together, corroborated well Rusia's testimony on what transpired at the Ayala Center all the way to
Carcar.

Against the foregoing facts and circumstances, the appellants raised the defense of alibi, thus:

Larrañaga, through his witnesses, sought to establish that on July 16, 1997, he was in Quezon City taking
his mid-term examinations at the Center for Culinary Arts. In the evening of that day until 3:00 o'clock in
the morning of July 17, 1997, he was with his friends at the R & R Bar and Restaurant, same city. Fifteen
witnesses testified that they were either with Larrañaga or saw him in Quezon City at the time the crimes
were committed. His friends, Lourdes Montalvan,[39] Charmaine Flores,[40] Richard Antonio,[41] Jheanessa
Fonacier,[42] Maharlika Shulze,[43] Sebastian Seno,[44] Francisco Jarque,[45] Raymond Garcia,[46] Cristina Del
Gallego,[47] Mona Lisa Del Gallego,[48] Paolo Celso[49] and Paolo Manguerra[50] testified that they were with
him at the R & R Bar on the night of July 16, 1997. The celebration was a "despedida" for him as he was
leaving the next day for Cebu and a "bienvenida" for another friend. Larrañaga's classmate Carmina
Esguerra[51] testified that he was in school on July 16, 1997 taking his mid-term examinations. His teacher
Rowena Bautista,[52] on the other hand, testified that he attended her lecture in Applied Mathematics.
Also, some of his neighbors at the Loyola Heights Condominium, Quezon City, including the security
guard, Salvador Boton, testified that he was in his condo unit in the evening of July 16, 1997.
Representatives of the four airline companies plying the route of Manila-Cebu-Manila presented proofs
showing that the name Francisco Juan Larrañaga does not appear in the list of pre-flight and post-flight
manifests from July 15, 1997 to about noontime of July 17, 1997.

Meanwhile, James Anthony Uy testified that on July 16, 1997, he and his brother James Andrew were at
home in Cebu City because it was their father's 50th birthday and they were celebrating the occasion with
a small party which ended at 11:30 in the evening.[53] He only left his house the next day, July 17, 1997
at about 7:00 o'clock in the morning to go to school.[54] The boys' mother, Marlyn Uy, corroborated his
testimony and declared that when she woke up at 2:00 o'clock in the morning to check on her sons, she
found them sleeping in their bedrooms. They went to school the next day at about 7:00 o'clock in the
morning.[55]

Clotilde Soterol testified for Alberto and Ariel. She narrated that on July 16, 1997, at around 7:00 o'clock
in the evening, Alberto brought the white Toyota van with Plate No. GGC-491 to her shop to have its
aircon repaired. Alberto was accompanied by his wife Gina Caño, co-appellant Ariel, and spouses Catalina
and Simplicio Paghinayan, owners of the vehicle. Since her (Clotildes') husband was not yet around,
Alberto just left the vehicle and promised to return the next morning. Her husband arrived at 8:30 in the
evening and started to repair the aircon at 9:00 o'clock of the same evening. He finished the work at
10:00 o'clock the following morning. At 11:00 o'clock, Alberto and his wife Gina, Ariel and Catalina
returned to the shop to retrieve the vehicle.[56] Alberto,[57] Gina[58] and Catalina[59] corroborated Clotilde's
testimony.

To lend support to Josman's alibi, Michael Dizon recounted, that on July 16, 1997, at about 8:00 o'clock in
the evening, he and several friends were at Josman's house in Cebu. They ate their dinner there and
afterwards drank "Blue Label." They stayed at Josman's house until 11:00 o'clock in the
evening. Thereafter, they proceeded to BAI Disco where they drank beer and socialized with old
friends. They stayed there until 1:30 in the morning of July 17, 1997. Thereafter, they transferred to
DTM Bar. They went home together at about 3:00 o'clock in the morning. Their friend, Jonas Dy Pico,
dropped Josman at his house.[60]

Concerning state witness Rusia, on August 7, 1998, when the prosecution moved that he be discharged as
an accused for the purpose of utilizing him as a state witness,[61] Larrañaga and brothers James Anthony
and James Andrew opposed the motion on the ground that he does not qualify as a state witness under
Section 9, Rule 119 of the Revised Rules of Court on Criminal Procedure.[62] On August 12, 1998, the trial
court allowed the prosecution to present Rusia as its witness but deferred resolving its motion to discharge
until it has completely presented its evidence.[63] On the same date, the prosecution finished conducting
Rusia's direct examination.[64] The defense lawyers cross-examined him on August 13, 17, and 20,
1998.[65] On the last date, Judge Ocampo provisionally terminated the cross-examination due to the report
that there was an attempt to bribe him and because of his deteriorating health. [66]

Resenting the trial court's termination of Rusia's cross-examination, the defense lawyers moved for the
inhibition of Judge Ocampo.[67] When he informed the defense lawyers that he would not inhibit himself
since he found no "just and valid reasons" therefor, the defense lawyers withdrew en masse as counsel for
the appellants declaring that they would no longer attend the trial. Judge Ocampo held them-guilty-of
direct contempt of court. Thus, defense lawyers Raymundo Armovit, Edgar Gica, Fidel Gonzales, Ramon
Teleron, Alfonso de la Cerna and Lorenzo Paylado were ordered jailed.

In the Order dated August 25, 1998, the trial court denied the motion for inhibition of the defense lawyers
and ordered them to continue representing their respective clients so that the cases may undergo the
mandatory continuous trial. The trial court likewise denied their motion to withdraw as appellants' counsel
because of their failure to secure a prior written consent from their clients. On August 26, 1998,
appellants filed their written consent to the withdrawal of their counsel.

Thereafter, Larrañaga, Josman and brothers James Anthony and James Andrew moved for the
postponement of the hearing for several weeks to enable them to hire the services of new counsel. [68] On
August 31, 1998, the trial court denied appellants' motions on the ground that it could no longer delay the
hearing of the cases. On September 2, 1998, the trial court directed the Public Attorney's Office (PAO) to
act as counsel de oficio for all the appellants.[69]

Trial resumed on September 3, 1998 with a team of PAO lawyers assisting appellants. Larrañaga objected
to the continuation of the direct examination of the prosecution witnesses as he was not represented by
his counsel de parte. The trial court overruled his objection. The prosecution witnesses testified
continuously from September 3, 1998 to September 24, 1998. Meanwhile, the cross-examination of said
witnesses was deferred until the appellants were able to secure counsel of their choice. On the same date,
September 24, 1998, Atty. Eric C. Villarmia entered his appearance as counsel for Larrañaga, while Atty.
Eric S. Carin appeared as counsel for brothers James Anthony and James Andrew.

Thereafter, or on October 1, 1998, the defense lawyers started cross-examining Rusia. The cross-
examination continued on October 5, 6, 12 and 13, 1998.

Eventually, acting on the prosecution's motion to discharge Rusia to be a state witness, the trial court
required the "opposing parties to submit their respective memoranda. On November 12, 1998, the trial
court issued an omnibus order granting the prosecution's motion discharging Rusia as an
accused and according him the status of a state witness.

On May 5, 1999, the trial court rendered the assailed Decision, the dispositive portion of which reads:
"WHEREFORE, all the accused Francisco Juan Larrañaga, Josman Aznar, James Andrew Uy, James
Anthony Uy, Rowen Adlawan, Alberto Caño, and Ariel Balansag are hereby found Guilty beyond
reasonable doubt of two crimes of Kidnapping and Serious Illegal Detention and are hereby sentenced to
imprisonment of Two (2) Reclusiones Perpetua each — which penalties, however, may be served by
them simultaneously (Article 70, Revised Penal Code). Further, said accused are hereby ordered to
indemnify the heirs of the two (2) victims in these cases, jointly and severally, in the amount of
P200,000.00 in actual damages and P5,000,000.00 by way of moral and exemplary damages.

"SO ORDERED."
Hence, the instant separate appeals. Appellants Rowen, Alberto and Ariel ascribe to the trial court the
following errors:
"I

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE UNTRUSTWORTHY, INCONSISTENT,

CONTRADICTORY AND INCREDULOUS TESTIMONY OF (DAVIDSON) VALIENTE RUSIA.

"II

THE COURT A QUO ERRED IN ADMITTING THE TESTIMONY OF THE PROSECUTION WITNESSES,
NOTWITHSTANDING THE FACT THAT THE DEFENDANTS WERE NOT DULY REPRESENTED BY COUNSELS OF
THEIR OWN CHOICE DURING THE TIME THESE WITNESSES WERE PRESENTED.

"III

THE COURT A QUO ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR.

"IV

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION
WITNESSES.

“V

THE COURT A QUO ERRED IN DISPLAYING MANIFEST ANIMOSITY TOWARDS THE DEFENSE'S WITNESSES
WHICH CLEARLY SHOWED ITS PREJUDICE AND BIAS IN DECIDING THE CASE.

"VI

THE COURT A QUO ERRED IN NOT ALLOWING SOME DEFENSE WITNESSES TO TESTIFY.

"VII

THE COURT A QUO ERRED IN CONSIDERING ROWEN ADLAWAN TO HAVE WAIVED PRESENTATION OF
EVIDENCE IN HIS BEHALF."
For his part, Josman raises the following assignments of error:
"I

THE TRIAL COURT GRAVELY ERRED IN DISCHARGING DAVID VALIENTE RUSIA AS STATE WITNESS IN
GROSS AND BLATANT DISREGARD OF THE RULES ON DISCHARGE OF STATE WITNESS.

"II

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO RUSIA'S TESTIMONY DESPITE CLEAR
SHOWING THAT HIS CRIMINAL RECORD — AS AN EX-CONVlCT, DRUG ADDICT AND GANGSTER — AND
HIS SUICIDAL TENDENCIES — SERIOUSLY IMPAIR HIS CREDIBILITY AND INNATE CAPACITY FOR TRUTH,
HONESTY AND INTEGRITY.

"III

THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO RUSIA'S TESTIMONY REPLETE AS IT WAS
WITH INCONSISTENCIES, FALSEHOODS AND LIES.

"IV

THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO THE CORROBORATIVE TESTIMONIES OF
THE PROSECUTION WITNESSES.

"V

THE TRIAL COURT GRAVELY ERRED IN DENYING APPELLANT AZNAR HIS RIGHT TO DUE PROCESS AND IN
DEPRIVING HIM OF THE CONSTITUTIONAL RIGHTS OF AN ACCUSED.

"VI
THE TRIAL JUDGE VIOLATED AZNAR'S RIGHT TO DUE PROCESS WHEN THE TRIAL JUDGE REFUSED TO
INHIBIT HIMSELF AND PROCEEDED WITH THE TRIAL DESPITE GLARING BADGES OF HIS PARTIALITY AND
BIAS FOR THE PROSECUTION.

"VII

THE TRIAL COURT GRAVELY ERRED IN DISCREDITING AND DISREGARDING THE DEFENSE OF APPELLANT
AZNAR.

"VIII

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT AZNAR ON THE BASIS OF PROSECUTING
EVIDENCE MAINLY ANCHORED ON RUSIA'S TESTIMONY WHICH FAILED TO EVINCE PROOF BEYOND
REASONABLE DOUBT OF APPELLANT AZNAR'S CRIMINAL LIABILITY."
In his 145-page appellant's brief, Larrañaga alleges that the trial court committed the following errors:
"6.1 THE TRIAL COURT ERRED IN IGNORING AND VIOLATING DUE PROCESS RIGHTS OF THE ACCUSED.

6.2 THE TRIAL COURT ERRED IN ALLOWING THE DISCHARGE OF ACCUSED DAVIDSON RUSIA.

6.3 THE TRIAL COURT ERRED IN GIVING PARTIAL CREDIBILITY TO THE TESTIMONY OF DAVIDSON
RUSIA.

6.4 THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONIES OF THE OTHER WITNESSES.

6.5 THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF OTHER WITNESSES.

6.6 THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS OVERCOME THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

6.7 THE TRIAL COURT ERRED IN DISREGARDING AND REJECTING, EVEN AT DIRECT TESTIMONY
STAGE, THE ACCUSED-APPELLANT'S DEFENSE OF ALIBI."
For their part, brothers James Anthony and James Andrew, in their 147-page appellants' brief, bid for an
acquittal on the following grounds:
"A) THE TRIAL COURT BELOW GRIEVOUSLY FAILED TO OBSERVE, AND THUS DENIED ACCUSED JAMES
ANTHONY S. UY AND JAMES ANDREW S. UY THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW,
TO BE PRESUMED INNOCENT, TO HAVE COUNSEL OF THEIR OWN CHOICE, TO HAVE AN IMPARTIAL
JUDGE, TO MEET WITNESSES FACE TO FACE, AND TO PRODUCE EVIDENCE ON THEIR BEHALF;

B) THE PROSECUTION EVIDENCE HAS ABSOLUTELY NOTHING TO SUPPORT THE CONVICTION OF

ACCUSED JAMES ANTHONY S. UY AND JAMES ANDREW S. UY IN THESE CASES THUS THE TRIAL COURT
BELOW SERIOUSLY AND GRIEVOUSLY ERRED WHEN IT RENDERED THE 5 MAY 1999 JUDGMENT OF
CONVICTION AGAINST THEM."[70]
Appellants' assignments of error converge on four points, thus: (1) violation of their right to due process;
(2) the improper discharge of Rusia as an accused to be a state witness; (3) the insufficiency of the
evidence of the prosecution; and (4) the trial court's disregard and rejection of the evidence for the
defense.

The appeal is bereft of merit.

I. Violation of Appellants' Right to Due Process

Due process of law is the primary and indispensable foundation of individual freedoms; it is the basic and
essential term in the social compact which defines the rights of the individual and delimits the powers
which the State may exercise.[71] In evaluating a due process claim, the court must determine whether
life, liberty or property interest exists, and if so, what procedures are constitutionally required to protect
that right.[72] Otherwise stated, the due process clause calls for two separate inquiries in evaluating an
alleged violation: did the plaintiff lose something that fits into one of the three protected categories of life,
liberty, or property?; and, if so, did the plaintiff receive the minimum measure of procedural protection
warranted under the circumstances?[73]

For our determination, therefore, is whether the minimum requirements of due process were accorded to
appellants during the trial of these cases.

Section 14, Article III of our Constitution catalogues the essentials of due process in a criminal
prosecution, thus:
"SEC. 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the
witnesses faceto face, and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been notified and his failure to appear is unjustifiable."
Rule 115 of the Revised Rules of Criminal Procedure casts the foregoing provision in a more detailed
manner, thus:
"SECTION 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall be entitled to
the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings,
from arraignment to promulgation of the judgment. The accused may, however, waive his presence
at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by
the court for purposes of identification. The absence of the accused without justifiable cause at the trial of
which he had notice shall be considered a waiver of his right to be present thereat. When an accused
under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial
dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by
direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may
utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with
due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in
another case or proceeding, judicial or administrative, involving the same parties and subject
matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other
evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law."
Of the foregoing rights, what appellants obviously claim as having been trampled upon by the trial court
are their: (a) right to be assisted by counsel at every stage of the proceedings; (b) right to confront and
cross-examine the prosecution witnesses; (c) right to produce evidence on their behalf; and (d) right to
an impartial trial.

A. Right to Counsel

Anent the right to counsel, appellants fault the trial court: first, for appointing counsel de oficio despite
their insistence to be assisted by counsel of their own choice; and second, for refusing to suspend trial
until they shall have secured the services of new counsel.

Appellants cannot feign denial of their right to counsel. We have held that there is no denial of the right to
counsel where a counsel de oficio was appointed during the absence of the accused's counsel de parte,
pursuant to the court's desire to finish the case as early as practicable under the continuous trial
system.[74]

Indisputably, it was the strategic machinations of appellants and their counsel de parte which prompted
the trial court to appoint counsel de oficio. The unceremonious withdrawal of appellants' counsel de
parte during the proceedings of August 24, 1998, as well as their stubborn refusal to return to the court
for trial undermines the continuity of the proceedings. Considering that the case had already been
dragging on a lethargic course, it behooved the trial court to prevent any further dilatory maneuvers on
the part of the defense counsel. Accordingly, it was proper for the trial court to appoint counsel de oficio to
represent appellants during the remaining phases of the proceedings.

At any rate, the appointment of counsel de oficio under such circumstances is not proscribed by the
Constitution. An examination of its provisions concerning the right to counsel shows that the "preference
in the choice of counsel" pertains more aptly and specifically to a person under investigation[75] rather
than an accused in a criminal prosecution.[76] And even if we are to extend the "application of the concept
of "preference in the choice of counsel" to an accused in a criminal prosecution, such preferential
discretion is not absolute as would enable him to choose a particular counsel to the exclusion of others
equally capable. We stated the reason for this ruling in an earlier case:
"Withal, the word 'preferably' under Section 12 (1), Article 3 of the 1987 Constitution does not convey the
message that the choice of a lawyer by a person under investigation is exclusive as to preclude other
equally competent and independent attorneys from handling his defense. If the rule were otherwise,
then, the tempo of a custodial investigation, will be solely in the hands of the accused who can
impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer, who for
one reason or another, is not available to protect his interest. This absurd scenario could not
have been contemplated by the framers of the charter."[77]
In the same breath, the choice of counsel by the accused in a criminal prosecution is not a plenary one. If
the chosen counsel deliberately makes himself scarce, the court is not precluded from
appointing a de oficio counsel whom it considers competent and independent to enable the trial
to proceed until the counsel of choice enters his appearance. Otherwise, the pace of a criminal
prosecution will be entirely dictated by the accused to the detriment of the eventual resolution of the
case.[78]

Neither is there a violation of appellants' right to counsel just because the trial court did not grant their
request for suspension of the hearing pending their search for new counsel. An application for a
continuance in order to secure the services of counsel is ordinarily addressed to the discretion of the court,
and the denial thereof is not ordinarily an infringement of the accused's right to counsel. [79] The right of
the accused to select his own counsel must be exercised in a reasonable time and in a
reasonable manner.[80]

In the present case, appellants requested either one (1) month or three (3) weeks to look for new
counsel. Such periods are unreasonable. Appellants could have hired new lawyers at a shorter time had
they wanted to. They should have been diligent in procuring new counsel.[81] Constitutional guaranty of
right to representation by counsel does not mean that accused may avoid trial by neglecting or
refusing to secure assistance of counsel and by refusing to participate in his trial.[82]It has been
held that where the accused declined the court's offer to appoint counsel and elected to defend himself,
the denial of his motion made toward the end of the trial for a continuance so that he could obtain counsel
of his own choice was not an infringement of his constitutional rights.[83] While the accused has the right
to discharge or change his counsel at any time, this right is to some extent subject to supervision by the
trial court, particularly after the trial has commenced. The court may deny accused's application to
discharge his counsel where it appears that such application is not made in good faith but is
made for purposes of delay.[84]

Significantly, parallel to the hearing at the trial court were also petitions and motions involving several
incidents in these cases filed with the Court of Appeals and this Court. The appellants, particularly
Larrañaga, were represented there by the same counsel de parte.[85] Certainly, it is wrong for these
lawyers to abandon appellants in the proceeding before the trial court and unceasingly represent them in
the appellate courts. Indeed, in doing so, they made a mockery of judicial process and certainly delayed
the hearing before the court below. In Lacambra vs. Ramos,[86] we ruled:
"The Court cannot help but note the series of legal maneuvers resorted to and repeated importunings of
the accused or his counsel, which resulted in the protracted trial of the case, thus making a mockery of
the judicial process, not to mention the injustice caused by the delay to the victim's family."
Furthermore, appellants' counsel de parte ought to know that until their withdrawal shall have been
approved by the appellants, they still remain the counsel of record and as such, they must do what is
expected of them, that is, to protect their interests.[87] They cannot walk out from a case simply because
they do not agree with the ruling of the judge. Being officers of the court whose duty is to assist in
administering justice, they may not withdraw or be permitted to withdraw as counsel in a case if such
withdrawal will work injustice to a client or frustrate the ends of justice. [88]

B. Right to Confront and Cross-

Examine the Prosecution
Witnesses.

Appellants also fault the trial court for depriving them of the right to cross-examine Rusia and the other
prosecution witnesses. Appellants' assertion has no factual and legal anchorage. For one, it is not true that
they were not given sufficient opportunity to cross-examine Rusia. All of appellants' counsel de parte had
a fair share of time in grilling Rusia concerning his background to the kidnapping of Marijoy and
Jacqueline. The records reveal the following dates of his cross-examination:
Lawyers Dates of Cross-examination

1. Armovit (for Larrañaga) August 13 and 17, 1998

2. Gonzales (for Larrañaga) August 20, 1998
3. Gica (for Josman) August 20, 1998
4. Paylado (for James Anthony and James Andrew) August 20, 1998
5. De la Cerna (for Rowen, Alberto and Ariel) August 20, 1998
6. Villarmia (for Larrañaga) October 1, 1998

7. Andales (for Josman) October 5 and 6, 1998

8. Carin (for James Andrew and James Anthony) October, 5, 1998
9 Debalucos (for Rowen, Caño and Balansag) October 12, 1998
10. De Jesus (for Rowen, Alberto and Ariel) October 12, 1998
11. Ypil (for Rowen, Alberto and Ariel) October 12, 1998[89]
That the trial court imposed limitation on the length of time counsel for appellants may cross-examine
Rusia cannot be labeled as a violation of the latter's constitutional right. Considering that appellants had
several lawyers, it was just imperative for the trial court to impose a time limit on their cross-examination
so as not to waste its time on repetitive and prolix questioning.

Indeed, it is the right and duty of the trial court to control the cross-examination of witnesses, both for the
purpose of conserving its time and protecting the witnesses from prolonged and needless
examination.[90] Where several accused are being tried jointly for the same offense, the order in which
counsel for the several defendants shall cross-examine the state's witnesses may be regulated by the
court[91] and one of them may even be denied the right to cross-examine separately where he had
arranged with the others that counsel of one of them should cross-examine for all.[92] In People vs.
Gorospe,[93] we ruled:
"While cross-examination is a right available to the adverse party, it is not absolute in the sense that a
cross-examiner could determine for himself the length and scope of his cross-examination of a
witness. The court has always the discretion to limit the cross-examination and to consider it
terminated if it would serve the ends of justice."
The transcript of stenographic notes covering Rusia's cross-examination shows that appellants' counsel
had ample chance to test his credibility.

Records show that the failure of the PAO lawyers to cross-examine some of the prosecution witnesses was
due to appellants' obstinate refusal. In its Order[94] dated September 8, 1998, the trial court deferred the
cross-examination in view of appellants' insistence that their new counsel de parte will conduct the cross-
examination. So as not to unduly delay the hearing, the trial court warned the appellants that if by
September 24, 1998, they are not yet represented by their new counsel de parte, then it will order their
counsel de oficio to conduct the cross-examination. Lamentably, on September 24, 1998, appellants'
counsel de parte entered their appearances merely to seek another postponement of the trial. Thus, in
exasperation, Judge Ocampo remarked:
"Every time a defense counsel decides to withdraw, must an accused be granted one (1) month
suspension of trial to look for such new counsel to study the records and transcripts? Shall the pace of the
trial of these cases be thus left to the will or dictation of the accused - whose defense counsels would
just suddenly withdraw and cause such long suspensions of the trial while accused allegedly shop
around for new counsels and upon hiring new counsels ask for another one month trial suspension for
their new lawyers to study the records? While all the time such defense counsels (who allegedly have
already withdrawn) openly continue to 'advise' their accused-clients and even file 'Manifestations' before
this Court and Petitions for Certiorari, Injunction and Inhibition on behalf of accused before the Court of
Appeals and the Supreme Court?

"What inanity is this that the accused and their lawyers are foisting upon this Court? In open defiance of
the provisions of SC A.O. No. 104-96 that these heinous crimes cases shall undergo 'mandatory
continuous trial and shall be terminated within sixty (60) days'?"
Still, in its Order dated October 8, 1998, the trial court gave appellants' new counsel de parte a period
until October 12, 1998 to manifest whether they are refusing to cross-examine the prosecution witnesses
concerned; if so, then the court shall consider them to have waived their right to cross-examine those
witnesses. During the hearing on October 12, 1998, Larrañaga's new counsel de parte, Atty. Villarmia,
manifested that he would not cross-examine the prosecution witnesses who testified on direct examination
when Larrañaga was assisted by counsel de officio only. The next day, the counsel de parte of Josman,
and brothers James Anthony and James Andrew adopted Atty. Villarmia's manifestation. Counsel for
Rowen, Alberto and Ariel likewise refused to cross-examine the same witnesses. Thus, in its Order dated
October 14, 1998, the trial court deemed appellants to have waived their right to cross-examine the
prosecution witnesses.

It appears therefore, that if some of the prosecution witnesses were not subjected to cross-examination, it
was not because appellants were not given the opportunity to do so. The fact remains that their new
counsel de parte refused to cross-examine them. Thus, appellants waived their right "to confront and
cross examine the witnesses" against them.

C. Right to Impartial
Trial
Appellants imputes bias and partiality to Judge Ocampo when he asked questions and made comments
when the defense witnesses were testifying.

Canon 14 of the Canons of Judicial Ethics states that a judge may properly intervene during trial to
promote expeditious proceeding, prevent unnecessary waste of time and dilly-dallying of counsel or clear
up obscurities. The test is whether the intervention of the judge tends to prevent the proper
presentation of a cause or the ascertainment of the truth in the matter where he interposes his
questions or comments.

Records show that the intervention by way of comment of Judge Ocampo during the hearing was not only
appropriate but was necessary. One good illustration is his explanation on alibi. Seeing that the appellants'
counsel were about to present additional witnesses whose testimonies would not establish the
impossibility of appellants' presence in the scene of the crime, Judge Ocampo intervened and reminded
appellants' counsel of the requisites of alibi, thus:
"Well, I'm not saying that there is positive identification. I'm only saying that in proving your alibi you
must stick by what the Supreme Court said that it was impossible if they are telling the truth, di ba? Now
with these other witnesses na hindi naman ganoon to that effect it does not prove that it was impossible,
e, what is the relevance on that? What is the materiality? lyon ang point ko. We are wasting our time with
that testimony. Ilang witnesses and epe-present to that effect. Wala rin namang epekto. It will not prove
that it was not impossible for him to go to Cebu at 10:30 P.M., of July 16, e, papano yan? We are being
criticized by the public already for taking so long a time of the trial of these cases which is supposed to be
finished within 60 days. Now from August, September, October, November, December and January,
magse-six months na, wala pa and you want to present so many immaterial witnesses."
Surely, we cannot fault Judge Ocampo for exhaustively reminding appellants' counsel of the parameters of
alibi to ensure that there will be an orderly and expeditious presentation of defense witnesses and that
there will be no time wasted by dispensing with the testimonies of witnesses which are not
relevant. Remarks which merely manifest a desire to confine the proceedings to the real point in
issue and to expedite the trial do not constitute a rebuke of counsel.[95]

Appellants also decry the supposed harshness of Judge Ocampo towards the witnesses for the defense,
namely: Lourdes Montalvan, Michael Dizon, Rebecca Seno, Clotilde Soterol, Salvador Boton, Catalina
Paghinayan and Paolo Celso.

With respect to Lourdes Montalvan, Judge Ocampo expressed surprise on "how a 17-year-old girl could go
to a man's apartment all alone." He said that such conduct "does not seem to be a reasonable or a proper
behavior for a 17-year-old girl to do." These statements do not really indicate bias or prejudice against the
defense witnesses. The transcript of stenographic notes reveals that Judge Ocampo uttered them, not to
cast doubt on the moral character of Lourdes Montalvan, but merely to determine the credibility of her
story, thus:
"x x x But what I wanted to point out is the question of credibility. That is what we are here for. We want
to determine if it is credible for a 17-year-old college student of the Ateneo who belongs to a good family,
whose father is a lawyer and who could afford to live by herself in a Condominium Unit in Quezon City and
that she would go to the Condominium Unit of a man whom he just met the previous month, all alone by
herself, at night and specifically on the very night July 16, 1997. x x x That is the question that I would
like you to consider, x x x I assure you I have no doubts at all about her moral character and I have the
highest respect for Miss Montalvan. x x x."
Strong indication of Judge Ocampo's lack of predilection was his acquiescence for Lourdes Montalvan to
clarify during redirect examination why she found nothing wrong with being alone at Larrañaga's unit. We
quote the proceedings of November 19, 1998, thus:
ATTY. VILLARMIA:
Q When you went up you said you were alone. What was your feeling of going up to that room
alone or that unit alone?

PROS. GALANIDA
We object, not proper for re-direct. That was not touched during the cross. That should have
been asked during the direct-examination of this witness, Your Honor.

ATTY. VILLARMIA:
We want to clarify why she went there alone.

COURT:
Precisely, I made that observation that does not affect or may affect the credibility
of witness the fact that she went there alone. And so, it is proper to ask her, di ba?

xxx
COURT:
What was your purpose? Ask her now - what was your purpose?

/to the witness:

Q Will you answer the question of the Court/ What was your purpose or intention in going in
Paco's room that night alone?

WTNESS:
A My purpose for going there was to meet Richard, sir, and to follow-up whether we will go out
later that night or not. The purpose as to going there alone, sir, I felt, I trusted Paco.

PROS. DUYONGCO:
May we ask the witness not to elaborate, Your Honor.

ATTY. VILLARMIA:
That is her feeling.

COURT:
That was her purpose. It is proper."[96]
Appellants consider as violation of their right to due process Judge Ocampo's remarks labeling Rebecca
Seno's and Catalina Paghinayan's testimony as "incredible"[97]Clotilde Soterol as a "totally confused person
who appears to be mentally imbalanced;"[98] and Salvador Boton and Paulo Celso as "liars."[99]

Suffice it to state that after going over the pertinent transcript of stenographic notes, we are convinced
that Judge Ocampo's comments were just honest observations intended to warn the witnesses to be
candid to the court. He made it clear that he merely wanted to ascertain the veracity of their testimonies
in order to determine the truth of the matter in controversy.[100] That such was his purpose is evident from
his probing questions which gave them the chance to correct or clarify their contradictory statements.
Even appellants' counsel de parte acknowledged that Judge Ocampo's statements were mere "honest
observations”[101] If Judge Ocampo uttered harsh words against those defense witnesses, it was because
they made a mockery of the court's proceedings by their deliberate lies. The frequency with which they
changed their answers to Judge Ocampo's clarificatory questions was indeed a challenge to his patience.

A trial judge is not a wallflower during trial. It is proper for him to caution and admonish witnesses
when necessary and he may rebuke a witness for levity or for other improper conduct.[102] This
is because he is called upon to ascertain the truth of the controversy before him. [103]

It bears stressing at this point that the perceived harshness and impatience exhibited by Judge Ocampo
did not at all prevent the defense from presenting adequately its side of the cases.

D. Right to Produce Evidence

Appellants assail the trial court's exclusion of the testimonies of four (4) airlines personnel [104] which were
intended to prove that Larrañaga did not travel to Cebu from Manila or from Cebu to Manila on July 16,
1997. The trial court's exclusion of the testimonies is justified. By an alibi, Larrañaga attempted to prove
that he was at a place (Quezon City) so distant that his participation in the crime was impossible. To prove
that he was not in the pre-flight and post-flight of the four (4) major airlines flying the route of Cebu to
Manila and Manila to Cebu on July 15 and 16, 1997 would not prove the legal requirement of "physical
impossibility" because he could have taken the flight from Manila to Cebu prior to that date, such as July
14, 1997. According to Judge Ocampo, it was imperative for appellants' counsel to prove that Larrañaga
did not take a flight to Cebu before July 16, 1997.

In the same way, we cannot fault the trial court for not allowing the defense to continue with the" tedious
process of presenting additional witnesses to prove Larrañaga's enrollment at the Center for Culinary Arts,
located at Quezon City, from June 18, 1997 to July 30, 1997 considering that it would not also prove that
he was not in Cebu on July 16 to 17, 1997. It is a known practice of students who are temporarily residing
in Metro Manila to return to their provinces once in a while to spend time with their families. To prove that
Larrañaga was enrolled during a certain period of time does not negate the possibility that he went home
to Cebu City sometime in July 1997 and stayed there for a while.

Due process of law is not denied by the exclusion of irrelevant, immaterial, or incompetent
evidence, or testimony of an incompetent witness.[105] It is not error to refuse evidence which
although admissible for certain purposes, is not admissible for the purpose which counsel states as the
ground for offering it.[106]
To repeat, due process is satisfied when the parties are afforded a fair and reasonable opportunity to
explain their respective sides of the controversy.[107] In the present case, there is no showing of violation
of due process which justifies the reversal or setting aside of the trial court's findings.

II. The Improper Discharge of Rusia as an Accused

to be a State Witness

Appellants argue that Rusia is not qualified to be a state witness under paragraphs (d) and (e) of Section
9, Rule 119 of the 1985 Rules on Criminal Procedure, which reads:
"Sec. 9. Discharge of the accused to be state witness. — When two or more persons are jointly charged
with the commission of any offense, upon motion of the prosecution before resting its case, the court may
direct one or more of the accused to be discharged with their consent so that they may be witness for the
state when after requiring the prosecution to present evidence and the sworn statement of each proposed
state witness at a hearing in support of the discharge, the court is satisfied that:

xxx

(d) Said accused does not appear to be most guilty;

(e) Said accused has not at anytime been convicted of any offense involving moral turpitude.

xxx"
Appellants claim that Rusia was the "most guilty of both the charges of rape and kidnapping" having
admitted in open court that he raped Jacqueline. Furthermore, Rusia admitted having been previously
convicted in the United States of third degree burglary.

It bears stressing that appellants were charged with kidnapping and illegal detention, Thus, Rusia's
admission that he raped Jacqueline does not make him the "most guilty" of the crimes
charged. Moreover, far from being the mastermind, his participation, as shown by the chronology of
events, was limited to that of an oblivious follower who simply "joined the ride" as the commission of the
crimes progressed. It may be recalled that he joined the group upon Rowen's promise that there would be
a "big happening" on the night of July 16, 1997. All along, he thought the "big happening" was just
another "group partying or scrounging." In other words, he had no inkling then of appellants' plan to
kidnap and detain the Chiong sisters. Rusia retained his passive stance as Rowen and Josman grabbed
Marijoy and Jacqueline at the waiting shed of Ayala Center. He just remained seated beside the driver's
seat, not aiding Rowen and Josman in abducting the Chiong sisters. When Jacqueline attempted to escape
14 meters away from the waiting shed, it was Josman who chased her and not Rusia. Inside the car, it
was Rowen who punched and handcuffed the Chiong sisters. At the safehouse of the "Josman Aznar
Group," Rusia stayed at the living room while Larrañaga, James Anthony, Rowen, and Josman molested
Marijoy and Jacqueline on separate rooms. At Tan-awan, it was Josman who ordered Rowen and Ariel to
pushed Marijoy into the deep ravine. And Rusia did not even know what ultimately happened to Jacqueline
as he was the first to leave the group. Clearly, the extent of Rusia's participation in the crimes charged
does not make him the "most guilty."

The fact that Rusia was convicted of third degree burglary in Minessotta does not render his testimony
inadmissible.[108] In People vs. De Guzman[109] we held that although the trial court may have erred in
discharging the accused, such error would not affect the competency and the quality of the testimony of
the defendant. In Mangubat vs. Sandiganbayan,[110] we ruled:
"Anent the contention that Delia Preagido should not have been discharged as a state witness
because of a 'previous final conviction' of crimes involving moral turpitude, suffice it to say that
'this Court has time and again declared that even if the discharged state witness should lack
some of the qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his
testimony will not, for that reason alone, be discarded or disregarded. In the discharge of a co-
defendant, the court may reasonably be expected to err; but such error in discharging an accused has
been held not to be a reversible one. This is upon the principle that such error of the court does not
affect the competency and the quality of the testimony of the discharged defendant."
Furthermore, it may be recalled that Rusia was extremely bothered by his conscience and was having
nightmares about the Chiong sisters, hence, he decided to come out in the open. [111] Such fact alone is a
badge of truth of his testimony.

But, more importantly, what makes Rusia's testimony worthy of belief is the marked compatibility
between such testimony and the physical evidence. Physical evidence is an evidence of the highest order.
It speaks eloquently than a hundred witnesses.[112] The presence of Marijoy's ravished body in a deep
ravine at Tan-awan, Carcar with tape on her mouth and handcuffs on her wrists certainly bolstered Rusia's
testimony on what actually took place from Ayala Center to Tan-awan. Indeed, the details he supplied to
the trial court were of such nature and quality that only a witness who actually saw the commission of the
crimes could furnish. What is more, his testimony was corroborated by several other witnesses who saw
incidents of what he narrated, thus: (1) Rolando Dacillo and Mario Minoza saw Jacqueline's two failed
attempts to escape from appellants; (2) Alfredo Duarte saw Rowen when he bought barbeque and
Tanduay at Nene's Store while the white van, driven by Alfredo Caño, was waiting on the side of the road
and he heard voices of "quarreling male and female" emanating from the van; (3) Manuel Camingao
testified on the presence of Larrañaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997; and
lastly, (4) Benjamin Molina and Miguel Vergara recognized Rowen as the person who inquired from them
where he could find a vehicle for hire, on the evening of July 16, 1997. All these bits and pieces of story
form part of Rusia's narration. With such strong anchorage on the testimonies of disinterested witnesses,
how can we brush aside Rusia's testimony?

Rusia's discharge has the effect of an acquittal.[113] We are not inclined to recall such discharge lest he will
be placed in double jeopardy. Parenthetically, the order for his discharge may only be recalled in one
instance, which is when he subsequently failed to testify against his co-accused. The fact that not all the
requisites for his discharge are present is not a ground to recall the discharge order. Unless and until it
is shown that the he failed or refused to testify against his co-accused, subsequent proof
showing that any or all of the conditions listed in Sec. 9 of Rule 119 were not fulfilled would not
wipe away the resulting acquittal.[114]

III. Appreciation of the Evidence for the

Prosecution and the Defen

Settled is the rule that the assessment of the credibility of witnesses is left largely to the trial court
because of its opportunity, not available to the appellate court, to see the witnesses on the stand and
determine by their demeanor whether they are testifying truthfully or lying through their teeth. Its
evaluation of the credibility of witnesses is well-nigh conclusive on this Court, barring arbitrariness in
arriving at his conclusions.[115]

We reviewed the records exhaustively and found no compelling reason why we should deviate from the
findings of fact and conclusion of law of the trial court. Rusia's detailed narration of the circumstances
leading to the horrible death and disappearance of Jacqueline has all the earmarks of truth. Despite the
rigid cross-examination conducted by the defense counsel, Rusia remained steadfast in his testimony. The
other witnesses presented by the prosecution corroborated his narration as to its material points which
reinforced its veracity.

Appellants proffered the defense of denial and alibi. As between their mere denial and the positive
identification and testimonies of the prosecution witnesses, we are convinced that the trial court did not
err in according weight to the latter. For the defense of alibi to prosper, the accused must show that he
was in another place at such a period of time that it was physically impossible for him to have been at the
place where the crime was committed at the time of its commission.[116] These requirements of time
and place must be strictly met.[117] A thorough examination of the evidence for the defense shows that
the appellants failed to meet these settled requirements. They failed to establish by clear and convincing
evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the Chiong
sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James
Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997.

Not even Larrañaga who claimed to be in Quezon City satisfied the required proof of physical impossibility.
During the hearing, it was established that it takes only one (1) hour to travel by plane from Manila
to Cebu and that there are four (4) airline companies plying the route. One of the defense
witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and
evening. Taking into account the mode and speed of transportation, it is therefore within the realm of
possibility for Larrañaga to be in Cebu City prior to or exactly on July 16, 1997. Larrañaga's mother,
Margarita Gonzales-Larrañaga, testified that his son was scheduled to take a flight from Manila to Cebu on
July 17, 1997 at 7:00 o'clock in the evening, but he was able to take an earlier flight at 5:00 o'clock in the
afternoon. Margarita therefore claimed that his son was in Cebu City at around 6:00 o'clock in the evening
of July 17, 1997 or the day after the commission of the crime. However, while Larrañaga endeavored to
prove that he went home to Cebu City from Manila only in the afternoon of July 17, 1997, he did not
produce any evidence to show the last time he went to Manila from Cebu prior to such crucial
date. If he has a ticket of his flight to Cebu City on July 17, 1997, certainly, he should also have a ticket
of his last flight to Manila prior thereto. If it was lost, evidence to that effect should have been presented
before the trial court.

Indeed, Larrañaga's presence in Cebu City on July 16, 1997 proved to be not only a possibility but a
reality. No less than four (4) witnesses for the prosecution identified him as one of the two men talking to
Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at
around 7:20 in the evening, she saw Larrañaga approach Marijoy and Jacqueline at the West
Entry of Ayala Center. The incident reminded her of Jacqueline's prior story that he was Marijoy's
admirer. She (Shiela) confirmed that she knows Larrañaga since she had seen him on five (5)
occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00
o'clock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala
Center. She recognized them as Larrañaga and Josman, having seen them several times at Glicos, a
game zone, located across her office at the third level of Ayala Center. Williard Redobles, the security
guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In
addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larrañaga at Tan-awan
at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van.[118]
Taking the individual testimonies of the above witnesses and that of Rusia, it is reasonable to conclude
that Larrañaga was indeed in Cebu City at the time of the commission of the crimes and was one of the
principal perpetrators.

Of course, we have also weighed the testimonial and documentary evidence presented by appellants in
support of their respective alibi. However, they proved to be wanting and incredible.

Salvador Boton, the security guard assigned at the lobby of Loyola Heights Condominium, testified on
the entry of Larrañaga's name in the Condominium's logbook to prove that he was in Quezon City on the
night of July 16, 1997. However, a cursory glance of the entry readily shows that it was written at the
uppermost portion of the logbook and was not following the chronological order of the entries. Larrañaga's
10:15 entry was written before the 10:05 entry which, in turn, was followed by a 10:25 entry. Not only
that, the last entry at the prior page was 10:05. This renders the authenticity of the entries doubtful. It
gives rise to the possibility that the 10:15 entry was written on a later date when all the spaces in the
logbook were already filled up and thus, the only remaining spot was the uppermost portion. Surprisingly,
the alleged arrival of Larrañaga and his friend Richard Antonio at the Loyola Heights Condominium in the
early evening of July 16, 1997 was not recorded in the logbook.

Rowena Bautista, a teacher at the Center for Culinary Arts, Quezon City, testified that Larrañaga
attended her lecture on Applied Mathematics on July 16, 1997 from 8:00 o'clock to 11:30 in the
morning.[119] This runs counter to Larrañaga's affidavit[120] stating that on the said date, he took his mid-
term examinations in the subject Fundamentals of Cookery from 8:00 o'clock in the morning to 3:30
o'clock in the afternoon.

With respect to Larrañaga's friends, the contradictions in their testimonies, painstakingly outlined by the
Solicitor General in the appellee's brief, reveal their unreliability. To our mind, while it may be possible
that Larrañaga took the mid-term examinations in Fundamentals of Cookery and that he and his friends
attended a party at the R and R Bar and Restaurant, also in Quezon City, however it could be that those
events occurred on a date other than July 16, 1997.

Clotilde Soterol, in defense of Ariel and Alberto (the driver and the conductor of the van) attempted to
discredit Rusia's testimony by testifying that the white van with plate no. GGC-491 could not have been
used in the commission of the crimes on the night of July 16, 1997 because it was parked in her shop
from 7:00 o'clock in the evening of the same date until 11:00 o'clock in the morning of July 17, 1997.
What makes Soterol's testimony doubtful is her contradicting affidavits. In the first affidavit dated July 28,
1997, or twelve (12) days from the occurrence of the crime, she stated that Alberto took the van from
her shop at 3:00 o'clock in the afternoon of July 16, 1997 and returned it for repair only on July
22, 1997.[121] But in her second affidavit dated October 1, 1997, she declared that Alberto left the van in
her shop at 7:00 o'clock in the evening of July 16, 1997 until 11:00 o'clock in the morning of July 17,
1997.[122] Surely, we cannot simply brush aside the discrepancy and accept the second affidavit as gospel
truth.

Appellants attempted to establish their defense of alibi through the testimonies of relatives and friends
who obviously wanted them exculpated of the crimes charged. Naturally, we cannot but cast an eye of
suspicion on their testimonies. In People vs. Ching,[123] we ruled that it is but natural, although morally
unfair, for a close relative to give weight to blood ties and close relationship in times of dire needs
especially when a criminal case is involved.

Rusia positively identified the appellants. The settled rule is that positive identification of an accused by
credible witnesses as the perpetrator of the crime demolishes alibi, the much abused sanctuary of
felons.[124] Rusia's testimony was corroborated by several disinterested witnesses who also identified the
appellants. Most of them are neither friends, relatives nor acquaintances of the victims' family. As we
reviewed closely the transcript of stenographic notes, we could not discern any motive on their part why
they should testify falsely against the appellants. In the same vein, it is improbable that the prosecution
would tirelessly go through the rigors of litigation just to destroy innocent lives.

Meanwhile, appellants argue that the prosecution failed to prove that the body found at the foot of a deep
ravine in Tan-awan, Carcar was that of Marijoy. We are not convinced. Rusia testified that Josman
instructed Rowen "to get rid" of Marijoy and that following such instruction, Rowen and Ariel pushed her
into the deep ravine. Furthermore, Inspector Edgardo Lenizo,[125] a fingerprint expert, testified that the
fingerprints of the corpse matched those of Marijoy.[126] The packaging tape and the handcuff found on the
dead body were the same items placed on Marijoy and Jacqueline while they were being detained. [127] The
body had the same clothes worn by Marijoy on the day she was abducted.[128] The members of the Chiong
family personally identified the corpse to be that of Marijoy[129] which they eventually buried. They erected
commemorative markers at the ravine, cemetery and every place which mattered to Marijoy. Indeed,
there is overwhelming and convincing evidence that it was the body of Marijoy that was found in the
ravine.

Appellants were charged with the crime of kidnapping and serious illegal detention in two (2) Informations
and were convicted thereof. Article 267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659,
reads:
"Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or
detain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion
perpetua to death;
1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, female or a public officer.
"The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none of the circumstances above mentioned were
present in the commission of the offense.

"When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture
or dehumanizing acts, the maximum penalty shall be imposed
The elements of the crime defined in Art. 267 above are: (a) the accused is a private individual; (b) he
kidnaps or detains another, or in any manner deprives the latter of his liberty;
(c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense, any of the
four (4) circumstances mentioned above is present.[130]

There is clear and overwhelming evidence that appellants, who are private individuals, forcibly dragged
Marijoy and Jacqueline into the white car, beat them so they would not be able to resist, and held them
captive against their will. In fact, Jacqueline attempted to free herself twice from the clutches of
appellants — the first was near the Ayala Center and the second was in Tan-awan, Carcar — but both
attempts failed. Marijoy was thrown to a deep ravine, resulting to her death. Jacqueline, on the other
hand, has remained missing until now.

Article 267 states that if the victim is killed or died as a consequence of the detention, or is raped or
subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. In People vs.
Ramos,[131] citing Parulan vs. Rodas,[132] and People vs. Mercado,[133] we held that this provision given rise
to a special complex crime, thus:
"Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the kidnapped
victim was subsequently killed by his abductor, the crime committed would either be a complex crime of
kidnapping with murder under Art 48 of the Revised Penal Code, or two (2) separate crimes of kidnapping
and murder. Thus, where the accused kidnapped the victim for the purpose of killing him, and he was in
fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder under
Art. 48 of the Revised Penal Code, as the kidnapping of the victim was a necessary means of committing
the murder. On the other hand, where the victim was kidnapped not for the purpose of killing him but was
subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were
committed.

However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last
paragraph which provides—
When the victim is killed or dies as a consequence of the detention, or is raped, or is subjected to torture
or dehumanizing acts, the maximum penalty shall be imposed.
This amendment introduced in our criminal statutes, the concept of 'special complex crime' of
kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts
between those cases where the killing of the kidnapped victim was purposely sought by the accused, and
those where the killing of the victim was not deliberately resorted to but was merely an
afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course
of the detention, regardless of whether the killing was purposely sought or was merely an
afterthought, the kidnapping and murder or homicide can no longer be complexed under Art.
48, nor be treated as separate crimes, but shall be punished as a special complex crime under
the last paragraph of Art. 267, as amended by RA No. 7659."
The prosecution was able to prove that Marijoy was pushed to a ravine and died. Both girls were raped by
the gang. In committing the crimes, appellants subjected them to dehumanizing acts. Dehumanization
means deprivation of human qualities, such as compassion.[134] From our review of the evidence
presented, we found the following dehumanizing acts committed by appellants: (1) Marijoy and
Jacqueline were handcuffed and their mouths mercilessly taped; (2) they were beaten to severe
weakness during their detention; (3) Jacqueline was made to dance amidst the rough manners and lewd
suggestions of the appellants; (4) she was taunted to run and forcibly dragged to the van; and 5) until
now, Jacqueline remains missing which aggravates the Chiong family's pain. All told, considering that the
victims were raped, that Marijoy was killed and that both victims were subjected to dehumanizing acts,
the imposition of the death penalty on the appellants is in order.
Thus, we hold that all the appellants are guilty beyond reasonable doubt of the special complex crime of
kidnapping and serious illegal detention with homicide and rape in Criminal Case No. CBU-45303 wherein
Marijoy is the victim; and simple kidnapping and serious illegal detention in Criminal Case No. CBU-45304
wherein Jacqueline is the victim.

A discussion on the nature of special complex crime is imperative. Where the law provides a single penalty
for two or more component offenses, the resulting crime is called a special complex crime. Some of the
special complex crimes under the Revised Penal Code are (1) robbery with homicide,[135] (2) robbery with
rape,[136] (3)kidnapping with serious physical injuries,[137] (4) kidnapping with murder or
homicide,[138] and (5) rape with homicide.[139] In a special complex crime, the prosecution must
necessarily prove each of the component offenses with the same precision that would be
necessary if they were made the subject of separate complaints. As earlier mentioned, R.A. No.
7659 amended Article 267 of the Revised Penal Code by adding thereto this provision: "When the victim
is killed or dies as a consequence of the detention, or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed; and that this provision gives rise to a
special complex crime. In the cases at bar, particularly Criminal Case No. CBU-45303, the Information
specifically alleges that the victim Marijoy was raped "on the occasion and in connection" with her
detention and was killed "subsequent thereto and on the occasion thereof." Considering that the
prosecution was able to prove each of the component offenses, appellants should be convicted of the
special complex crime of kidnapping and serious illegal detention with homicide and rape. It appearing
from the overwhelming evidence of the prosecution that there is a "direct relation, and intimate
connection"[140] between the kidnapping, killing and raping of Marijoy, rape cannot be considered merely
as an aggravating circumstance but as a component offense forming part of the herein special complex
crime. It bears reiterating that in People vs. Ramos,[141] and People vs. Mercado,[142] interpreting Article
267, we ruled that "where the person killed in the course of the detention, regardless of whether the
killing was purposely sought or was merely an afterthought, the kidnapping and murder or
homicide can no longer be complexed under Article 48, nor be treated as separate crimes, but shall be
punished as a special complex crime under the last paragraph of Article 267." The same
principle applies here. The kidnapping and serious illegal detention can no longer be complexed
under Article 48, nor be treated as separate crime but shall be punished as a special complex
crime. At any rate, the technical designation of the crime is of no consequence in the imposition
of the penalty considering that kidnapping and serious illegal detention if complexed with
either homicide or rape, still, the maximum penalty of death shall be imposed.

Anent Criminal Case No. CBU-45304 wherein Jacqueline is the victim, the penalty of reclusion
perpetua shall be imposed upon appellants considering that the above-mentioned component offenses
were not alleged in the Information as required under Sections 8 and 9, [143] Rule 110 of the Revised Rules
of Criminal Procedure. Consistent with appellants’ right to be informed of the nature and cause of
the accusation against him, these attendant circumstances or component offenses must be specifically
pleaded or alleged with certainty in the information and proven during the trial. Otherwise, they cannot
give rise to a special complex crime, as in this case. Hence, the crime committed is only simple kidnapping
and serious illegal detention.

From the evidence of the prosecution, there is no doubt that all the appellants conspired in the
commission of the crimes charged. Their concerted actions point to their joint purpose and community of
intent. Well settled is the rule that in conspiracy, direct proof of a previous agreement to commit a crime
is not necessary. It may be deduced from the mode and manner by which the offense was perpetrated, or
inferred from the acts of the accused themselves when such point to a joint design and community of
interest.[144] Otherwise stated, it may be shown by the conduct of the accused before, during, and after
the commission of the crime.[145] Appellants' actions showed that they have the same objective to kidnap
and detain the Chiong sisters. Rowen and Josman grabbed Marijoy and Jacqueline from the vicinity of
Ayala Center. Larrañaga, James Andrew and James Anthony who were riding a red car served as back-up
of Rowen and Josman. Together in a convoy, they proceeded to Fuente Osmeña to hire a van, and
thereafter, to the safehouse of the "Jozman Aznar Group" in Guadalupe, Cebu where they initially
molested Marijoy and Jacqueline. They headed to the South Bus Terminal where they hired the white van
driven by Alberto, with Ariel as the conductor. Except for James Andrew who drove the white car, all
appellants boarded the white van where they held Marijoy and Jacqueline captive. In the van, James
Anthony taped their mouths and Rowen handcuffed them together. They drank and had a pot session at
Tan-awan. They encircled Jacqueline and ordered her to dance, pushing her and ripping her clothes in the
process. Meanwhile, Larrañaga raped Marijoy, followed by Rowen, James Anthony, Alberto, and Ariel. On
other hand, Josman and James Andrew raped Jacqueline. Upon Josman's order, Rowen and Ariel led
Marijoy to the cliff and pushed her. After leaving Tan-awan, they taunted Jacqueline to run for her life.
And when Rusia got off from the van near Ayala Center, the appellants jointly headed back to Cebu City.

Clearly, the argument of Rowen, Ariel and Alberto that they were not part of the "conspiracy" as they were
merely present during the perpetration of the crimes charged but not participants therein, is bereft of
merit. To hold an accused guilty as co-principal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the complicity.[146] There must be intentional
participation in the transaction with a view to the furtherance of the common design and
purpose.[147] Responsibility of a conspirator is not confined to the accomplishment of a particular purpose
of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose
intended.[148] As shown by the evidence for the prosecution, Rowen, Ariel and Alberto were not merely
present at the scene of the crime.

Indeed, all appellants, except James Anthony who was 16 years old when the crimes charged were
committed, share the same degree of responsibility for their criminal acts. Under Article 68 [149] of the
Revised Penal Code, the imposable penalty on James Anthony, by reason of his minority, is one degree
lower than the statutory penalty. This means that he stands to suffer the penalty of reclusion perpetua in
Criminal Case No. CBU-45303 and twelve (12) years of prision mayor in its maximum period, as
minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, in Criminal
Case No. CBU-45304. The penalty for the special complex crime of kidnapping and serious illegal
detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.[150] On
the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to
death. One degree lower from the said penalty is reclusion temporal.[151] There being no aggravating
and mitigating circumstance, the penalty to be imposed on James Anthony is reclusion temporal in its
medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of
twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years
of reclusion temporal in its medium period, as maximum.[152]

As for the rest of the appellants, the foregoing established facts call for the imposition on them of the
death penalty in Criminal Case No. CBU-45303 and reclusion perpetua in Criminal Case No. CBU-45304. It
is therefore clear that the trial court erred in merely imposing "two (2) Reclusiones Perpetua," rationalizing
that justice must be tempered with mercy. We must be reminded that justice is not ours to give according
to our sentiments or emotions. It is in the law which we must faithfully implement.

At times we may show compassion and mercy but not at the expense of the broader interest of fair play
and justice. While we also find it difficult to mete out the penalty of death especially on young men who
could have led productive and promising lives if only they were given enough guidance, however, we can
never go against what is laid down in our statute books and established jurisprudence.

In keeping with the current jurisprudence, the heirs of Marijoy and Jacqueline are entitled to the amount
of P100,000.00 in each case by way of civil indemnity ex delicto.[153] As regards the actual damages, it
appears that the award of P200,000.00 is not supported by evidence. To be entitled to actual damages, it
is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable to the injured party.[154] Thus, in light of the
recent case of People vs. Abrazaldo,[155] we grant the award of P25,000.00 as temperate damages in
each case, in lieu of actual damages. There being proofs that the victims' heirs suffered wounded feelings,
mental anguish, anxiety and similar injury, we award an equitable amount of P150,000.00 as moral
damages, also in each case. Exemplary damages is pegged at P100,000.00 in each case[156] to serve as
a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the
rights of the victims and as punishment for those guilty of outrageous conduct.

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU-
45303 and 45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAוAGA alias
"PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERTO CAוO alias "ALLAN
PAHAK;" ARIEL BALANSAG; and JAMES ANDREW UY alias "MM," are found guilty beyond reasonable
doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and
are sentenced to suffer the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAוAGA alias
"PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERTO CAוO alias "ALLAN
PAHAK;" ARIEL BALANSAG; and JAMES ANDREW UY alias "MM," are found guilty beyond reasonable
doubt of simple kidnapping and serious illegal detention and are sentenced to suffer penalty
of RECLUSION PERPETUA;

(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the
crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of
kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the
penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple
kidnapping and serious illegal detention and is sentenced to suffer the penalty of twelve (12) years
of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its
medium period, as MAXIMUM.

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case,
the amounts of (a) P100,000.00 as civil indemnity, (b)P25,000.00 as temperate
damages, (c) P150,000.00 as moral damages, and (d) P100,000.00 as exemplary damages.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it
prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is
constitutional and the death penalty can be lawfully imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon
the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President
for the possible exercise of Her Excellency's pardoning power.

SO ORDERED.

Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur.

Davide, Jr., C.J., No part, related by affinity to the victims.

Azcuna, J., No part, on official leave.

G.R. No. L-64507 April 25, 1988

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
NESTOR GANDUMA, respondent.

The Solicitor General for petitioner.

Citizens Legal Assistance Office for respondent.

SARMIENTO, J.:

The accused-appellant, Nestor Ganduma, was convicted of the crime of rape and sentenced to suffer the
penalty of reclusion perpetua and to indemnify the victim, Eva Comista, for damages in the amount of
P5,000.00 in a decision rendered by the Regional Trial Court of Leyte through the Honorable Judge
Fortunate B. Cuna.

The lower court's decision was based on the testimonies of the following witnesses for the prosecution:
Eva Cornista, the alleged offended party, Eugenia Afiano, Cornista's aunt, and Dr.Virgilio Gernale,
Cornista's examining physician. The testimonies of the foregoing witnesses proferred to establish the
following facts:

At about 3:00 in the afternoon of September 8, 1980, while Eva Cornista, a 15-year old lass, was
attending to her two brothers aged three and one at the yard of her house, the accused appellant aged 21
years old, passed by and suddenly pointed a bolo at the girl's breast. Threatening the girl with death if she
shouted, the accused-appellant dragged her to the bushes which was about 10 meters from her house,
then pushed her to the ground. When Eva fell face upward, the appellant placed himself on top of her. Still
holding the bolo with his right hand, and pointing it at the girl's breast, the appellant removed the girl's
underwear, then his trousers with his left hand, and successfully had carnal knowledge of her. Eva
screamed and this was heard by her aunt Eugenia. Responding to the scream, Eugenia proceeded to the
place where she witnessed the appellant sexually abusing Eva. Surprised, the appellant picked up his
clothes then fled.

The examining physician testified as to the presence of some linear abrasions on the inside of the girl's left
thigh, the prominence of rugosities in and the laxity of the vaginal wall. The girl's hymen was, however,
found intact as it was flexible. The physician further testified that the girl might actually have had sexual
intercourse near or at the time of the commission of the crime of rape.

On the other hand, the appellant in his testimony declared that Eva was as sweetheart, their love affair
having started some two years before the alleged crime happened, that is, when the appellant was still
employed as a helper in the household of Eva. The appellant's employment was terminated sometime
later by Eva's father because of his (appellant's) failure to pay the amount of P50.00 loan. On the day of
the alleged crime, the appellant testified, he went to Eva's house upon the invitation of the latter. When
asked how the invitation was relayed to him, the appellant declared that Eva called his name and
beckoned him with her hand towards the direction of her house. (The houses of Nestor and Eva were
some 25 meters apart.) As soon as Nestor arrived at the house, the two began sharing intimacies in the
sala until the latter suggested that they should not do it at her house because her "father might see."
Both, thus, proceeded to the bushes where they continued kissing and caressing each other. Eva later
suggested that they undress. It was while they were removing their clothes that Eugenia Añano, Eva's
aunt, surprised them. Nestor recalled Eugenia's statement, "You Eva ..., that is what you are doing
whenever your parents are away. I am going to tell your parents about this." Thereupon, Eva urged the
defendant to leave saying, "Nestor, you go ahead of me because we will not stop if you will not leave me."

This case is now with us on appeal. The appellant assigned the following errors:

1. That the decision of the trial court was rendered without jurisdiction;

2. That the decision of the trial court is contrary to law and therefore null and void.

The appellant anchors his appeal on the alleged absence of a complaint as required by Art. 344 of the
Revised Penal Code. He does not dispute the findings of fact of the trial court. If, indeed, there was no
complaint, such would have been ground enough for the acquittal of the accused. The records of the case,
however, show that there was indeed a complaint signed by Eva Cornista dated September 26, 1980.
While the findings of facts here are not disputed by the appellant and his defense of an alleged procedural
infirmity is now overthrown, we nevertheless reverse the judgment of the lower court on the ground of
reasonable doubt.

We are not unmindful of the fact that ordinarily, the question of credibility is for the trial court to resolve.
But when there are circumstances on record that point to the possibility that the appraisal of the evidence
by the trial court was tainted, this Court has the duty to weigh the evidence anew and reverse the
decision if need be. As Justice Malcolm said in People v. Otero: 1

After everything is said and done, we come back, as we invariably do in cases of this
nature, to a recognition of the rule that the Supreme Court will not interfere with the
judgment of the trial court in passing on the credibility of the opposing witnesses, unless
there appears in the record some fact or circumstance of weight and influence, which has
been overlooked or the significance of which has been misinterpreted.

A thorough evaluation of the records of the case discloses certain matters in the testimonies of the
witnesses for the prosecution which, to our minds, render doubtful the commission of the crime charged.
This being the case, reversal is but proper.

1. We are not convinced that the complainant offered a tenacious resistance to the alleged sexual assault.

While she was being dragged to the bushes, which was some 10 meters away, she allegedly struggled to
free herself from the grip of the accused-appellant. It was for this reason that she fell twice and sustained
bruises on her knees and left arm. But while all these allegedly happened to her which undoubtedly, must
have caused her great pain, she never shouted, cried nor even whimpered. For if she did, her aunt,
witness Añano, would have heard her at that very moment, considering that Añano was only some
distance away (35 meters).

Moreover, the examining physician's findings pointed to the presence of some linear abrasions inside of
the complainant's thigh but none on her arms or legs. The said bruises, if there were indeed any, could
not have been missed by the physician for he had the duty to examine physically the complainant. Neither
could the alleged bruises have already healed for the physical examination was conducted barely a week
after the alleged crime of rape was committed. Physical evidence being of the highest order, this absence
of external injuries belies the complainant's testimony that she was dragged to the bushes thus rendering
her credibility in doubt.2 It is, therefore, a possibility that the complainant might not actually have tripped
while she was allegedly being dragged to the bushes against her wig. It is more plausible that she went
with the appellant to the bushes willingly.

2. As to the presence of the linear abrasions of 3.0 cm. in length found inside the left thigh of the
complainant, we cannot appreciate those as indications of force and violence. As pointed out by the
counsel for the appellant, the wounds may have been caused by blades of grass or by some hard object
while the complainant and the appellant were caressing each other by the bushes. Nonetheless, the
wounds were too superficial to corroborate the complainant's allegation that she resisted the appellant's
sexual advances which compelled the latter to use brute force. In a rape case, the testimony of the
complainant must be corroborated by physical evidence showing use of force. 3

3. The testimony of Eugenia Añano does not show that the crime charged was committed.We note the fact
that Añano merely declared that she surprised the appellant and the complainant while the former was on
top of the latter doing the push and pull motion. She never said anything about a struggle.

xxx xxx xxx

Q And when you arrived at that place, what did you see there, if any?

A I saw Nestor Ganduma without lower garment, without pants.

xxx xxx xxx

Q Now after seeing that when you reached that place you saw Nestor
Ganduma without pants and making a push and pull motion on Eva Cornista,
now, when you arrived there what was the position of Eva Cornista?

A Lying down face upward.

Q What was the position of Nestor Ganduma?

A He was on top face downward making a push and pull motion. 4

Nor did the witness mention seeing a knife or any deadly weapon at the scene of the supposed crime at
the moment of discovery and even when the appellant supposedly fled.

xxx xxx xxx

Q Now after seeing that to Nestor Ganduma, what happened?

A He stood up immediately and brought along his pants and ran away, picked
up his pants and ran. 5

xxx xxx xxx

Moreover, witness Añano heard only one shout ("ouch or agui") which may actually not have been a cry of
resistance or a cry for help but a cry of discomfort or pain naturally felt by a woman who was experiencing
sexual intercourse in such venue.

4. If the appellant indeed entertained lustful intentions towards the complainant and the latter never
reciprocated any advances that he must have made, he would have committed the crime charged while he
was still employed in the complainant's house. For then, the satisfaction of his sexual urges through the
use of force was easier to accomplish considering that both were then living under the same roof
Certainly, there were many instances when only the two of them were left in the house and what better
opportunities did he have than those moments when he could have pounced upon the unsuspecting
complainant and abuse her sexually.

But as the prosecution would like us to believe, it was only months after the services of the appellant were
terminated that the latter decided to force himself upon her. And the means he allegedly employed to
achieve his end was by brute force, highly unusual for a man who had known, and in fact, served the
woman for years. We are likewise baffled by the suddenness of the alleged attack. From nowhere, the
appellant appeared before the complainant's eyes and for no apparent reason but lust which must have
seethed all those years, pointed a bolo at the complainant's breast, dragged her to the bushes and
thereupon ravished her. Again, we say that such was unusual. And when the alleged crime was discovered
by Añano and the appellant fled from the scene of the crime, we find it, likewise, unusual that the
appellant never even bothered to hide in order to escape the ire of complainant's father as wen as the
strong arm of the law.

From the preceding, we can but conclude that the complainant and the appellant, as the latter claims,
were lovers and that the sexual act was but a product of their passions inflamed. Their physical
accessibility for each other borne out by the fact that both lived under the same roof for quite some time
must have given rise to what developed as sexual intimacy. This is not an uncommon result of mere
propinquity.

While this Court has, in numerous cases, affirmed the judgments of conviction rendered by the trial court
in rape charges especially where the offended parties were very young and presumptively had no ill
motives to concoct a story if only to secure indictments for a crime as grave as rape, this Court likewise
reversed judgments of conviction and acquitted the accused when there were strong indications pointing
to the possibility that the rape charges were merely motivated by some factors except the truth as to their
commission.

In People v. Berdaje, 6 this Court considered the case an exception to the general belief that a 15-year old
girl would not expose herself to the ordeal of a public trial if she were not motivated solely by a desire to
have the culprit who had ravished and shamed her placed behind bars. The evidence in the said case
showed that the alleged victim voluntarily submitted to the sexual intercourse. She was motivated to file
the case if only to escape the indignation of her family as well as the social disrepute that goes with the
act.

Also, in People v. Lopez, 7 this Court, speaking through the then Chief Justice Fernando, acquitted the
accused of the crime of rape of a 13-year old girl because of want of force and intimidation as borne out
by the fact that the girl, in obedience to the wishes of the appellant, submitted herself to him.
Furthermore, this Court found that the filing of the charge was motivated by an ulterior motive, i.e., that
the alleged victim bore a grudge towards the accused because he courted her elder sister.

In this case, we cannot but suspect the motive that impelled the complainant to file the rape case. Suffice
it to say that no less than the complainant's aunt discovered the appellant and the complainant while in
sexual congress. Expectedly, the matter was reported by Añano to the complainant's parents. More
because of fear for her father's wrath for her having carried on a relationship with a man who was not only
her family's former helper but also the man her father disliked utterly, as well as the social consequences,
than for any affection that she may have had for the appellant, the complainant had to report to her
father that she was sexually abused. Thus, this case for rape which saw the conviction of the appellant in
the lower court.
Considering the above circumstances, we are, to a great extent, doubtful whether the crime charged was,
in fact, committed. The prosecution failed to establish the guilt of the accused beyond reasonable doubt.
Accordingly, the constitutional presumption of innocence not having been successfully overcome, it should
prevail. The appellant, hence, is entitled to acquittal.

WHEREFORE, the decision of the lower court dated April 18, 1983 is REVERSED and the appellant
ACQUITTED of the crime of rape. With costs de oficio.

Yap, C.J., Paras and Padilla, JJ., concur.

SECOND DIVISION

[ G.R. No. 172953, April 30, 2008 ]

JUNIE MALLILLIN Y. LOPEZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

TINGA, J,:

The presumption of regularity in the performance of official functions cannot by its lonesome overcome
the constitutional presumption of innocence. Evidence of guilt beyond reasonable doubt and nothing else
can eclipse the hypothesis of guiltlessness. And this burden is met not by bestowing distrust on the
innocence of the accused but by obliterating all doubts as to his culpability.

In this Petition for Review[1] under Rule 45 of the Rules of Court, Junie Malillin y Lopez (petitioner) assails
the Decision[2] of the Court of Appeals dated 27 January 2006 as well as its Resolution [3] dated 30 May
2006 denying his motion for reconsideration. The challenged decision has affirmed the Decision [4] of the
Regional Trial Court (RTC) of Sorsogon City, Branch 52[5] which found petitioner guilty beyond reasonable
doubt of illegal possession of methamphetamine hydrochloride, locally known as shabu, a prohibited drug.

The antecedent facts follow.

On the strength of a warrant[6] of search and seizure issued by the RTC of Sorsogon City, Branch 52, a
team of five police officers raided the residence of petitioner in Barangay Tugos, Sorsogon City on 4
February 2003. The team was headed by P/Insp. Catalino Bolanos (Bolanos), with PO3 Roberto Esternon
(Esternon), SPO1 Pedro Docot, SPO1 Danilo Lasala and SPO2 Romeo Gallinera (Gallinera) as members.
The search--conducted in the presence of barangay kagawad

Delfin Licup as well as petitioner himself, his wife Sheila and his mother, Norma--allegedly yielded two (2)
plastic sachets of shabu and five (5) empty plastic sachets containing residual morsels of the said
substance.

Accordingly, petitioner was charged with violation of Section 11, [7] Article II of Republic Act No. 9165,
otherwise known as The Comprehensive Dangerous Drugs Act of 2002, in a criminal information whose
inculpatory portion reads:
That on or about the 4th day of February 2003, at about 8:45 in the morning in Barangay Tugos, Sorsogon
City, Philippines, the said accused did then and there willfully, unlawfully and feloniously have in his
possession, custody and control two (2) plastic sachets of methamphetamine hydrochloride [or] "shabu"
with an aggregate weight of 0.0743 gram, and four empty sachets containing "shabu" residue, without
having been previously authorized by law to possess the same.

CONTRARY TO LAW.[8]
Petitioner entered a negative plea.[9] At the ensuing trial, the prosecution presented Bolanos, Arroyo and
Esternon as witnesses.

Taking the witness stand, Bolanos, the leader of the raiding team, testified on the circumstances
surrounding the search as follows: that he and his men were allowed entry into the house by petitioner
after the latter was shown the search warrant; that upon entering the premises, he ordered Esternon
and barangay kagawad Licup, whose assistance had previously been requested in executing the warrant,
to conduct the search; that the rest of the police team positioned themselves outside the house to make
sure that nobody flees; that he was observing the conduct of the search from about a meter away; that
the search conducted inside the bedroom of petitioner yielded five empty plastic sachets with
suspected shabu residue contained in a denim bag and kept in one of the cabinets, and two plastic sachets
containing shabu which fell off from one of the pillows searched by Esternon--a discovery that was made
in the presence of petitioner.[10] On cross examination, Bolanos admitted that during the search, he was
explaining its progress to petitioner's mother, Norma, but that at the same time his eyes were fixed on the
search being conducted by Esternon.[11]

Esternon testified that the denim bag containing the empty plastic sachets was found "behind" the door of
the bedroom and not inside the cabinet; that he then found the two filled sachets under a pillow on the
bed and forthwith called on Gallinera to have the items recorded and marked. [12] On cross, he admitted
that it was he alone who conducted the search because Bolanos was standing behind him in the living
room portion of the house and that petitioner handed to him the things to be searched, which included the
pillow in which the two sachets of shabu were kept;[13] that he brought the seized items to the Balogo
Police Station for a "true inventory," then to the trial court[14] and thereafter to the laboratory.[15]

Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered the examination on the seized items,
was presented as an expert witness to identify the items submitted to the laboratory. She revealed that
the two filled sachets were positive of shabu and that of the five empty sachets, four were positive of
containing residue of the same substance.[16] She further admitted that all seven sachets were delivered
to the laboratory by Esternon in the afternoon of the same day that the warrant was executed except that
it was not she but rather a certain Mrs. Ofelia Garcia who received the items from Esternon at the
laboratory.[17]

The evidence for the defense focused on the irregularity of the search and seizure conducted by the police
operatives. Petitioner testified that Esternon began the search of the bedroom with Licup and petitioner
himself inside. However, it was momentarily interrupted when one of the police officers declared to
Bolanos that petitioner's wife, Sheila, was tucking something inside her underwear. Forthwith, a lady
officer arrived to conduct the search of Sheila's body inside the same bedroom. At that point, everyone
except Esternon was asked to step out of the room. So, it was in his presence that Sheila was searched by
the lady officer. Petitioner was then asked by a police officer to buy cigarettes at a nearby store and when
he returned from the errand, he was told that nothing was found on Sheila's body. [18] Sheila was ordered
to transfer to the other bedroom together with her children.[19]

Petitioner asserted that on his return from the errand, he was summoned by Esternon to the bedroom and
once inside, the officer closed the door and asked him to lift the mattress on the bed. And as he was doing
as told, Esternon stopped him and ordered him to lift the portion of the headboard. In that instant,
Esternon showed him "sachet of shabu" which according to him came from a pillow on the
bed.[20] Petitioner's account in its entirety was corroborated in its material respects by
Norma, barangay kagawad Licup and Sheila in their testimonies. Norma and Sheila positively declared that
petitioner was not in the house for the entire duration of the search because at one point he was sent by
Esternon to the store to buy cigarettes while Sheila was being searched by the lady officer.[21] Licup for his
part testified on the circumstances surrounding the discovery of the plastic sachets. He recounted that
after the five empty sachets were found, he went out of the bedroom and into the living room and after
about three minutes, Esternon, who was left inside the bedroom, exclaimed that he had just found two
filled sachets.[22]

On 20 June 2004 the trial court rendered its Decision declaring petitioner guilty beyond reasonable doubt
of the offense charged. Petitioner was condemned to prison for twelve years (12) and one (1) day to
twenty (20) years and to pay a fine of P300,000.00.[23] The trial court reasoned that the fact
that shabu was found in the house of petitioner was prima facie evidence of petitioner's animus
possidendi sufficient to convict him of the charge inasmuch as things which a person possesses or over
which he exercises acts of ownership are presumptively owned by him. It also noted petitioner's failure to
ascribe ill motives to the police officers to fabricate charges against him.[24]

Aggrieved, petitioner filed a Notice of Appeal.[25] In his Appeal Brief[26] filed with the Court of Appeals,
petitioner called the attention of the court to certain irregularities in the manner by which the search of his
house was conducted. For its part, the Office of the Solicitor General (OSG) advanced that on the
contrary, the prosecution evidence sufficed for petitioner's conviction and that the defense never advanced
any proof to show that the members of the raiding team was improperly motivated to hurl false charges
against him and hence the presumption that they had regularly performed their duties should prevail. [27]

On 27 January 2006, the Court of Appeals rendered the assailed decision affirming the judgment of the
trial court but modifying the prison sentence to an indeterminate term of twelve (12) years as minimum to
seventeen (17) years as maximum.[28] Petitioner moved for reconsideration but the same was denied by
the appellate court.[29]Hence, the instant petition which raises substantially the same issues.

In its Comment,[30] the OSG bids to establish that the raiding team had regularly performed its duties in
the conduct of the search.[31] It points to petitioner's incredulous claim that he was framed up by Esternon
on the ground that the discovery of the two filled sachets was made in his and Licup's presence. It
likewise notes that petitioner's bare denial cannot defeat the positive assertions of the prosecution and
that the same does not suffice to overcome the prima facie existence of animus possidendi.

This argument, however, hardly holds up to what is revealed by the records.

Prefatorily, although the trial court's findings of fact are entitled to great weight and will not be disturbed
on appeal, this rule does not apply where facts of weight and substance have been overlooked,
misapprehended or misapplied in a case under appeal.[32] In the case at bar, several circumstances obtain
which, if properly appreciated, would warrant a conclusion different from that arrived at by the trial court
and the Court of Appeals.

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of
a prohibited substance be established with moral certainty, together with the fact that the same is not
authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact
of its existence is vital to a judgment of conviction.[33] Essential therefore in these cases is that the
identity of the prohibited drug be established beyond doubt.[34] Be that as it may, the mere fact of
unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to
sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally
possessed in the first place is the same substance offered in court as exhibit must also be established with
the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody
requirement performs this function in that it ensures that unnecessary doubts concerning the identity of
the evidence are removed.[35]

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit
be preceded by evidence sufficient to support a finding that the matter in question is what the proponent
claims it to be.[36] It would include testimony about every link in the chain, from the moment the item was
picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit
would describe how and from whom it was received, where it was and what happened to it while in the
witness' possession, the condition in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the precautions taken to ensure that there
had been no change in the condition of the item and no opportunity for someone not in the chain to have
possession of the same.[37]

While testimony about a perfect chain is not always the standard because it is almost always impossible to
obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence
is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniqueness. [38] The same standard likewise obtains in
case the evidence is susceptible to alteration, tampering, contamination [39] and even substitution and
exchange.[40] In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering--
without regard to whether the same is advertent or otherwise not--dictates the level of strictness in the
application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit
is small and is one that has physical characteristics fungible in nature and similar in form to substances
familiar to people in their daily lives.[41] Graham vs. State[42] positively acknowledged this danger. In that
case where a substance later analyzed as heroin--was handled by two police officers prior to examination
who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in
their possession--was excluded from the prosecution evidence, the court pointing out that the white
powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that
unless the state can show by records or testimony, the continuous whereabouts of the exhibit at least
between the time it came into the possession of police officers until it was tested in the laboratory to
determine its composition, testimony of the state as to the laboratory's findings is inadmissible.[43]

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are
subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close
its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the
same there could have been tampering, alteration or substitution of substances from other cases--by
accident or otherwise--in which similar evidence was seized or in which similar evidence was submitted for
laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to
cases involving objects which are readily identifiable must be applied, a more exacting standard that
entails a chain of custody of the item with sufficient completeness if only to render it improbable that the
original item has either been exchanged with another or been contaminated or tampered with.

A mere fleeting glance at the records readily raises significant doubts as to the identity of the sachets
of shabu allegedly seized from petitioner. Of the people who came into direct contact with the seized
objects, only Esternon and Arroyo testified for the specific purpose of establishing the identity of the
evidence. Gallinera, to whom Esternon supposedly handed over the confiscated sachets for recording and
marking, as well as Garcia, the person to whom Esternon directly handed over the seized items for
chemical analysis at the crime laboratory, were not presented in court to establish the circumstances
under which they handled the subject items. Any reasonable mind might then ask the question: Are the
sachets of shabu allegedly seized from petitioner the very same objects laboratory tested and offered in
court as evidence?

The prosecution's evidence is incomplete to provide an affirmative answer. Considering that it was
Gallinera who recorded and marked the seized items, his testimony in court is crucial to affirm whether
the exhibits were the same items handed over to him by Esternon at the place of seizure and acknowledge
the initials marked thereon as his own. The same is true of Garcia who could have, but nevertheless
failed, to testify on the circumstances under which she received the items from Esternon, what she did
with them during the time they were in her possession until before she delivered the same to Arroyo for
analysis.

The prosecution was thus unsuccessful in discharging its burden of establishing the identity of the seized
items because it failed to offer not only the testimony of Gallinera and Garcia but also any sufficient
explanation for such failure. In effect, there is no reasonable guaranty as to the integrity of the exhibits
inasmuch as it failed to rule out the possibility of substitution of the exhibits, which cannot but inure to its
own detriment. This holds true not only with respect to the two filled sachets but also to the five sachets
allegedly containing morsels of shabu.

Also, contrary to what has been consistently claimed by the prosecution that the search and seizure was
conducted in a regular manner and must be presumed to be so, the records disclose a series of
irregularities committed by the police officers from the commencement of the search of petitioner's house
until the submission of the seized items to the laboratory for analysis. The Court takes note of the
unrebutted testimony of petitioner, corroborated by that of his wife, that prior to the discovery of the two
filled sachets petitioner was sent out of his house to buy cigarettes at a nearby store. Equally telling is the
testimony of Bolanos that he posted some of the members of the raiding team at the door of petitioner's
house in order to forestall the likelihood of petitioner fleeing the scene. By no stretch of logic can it be
conclusively explained why petitioner was sent out of his house on an errand when in the first place the
police officers were in fact apprehensive that he would flee to evade arrest. This fact assumes prime
importance because the two filled sachets were allegedly discovered by Esternon immediately after
petitioner returned to his house from the errand, such that he was not able to witness the conduct of the
search during the brief but crucial interlude that he was away.

It is also strange that, as claimed by Esternon, it was petitioner himself who handed to him the items to
be searched including the pillow from which the two filled sachets allegedly fell. Indeed, it is contrary to
ordinary human behavior that petitioner would hand over the said pillow to Esternon knowing fully well
that illegal drugs are concealed therein. In the same breath, the manner by which the search of Sheila's
body was brought up by a member of the raiding team also raises serious doubts as to the necessity
thereof. The declaration of one of the police officers that he saw Sheila tuck something in her underwear
certainly diverted the attention of the members of petitioner's household away from the search being
conducted by Esternon prior to the discovery of the two filled sachets. Lest it be omitted, the Court
likewise takes note of Esternon's suspicious presence in the bedroom while Sheila was being searched by a
lady officer. The confluence of these circumstances by any objective standard of behavior contradicts the
prosecution's claim of regularity in the exercise of duty.

Moreover, Section 21[44] of the Implementing Rules and Regulations of R.A. No. 9165 clearly outlines the
post-seizure procedure in taking custody of seized drugs. In a language too plain to require a different
construction, it mandates that the officer acquiring initial custody of drugs under a search warrant must
conduct the photographing and the physical inventory of the item at the place where the warrant has been
served. Esternon deviated from this procedure. It was elicited from him that at the close of the search of
petitioner's house, he brought the seized items immediately to the police station for the alleged purpose of
making a "true inventory" thereof, but there appears to be no reason why a true inventory could not be
made in petitioner's house when in fact the apprehending team was able to record and mark the seized
items and there and then prepare a seizure receipt therefor. Lest it be forgotten, the raiding team has had
enough opportunity to cause the issuance of the warrant which means that it has had as much time to
prepare for its implementation. While the final proviso in Section 21 of the rules would appear to excuse
non-compliance therewith, the same cannot benefit the prosecution as it failed to offer any acceptable
justification for Esternon's course of action.

Likewise, Esternon's failure to deliver the seized items to the court demonstrates a departure from the
directive in the search warrant that the items seized be immediately delivered to the trial court with a true
and verified inventory of the same,[45] as required by Rule 126, Section 12[46] of the Rules of Court. People
v. Go[47] characterized this requirement as mandatory in order to preclude the substitution of or tampering
with said items by interested parties.[48] Thus, as a reasonable safeguard, People vs. Del
Castillo[49] declared that the approval by the court which issued the search warrant is necessary before
police officers can retain the property seized and without it, they would have no authority to retain
possession thereof and more so to deliver the same to another agency. [50] Mere tolerance by the trial
court of a contrary practice does not make the practice right because it is violative of the mandatory
requirements of the law and it thereby defeats the very purpose for the enactment. [51]

Given the foregoing deviations of police officer Esternon from the standard and normal procedure in the
implementation of the warrant and in taking post-seizure custody of the evidence, the blind reliance by
the trial court and the Court of Appeals on the presumption of regularity in the conduct of police duty is
manifestly misplaced. The presumption of regularity is merely just that--a mere presumption disputable
by contrary proof and which when challenged by the evidence cannot be regarded as binding
truth.[52] Suffice it to say that this presumption cannot preponderate over the presumption of innocence
that prevails if not overthrown by proof beyond reasonable doubt.[53] In the present case the lack of
conclusive identification of the illegal drugs allegedly seized from petitioner, coupled with the irregularity
in the manner by which the same were placed under police custody before offered in court, strongly
militates a finding of guilt.

In our constitutional system, basic and elementary is the presupposition that the burden of proving the
guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on
the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the
law presumes his innocence unless and until the contrary is shown. [54] In dubio pro reo. When moral
certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter
of right.

WHEREFORE, the assailed Decision of the Court of Appeals dated 27 January 2006 affirming with
modification the judgment of conviction of the Regional Trial Court of Sorsogon City, Branch 52, and its
Resolution dated 30 May 2006 denying reconsideration thereof, are REVERSED and SET
ASIDE. Petitioner Junie Malillin y Lopez is ACQUITTED on reasonable doubt and is accordingly ordered
immediately released from custody unless he is being lawfully held for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court
the action taken hereon within five (5) days from receipt.

SO ORDERED.

THIRD DIVISION

[ G.R. No. 182347, October 17, 2008 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EMILIO RIVERA Y CABLANG ALIAS

`BOY,' ACCUSED-APPELLANT.

DECISION

CHICO-NAZARIO, J.:

For Review under Rule 45 of the Revised Rules of Court is the Decision [1] dated 27 November 2007 of the
Court of Appeals in CA-G.R. CR-H.C. No. 02175 entitled, People of the Philippines v. Emilio Rivera y
Cablang alias `Boy,' affirming the Decision[2] rendered by the Regional Trial Court (RTC) of Malabon
City, Branch 72, in Criminal Case No. 27778-MN, finding accused-appellant Emilio Rivera y
Cablang alias `Boy' guilty beyond reasonable doubt of violating Section 5 (Selling of Dangerous Drugs),
Article II of Republic Act No. 9165, as amended, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002.

The following are the factual antecedents:

On 22 October 2002, accused-appellant was charged before the RTC of Malabon City, with violation of
Section 5,[3] Article II of Republic Act No. 9165 in Criminal Case No. 27778-MN. The Information contained
the following allegations:
That on or about the 21st day of October 2002 in the City of Malabon, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, being a private person and without
authority of law, did, then and there, willfully, unlawfully and feloniously sell and deliver for consideration
in the amount of P100.00, to poseur-buyer One (1) heat-sealed transparent plastic sachet containing
white crystalline substance containing net weight 0.25 gram which substance when subjected to chemistry
examination gave positive result for Methylamphetamine Hydrochloride otherwise known [as] "shabu" a
dangerous drug.[4]
When arraigned on 8 November 2002, accused-appellant, assisted by a counsel de officio, entered a plea
of `NOT GUILTY.'[5]

The prosecution's version is based mainly on the testimony of its lone witness, Police Officer (PO) 2 Allan
Llantino, the designated poseur-buyer.

At around 3:00 o'clock in the afternoon of 21 October 2002, a confidential informer personally appeared at
their police station. Confidential information was relayed to PO2 Allan Llantino of the District Drug
Enforcement Unit, Northern Police District Office, Larangay, Caloocan City that one alias `Boy' was
selling shabu. Said information was then relayed to the Chief of the Station Police, Superintendent
Reynaldo B. Orante, who immediately ordered PO2 Llantino to organize a team to conduct a buy-bust
operation.

At around 4:00 o'clock in the afternoon of the same day, a team composed of Police Inspector Rodrigo
Soriano, PO2 Henry Pineda, PO2 Joel Borda, PO2 Allan Llantino, and PO1 Ronald Mesina, was dispatched
at Pitong Gatang, Dampalit, Malabon City, to conduct a buy-bust operation against accused-appellant,
then known to them only as alias Boy. PO2 Llantino was designated as poseur-buyer while the rest of the
team served as his back-up. One marked one hundred peso bill bearing Serial No. LS 034778 was
prepared to be used in the operation.[6]

Thereafter, PO2 Llantino, together with the confidential informant, went ahead to the target area at
around 5:30 o'clock in the afternoon of that day, and while walking, they saw accused-appellant alias Boy
standing. They then approached accused-appellant and the confidential informant introduced PO2 Llantino
as a friend. After the introduction, appellant asked PO2 Llantino if he would buy shabu. He replied
positively and told accused-appellant "piso," meaning one hundred pesos. PO2 Llantino handed the money
to accused-appellant and the latter took from his right pocket one plastic sachet and handed it to PO2
Llantino. After the accused-appellant handed the plastic sachet, PO2 Llantino raised his right hand as the
pre-arranged signal to his companions. Thereafter, his companions (P/Insp. Rodrigo Soriano, PO2 Henry
Pineda, PO2 Joel Borda, and PO1 Ronald Mesina) proceeded to where PO2 Llantino was.

Accused-appellant was arrested by PO2 Llantino with the help of his companions, specifically PO2 Borda
and PO2 Pineda, and was brought to the Caloocan Police Station. PO2 Llantino turned over the confiscated
plastic sachet containing the white crystalline substance to the investigator who put his markings "BB"
(meaning buy-bust) and made a laboratory request.[7] The seized item and request for laboratory
examination were delivered[8] by PO1 Mesina to the Northern Police District Office Crime Laboratory Office
(NPDO-CLO) for analysis based on the request for laboratory examination signed by District Drug
Enforcement Group (DDEG) NPD Chief Reynaldo B. Orante.[9] During the operation, the team recovered
from him one (1) piece of One Hundred Peso bearing Serial Nos. HL 034748 [10] and with markings AL
representing the initials of PO2 Allan Llantino, as the buy-bust money used in the operation.

The defense presented a counterstatement of facts, relying on the testimony of accused-appellant Emilio
Rivera as witness.

Accused-appellant denied the accusations against him. He testified that on 21 October 2002, at around
5:00 o'clock in the afternoon, he was cleaning `dampalit weeds' at the vacant lot near his house when he
heard somebody knocking at the gate of said lot. The caretaker of the lot, Alberto Cruz, Jr., opened the
gate. Two (2) persons entered and introduced themselves as police officers. They asked the accused if he
was `Boy Anggo,' to which he replied in the affirmative. The police officers then drew guns and poked
them at him. They frisked him but when nothing was found in his person, they held and dragged him to a
waiting vehicle. He resisted and asked them why they were taking him. They replied, `matikas ka.'
Accused-appellant was then brought to the Larangay Police Headquarters. It was only there where he was
informed of the charges against him.

Accused-appellant identified the two (2) police officers who arrested him as Borda and Pineda. He became
aware of their names on the day following his arrest when he saw them in uniform and with nameplates.
He denied having been arrested by PO2 Llantino and said he only saw him during the trial.

Another defense witness, Alberto Cruz, Jr., was called to the stand but his presentation was dispensed
with after the prosecution and the defense admitted that he will merely corroborate the testimony of the
accused.

On rebuttal, PO2 Llantino was recalled but he was not presented anymore because the prosecution and
the defense admitted that he will just insist that he will merely deny the claims of the defense witnesses.

Alberto Cruz, Jr. was recalled on sur-rebuttal but was not presented anymore because the parties
admitted that he will just insist that his version is the correct one and will merely deny the admitted
rebuttal testimony of PO2 Llantino.

The plastic sachet containing the white crystalline substance allegedly recovered from accused-appellant
was submitted to the NPDO-CLO for chemical analysis. The Request for Laboratory
Examination[11] indicated that the following evidence was submitted:
One (1) pc. of small heat sealed transparent plastic sachet containing white crystalline substance believed
to be Methamphetamine Hcl or shabu with marking as "ERC-BB"
Forensic Chemist Albert S. Arturo examined the plastic sachet containing the white crystalline substance.
After conducting a qualitative examination on the above-said specimen, the substance weighing 0.25
gram was found positive for methylamphetamine hydrochloride, a dangerous drug, as contained in
Physical Science Report[12] No. D-1162-02 dated 22 October 2002.

On 2 April 2004, the RTC of Malabon City Branch 72, convicted accused-appellant and found him guilty
beyond reasonable doubt in Criminal Case No. 27778-MN. The dispositive portion of the Decision[13] reads:
WHEREFORE, premises considered, judgment is hereby rendered finding accused Emilio Rivera y Cablang
@ Boy guilty beyond reasonable doubt of the crime charged against him in this case. Pursuant to Section
5, Art. II, RA 9165, he is hereby sentenced to Life Imprisonment and to pay a fine of P500,000.00, and
to pay the costs.
The shabu subject of this case is forfeited in favor of the government to be disposed of under rules
governing the same. OIC-Branch Clerk of Court Enriqueta A. Marquez is hereby enjoined to immediately
turn the same over to the proper authority for final disposition.
On 25 May 2004, accused-appellant filed a Notice of Appeal [14] to the Court of Appeals, claiming that the
prosecution failed to overthrow the presumption of innocence on the ground that the trial court not only
relied heavily on the testimony of a lone witness but also failed to follow the required procedure in the
custody and disposition of confiscated dangerous drugs. The case was docketed as CA-G.R. CR-H.C. No.
02175.

On 27 November 2007, the Court of Appeals affirmed the decision of the RTC, viz.:
WHEREFORE, premises considered, the Decision of the Regional Trial Court of Malabon City, Branch 72, in
Criminal Case No. 27778-MN, dated April 2, 2004, promulgated on May 17, 2004, finding accused-
appellant guilty beyond reasonable doubt of violating Sec. 5, Art. II of Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002), as amended, sentencing him to suffer the penalty of life
imprisonment and ordering him to pay a fine of Five Hundred Thousand (P500,000.00) Pesos is hereby
AFFIRMED and UPHELD.[15]
Accused-appellant elevated the case to this Court via Notice of Appeal.[16] In its Resolution[17] dated 16
June 2008, this Court resolved to notify the parties that they may file their respective supplemental briefs,
if they so desire, within thirty (30) days from notice.

To avoid repeating previous arguments, the defense and the prosecution adopted their respective
appellant's[18] and appellee's briefs,[19] instead of filing supplemental briefs.

The defense raises a singular issue -

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED
DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW THE PRESUMPTION OF INNOCENCE IN HIS
FAVOR.[20]
The defense focused on several factors to cast doubt on the allegations against accused. First, in
convicting the accused, the trial court heavily relied on the testimony of the lone prosecution witness, PO2
Allan Llantino, who claimed he had companions at that time but none of them corroborated his version.
Second, the police officers failed to follow the procedure outlined in paragraph 1, Section 21 [21] of Republic
Act No. 9165 on the seizure and custody of the suspected dangerous drugs as nothing in the records
would show that immediately after the seizure, the police officers conducted a physical inventory and
photographed the same. Thus, the defense contends there is a gap in the chain of custody and a clear
doubt on whether the specimen examined by the chemist and eventually presented in court were the
same specimen allegedly recovered from accused-appellant.

The Office of the Solicitor General (OSG), on the other hand, maintains that the presumption of regularity
in the performance of official functions was not rebutted by accused-appellant. Insisting that accused-
appellant could not even identify or impute any ill-motive on the part of the buy-bust team, the OSG
argues that unless there is clear and convincing evidence that the members of the buy-bust team were
inspired by any improper motive or were not properly performing their duty, their testimonies on the
operation deserve full faith and credit. Moreover, the OSG maintains that the defense of denial cannot
prevail over the positive identification by PO2 Llantino of accused-appellant as the person who sold the
methylamphetamine hydrochloride (shabu) to the poseur-buyer. On the contention that the confiscated
item was not marked immediately after the seizure, the OSG explains that the procedure regarding the
seizure and custody of confiscated items suspected to be dangerous drugs or regulated drugs is not
absolute, provided that the integrity and evidentiary value of the seized items are properly preserved by
the apprehending officers.

We sustain accused-appellant's conviction.

It is but fundamental that no less than a painstaking review of the case be conducted by this Court
considering that what is at stake is the liberty of accused-appellant. We, however, find no cogent reason
to warrant the acquittal of accused-appellant in this case and reversal of the findings of the trial and
appellate courts. The case records support the conclusion that prosecution was able to discharge its
burden of establishing with moral certainty the presence of all the elements necessary for the conviction of
herein accused-appellant for the illegal sale of shabu.

We discuss the arguments raised by the defense in seriatim.

This Court takes pride in upholding a most fundamental constitutional right which is the right of an
accused in criminal prosecutions to be presumed innocent until proven guilty beyond reasonable
doubt.[22] Thus, in order to justify the conviction of an accused, the prosecution must adduce that
quantum of evidence sufficient to overcome this constitutional presumption of innocence.

It is well-established that findings of trial courts which are factual in nature and which involve the
credibility of witnesses are accorded respect when no glaring errors, gross misapprehension of facts and
speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for
this is that the trial court is in a better position to decide the credibility of witnesses, having heard their
testimonies and observed their deportment and manner of testifying during trial. This rule finds an even
more stringent application where said findings are sustained by the Court of Appeals as in the case at
bar.[23]

In prosecutions for illegal sale of prohibited or dangerous drugs, what determines if there was a sale of
dangerous drugs is proof of the concurrence of all the elements of the offense. Conviction is proper if the
following elements concur:
(1) the identity of the buyer and the seller, the object, and the consideration; and
(2) the delivery of the thing sold and the payment therefor.[24]
What is material is proof that the transaction or sale actually took place, coupled with the presentation in
court of the prohibited or regulated drug or the corpus delicti as evidence.[25]

Accused-appellant was arrested in flagrante delicto in a buy-bust operation which is a form of entrapment
which in recent years has been accepted to be a valid and effective mode of apprehending drug pushers.
In a buy-bust operation, ways and means are employed for the purpose of trapping and capturing
lawbreakers in the execution of their plan.[26] The idea to commit a crime originates from the offender,
without anybody inducing or prodding him to commit the offense.[27] If carried out with due regard for
constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.

The defense stresses the fact that the trial court and the appellate court relied heavily on the testimony of
a sole witness PO2 Llantino.

The non-presentation as witnesses of other persons such as the other police officers forming a buy-bust
team is not a crucial point against the prosecution[28] since the matter of presentation of witnesses by the
prosecution is not for the court to decide. It is the prosecution which has the discretion as to how to
present its case and it has the right to choose whom it wishes to present as witnesses. [29] Moreover, the
testimony of a single prosecution witness, if credible and positive and satisfies the court as to the guilt of
the accused beyond reasonable doubt,[30] is enough to sustain a conviction.

Truth is established not by the quantity of witnesses but by the quality of their testimonies. [31] The
testimony only needs to establish sufficiently: (1) the identity of the buyer, seller, object and
consideration; and (2) the delivery of the thing sold and the payment thereof.

Being the poseur-buyer, PO2 Llantino is in the best position to testify on the transaction between him and
accused-appellant concerning the sale of the dangerous drug.

As recalled by PO2 Llantino, the designated poseur-buyer, the events that led to the apprehension of
accused-appellant are as follows:
Q: Policeman Llantino, do you remember having conducted buy bust operation sometime on
October 21, 2002?
A: Yes, sir.

Q: And what prompted you to conduct buy bust operation in that particular date?
A: Our confidential informer personally appeared to our office, sir.

Q: And what information did he give to your office?

A: An information regarding the selling of shabu, sir.

Q: By whom.
A: Against alias Boy.

Q: And the full name of this person was allegedly was not mentioned by the confidential informer?
A: Yes, sir.

Q: And what did you do after having received that information?

A: We relayed it to our chief, sir.

Q: What did he do?

A: He ordered us to compose a team.

Q: How many of you?

A: Eight, sir.

Q: What did you do with the preparation of the operation?

A: Our chief designated me as the poseur buyer.

Q: And how much money will be using to buy from the suspect?
A: P100.00, one piece only.
Q: You said you are supposed to act as the poseur buyer, and after having received the money,
what did you do with the money?
A: I placed markings and have it xerox (sic), sir.

Q: Can you remember what was your marking placed on the money?
A: It was marked AL, sir.

Q: And what stands (sic) that for?

A: Allan Llantino, sir.

Q: It has no marking on the face of the money?

A: Yes, sir.

Q: But the serial number, was that indicated in the original?

A: Yes, sir.

Q: Now, how did you reach the place where the accused sell shabu?
A: At Pitong Gatang, Dampalit, sir.

Q: How did you reach the place?

A: We used private vehicle, sir.

Q: You were boarded in?

A: Two vehicles, sir.

Q: And when you reached the place, what did you do next?
A: We parked our vehicle 50 meters away from the place.

Q: Was that daytime or nighttime?

A: Afternoon, sir.

Q: And were you in uniform?

A: Civilian clothes, sir.

Q: And who went ahead of the target place?

A: Me, sir.

Q: What happened when you went ahead together with your confidential informer?
A: While walking we saw alias Boy standing and then we approached him.

Q: And what happened when you approached him?

A: We introduced as a friend, sir.

Q: And after the introduction, what happened next?

A: I was asked if I will buy shabu, sir.

Q: And what is your answer?

A: I told him yes "piso."

Q: What does amounts (sic) "piso"?

A: P100.00, sir.

Q: And how much are you expecting from alias Boy in exchange of the P100.00?
A: One plastic sachet, sir.

Q: Now, who gave the money to alias Boy?

A: I handed to him the money, sir.

Q: After you handed the money to him, what did he do next?

A: He took from his right pocket one plastic sachet and handed to me, sir. [32]
PO2 Llantino's testimony proved all the elements of the crime. He testified vividly on the buy-bust
operation. He positively identified accused-appellant as the seller of the shabu. Per Report No. D-1162-02
of Forensic Chemist Albert S. Arturo, the substance, weighing 0.25 gram, which was bought from accused-
appellant in consideration of P100.00, was examined and found to be methylamphetamine
hydrochloride.[33] He testified that he was the one who prepared the marked money, [34] acted as the
poseur-buyer,[35] arrested the accused,[36] and turned-over the suspected shabu to the
investigator.[37] PO2 Llantino testified in a frank, spontaneous, straightforward and categorical manner and
his credibility was not crumpled on cross-examination by defense counsel. His testimony was able to
present a complete picture detailing the buy-bust operation - from the initial contact between the
designated poseur-buyer PO2 Llantino and the pusher accused-appellant, the offer to purchase, the
promise or payment of the consideration until the consummation of the sale by the delivery of the illegal
drug subject of the sale. The shabu subject of the sale was brought to and properly identified in court.

At any rate, accused-appellant's contention that the testimony of PO2 Llantino was uncorroborated is not
entirely accurate. The records indicate that the defense called one of the members of the buy-bust team,
PO2 Joel Borda, to the witness stand as a hostile witness. He testified that PO2 Llantino acted as their
poseur-buyer and was the one who personally arrested accused-appellant. He further narrated that he and
the other members of the buy-bust team merely helped PO2 Llantino arrest appellant when he gave the
pre-arranged signal.[38]

Moreover, the chain of custody is unbroken and thus the integrity and evidentiary value of the seized
items have been preserved.

PO2 Llantino testified on the custody of the shabu, to wit:

Fiscal: How about the suspected shabu, what did you do with the shabu?
A: I turned it over to the investigator.

Fiscal: Do you know what the investigator did to the plastic sachet of shabu?
A: He just put his markings and he made a laboratory request.

Fiscal: Do you know the result?

A: Positive.[39]
The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in Section
21, paragraph 1, Article II of Republic Act No. 9165 which stipulates:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and
any elected public official who shall be required to sign the copies of the inventory and be given a
copy thereof.
The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of
Republic Act No. 9165, viz.:
(a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further, that
non-compliance with these requirements under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said
items. (Emphasis ours.)
The failure of the prosecution to show that the police officers conducted the required physical inventory
and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not
automatically render accused-appellant's arrest illegal or the items seized/confiscated from him
inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added that `non-
compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items.' The same provision clearly states as well, that it
must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value
of the evidence have been preserved.

This Court can no longer find out what justifiable reasons existed, if any, since the defense did not raise
this issue during trial.[40] Be that as it may, this Court has explained in People v. Del Monte[41] that what is
of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or innocence of the accused. The existence of the
dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The
dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to
a judgment of conviction.[42] Thus, it is essential that the identity of the prohibited drug be established
beyond doubt. The chain of custody requirement performs the function of ensuring that the integrity and
evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity
of the evidence are removed.

To be admissible, the prosecution must show by records or testimony, the continuous whereabouts of the
exhibit at least between the time it came into possession of the police officers and until it was tested in
the laboratory to determine its composition[43] up to the time it was offered in evidence.

In the case at bar, the totality of the testimonial, documentary, and object evidence adequately supports
not only the findings that a valid buy-bust operation took place but accounted for an unbroken chain of
custody of the seized evidence as well.

A certified true photocopy of the NPDO-DDEG logbook indicated that a team was officially dispatched at
4:00 o'clock in the afternoon for a buy-bust operation at Pitong Gatang, Dampalit, in Malabon City, and
brought with them one (1) piece of one hundred peso bill with Serial Number HL 034748 to be used as
buy-bust money.[44] The testimony of PO2 Llantino established that the buy-bust operation occurred
between 4:00 o'clock to 5:30 o'clock in the afternoon of 21 October 2002. Accused-appellant was brought
to the Larangay police station at around 7:00 o'clock in the evening. [45] PO2 Llantino testified that the
seized evidence was turned over to the police investigator[46] who put his markings "ERC-BB." DDEG Chief
Reynaldo Orante made the request for laboratory examination dated 21 October 2002. [47] The request,
together with the seized item (one sachet) was brought to the NPDO-CLO at 11:30 o'clock in the evening
that same night and received by Forensic Chemist Albert S. Arturo at 11:35 o'clock in the evening.[48] The
parties stipulated on the qualification and competence of the Forensic Chemist of the PNP Crime
Laboratory. It was stipulated that the Forensic Chemist was the one who prepared the report on the
examination of the specimen submitted and that he can identify the specimen. [49] While the Court notes
that there is a slight discrepancy in the Serial Numbers of the buy-bust money as stated in the
affidavit[50] of PO2 Llantino vis-a-vis the Serial Numbers reflected in the NPDO-DDEG Police Blotter[51] and
the actual[52] buy-bust money presented. This minor inconsistency does not detract from the veracity and
weight of the prosecution evidence. It is enough that the prosecution proved that money was paid to
accused-appellant in consideration of which he sold and delivered the shabu. Moreover, any discrepancy
on the the buy-bust money was resolved on the categorical statement of PO2 Llantino that he put the
markings AL on the buy-bust money, corresponding to his initials Allan Llantino.

Thus, beyond his bare allegations, accused-appellant has not shown any evidence that will destroy the
identity of the sachet.

Accused-appellant's allegation that he is a victim of a frame-up, which has been held as a shop-worn
defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of
alibi, frame-up is an allegation that can easily be concocted.[53] For this claim to prosper, the defense must
adduce clear and convincing evidence, which accused-appellant failed to do. He did not adduce any
evidence showing that the police officers were maliciously motivated. His admission that he had not met
nor encountered any of the police officers involved in the buy-bust operation prior to his arrest further
bolsters the absence of such motive. Moreover, he testified that he could not think of any reason why the
police officers would falsely impute such a serious crime against him.

Absent any proof of motive to falsely accused him of such a grave offense, the presumption of regularity
in the performance of official duty and the findings of the trial court with respect to the credibility of
witnesses shall prevail over accused-appellant's bare allegation that he is a victim of frame-up.[54]

The categorical and convincing testimonies of the policemen, backed up by physical evidence, overcome
the unsubstantiated claim of ill-motive by appellant.

Accused-appellant's guilt having been established beyond reasonable doubt, the presumption of innocence
in his favor is overturned.

Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life
imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million
Pesos (P10,000,000.00).

Pursuant to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death
Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed.

The penalty imposed by the trial court, as affirmed by the Court of Appeals - life imprisonment and a fine
of P500,000.00 - is proper.

WHEREFORE, premises considered, the Court of Appeals Decision dated 27 November 2007 in CA-G.R.
CR H.C. No. 02175 affirming the Decision promulgated on 2 April 2004 by the Regional Trial Court of
Malabon City, Branch 72, in Criminal Case No. 27778-MN, finding accused-appellant Emilio Rivera y
Cablang alias `Boy' guilty beyond reasonable doubt of violating Section 5 of the Dangerous Drugs Act of
2002, and imposing upon him the penalty of life imprisonment and a fine of P500,000.00, is
hereby AFFIRMED.

SO ORDERED.

EN BANC

[ A.M. NO. CA-05-20-P (FORMERLY OCA IPI NO. 05-81-CA-P), September 09, 2005 ]

ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF APPEALS, COMPLAINANT, VS.

CIELITO M. SALUD, CLERK IV, COURT OF APPEALS, RESPONDENT.
 DECISION

CALLEJO, SR., J.:

Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of Appeals (CA) stands
charged with the following offenses:

1. Inefficiency and incompetence in the performance of official duties;

2. Conduct grossly prejudicial to the best interest of the service; and
3. Directly or indirectly having financial and material interest in an official transaction, under Section
22, paragraphs (p), (t) and (u), Rule XIV of the Omnibus Rules Implementing the Civil Service
Law.[1]

The Facts

Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and 118033-H before the
Regional Trial Court of Pasig City, Branch 163.[2] On appeal, the case was assigned to the Sixth Division of
the Court of Appeals, docketed as CA-G.R. CR No. 27423. Lagua, who was then detained at the Bureau of
Prisons National Penitentiary in Muntinlupa City, filed a Very Urgent Petition for Bail. Finding the petition
well-taken, the appellate court issued a Resolution on October 9, 2003, directing him to post a
P200,000.00 bond.

Lagua's bond was approved in a Resolution[3] dated November 6, 2003, where the appellate court also
directed the issuance of an order of release in favor of Lagua. The resolution was then brought to the
Office of the Division Clerk of Court, Atty. Maria Isabel M. Pattugalan-Madarang, for promulgation.

Irma Del Rosario, Utility Worker, noticed the respondent's unusual interest in the Lagua case. The
respondent had apparently been making inquiries whether the appellate court had already directed the
issuance of an order of release in the said case and was initially told there was none yet. Due to his
persistence, the records of the case were eventually found.[4] Atty. Madarang then directed the typing of
the Order of Release Upon Bond,[5] and to notify the mailing section that there were orders requiring
personal service.[6] At around 4:00 p.m., the respondent then went to Atty. Madarang's office and assisted
in arranging and stapling the papers for release. He brought the said resolutions and other papers himself
to the Mailing Section.[7]

On November 7, 2003, the respondent went to the National Penitentiary to serve the resolution and order
of release in the Lagua case. The respondent left the prison compound at around 2:30 p.m. [8]

In the meantime, Atty. Madarang received a telephone call from a certain Melissa Melchor, who introduced
herself as Lagua's relative. It was about 2:00 p.m. The caller asked her how much more they had to give
to facilitate Lagua's provisional liberty. The caller also told Atty. Madarang that they had sought the help
of a certain Rhodora Valdez of the Regional Trial Court (RTC) of Pasig, where the criminal case originated,
but were told that they still had a balance to be given to Justice Magtolis and Atty. Madarang through the
respondent. Atty. Madarang then called the said court and asked to speak to Ms. Valdez, pretending to be
Lagua's relative.

What transpired thereafter is contained in Atty. Madarang's Affidavit dated December 8, 2003, as follows:

4. That upon telephone queries made with the office of the Clerk of Court of RTC Pasig, I learned that
Rhodora Valdez is the incumbent Process Server of RTC, [Branch] 163, Pasig City, from which the
original case against accused-appellant Lagua originated. Disguising myself as accused-appellant
Lagua's relative, I dialed [Branch] 163, RTC, Pasig (6314273) but Rhodora Valdez did not report for
work that day, according to Baby (also known as Ester), her officemate (who) answered my call.
She added that Rhodora Valdez has been waiting for us (Lagua's relatives) to call. Her exact words
were these: "Wala si Rhodora. Meron lang siyang nilakad. Pero kahapon pa nya hinihintay ang
tawag nyo. May kulang pa kayo eh. Kailangan kasing i-en banc sa Court of Appeals ang kaso ni
Lagua."

5. That I coordinated with Ms. Cecil Secarro, the Acting Chief of the Mailing Section, to inquire if it
was usual/normal for her to text her process servers on the field for an update of their deliveries,
to which she answered in the affirmative. While she was in the office, she texted Salud for his
whereabouts and he replied, that he was on his way back to Quezon City. That was before 4 p.m.,
adding that his deliveries were ok.

6. That I got Salud's mobile phone number from Ms. Secarro and started texting him at about the
same time Ms. Secarro did. I represented myself as Arlyn, Lagua's relative. Most of his text
 messages are still stored in my mobile phone. In fact, I received one text message from him while
I was at the office of Justice Magtolis, (the Chairman of the 6 th Division and the ponente of C.R. No.
27423) in the late afternoon of November 7, 2003 while reporting to her this incident. Those stored
in my phone are the following:
1. bkit, C rhodora to. 639204439082. – Nov. 2003, 15:36:15

2. CNO KAMAGANAK AT ANONG PANGALAN MO – 639204439082, 7 Nov 2003 16:14:47

3. SINO K KC NAGHIWALAY N KAMI – 639204439082, 7 Nov 2003 16:40:21

4. TAWAG K S AKIN – 639204439082 – 7 Nov 2003 17:18:47

5. NARELEASE N C MR. LAGUA. NAGKITA N B KAYO – 639204439082-7 Nov 2003 19:44:52

6. Magkano b and binigay nyo sa middle nyo. Puede bang malaman – 639184470111-7 Nov
2003 20:32:05

7. Gud evening. May gusto lng akong malaman. Sana alang makaalam kahit cino. Lito –
639184470111–7 Nov. 2003 19:54:20

8. Cno ang kausap n Rhodora. Pwede bang malaman – 639184470111-7 Nov 2003 20:37:57

9. May landline ka. Tawagan kta bukas nang umaga – 639184470111-7 Nov 2003 20:56:31

10. Wag s Court of Appeal. Txt na lang kta kung saan. – 639184470111-7 Nov 2003 20:52:58

11. Gusto mo bukas nang umaga magkita tyo. 639184470111 – 7 Nov 2003 20:57:10

12. D ba pwede bukas tyo kita. May gusto lang ako malaman – 639184470111 7 Nov 2003
21:02:41

13. D 2ngkol kay rhodora duon sa kasama ko kaninang lalakeng pinsan – 639184470111 – 7
Nov 2003, 21:04:28

14. Ala po ako sa Lunes sa opis. Sa hapon po puede kyo – 639184470111, 7 Nov 2003
21:07:23

15. Kay Melchor Lagua 639184470111 – 7 Nov 2003 21:08:19

16. Kasama ko cya kanina nang lumabas – 639184470111 – 7 Nov. 2003 21:13:05

17. Ano m ba Melchor Lagua – 639184470111 – 7 Nov 2003 21:15:52

18. Between 5 and 5:30 ng hapon. Bkit. 639184470111 – 7 Nov. 2003 21:54:24

19. 3 PM PUWEDE KB – 639004039082 10 Nov 2003 12:09:32

20. Kilala mo b c rhodora. Nagkita na b kayo. Ala naman problema sa kanya. Ok naman
639184470111 – 7 Nov 2003, 21:57:13

21. MAGKITA N LANG TAYO – 639204439082 – 10 Nov. 2003, 12:20:16

22. A, OK, NAGKITA N B KAYO NG KAMAGANAK MO – 639204439082 – 10 Nov 2003 15:12:14

23. D TALAGA AKO DARATING DAHIL WALA AKONG KAILANGAN S IYO. – 639204439082 – 10
Nov 2003 18:36:03
7. That Salud called me up in the morning of November 8, 2003 at around 7:33 but I purposely did
not answer him. Why did he need to call me up?

8. That I personally called up the Bureau of Prisons for the exact time the Order of Release was
delivered and when accused appellant Lagua was released. I learned that the Order of Release was
received at 9:15 A.M. and that Lagua was released between 5-5:30 P.M. of November 7, 2003.

9. That I was able to talk to Rhodora Valdez the following Monday, November 10, 2003. Again, I
introduced myself as Lagua's relative, Arlyn and told her I only wanted to know how much more we
had to pay for Lagua's release. She refused to entertain me because according to her, "Hindi ikaw
ang kausap ko. Duda ako sa yo. Kung gusto mo, puntahan mo ako dito bukas, para magkita tayo.
Pero lumabas na si Lagua. Itinawag sa akin ni Lito Salud." Then, she [hung] up.

10. That on Tuesday, November 11, 2003, I brought Salud, accompanied by Ms. Secarro to Justice
Magtolis. Out of the confrontation, we discovered that Salud did not properly serve the copies of
 the Resolution and Order of Release upon the accused-appellant and his counsel, Atty. Salvador C.
Quimpo of the Quimpo Dingayan-Quimpo and Associates. He gave them to a certain Art, allegedly
Lagua's relative who he claimed approached him at the Bureau of Prisons in the morning of
November 7, 2003. He told Justice Magtolis that he gave these documents to Art, who promised to
take care of them, even before he could deliver the copy addressed to the Director of Prisons. He
never mentioned that this Art was connected with the office of accused-appellant's counsel.
Because of this information from Salud himself, I did not sign the Certificate of Service, Annex "C".

11. That several days later, Salud accompanied by Ms. Secarro, came to my office to apologize. But
before he could even say a word, he broke down in [wails]. In between his loud cries, he uttered,
"Boss, patawad po, alang-alang sa aking mga anak."[9]

On November 11, 2003, Justice Magtolis called the respondent to her office. When confronted, the
respondent denied extorting or receiving money for Lagua's release, or in any other case. He, however,
admitted serving the copies of resolution and order of release intended for Lagua and his counsel to Art
Baluran.[10] Justice Magtolis then called the respondent to a meeting with Clerk of Court Atty. Tessie L.
Gatmaitan, who stated that she would transfer the respondent to another office which has nothing to do
with cases.

Justice Magtolis lodged the complaint against the respondent in a Letter dated November 14, 2003,
containing, among others, the following allegations:
The delivery of resolutions/orders to unauthorized persons and "complete strangers" who promised to
"take care thereof" ("siya na raw ang bahala") constitutes not only neglect of duty but also conduct
prejudicial to the best interest of the service. Staying for the whole day within the vicinity of the National
Bilibid Prisons to the point of failing to fulfill his other duties for the day constitutes inefficiency and
incompetence in the performance of official duties. On the other hand, the use of my name and that of our
Division Clerk of Court to illegally solicit financial or material benefit from parties with pending cases
before this Court is illegal per se.

In view of the foregoing, it is respectfully requested that Cielito Salud be subjected to an administrative
investigation and disciplinary action.[11]

Attached to the complaint were the following documents to support the charges:

ANNEX "A" - Record of the cases received by Salud on November 6, 2003 for delivery/service the
following day, November 7, 2003. Please note that in each of the 3 cases assigned to him, there are
several parties/counsels to be served.

ANNEX "B" - Certificate of Service signed by Salud, attested by the Acting Chief of the Mailing Section
and Division Clerk of Court Ma. Ramona L. Ledesma, showing that the parties/counsel in SP-67586 were
served only on November 10, 2003 (not on November 7, 2003).

ANNEX "C" - Certificate of Service for CR-27423, and corresponding Delivery Receipts.

"C-1" - Delivery Receipts for Defense Counsel Salvador Quimpo signed by someone whose signature
was identified by Salud [as] "Art" – a cousin of appellant Melchor Lagua.

"C-2" - Delivery Receipt for the accused-appellant, received by the same "Art" and not served thru the
Director of Prisons.

"C-3" - Delivery Receipt for the OSG, showing that it was delivered/received by the said office on
November 10, 2003, not on November 7, 2003.

"C-4" - Delivery Receipt for the Director of Prisons showing receipt on November 7, 2003.

ANNEX "D" -Record of Resolutions in 3 other cases (SP-80241, SP-65404 and SP-77957) received for
service by Salud on November 10, 2003. The resolutions/processes in these 3 cases were
delivered/served to the parties/counsel on November 10, 2003 together with undelivered resolutions left
unserved/undelivered on November 7, 2003.

ANNEX "E" -Certification signed by Salud showing service to parties/counsel in SP-65404 (received by
Salud on November 10, 2003) on November 10, 2003 (same date)

ANNEX "F", "F-1" & "F-2" - Delivery Receipts for parties/counsel in SP-65404, showing service/delivery
on November 10, 2003 – in contrast to his minimal delivery/services on November 7, 2003 only in
Muntinlupa.
ANNEX "G" - Copy of the resolution dated November 6, 2003 of the 6 th Division approving the
appellant's bond and directing the issuance of an order of release.

ANNEX "H" - Copy of the Order of Release upon Bond, which Salud was supposed to deliver, among
others on November 7, 2003 to the defense counsel, the appellant and the OSG. [12]

In his counter-affidavit,[13] the respondent vehemently denied the charges. He never demanded money
from Lagua's relative; his name had been used by someone and was, thus, a mere victim of the
circumstances. Moreover, the fact that he immediately released the CA order in question was clear proof
that he had no financial interest in the transaction. His version of the events that occurred that day is as
follows:

4.1 That on November 6, 2003 at around 1:38 p.m. the Acting Chief of the Mailing Section gave
me an assignment to deliver the Writ of Habeas Corpus (hearing on November 26, 2003 at
RTC, Zamboanga) for CA-G.R. SP No. 80238 for delivery to NBI, PAO, Quezon City,
Muntinlupa;

4.2 That I delivered a copy of the Writ of Habeas Corpus to [the National] Bureau of Investigation
(NBI);

4.3 That while I was at the NBI, I received a text message from my boss, requesting me to return
to the office immediately because there is another notice of resolution coming from Atty.
Ledesma which I have to serve to Quezon City and Las Piñas;

4.4 In compliance with the request, I returned to the Office and arrived at around 3:15 p.m.;

4.5 That when I received the resolution, I read the same and found out that the hearing is still
scheduled on December 10, 2003 at 10:30 a.m.;

4.6 That when I was about to leave to deliver the Writ of Habeas Corpus and the Notice of Hearing
to the PAO, Quezon City, my officemate Jun Vicencio told me to wait because Irma, the staff of
Atty. Madarang requested me to standby because I need to deliver the Order of Release to the
New Bilibid Prison, Muntinlupa;

4.7 That because of the request I waited until 4:00 p.m.;

4.8 That because its already late, I decided to go to Atty. Madarang's office to inquire about the
Order of Release which I need to deliver to the New Bilibid Prison, Muntinlupa;

4.9 That Atty. Madarang told me to wait a little while because the order is about to be finished. So
I waited.

4.10 That Atty. Madarang gave to me the Order of Release at 4:15 p.m.

4.11 That because I am aware that I may not reach [the] New Bilibid Prison on time, I told Atty.
Madarang that I can deliver it on November 7, 2003, early in the morning. She agreed and told
me "THANK YOU" Ikaw na ang bahala;

4.12 That I informed my boss about the Order of Release that was assigned to me and she had it
listed in our logbook. I asked my boss [Cecil Secarro] if I can deliver the Notice of Hearing for
SP 67586 and the others on Monday if I cannot finish delivering them on November 7, 2003.
 She agreed but told me to be sure that the Order of Release will be served first and the others
be served not later than Monday, November 10, 2003. Thereafter, I went home.

4.13 That on November 7, 2003, I went straight to [the] New Bilibid Prison and arrived there before
8:00 [a.m.] Unfortunately, all the staff wearing white uniforms and the security guards were
falling in line in front of the building of the New Bilibid Prison. So I could not enter the
administration office.

4.14 That while I was standing in front of the building where the administrative office is located, a
certain ART approached me and asked me if I am the personnel of the Court of Appeals who
will deliver the Order of Release.

4.15 That I said yes, and he told me his name and said that he is a relative of MELCHOR LAGUA
(prisoner) and is connected with the office of Atty. [Quimpo].

4.16 That at around 9:30 [a.m.] I was able to enter the administrative offices but because there was
no staff inside – I went to the documentation office. The staff in the documentation office told
me to submit the Order of Release to the administrative office. He said that they will prepare
the documents of MELCHOR LAGUA (prisoner) but also told me that the prisoner might be
released on Monday yet because the signatories are busy attending the ongoing 98 anniversary
celebration;

4.17 That I returned to the administrative office and was able to find Mr. JUANITO TORRES,
Administrative Officer III, who received the copy for the Director but refused to receive the
copy of Mr. LAGUA. He told me to wait for his staff to receive the copy of Mr. LAGUA;

4.18 That because the staff were not around, I went to the canteen to buy softdrinks to quench my
thirst;

4.19 That Mr. ART followed me in the canteen and told me to assist in the release of Mr. LAGUA
because there were no personnel attending to the Order of Release;

4.20 That since my boss told me to insure the release of the prisoner, I waited for my staff to arrive
who will attend to the matter;

4.21 That I delivered the copy of Mr. LAGUA to the staff. But ART told them he can receive the copy
of Mr. LAGUA because he is his relative so, the staff told me to give the copy to ART.

4.22 That I gave the copy of the Order of Release for the accused to ART. ART also told me that he
is authorized to receive the copy for Atty. Quimpo because he is also the representative of the
law office. Hence, I also gave the copy for Atty. Quimpo to ART;

4.23 That I was able to finish my duty at the New Bilibid Prison at around 2:30 [p.m.] and I
proceeded to Purok I, 6A Bayanan, Muntinlupa to serve the Writ of Habeas Corpus in CA-G.R.
SP No. 80238;

4.24 That because of [sic] the address of the addressee was incomplete, I found a hard time
locating the address of the addressee and when I found Purok I, 6A, the persons thereat do not
know JOEL DE LA PAZ. I asked for their help but nobody in the place knew JOEL DE LA PAZ;
4.25 That I left Muntinlupa late in the afternoon and due to the lack of time I decided to deliver the
other documents on the next working day which is Monday, November 10, 2003;

4.26 That I delivered the other documents on Monday, November 10, 2003, without any problem;

4.27 That I was surprised when Atty. Madarang later on accused me that I used her name and the
name of Justice Magtolis to demand money from Mr. LAGUA'S relative. [14]

Considering the gravity of the charges, then Acting Presiding Justice Cancio C. Garcia [15] referred the
matter to Atty. Elisa B. Pilar-Longalong, Assistant Clerk of Court, for investigation, report, and
recommendation.

The Investigation

The requisite hearings were held from December 12, 2003 to August 4, 2004.

Atty. Madarang affirmed the contents of her Affidavit[16] dated December 8, 2003. She testified that the
respondent later came to her office along with Ms. Secarro. Amidst his cries, he pleaded, "Boss, patawad
po, alang-alang sa aking mga anak." She replied, "Wait, wala ka namang kasalanan sa akin. Ikaw ang
nagpasimuno ng lahat ng ito." The respondent repeated, "Boss, patawad po alang alang sa aking mga
anak," and Atty. Madarang answered, "Okey lang, pinatawad na kita. Hindi naman ako galit sa iyo."[17]

Justice Magtolis testified that Atty. Madarang reported having received a telephone call from the alleged
relative of Lagua. She narrated that she gave the name "Arlyn" to the caller, and, thereafter, exchanged
text messages with the respondent. Justice Magtolis instructed Atty. Madarang to continue communicating
with the respondent and, if possible, to see it through a possible pay-off where a National Bureau of
Investigation (NBI) agent would be asked to assist them. However, the entrapment did not materialize.
The respondent thereafter came to her office, where he was asked why he was unable to serve all the
other papers and documents that day.[18] He also admitted that he served a copy of the resolution to the
wrong person (Baluran). Justice Magtolis also stated that she threatened to transfer the respondent, and
that the latter vehemently objected, pleaded, and cried saying, "Huwag naman pong pa-transfer." When
asked why, the respondent said that he has children in school and something like, "Dyan po ako
kumikita."[19]

Another witness was Cristy Flores, convicted of three counts of estafa who served time at the Correctional
Institute for Women in Batangas City. She testified that the respondent was introduced to her in
December 1998 by a certain Crisanta Gamil.[20] Gamil was also detained at the correctional facility; the
respondent had worked on her appeal bond papers and asked for P20,000.00 to facilitate the issuance of
the appeal bond.[21] The payment was made right in front of her, and the respondent issued a
receipt.[22] The witness also testified that Gamil told her, "O, at least dyan mo ipalakad ang papel mo.
Okay 'yan, sigurado."[23] The respondent visited her in May 1999, as she had asked him to fix her appeal
bond. During the visit, the respondent took the pertinent documents from her. [24] The witness also stated
that she gave the respondent a partial payment of P7,000.00[25] on May 16, 1999 and he issued a
receipt.[26] They then proceeded to the Documents Section where they secured copies of the court
decision, certificate of manifestation and her picture. She made the last payment of P13,000.00 in June
13, 1999, and also issued a receipt. The respondent was also asking for an additional payment of
P15,000.00, which she was unable to give.

Flores narrated that she introduced another detainee to the respondent, Dalawangbayan, whom the latter
was also able to "help". She stated that according to Dalawangbayan, the respondent asked for
P200,000.00. She further testified that she knew the respondent as Joselito M. Salud, and not Cielito
Salud.[27] After the incident, she wrote a letter to Associate Justice Conrado Vasquez, Jr. to ask for
assistance regarding her appeal bond.

Atty. Salvador Quimpo, Lagua's counsel, testified that it was Engineer Art Baluran who hired him as
counsel of the said accused. He stated that he gave an oral authorization to Baluran to get the CA
resolutions or orders; Baluran was the one who furnished him a copy of the resolution. [28] He called Mr.
Baluran to say that an order for Lagua's release had already been issued by the appellate court. The
witness stated, however, that he had never seen the respondent before.[29]

The respondent testified that he has been a CA employee since 1991. He admitted that he knew Flores,
and met her in January 1999 when he brought Gamil's order of release in the Batangas City Jail. He
claimed that he was waiting for the relatives of Gamil as they were the ones who would pay for his fare
home, and while waiting, he talked to the jailguard/warden. Flores then approached him and asked him if
he was from the CA. When the respondent answered in the affirmative, Flores replied that Justice Vasquez
was her neighbor in Biñan, Laguna.

The respondent admitted that he was in the Correctional Institute for Women in Mandaluyong City on May
16, 1999, as he was then visiting Vilma Dalawangbayan. He also saw Flores. [30] When asked why he
visited Dalawangbayan, the respondent replied that Flores had written a letter to him (which he dubbed as
"maintrigang sulat")[31]addressed "Lito Salud, Mailing Section, Court of Appeals." In the said letter, Flores
asked him to help Dalawangbayan, just like he had helped Gamil. The respondent then showed the letter
to then Chief of Office Prudencio B. Aguilar, who told him, "Puntahan mo yan, Lito at maintriga 'yang sulat
na 'yan, baka tayo mapahamak dyan."[32]Thus, he went to the Correctional Institute in Mandaluyong City
to "sort things out" with Dalawangbayan and Gamil. The respondent, however, stated that he could not
find the letter anywhere and had already been lost.[33]

During his May 16, 1999 visit to the correctional facility, Flores approached him in the visiting hall, and
said suddenly, "Sandali lang, Kuya," then left. He then talked to Dalawangbayan about the "controversial"
letter, explaining that his job in the Court of Appeals was only to remand the records and deliver the
Orders for release, just like what he did in Gamil's case. [34] He again visited Dalawangbayan on June 13,
1999[35] as evidenced by the entries in the visitor's logbook. He was no longer able to speak to Flores, but
made five other such visits to Dalawangbayan in the correctional facility.

The Findings of the Investigating Officer

In her Report dated January 21, 2005, Atty. Longalong found that the respondent was guilty as charged,
and made the following recommendation:

In view of all the foregoing, there is substantial evidence to hold respondent liable for the offenses
charged. He is liable for inefficiency and incompetence in the performance of his official duties and for
conduct prejudicial to the best interest of the service when he admittedly served the copies of the
resolution and order of release in the Lagua case intended for detained appellant and his counsel on Mr.
Baluran whom he admitted to have met only on that day, against the rules and normal office procedure on
personal service. His long stay in the Bureau of Prisons also caused the delay in the service of other court
processes assigned to him for service on that day. He is also liable for having financial or material interest
in an official transaction considering his undue interest in the service of the order of release and actual
release of Lagua to the point of staying almost the whole day in the Bureau of Prisons and the aborted
"deal" as can be concluded from the phone call of Melissa Melchor to Atty. Madarang and subsequent
exchange of text messages with Atty. Madarang disguising as Lagua's relative. ...

RECOMMENDATION:

1. Rule IV, Section 52 of Civil Service Commission Memorandum Circular No. 19, S. 1999, issued
pursuant to Book V of the Administrative Code of 1987, provides that the penalty for the first
offense of inefficiency and incompetence in the performance of official duties, for conduct
prejudicial to the best interest of the service and for directly or indirectly having financial and
material interest in any official transaction is suspension for a period of 6 months, 1 day to 1 year.
Pursuant to Section 55 of the same Memorandum Circular, if the respondent is found guilty of 2 or
more charges, the penalty to be imposed should be that corresponding to the most serious charge
and the rest shall be considered as aggravating circumstances. Section 54-c of the same
Memorandum Circular provides that the maximum of the penalty shall be imposed where only
aggravating and no mitigating circumstances are present. Since in this case, the penalty is the
same for all 3 offenses, the maximum of the penalty for the first offense which is suspension for 1
year [may be] imposed on the respondent.

2. Considering that the prescribed penalty for the offense exceeds one month suspension, the case
may now be referred to the Supreme Court for appropriate action, pursuant to Circular No. 30-91
of the Office of the Court Administrator.[36]

The Ruling of the Court

On the charge of inefficiency, the respondent is clearly administratively liable. After serving Lagua's copy
of the resolution and order of release to the prison Director, he should have immediately returned to his
station or served the other resolutions and documents for personal service. As an officer of the court, the
respondent plays an essential part in the administration of justice. He is required to live up to the
stringent standards of his office, and his conduct must, at all times, be above reproach and suspicion. He
must steer clear of any act which would tend to undermine his integrity, or erode somehow the people's
faith and trust in the courts.[37] As the respondent himself admitted, he stayed on until 2:30 p.m. without
any valid reason, despite the fact that he knew he still had to serve several orders and resolutions. As
pointed out by the Investigating Officer, "inefficiency and incompetence in the performance of official
duties" is classified as a grave offense, and is punishable by suspension for six months and one day to one
year.[38]

Indeed, the complainant in administrative proceedings has the burden of proving the allegations in the
complaint by substantial evidence. If a court employee is to be disciplined for a grave offense, the
evidence against him must be competent and derived from direct knowledge; as such, charges based on
mere suspicion and speculation cannot be given credence. Thus, if the complainant fails to substantiate a
claim of corruption and bribery, relying on mere conjectures and suppositions, the administrative
complaint must be dismissed for lack of merit.[39] However, in administrative proceedings, the quantum of
proof required to establish malfeasance is not proof beyond reasonable doubt but substantial
evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to
support a conclusion, is required.[40] The findings of investigating magistrates on the credibility of
witnesses are given great weight by reason of their unmatched opportunity to see the deportment of the
witnesses as they testified.[41]

To determine the credibility and probative weight of the testimony of a witness, such testimony must be
considered in its entirety and not in truncated parts. To determine which contradicting statements of a
witness is to prevail as to the truth, the other evidence received must be considered.[42] Thus, while it is
true that there is no direct evidence that the respondent received any money to "facilitate" the release of
detained Lagua, the following circumstances must be taken as contrary to the respondent's plea of
innocence:

First. The respondent admitted that he was the sender of the first three text messages in Atty. Madarang's
cellphone: "bkit, C rhodora to"; "CNO KAMAGANAK AT ANONG PANGALAN MO"; and "SINO K KC
NAGHIWALAY N KAMI." The respondent's testimony on the matter is as follows:

Q: In the hearing of December 2, 2003, in the TSN on page 32 onwards ...

ATTY. ROSERO:

Is that the testimony of Atty. Madarang, Justice?

JUSTICE MAGTOLIS:

Oo. I will just refer to your admission through your counsel that Cellphone No. 6392044390[8]2 is yours.
You admitted that?

ATTY. ROSERO:

I think we made an admission as to that matter, Justice. We'll just check the affidavit of Atty. Madarang.

JUSTICE MAGTOLIS:

Here, admitted. Basahin mo.

ATTY. ROSERO:

Yes, Justice, admitted but not the cellphone number ...

JUSTICE MAGTOLIS:

Sige, ulitin natin, 6392044390[8]2.

ATTY. ROSERO:

Yes, admitted. That is his cellphone.

JUSTICE MAGTOLIS:

This cellphone is yours.

Q: Do you also admit that you called Atty. Madarang several times on November 7, 2003?
ATTY. ROSERO:

November 7 is... a Friday. Tumawag ka daw several times kay Atty. Madarang, November 7?

JUSTICE MAGTOLIS:

Texted, I'm sorry I will correct that, texted.

A: Nauna po siyang magtext sa akin, Justice, hindi po ako nagtext sa kanya. Nagtext po siya sa
akin sumagot po ako sa kanya.

Q: There was an exchange several times?

A: Nuong pong text niya sa akin ... hindi po several times dahil ... kung makita 'nyo po dyan.

JUSTICE MAGTOLIS:

Let me see the affidavit of Atty. Madarang. After this question, may I ask for a continuance?

ATTY. ROSERO:

No objection, Your Honor.

JUSTICE MAGTOLIS:

All these text messages were checked by us with your counsel in the cellphone of Atty. Madarang which
were preserved until we allowed her to erase these. There are exchanges here: 6392044390[8]2,
November 7. When she texted she answered, "Bkit c Rhodora 2" and then second was, "Cnong
kamaganak anong pangalan mo?" This is addressed to you, this is your telephone?
A: Opo.

Q: But the one who answered is Rhodora?

A: Ako po 'yun.

Q: Ikaw ang sumasagot. Why did you say that you are Rhodora?

A: Justice, nung ma-receive ko po 'yong text niya apat na beses ko pong na-receive ang text ni
Arlene.

INVESTIGATOR:

Who is Arlene?

A: Atty. Madarang. Arlene, sa text po niya sa akin, "Sir Lito, kamaganak po ito ni Mr. Lagua.
Magkano pa po ba ang kakulangang pera para ibigay ko sa inyo. Si Rhodora ba kasama?" Hindi
ko po sinagot yon. Pangalawa, 'yun din po ang message nya. Ano ito? Sa akin pong kuan, sa
pag-iisip ko lang po, bakit dahil si Mr. Art Baluran kamag-anak na, ano ito? Text pa ulit pa sya
ng pangatlo. Nang-iintriga na 'to. Pang-apat, intriga 'to. Text ko nga rin 'to, lokohan lang tayo.
"Bkit si Rhodora 'to" yun po ang sagot ko sa kanya.

Q: So at that time you already knew about Rhodora?

A: Hindi po, dun, duon po sa text niya nakalagay po dun eh, "Si Rhodora kasama ba"? So ikinuan
ko po na si Rhodora 'to, dun po sa text nya.

Q: Nakipaglokohan ka?
A: Sa text niya nakalagay dun na "Si Rhodora ba kasama" kaya po ako nakipaglokohan dun.[43]

As pointed out by the Investigating Officer, the respondent's claim of "joking around" ("nakipaglokohan")
with an unknown sender of a text message by replying thereto is contrary to a normal person's reaction.
This is made even more apparent by the fact that the respondent even admitted that he called Atty.
Madarang twice, and when asked why, gave a vague answer, and, when further questioned, even broke
down in tears.[44]

The respondent's claim that the admission of the text messages as evidence against him constitutes a
violation of his right to privacy is unavailing. Text messages have been classified as "ephemeral electronic
communication" under Section 1(k), Rule 2 of the Rules on Electronic Evidence,[45] and "shall be proven by
the testimony of a person who was a party to the same or has personal knowledge thereof." Any question
as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as
his counsel, already admitted that he was the sender of the first three messages on Atty. Madarang's cell
phone.

This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-Apao.[46] In that case,
the Court, in finding the respondent therein guilty of dishonesty and grave misconduct, considered text
messages addressed to the complainant asking for a million pesos in exchange for a favorable decision in
a case pending before the CA. The Court had the occasion to state:

... The text messages were properly admitted by the Committee since the same are now covered by
Section 1(k), Rule 2 of the Rules on Electronic Evidence, which provides:

"Ephemeral electronic communication" refers to telephone conversations, text messages ... and other
electronic forms of communication the evidence of which is not recorded or retained."

Under Section 2, Rule 11 of the [said rules], "Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or who has personal knowledge thereof ... ." In this
case, complainant who was the recipient of the said messages and therefore had personal knowledge
thereof testified on their contents and import. Respondent herself admitted that the cellphone number
reflected in complainant's cellphone from which the messages originated was hers. Moreover, any doubt
respondent may have had as to the admissibility of the text messages had been laid to rest when she and
her counsel signed and attested to the veracity of the text messages between her and complainant. It is
also well to remember that in administrative cases, technical rules of procedure and evidence are not
strictly applied. We have no doubt as to the probative value of the text messages as evidence in
determining the guilt or lack thereof of respondent in this case.

Second. The respondent's testimony during the hearings held before Investigating Officer Atty. Longalong
is replete with inconsistencies and "loopholes." He claimed that he made inquiries from other CA staff and
learned that there was indeed a deal between someone in the criminal section and a certain Rhodora of
the RTC, Pasig. He further claimed that the said parties wanted to get back at him for "immediately
serving" the release order which prevented them from demanding the balance of the deal from Lagua's
relative. However, this bare claim was not corroborated by any witness. Moreover, the respondent alleged
that two anonymous callers claimed to know something about the case against him; when asked about it,
he stated that he no longer exerted efforts to find out who they were as they did not give out their
names:

JUSTICE MAGTOLIS:

Q: On page 5 of your affidavit, you said in paragraph 8 "That I made some inquiry and some
personnel of the Court of Appeals told me that there is indeed a deal between a staff in the
Criminal Section and Rhodora of RTC, Pasig. Can you tell us who is this staff?

A: Ah dito po Justice, hindi po siya nagpakilala, sa telephono po.

INVESTIGATOR:

Sino siya?

A: Hindi po siya ... 'yong tawag po niya sa akin sa telepono nang malaman po dito sa CA na ako
ay kinasuhan ninyo tumawag po siya sa Personnel.
JUSTICE MAGTOLIS:

Q: Who is siya?

A: Ay hindi po siya nagpakilala.

INVESTIGATOR:

Lalaki o babae?

A: Una po babae tapos 'yong pangalawa po lalaki.

INVESTIGATOR:

Sinong kinakausap?

A: Ako po.

INVESTIGATOR:

Hinahanap ka?

A: Hinahanap po nila ako.

JUSTICE MAGTOLIS:

Q: What did he tell you? He, lalaki, ano?

A: Sa babae muna po?

Q: Oo, babae't lalake ba?

A: Opo.

Q: Who was the first caller, the lady or the gentleman?

A: Babae po.

Q: Were you the one who answered the phone?

A: Hindi po.

INVESTIGATOR:
 Hinahanap daw siya.

JUSTICE MAGTOLIS:

Q: Hinahanap ka, okay, when you answered the phone, what did you say?

A: Ang sabi ko po sa kanya, "pupuwede mo ba akong matulungan sa paggawa ng affidavit dahil

kinasuhan nga ako ni Justice Magtolis."

Q: But you do not know who you were talking to?

A: Tinanong ko nga po kung sino siya eh tumutulong lang daw siya sa akin dahil ang naririnig
niyang tsismis din dyan eh baka po si Rhodora ang may ka-kuan sa Criminal.

Q: Saan 'yong ka-kuan?

A: Ang may kausap sa Criminal.

Q: Who said "na baka si Rhodora ang may kausap sa Criminal"?

A: 'Yon pong kausap ko sa kabilang linya.

Q: The name you do not know?

A: Eh tinanong ko naman po kung sino siya ayaw naman po niyang magpakilala. Matutulungan mo
ba ako, ibinaba na po ang telepono.

INVESTIGATOR:

Anonymous caller.

JUSTICE MAGTOLIS:

You are very fond of answering calls. You don't even know the name.

Q: That anonymous caller told you that there must be some deals between Rhodora and someone
from the Criminal Section?

A: 'Yun din daw po ang naririnig niyang tsismis dyan sa labas.

Q: Tsismis, that was that the caller told you?

A: Opo.

Q: And she wanted to help you?

A: Kaya po sinabi din sa akin na tsismis eh hindi pa po pwedeng ...

Q: What did you answer her?

INVESTIGATOR:

Anong sagot mo raw?

JUSTICE MAGTOLIS:

Q: Anong sagot niya sa tulungan kasi nakakarinig siyang tsismis?

INVESTIGATOR:

Q Ano ang sagot mo?

A: Eh iyon nga ang gusto kong malaman, ang katotohanan. Baka naman pupuwede mo akong
matulungan. Sino ba 'to?

JUSTICE MAGTOLIS:

Q: Di ba she was the one who offered to help?

A: Ay ayaw daw po naman niyang masabit po ang pangalan niya.

Q: But she was the one who called you?

A: Opo.

Q: Okay. How did your talk end with this girl or lady?

A: Nung pagsalita ko nga pong baka pupuwede akong tulungan, wala na.

Q: How about the man, the gentleman or the boy who called?

A: Same kuan din po ang kanilang kuan e.

JUSTICE MAGTOLIS:

Don't use kuan.

ATTY. ROSERO:

Sige, Lito, ipaliwanag mo.

A: Same kuento rin po, sinabi niya na ganuon din po na narinig din po niya sa labas.

JUSTICE MAGTOLIS:

Q: Alright, you were not the one who answered the call?
A: Hindi po.

Q: Somebody called you that there's a phone call?

A: Opo.

Q: When you answered, what was your first word?

A: Hello!

Q: What was the answer at the other end of the line?

A: Hello rin po.

Q: What next?

A: Alam mo, ang sabi po niya sa akin ganito po...

Q: Who was the first one who said something other than hello?

A: Siya po ang nauna.

Q: What did she say, the exact words?

A: Exact words, sa naalala kong sinabi niya "Alam mo, Mr. Salud," Salud po ang kuan niya sa akin,
"narinig ko sa labas, istoryahan dyan sa labas na baka si Rhodora ang may ka-kuan dito sa
Criminal." Ang sabi ko po sa kanya "Iyan din ang itinawag sa akin kahapon. Eh dalawa na kayo
eh baka naman pupuwede nyo akong matulungan. Puede ko bang malaman ang pangalan mo?"
Ganun din po, ayaw na pong magsalita ibinaba na [ang] telepono.

Q: Do you know Rhodora?

A: Hindi po.

Q: You never met her?

A: Hindi po.

Q: You never talked to her?

A: Nung pong ipinakiusap nyo sa akin sa telepono po nung tayo po'y ...

Q: After the conversation with the lady and that gentleman who called you to offer some help and
afterwards did not help at all, what happened?

A: Wala na po.

Q: Did you not check with Rhodora, "What is this they are talking about that it might be between
you and someone in the Criminal Section�" You never asked her that?

A: Hindi ko na rin po ...

Q: You did not. But I thought you wanted help from those people who can help you?
A: Eh hindi na nga po sila nagbanggit po ng pangalan dahil po sabi ng unang babae ayaw nga rin
po niyang sumabit sa kaso.[47]

This respondent's actuation on this matter, if at all true, is again contrary to the normal reaction of one
who has been administratively charged, and wants to clear his name of any wrongdoing.

The respondent also admitted visiting an inmate (Vilma Dalawangbayan) at the correctional facility eight
times for no apparent reason. This admission lends some credence to the testimony of Flores, that she
was the one who introduced him to Dalawangbayan, the person he was visiting. When asked why he
frequently visited, he stated that he found her beautiful ("Maganda po siya, Justice"), and was on the
verge of courting her ("Para na nga po akong nanliligaw"). The Court believes that this allegation was
concocted by the respondent as a mere afterthought, to cover up for his misdeeds.

The Investigating Officer also found that the respondent was "high-strung" during his testimony, and this
finding must be accorded respect. Indeed, when the issue is the credibility of witnesses, the function of
evaluating it is primarily lodged in the investigating judge. The rule which concedes due respect, and even
finality, to the assessment of the credibility of witnesses by trial judges in civil and criminal cases where
preponderance of evidence and proof beyond reasonable doubt, respectively, are required, applies
a fortiori in administrative cases where the quantum of proof required is only substantial evidence. The
investigating judge is in a better position to pass judgment on the credibility of witnesses, having
personally heard them when they testified, and observed their deportment and manner of
testifying.[48] Thus, the following findings of Atty. Longalong are well taken:

However, respondent denied receiving P20,000 from Gamil and P15,000 from Flores and signing "LM
Salud" on Flores' notebooks (Exhibits E-1 and F-1) but admitted visiting Vilma at the Correctional Institute
for Women 8 times from May to August 1999. Respondent's denial here appears self-serving and
incredible considering his admission of going to the Correctional Institute for Women several times for no
valid official reason. Moreover, although Flores is a convict for estafa, her testimony on the matter was
more consistent and credible. Likewise, respondent admitted seeing Flores at the Correctional Institute for
Women and that Flores mailed her letter to him on May 16, 1999 which he called "maintriga." He also
admitted that he told Flores to seek the help of Justice Vasquez on her case. The foregoing, plus the fact
that Flores eventually wrote Justice Vasquez, confirms the truth of Flores' testimony on the matter.

With the aforecited admissions by respondent, the substantial evidence presented by the complainant and
her witnesses with their positive and forthright testimonies deserve more credence than respondent's self-
serving denial and inconsistent and vague testimony. Even the demeanor of complainant and her
witnesses give credence to their testimonies than the nervous and [high-strung] demeanor of respondent
during his testimony. Moreover, complainant and her witnesses, including the superiors of respondent,
have no reason or motive whatsoever to testify falsely against him. Respondent's defense of denial is
inherently a weak defense. It is well settled that denial, to be believed, must be buttressed by strong
evidence of non-culpability, otherwise the denial is purely self-serving and with nil evidentiary value
(People of the Philippines v. Arlee, 323 SCRA 201). Like the defense of alibi, denial crumbles in the light of
positive declarations (People of the Philippines vs. Ricafranca, 323 SCRA 652).

Indeed, the Court is looked upon by people with high respect, a sacred place where litigants are heard,
rights and conflicts settled and justice solemnly dispensed with. Misbehavior within or around the vicinity
diminishes its sanctity and dignity. The conduct and behavior required of every court personnel, from the
presiding judge to the lowliest clerk, must always be beyond reproach and circumscribed with the heavy
burden of responsibility. Their conduct must, at all times, be characterized by, among other things,
propriety and decorum so as to earn and keep the public's respect and confidence in the judicial
service.[49] Public service requires the utmost integrity and strictest discipline. Thus, a public servant must
exhibit at all times the highest sense of honesty and integrity not only in the performance of his official
duties but in his personal and private dealings with other people.[50]

While there is no direct evidence to suggest that he actually extorted money to "facilitate" the issuance of
the appeal bond and release order which he himself served, the surrounding circumstances, as well as the
inconsistencies in his testimony, point towards administrative culpability. The respondent's actuations fall
short of the standard required of a public servant. He is guilty of gross or grave misconduct. Misconduct is
a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty,
unlawful behavior, willful in character, improper or wrong behavior,[51] while "gross," has been defined as
"out of all measure; beyond allowance; flagrant; shameful; such conduct as is not to be
excused."[52] Under the Omnibus Civil Service Rules and Regulations, grave misconduct is punishable by
dismissal from the service even for the first offense, as it is classified as a grave offense. However,
considering that the respondent has not been previously charged nor administratively sanctioned, the
Court finds that a penalty of suspension for one year and six months will serve the purpose of disciplining
the respondent.
Court personnel, from the lowliest employee to the clerk of court or any position lower than that of a
judge or justice, are involved in the dispensation of justice, and parties seeking redress from the courts
for grievances look upon them as part of the Judiciary. They serve as sentinels of justice, and any act of
impropriety on their part immeasurably affect the honor and dignity of the Judiciary and the people�s
confidence in it.[53] Thus, any conduct which tends to diminish the image of the Judiciary cannot be
countenanced.

IN LIGHT OF ALL THE FOREGOING, respondent Cielito M. Salud is found GUILTY of inefficiency and
gross misconduct. He is SUSPENDED for a period of One (1) Year and Six (6) Months, effective
immediately. He is further DIRECTED to inform the Court as to the date of his receipt of this Decision to
determine when his suspension shall have taken effect.

The Office of the Court Administrator is also DIRECTED to conduct a discreet investigation on the possible
involvement of Rhodora Valdez (Utility Worker), and other personnel of the Regional Trial Court of Pasig
City, Branch 163.

SO ORDERED.

THIRD DIVISION

[ G.R. NO. 162571, June 15, 2005 ]

ARNEL L. AGUSTIN, PETITIONER, VS. HON. COURT OF APPEALS AND MINOR MARTIN JOSE
PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE,
RESPONDENTS.

DECISION

CORONA, J.:

At issue in this petition for certiorari [1] is whether or not the Court of Appeals (CA) gravely erred in
exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision [2] and
resolution[3] upholding the resolution and order of the trial court,[4] which denied petitioner’s motion to
dismiss private respondents’ complaint for support and directed the parties to submit themselves to
deoxyribonucleic acid (DNA) paternity testing.

Respondents Fe Angela and her son Martin Prollamante sued Martin’s alleged biological father, petitioner
Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court (RTC) of Quezon
City, Branch 106.[5]

In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an
intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999.
Despite Arnel’s insistence on abortion, Fe decided otherwise and gave birth to their child out of wedlock,
Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The baby’s birth certificate was
purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and hospital expenses but later
refused Fe’s repeated requests for Martin’s support despite his adequate financial capacity and even
suggested to have the child committed for adoption. Arnel also denied having fathered the child.

On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country
Club parking lot, Arnel sped off in his van, with the open car door hitting Fe’s leg. This incident was
reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since then, been
undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support.[6]

In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had
allegedly ended in 1998, long before Martin’s conception. He claimed that Fe had at least one other secret
lover. Arnel admitted that their relationship started in 1993 but “he never really fell in love with (Fe) not
only because (she) had at least one secret lover, a certain Jun, but also because she proved to be
scheming and overly demanding and possessive. As a result, theirs was a stormy on-and-off affair. What
started as a romantic liaison between two consenting adults eventually turned out to be a case of fatal
attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of
marrying him, that she resorted to various devious ways and means to alienate (him) from his wife and
family…. Unable to bear the prospect of losing his wife and children, Arnel terminated the affair although
he still treated her as a friend such as by referring potential customers to the car aircon repair
shop”[7] where she worked. Later on, Arnel found out that Fe had another erstwhile secret lover. In May
2000, Arnel and his entire family went to the United States for a vacation. Upon their return in June 2000,
Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the
child as his because their “last intimacy was sometime in 1998.”[8] Exasperated, Fe started calling Arnel’s
wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking
lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get through Fe
and the discussion became so heated that he had no “alternative but to move on but without bumping or
hitting any part of her body.”[9] Finally, Arnel claimed that the signature and the community tax certificate
(CTC) attributed to him in the acknowledgment of Martin’s birth certificate were falsified. The CTC
erroneously reflected his marital status as single when he was actually married and that his birth year was
1965 when it should have been 1964.[10]

In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed
willingness to consider any proposal to settle the case.[11]

On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to submit
themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court. [12]

Arnel opposed said motion by invoking his constitutional right against self-incrimination.[13] He also moved
to dismiss the complaint for lack of cause of action, considering that his signature on the birth certificate
was a forgery and that, under the law, an illegitimate child is not entitled to support if not recognized by
the putative father.[14]In his motion, Arnel manifested that he had filed criminal charges for falsification of
documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition for cancellation of his name
appearing in Martin’s birth certificate (docketed as Civil Case No. Q-02-46669). He attached the
certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate was
forged.

The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to
DNA paternity testing at the expense of the applicants. The Court of Appeals affirmed the trial court.

Thus, this petition.

In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a
petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support
without violating petitioner’s constitutional right to privacy and right against self-incrimination.[15]

The petition is without merit.

First of all, the trial court properly denied the petitioner’s motion to dismiss because the private
respondents’ complaint on its face showed that they had a cause of action against the petitioner. The
elements of a cause of action are: (1) the plaintiff’s primary right and the defendant’s corresponding
primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right
and duty have been violated. The cause of action is determined not by the prayer of the complaint but by
the facts alleged.[16]

In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a
result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had
sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the relationship
long before the child’s conception and birth. It is undisputed and even admitted by the parties that there
existed a sexual relationship between Arnel and Fe. The only remaining question is whether such sexual
relationship produced the child, Martin. If it did, as respondents have alleged, then Martin should be
supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin has no
right to demand and petitioner has no obligation to give support.

Preliminaries aside, we now tackle the main issues.

Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the
child’s birth certificate which he purportedly signed as the father. He also claims that the order and
resolution of the trial court, as affirmed by the Court of Appeals, effectively converted the complaint for
support to a petition for recognition, which is supposedly proscribed by law. According to petitioner,
Martin, as an unrecognized child, has no right to ask for support and must first establish his filiation in a
separate suit under Article 283[17] in relation to Article 265[18] of the Civil Code and Section 1, Rule
105[19] of the Rules of Court.

The petitioner’s contentions are without merit.

The assailed resolution and order did not convert the action for support into one for recognition but merely
allowed the respondents to prove their cause of action against petitioner who had been denying the
authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and
order effectively integrated an action to compel recognition with an action for support, such was valid and
in accordance with jurisprudence. In Tayag v. Court of Appeals,[20] we allowed the integration of an action
to compel recognition with an action to claim one’s inheritance:
…In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the
putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to
allege in the complaint that the putative father had acknowledged and recognized the illegitimate child
because such acknowledgment is essential to and is the basis of the right to inherit. There being no
allegation of such acknowledgment, the action becomes one to compel recognition which cannot be
brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence
of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but
the prescription of the action.

Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed
by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the
deceased and is actually a claim for inheritance, from the allegations therein the same may be considered
as one to compel recognition. Further, that the two causes of action, one to compel recognition and
the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence.

As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we
said:
The question whether a person in the position of the present plaintiff can in any event maintain a complex
action to compel recognition as a natural child and at the same time to obtain ulterior relief in the
character of heir, is one which in the opinion of this court must be answered in the affirmative, provided
always that the conditions justifying the joinder of the two distinct causes of action are present in the
particular case. In other words, there is no absolute necessity requiring that the action to compel
acknowledgment should have been instituted and prosecuted to a successful conclusion prior
to the action in which that same plaintiff seeks additional relief in the character of heir.
Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule
should be here applied different from that generally applicable in other cases. x x x

The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to
some extent supported by our prior decisions. Thus, we have held in numerous cases, and the
doctrine must be considered well settled, that a natural child having a right to compel
acknowledgment, but who has not been in fact legally acknowledged, may maintain partition
proceedings for the division of the inheritance against his coheirs x x x; and the same person may
intervene in proceedings for the distribution of the estate of his deceased natural father, or mother x x x.
In neither of these situations has it been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the
other persons who might take by inheritance are before the court; and the declaration of heirship is
appropriate to such proceedings. (Underscoring supplied)
Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale
for integrating them remains the same. Whether or not respondent Martin is entitled to support depends
completely on the determination of filiation. A separate action will only result in a multiplicity of suits,
given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of
filiation is entirely appropriate to these proceedings.

On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of
proving paternity. He also contends that compulsory testing violates his right to privacy and right against
self-incrimination as guaranteed under the 1987 Constitution. These contentions have no merit.

Given that this is the very first time that the admissibility of DNA testing as a means for determining
paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions
featuring or mentioning DNA testing is called for.

In the 1995 case of People v. Teehankee[21] where the appellant was convicted of murder on the
testimony of three eyewitnesses, we stated as an obiter dictum that “while eyewitness identification is
significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as
the fingerprint or the DNA test result (emphasis supplied).”

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of
Appeals,[22] promulgated in 1997, we cautioned against the use of DNA because “DNA, being a relatively
new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have
to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the
putative father.”

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated
in Tijing v. Court of Appeals:[23]
A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies,
one copy from the mother and the other from the father. The DNA from the mother, the alleged father
and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should
not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the
results of science when competently obtained in aid of situations presented, since to reject said result is to
deny progress.
The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence
came in 2002 with our en banc decision in People v. Vallejo[24]where the rape and murder victim’s DNA
samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that “the
purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample
and the reference sample. The samples collected (were) subjected to various chemical processes to
establish their profile.”

A year later, in People v. Janson,[25] we acquitted the accused charged with rape for lack of evidence
because “doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense
(had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts!”

In 2004, in Tecson, et al. v. COMELEC[26] where the Court en banc was faced with the issue of filiation of
then presidential candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and
any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation
or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA
testing…
Moreover, in our en banc decision in People v. Yatar,[27] we affirmed the conviction of the accused for rape
with homicide, the principal evidence for which included DNA test results. We did a lengthy discussion of
DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of
Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms.
A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime; the DNA in
a person’s blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair,
earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of
polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable
exception of identical twins.

xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors:
how the samples were collected, how they were handled, the possibility of contamination of the samples,
the procedure followed in analyzing the samples, whether proper standards and procedures were followed
in conducting the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an
expert witness on DNA print or identification techniques. Based on Dr. de Ungria’s testimony, it was
determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of
examination. The blood sample taken from the appellant showed that he was of the following gene types:
vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the
victim’s vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood
sample given by the appellant in open court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine
criminal justice system, so we must be cautious as we traverse these relatively uncharted waters.
Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other
jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence
based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under
Daubert, were allowed greater discretion over which testimony they would allow at trial, including the
introduction of new kinds of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its
existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained
through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant
and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular
biology.
Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results
thereof as evidence. In that case, DNA samples from semen recovered from a rape victim’s vagina were
used to positively identify the accused Joel “Kawit” Yatar as the rapist. Yatar claimed that the compulsory
extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-
incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this
as follows:
The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial
compulsion. The right against self-incrimination is simply against the legal process of extracting from the
lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is
not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object evidence taken from the person of the
accused from the realm of self-incrimination. These include photographs,[28] hair,[29] and other bodily
substances.[30] We have also declared as constitutional several procedures performed on the accused such
as pregnancy tests for women accused of adultery,[31] expulsion of morphine from one’s mouth[32] and the
tracing of one’s foot to determine its identity with bloody footprints.[33] In Jimenez v. Cañizares,[34] we
even authorized the examination of a woman’s genitalia, in an action for annulment filed by her husband,
to verify his claim that she was impotent, her orifice being too small for his penis. Some of these
procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound.
DNA testing and its results, per our ruling in Yatar,[35] are now similarly acceptable.

Nor does petitioner’s invocation of his right to privacy persuade us. In Ople v. Torres,[36] where we struck
down the proposed national computerized identification system embodied in Administrative Order No. 308,
we said:
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle scientific and technological advancements that
enhance public service and the common good... Intrusions into the right must be accompanied by proper
safeguards that enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches and seizures, [37] and the infringement of
privacy of communication[38] where the constitutional right to privacy has been critically at issue.
Petitioner’s case involves neither and, as already stated, his argument that his right against self-
incrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no
sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an
accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in
this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the
same.

DNA paternity testing first came to prominence in the United States, where it yielded its first official
results sometime in 1985. In the decade that followed, DNA rapidly found widespread general
acceptance.[39] Several cases decided by various State Supreme Courts reflect the total assimilation of
DNA testing into their rules of procedure and evidence.

The case of Wilson v. Lumb[40] shows that DNA testing is so commonly accepted that, in some instances,
ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New
York allowed a party who had already acknowledged paternity to subsequently challenge his prior
acknowledgment. The Court pointed out that, under the law, specifically Section 516 of the New York
Family Court Act, the Family Court examiner had the duty, upon receipt of the challenge, to order DNA
tests:[41]
§ 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section
one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the
public health law shall establish the paternity of and liability for the support of a child pursuant to this act.
Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one
hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred
and in which the birth certificate has been filed. No further judicial or administrative proceedings are
required to ratify an unchallenged acknowledgment of paternity.

(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social
services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded
by either signator’s filing of a petition with the court to vacate the acknowledgment within the earlier of
sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial
proceeding (including a proceeding to establish a support order) relating to the child in which either
signator is a party. For purposes of this section, the "date of an administrative or a judicial proceeding"
shall be the date by which the respondent is required to answer the petition. After the expiration of sixty
days of the execution of the acknowledgment, either signator may challenge the acknowledgment of
paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof
on the party challenging the voluntary acknowledgment. Upon receiving a party’s challenge to an
acknowledgment, the court shall order genetic marker tests or DNA tests for the determination
of the child’s paternity and shall make a finding of paternity, if appropriate, in accordance with
this article. Neither signator’s legal obligations, including the obligation for child support arising from the
acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause
as the court may find. If a party petitions to rescind an acknowledgment and if the court determines that
the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid
because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate
the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the
district in which the child’s birth certificate is filed and also to the putative father registry operated by the
department of social services pursuant to section three hundred seventy-two-c of the social services law.
In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child
support services pursuant to title six-A of article three of the social services law, the court shall
immediately provide a copy of the order to the child support enforcement unit of the social services district
that provides the mother with such services.

(c) A determination of paternity made by any other state, whether established through the parents’
acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith
and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of
the social security act.(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act: [42]
§532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests.

a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and,
on the court’s own motion or the motion of any party, shall order the mother, her child and the alleged
father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable
by an accreditation body designated by the secretary of the federal department of health and human
services and performed by a laboratory approved by such an accreditation body and by the commissioner
of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is
not the father of the child. No such test shall be ordered, however, upon a written finding by the
court that it is not in the best interests of the child on the basis of res judicata, equitable
estoppel, or the presumption of legitimacy of a child born to a married woman. The record or
report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant
to section one hundred eleven-k of the social services law shall be received in evidence by the court
pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no
timely objection in writing has been made thereto and that if such timely objections are not made, they
shall be deemed waived and shall not be heard by the court. If the record or report of the results of
any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability
of paternity, the admission of such record or report shall create a rebuttable presumption of
paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a
child pursuant to this article and article four of this act.

(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as
provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred
eighteen of the civil practice law and rules if offered by any party.

(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance,
paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct
any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct
payment from the funds of the appropriate local social services district. In its order of disposition,
however, the court may direct that the cost of any such test be apportioned between the parties according
to their respective abilities to pay or be assessed against the party who does not prevail on the issue of
paternity, unless such party is financially unable to pay. (emphasis supplied)
In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W.,
previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child
of R.E. with whom C.E.W. had, at the time of conception, maintained an adulterous relationship.

In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G., [44] the 4th Department
of the New York Supreme Court’s Appellate Division allowed G.G., who had been adjudicated as T.M.H.’s
father by default, to have the said judgment vacated, even after six years, once he had shown through a
genetic marker test that he was not the child’s father. In this case, G.G. only requested the tests after the
Department of Social Services, six years after G.G. had been adjudicated as T.M.H.’s father, sought an
increase in his support obligation to her.

In Greco v. Coleman,[45] the Michigan Supreme Court while ruling on the constitutionality of a provision of
law allowing non-modifiable support agreements pointed out that it was because of the difficulty of
determining paternity before the advent of DNA testing that such support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly
since the parties in this lawsuit entered into their support agreement…(current testing methods can
determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before
us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate
child's access to child support. The first reported results of modern DNA paternity testing did not occur
until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general
acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some
males from being the possible father of a child, those methods could not affirmatively pinpoint a particular
male as being the father. Thus, when the settlement agreement between the present parties was entered
in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions
at that time were often no more than credibility contests. Consequently, in every contested paternity
action, obtaining child support depended not merely on whether the putative father was, in fact, the
child's biological father, but rather on whether the mother could prove to a court of law that she was only
sexually involved with one man--the putative father. Allowing parties the option of entering into private
agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her
burden of proof.
It is worth noting that amendments to Michigan’s Paternity law have included the use of DNA testing: [46]
§722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged
father; court order; refusal to submit to typing or identification profiling; qualifications of person
conducting typing or identification profiling; compensation of expert; result of typing or identification
profiling; filing summary report; objection; admissibility; presumption; burden of proof; summary
disposition.

Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application made by or on behalf
of either party, or on its own motion, shall order that the mother, child, and alleged father
submit to blood or tissue typing determinations, which may include, but are not limited to,
determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum
proteins, or DNA identification profiling, to determine whether the alleged father is likely to be,
or is not, the father of the child. If the court orders a blood or tissue typing or DNA
identification profiling to be conducted and a party refuses to submit to the typing or DNA
identification profiling, in addition to any other remedies available, the court may do either of
the following:

(a) Enter a default judgment at the request of the appropriate party.

(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown
for not disclosing the fact of refusal.

(2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for
paternity determinations by a nationally recognized scientific organization, including, but not limited to,
the American association of blood banks.

xxx xxx xxx

(5) If the probability of paternity determined by the qualified person described in subsection
(2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and
the DNA identification profile and summary report are admissible as provided in subsection (4),
paternity is presumed. If the results of the analysis of genetic testing material from 2 or more
persons indicate a probability of paternity greater than 99%, the contracting laboratory shall
conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated,
unless the dispute involves 2 or more putative fathers who have identical DNA.

(6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party
may move for summary disposition under the court rules. this section does not abrogate the right of either
party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled that DNA test results showing paternity
were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage:
The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as
Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no
reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity
concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court upheld an order for genetic testing
given by the Court of Appeals, even after trial on the merits had concluded without such order being
given. Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District
Court, neither party requested genetic testing. It was only upon appeal from dismissal of the case that the
appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court
upheld.

The case of Kohl v. Amundson,[49] decided by the Supreme Court of South Dakota, demonstrated that
even default judgments of paternity could be vacated after the adjudicated father had, through DNA
testing, established non-paternity. In this case, Kohl, having excluded himself as the father of Amundson’s
child through DNA testing, was able to have the default judgment against him vacated. He then obtained a
ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support.
The Court said “(w)hile Amundson may have a remedy against the father of the child, she submit(ted) no
authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that a
default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money
judgment for the amount withheld from his wages.”

In M.A.S. v. Mississippi Dept. of Human Services,[50] another case decided by the Supreme Court of
Mississippi, it was held that even if paternity was established through an earlier agreed order of filiation,
child support and visitation orders could still be vacated once DNA testing established someone other than
the named individual to be the biological father. The Mississippi High Court reiterated this doctrine
in Williams v. Williams.[51]

The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for
upholding the orders of the trial court which both denied the petitioner’s motion to dismiss and ordered
him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of
certiorari is only available “when any tribunal, board or officer has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.” [52] In Land Bank of the
Philippines v. the Court of Appeals[53] where we dismissed a special civil action for certiorari under Rule
65, we discussed at length the nature of such a petition and just what was meant by “grave abuse of
discretion”:
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by
reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law.

The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and
not errors of judgment. The raison d’etre for the rule is when a court exercises its jurisdiction, an error
committed while so engaged does not deprive it of the jurisdiction being exercised when the error is
committed. If it did, every error committed by a court would deprive it of its jurisdiction and every
erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not
survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the
decision—not the jurisdiction of the court to render said decision—the same is beyond the province of a
special civil action for certiorari.

The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari
under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one
of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave
abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the
aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal
hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The
respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any
error made would have only been an error in judgment. As we have discussed, however, the decision of
the respondent court, being firmly anchored in law and jurisprudence, was correct.

EPILOGUE

For too long, illegitimate children have been marginalized by fathers who choose to deny their existence.
The growing sophistication of DNA testing technology finally provides a much needed equalizer for such
ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have
repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally
evolved into a dependable and authoritative form of evidence gathering. We therefore take this
opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals’ decision
dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 125901, March 08, 2001 ]

EDGARDO A. TIJING AND BIENVENIDA R. TIJING, PETITIONERS, VS. COURT OF APPEALS

(SEVENTH DIVISION) AND ANGELITA DIAMANTE, RESPONDENTS.

DECISION

QUISUMBING, J.:
For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056,
reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr.,
allegedly the child of petitioners.

Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was
born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila.
Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a
resident of Tondo, Manila.

According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry
job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she
returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let
Angelita take care of the child while Bienvenida was doing laundry.

When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith
proceeded to Angelita's house in Tondo, Manila, but did not find them there. Angelita's maid told
Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to
Angelita's house after three days, only to discover that Angelita had moved to another place. Bienvenida
then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for
assistance.

Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the
disappearance of their youngest child and this made her problem even more serious. As fate would have
it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in
other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts.

Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez,
allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy,
Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo,
Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin
Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez. [1] She avers that
Angelita refused to return to her the boy despite her demand to do so.

Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their
son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and
Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo
Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical
records.[2] The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not
have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an
accident and bumped his private part against the edge of a banca causing him excruciating pain and
eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that
John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3]

For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she
gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in
Singalong, Manila. She added, though, that she has two other children with her real husband, Angel
Sanchez.[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez,
with the local civil registrar of Manila on August 4, 1989.

On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not
have children, the alleged birth of John Thomas Lopez is an impossibility. [5] The trial court also held that
the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and
John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court
decreed:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas
Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal
custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners,
Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof.

Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court
by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the
same person as John Thomas D. Lopez.

SO ORDERED.[6]
Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented
the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita
peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo
Tijing.[8]

On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The
appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence
adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that
the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same
person,[9] and disposed of the case, thus:
IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED,
and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of
the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been
under the care of said respondent at the time of the filing of the petition herein.

SO ORDERED.[10]
Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant
petition alleging:

I
THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE
PETITIONERS' ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION
THAT THE PETITIONERS HAD LIKEWISE PROVEN.

II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL
TRIAL COURT DISMISSING THE PETITION FOR "HABEAS CORPUS" AND DIRECTING THAT THE CUSTODY
OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING,
JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11]
In our view, the crucial issues for resolution are the following:
(1) Whether or not habeas corpus is the proper remedy?

(2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is
the son of petitioners?
We shall discuss the two issues together since they are closely related.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled
thereto.[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child
even if the latter be in the custody of a third person of his own free will. It may even be said that in
custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the
underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of
determining the right of custody over a child.[13] It must be stressed too that in habeas
corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions
including those as to identity of the person.

In this case, the minor's identity is crucial in determining the propriety of the writ sought. Thus, it must be
resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor
named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who
between Bienvenida and Angelita is the minor's biological mother. Evidence must necessarily be adduced
to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one
and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for
the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of
the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty
their right of custody over the said minor.

True, it is not the function of this Court to examine and evaluate the probative value of all evidence
presented to the concerned tribunal which formed the basis of its impugned decision, resolution or
order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court
may scrutinize the evidence on the record to determine which findings should be preferred as more
conformable to the evidentiary facts.

A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient
to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr.

First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that
after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she
lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed
in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a
period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical
records, log book or discharge order from the clinic were ever submitted.

Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a
son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and
that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez
and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though
Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring.

Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez
instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the
law, the attending physician or midwife in attendance at birth should cause the registration of such birth.
Only in default of the physician or midwife, can the parent register the birth of his child. The certificate
must be filed with the local civil registrar within thirty days after the birth. [16]Significantly, the birth
certificate of the child stated Tomas Lopez and private respondent were legally married on October 31,
1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a
"common-law wife".[17] This false entry puts to doubt the other data in said birth certificate.

Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the
two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor
and his alleged parent is competent and material evidence to establish parentage. [18] Needless to stress,
the trial court's conclusion should be given high respect, it having had the opportunity to observe the
physical appearances of the minor and petitioner concerned.

Fifth, Lourdes Vasquez testified that she assisted in Bienvenida's giving birth to Edgardo Tijing, Jr., at her
clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order
and the signatures of petitioners.

All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The
writ of habeas corpus is proper to regain custody of said child.

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for
identification and parentage testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies,
one copy from the mother and the other from the father. The DNA from the mother, the alleged father
and child are analyzed to establish parentage.[20] Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply
the results of science when competently obtained in aid of situations presented, since to reject said result
is to deny progress.[22] Though it is not necessary in this case to resort to DNA testing, in future it would
be useful to all concerned in the prompt resolution of parentage and identity issues.

WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals
is REVERSED and decision of the Regional Trial Court is REINSTATED.Costs against the private
respondent.

SO ORDERED.

EN BANC

[ G.R. No. 144656, May 09, 2002 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GERRICO VALLEJO Y SAMARTINO

@ PUKE, ACCUSED-APPELLANT.

DECISION

PER CURIAM:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 88, Cavite City, sentencing
Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount
of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old
child, Daisy Diolola, in Rosario, Cavite on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged:

“That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused,
with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and
feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the
latter’s will and while raping the said victim, said accused strangled her to death.”
“CONTRARY TO LAW.”[2]

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty
to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim’s mother; Dr.
Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario,
Cavite; Atty. Sikat Agbunag of the Public Attorney’s Office; Pet Byron Buan, NBI Forensic Biologist; Aida
Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and
Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim.

The victim’s mother, Ma. Nida Diolola, testified that at around 1:00 o’clock in the afternoon of July 10,
1999, she sent her 9-year old daughter Daisy Diolola to their neighbor’s house in Pilapil, Ligtong I,
Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her
lessons. Aimee’s house, where accused-appellant was also staying, is about four to five meters away from
Daisy’s house. Ma. Nida saw her daughter go to the house of her tutor. She was wearing pink short
pants and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were
looking for a book which accused-appellant could copy to make a drawing or a poster that Daisy would
submit to her teacher. After finding the book, Daisy and accused-appellant went back to the latter’s
house. When Ma. Nida woke up at about 5:30 o’clock after an afternoon nap, she noticed that Daisy was
not yet home. She started looking for her daughter and proceeded to the house of Aimee, Daisy’s
tutor. Aimee’s mother told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy
with her lessons because Aimee was not feeling well as she had her menstrual period. Ma. Nida looked for
Daisy in her brother’s and sister’s houses, but she was not there, either. At about 7:00 o’clock that
evening, Ma. Nida went back to her neighbor’s house, and there saw accused-appellant, who told her that
Daisy had gone to her classmate’s house to borrow a book. But, when Ma. Nida went there, she was told
that Daisy had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at
about 3:30 o’clock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was playing in
front of her house that afternoon and even watched television in her house, but that Daisy later left with
accused-appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday,
until the early morning of the following day, June 11, 1999, a Sunday, but their search proved
fruitless. Then, at about 10:00 o’clock in the morning of June 11, 1999, she was informed that the dead
body of her daughter was found tied to the root of an aroma tree by the river after the “compuerta” by a
certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her
daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her
neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario
police. The other barangay officers fetched accused-appellant from his house and took him to the
barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the
probable suspect since he was with the victim when she was last seen alive.[3]

Another witness, Jessiemin Mataverde, testified that at around 3:00 o’clock in the afternoon of that day,
she saw Daisy playing with other children outside her house. She asked Daisy and her playmates to stop
playing as their noise was keeping Jessiemin’s one-year old baby awake. Daisy relented and watched
television instead from the door of Jessiemin’s house. About five minutes later, accused-appellant came
to the house and told Daisy something, as a result of which she went with him and the two proceeded
towards the “compuerta.”

Jessiemin testified that at around 5:00 o’clock that afternoon, while she and her daughter were in front of
a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro
cigarette. Accused-appellant had only his basketball shorts on and was just holding his shirt. They
noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.[4]

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o’clock in the
afternoon of July 10, 1999, while she and her husband and children were walking towards the
“compuerta” near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who
said that it was a good day for catching milkfish (bangus). For this reason, according to this witness, they
decided to get some fishing implements. She said they met accused-appellant Gerrico Vallejo near the
seashore and noticed that he was uneasy and looked troubled. Charito said that accused-appellant did
not even greet them, which was unusual. She also testified that accused-appellant’s shorts and shirt
(sando) were wet, but his face and hair were not.[5]

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr.
responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they
arrived, Daisy’s body was already in the barangay hall. SPO1 Cuevas took photographs of the body. At
that time, Daisy was wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt
wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario,
Cavite. The inquiries conducted by the police showed that one Freddie Quinto was fishing near the
compuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an
aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and
Esting, were also taken into custody because they were seen with accused-appellant in front of the store
in the late afternoon of July 10 1999. Later, however, the two were released. Based on the statements of
Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-appellant at
about 4:00 o’clock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the
name Samartino and No. 13 printed at the back, and the violet basketball shorts, with the number 9
printed on it, worn by accused-appellant the day before. The shirt and shorts, which were bloodstained,
were turned over to the NBI for laboratory examination.[6]

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o’clock in the evening of July
11, 1999, he conducted a physical examination of accused-appellant. His findings[7] showed the following:

“PHYSICAL FINDINGS:

“Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right
anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x
3.0 cms. and left, 13.0 x 5.0 cms.
“Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
“Lacerations, left ring finger, posterior aspect, 0.3 cm.
“(Living Case No. BMP-9902, p. 101, records)”

At about 10:00 o’clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for
an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem
findings:[8]

“Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue
protruding, bloating of the face and blister formation.
“Washerwoman’s hands and feet.
“Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehead,
13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0
x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5
x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left
thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms.
knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3rd 3.0
x 2.5 cms. foot right, dorsal aspect.
“Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.
“Fracture, tracheal rings.
“Hemorrhages, interstitial, neck, underneath, nailmarks. “Petechial hemorrhages, subendocardial,
subpleural.
“Brain and other visceral organs are congested.
“Stomach, contains ½ rice and other food particles.

“CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

“GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and
congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 o’clock
positions, edges with blood clots.” [Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder
at past 10:00 o’clock in the evening of June 11, 1999. The mayor said he immediately proceeded to the
municipal jail, where accused-appellant was detained, and talked to the latter. Accused-appellant at first
denied having anything to do with the killing and rape of the child. The mayor said he told accused-
appellant that he could not help him if he did not tell the truth. At that point, accused-appellant started
crying and told the mayor that he killed the victim by strangling her. Accused-appellant claimed that he
was under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services
of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor
Abutan fetched Atty. Leyva from his house and took him to the police station about 11:00 o’clock that
evening.[9]

Atty. Lupo Leyva corroborated Mayor Abutan’s testimony. He said that upon arriving at the police station,
he asked accused-appellant if he wanted his services as counsel in the investigation. After accused-
appellant assented, Atty. Leyva testified that he “sort of discouraged” the former from making statements
as anything he said could be used against him. But, as accused-appellant was willing to be investigated,
Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the investigator, informed accused-
appellant of his constitutional rights to remain silent and to be assisted by counsel and warned him that
any answer he gave could and might be used against him in a court of law. PO2 Garcia asked questions
from accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was
taken, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he
did not see or notice any indication that accused-appellant had been maltreated by the police. In his
sworn statement (Exh. M), accused-appellant confessed to killing the victim by strangling her to death,
but denied having molested her.[10]

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from
accused-appellant in his office for laboratory examination to determine his blood type. Likewise, the
basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victim’s
clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario,
Cavite police for the purpose of determining the presence of human blood and its groups. [11]

The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to
Group “O”. The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches
“Grizzlies” in front and “SAMARTINO” at the back; (2) one (1) violet no. 9 athletic basketball short pants;
(3) one (1) white small “Hello Kitty” T-shirt with reddish brown stains; (4) one (1) “cut” pink short pants
with reddish brown stains; (5) one (1) “cut” dirty white small panty with reddish brown stains, were all
positive for the presence of human blood showing the reactions of Group “A”. [12]

Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accused-
appellant during which the latter admitted that he had raped and later killed the victim by strangulation
and stated that he was willing to accept the punishment that would be meted out on him because of the
grievous offense he had committed. Mr. Buan observed that accused-appellant was remorseful and was
crying when he made the confession in the presence of SPO1 Amoranto at the NBI laboratory. [13]

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13,
1999 in Cavite City, accused-appellant had with him a handwritten confession which he had executed
inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only that
he killed the victim but that he had before that raped her. Accused-appellant said he laid down the victim
on a grassy area near the dike. He claimed that she did not resist when he removed her undergarments
but that when he tried to insert his penis into the victim’s vagina, she struggled and resisted. Accused-
appellant said he panicked and killed the child. He then dumped her body in the shallow river near the
“compuerta” and went home.[14]

Atty. Sikat Agbunag, a lawyer from the Public Attorney’s Office, testified that at noon of July 13, 1999,
while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and
some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his
confession. Atty. Agbunag read the document, informed accused-appellant of his constitutional rights,
and warned him that the document could be used against him and that he could be convicted of the case
against him, but, according to her, accused-appellant said that he had freely and voluntarily executed the
document because he was bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag,
then affixed his signature to the document and swore to it before Prosecutor Itoc. [15]

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took
buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples from the
parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the
DNA Laboratory of the NBI for examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by
Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy
contained the DNA profiles of accused-appellant and the victim.[16]

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee
Vallejo. Their testimonies show that at about 1:00 o’clock in the afternoon of July 10, 1999, accused-
appellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario,
Cavite when Daisy Diolola came to ask accused-appellant to draw her school project. After making the
request, Daisy left.[17] Accused-appellant did not immediately make the drawing because he was watching
television. Accused-appellant said that he finished the drawing at about 3:00 o’clock in the afternoon and
gave it to the victim’s aunt, Glory. He then returned home to watch television again. He claimed he did
not go out of the house until 7:00 o’clock in the evening when he saw Ma. Nida, who was looking for her
daughter. Accused-appellant said he told her that he had not seen Daisy. After that, accused-appellant
said he went to the “pilapil” and talked with some friends, and, at about 8:00 o’clock that evening, he
went home.

At 9:00 o’clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his
house and took him to the barangay hall, where he was asked about the disappearance of Daisy. He
claimed that he did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00
o’clock that morning, policemen came and invited him to the police headquarters for questioning. His
mother went with him to the police station. There, accused-appellant was asked whether he had
something to do with the rape and killing of Daisy. He denied knowledge of the crime.

At 4:00 o’clock that afternoon, accused-appellant accompanied the police to his house to get the
basketball shorts and shirt he was wearing the day before, which were placed together with other dirty
clothes at the back of their house. According to accused-appellant, the police forced him to admit that he
had raped and killed Daisy and that he admitted having committed the crime to stop them from beating
him up. Accused-appellant claimed the police even burned his penis with a lighted cigarette and pricked it
with a needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the
investigation room of the police station and told him that they would help him if he told the truth. Atty.
Leyva asked him whether he wanted him to be his counsel, and accused-appellant said he answered in the
affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed that,
although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was because the
police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that he had
been tortured because the policemen were around and he was afraid of them. It appears that the family
of accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by
residents of their barangay.[18] According to accused-appellant, Mayor Abutan and Atty. Leyva were not
present when he gave his confession to the police and signed the same. Accused-appellant claims that
although Exhibit “N” was in his own handwriting, he merely copied the contents thereof from a pattern
given to him by the police.[19]

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense
charged. The dispositive portion of its decision reads:

“WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y
Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the
Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is directed
to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages.

“SO ORDERED.”[20]

Hence this appeal. Accused-appellant contends that:

“I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH
HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF
THE PROSECUTION.

“II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL
CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.

“III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE
WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT
THE SAME WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO
ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY
GIVE HIM EFFECTIVE LEGAL ASSISTANCE.”

We find accused-appellant’s contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial
evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed
the crime.[21] In rape with homicide, the evidence against an accused is more often than not
circumstantial. This is because the nature of the crime, where only the victim and the rapist would have
been present at the time of its commission, makes the prosecution of the offense particularly difficult since
the victim could no longer testify against the perpetrator. Resort to circumstantial evidence is inevitable
and to demand direct evidence proving the modality of the offense and the identity of the perpetrator is
unreasonable.[22]

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain
a conviction if:

“(a) there is more than one circumstance;

“(b) the facts from which the inferences are derived are proven; and

“(c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt.”[23]

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of
accused-appellant:

1. The victim went to Aimee Vallejo’s house, where accused-appellant was residing, at 1:00 o’clock in
the afternoon of July 10, 1999, for tutoring.

2. At around 2:00 o’clock in the afternoon, accused-appellant and Daisy went together to the latter’s
house to get a book from which the former could copy Daisy’s school project. After getting the
book, they proceeded to accused-appellant’s residence.

3. From accused-appellant’s house, Daisy then went to the house of Jessiemin Mataverde where she
watched television. Accused-appellant thereafter arrived and whispered something to Daisy, and
the latter went with him towards the “compuerta.”

4. At about 4:30 o’clock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-
appellant coming out of the “compuerta,” with his clothes, basketball shorts, and t-shirt wet,
although his face and hair were not. According to these witnesses, he looked pale, uneasy, and
troubled (balisa). He kept looking around and did not even greet them as was his custom to do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with
dynamite) was docked by the seashore.

6. A little before 5:00 o’clock in the afternoon, Jessiemin Mataverde also saw accused-appellant
buying a Marlboro cigarette from a store. Jessiemen also noticed that accused-appellant’s clothes
were wet but not his face nor his hair.

7. By 5:30 o’clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by
accused-appellant that Daisy had gone to her classmate Rosario’s house. The information proved
to be false.

8. Daisy’s body was found tied to an aroma tree at the part of the river near the “compuerta.”

9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused
by the thorns of an aroma tree.

10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on
accused-appellant’s clothes and on Daisy’s clothes were found positive of human blood type “A.”

11. Accused-appellant has blood type “O.”

12. The vaginal swabs from Daisy’s body contained her DNA profile as well as that of accused-
appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been
that of the victim as the victim’s blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both
accused-appellant’s and the victim’s clothing yielded bloodstains of the same blood type “A”. [24] Even if
there was no direct determination as to what blood type the victim had, it can reasonably be inferred that
the victim was blood type “A” since she sustained contused abrasions all over her body which would
necessarily produce the bloodstains on her clothing.[25] That it was the victim’s blood which predominantly
registered in the examination was explained by Mr. Buan, thus:[26]
“ATTY. ESPIRITU
Q: But you will agree with me that more probably than not, if a crime is being committed, and it
results in a bloody death, it is very possible that the blood of the victim and the blood of the
assailant might mix in that particular item like the t-shirt, shorts or pants?

A: It is possible when there is a huge amount of blood coming from the victim and the suspect,
Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which
will register. For example, if there is more blood coming from the victim, that blood will be
the one to register, on occasions when the two blood mix.

Q: But in these specimens number 1 to 5, it is very clear now that only type A and no type O
blood was found?

A: Yes, sir.”

Accused-appellant also questions the validity of the method by which his bloodstained clothes were
recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore the
day before. Thereafter, they took him to his house and accused-appellant accompanied them to the back
of the house where dirty clothes were kept.[27] There is no showing, however, that accused-appellant was
coerced or forced into producing the garments. Indeed, that the accused-appellant voluntarily brought
out the clothes sought by the police becomes more convincing when considered together with his
confessions. A consented warrantless search is an exception to the proscription in Section 2 of Article III
of the Constitution. As we have held, the consent of the owner of the house to the search effectively
removes any badge of illegality.[28]

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-
appellant. He argues that the prosecution failed to show that all the samples submitted for DNA testing
were not contaminated, considering that these specimens were already soaked in smirchy waters before
they were submitted to the laboratory.

DNA is an organic substance found in a person’s cells which contains his or her genetic code. Except for
identical twins, each person’s DNA profile is distinct and unique.[29]

When a crime is committed, material is collected from the scene of the crime or from the victim’s body for
the suspect’s DNA. This is the evidence sample. The evidence sample is then matched with the reference
sample taken from the suspect and the victim.[30]

The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and
the reference sample.[31] The samples collected are subjected to various chemical processes to establish
their profile.[32] The test may yield three possible results:

1) The samples are different and therefore must have originated from different sources (exclusion). This
conclusion is absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA
types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or
failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same
or a different sample, to obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source (inclusion).[33] In such a case,
the samples are found to be similar, the analyst proceeds to determine the statistical significance of the
Similarity.[34]

In assessing the probative value of DNA evidence, therefore, courts should consider, among others things,
the following data: how the samples were collected, how they were handled, the possibility of
contamination of the samples, the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the
smears taken from the victim as well as the strands of hair and nails taken from her tested negative for
the presence of human DNA,[35] because, as Ms. Viloria-Magsipoc explained:

“PROSECUTOR LU:
Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim
and of the accused gave negative results for the presence of human DNA. Why is it so? What
is the reason for this when there are still bloodstains on the clothing?

A: After this Honorable Court issued an Order for DNA analysis, serological methods were already
conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew
of this case, and we also interviewed the mother who came over to the laboratory one time on
how was the state of the specimens when they were found out. We found that these
specimens were soaked in smirchy water before they were submitted to the laboratory. The
state of the specimens prior to the DNA analysis could have hampered the preservation of any
DNA that could have been there before. So when serological methods were done on these
specimens, Mr. Byron could have taken such portion or stains that were only amenable for
serological method and were not enough for DNA analysis already. So negative results were
found on the clothings that were submitted which were specimens no. 1 to 5 in my report, Sir.

Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also
proved negative for human DNA, why is it so?

A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the
slide was very, very dry and could have chipped off. I already informed Dr. Vertido about it
and he confirmed the state of the specimen. And I told him that maybe it would be the swab
that could help us in this case, Sir. And so upon examination, the smears geared negative
results and the swabs gave positive results, Sir.

Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show
negative results for DNA?

A: The hair samples were cut hair. This means that the hair did not contain any root. So any
hair that is above the skin or the epidermis of one’s skin would give negative results as the
hair shaft is negative for DNA. And then the nails did not contain any subcutaneous cells that
would be amenable for DNA analysis also, Sir.

Q: So it’s the inadequacy of the specimens that were the reason for this negative result, not the
inadequacy of the examination or the instruments used?

A: Yes, Sir.”

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the
samples had been contaminated, which accounted for the negative results of their examination. But the
vaginal swabs taken from the victim yielded positive for the presence of human DNA. Upon analysis by
the experts, they showed the DNA profile of accused-appellant:[36]

“PROSECUTOR LU:

Q: So based on your findings, can we say conclusively that the DNA profile of the accused in this
case was found in the vaginal swabs taken from the victim?

A: Yes, Sir.

Q: That is very definite and conclusive?

A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-
appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances
which are proved are not only consistent with the guilt of the accused but also inconsistent with his
innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon
the court.[37] This is how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written confessions presented as
evidence against him. He alleges that the oral confessions were inadmissible in evidence for being
hearsay, while the extrajudicial confessions were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:

“(1) Any person under investigation for the commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and independent counsel, preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.

“(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.

“(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in
evidence against him.”

There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1)
coerced confessions, the product of third degree methods such as torture, force, violence, threat, and
intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given
without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same section. [38]

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI
Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as these
were made by one already under custodial investigation to persons in authority without the presence of
counsel. With respect to the oral confessions, Atty. Leyva testified: [39]

“PROSECUTOR LU:

Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him?

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as a lawyer during
that investigation?

A: I did, as a matter of fact, I asked him whether he would like me to represent him in that
investigation, Sir.

Q: And what was his answer?

A: He said “yes”.

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against him, so it’s a
sort of discouraging him from making any statement to the police, Sir.”

Upon cross-examination, Atty. Leyva testified as follows:[40]

Q: You stated that you personally read this recital of the constitutional rights of the accused?

A: Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not inform the accused that
the statement that he will be giving might be used against him in a court of justice?

A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY ESPIRITU

The only thing that is stated here is that “Maaaring gamitin pabor o laban sa iyo.”

COURT

Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the
truth.”

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan, [41] it is
also confirmed by accused-appellant who testified as follows:[42]

“ATTY. ESPIRITU:

Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are
supposed to have executed and signed?

A: Yes, Sir.

Q: What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I
know about this case, Sir.

Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement?

A: Yes, Sir.

Q: And did he tell you that what you would be giving is an extra-judicial confession?

A: Yes, Sir.”

Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the
statements he was to make as well as the written confessions he was to execute. Neither can he question
the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effective
counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a
lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it
was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit
something false. Indeed, counsel should not prevent an accused from freely and voluntarily telling the
truth.[43]

Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva
before the latter acted as his defense counsel.[44] And counsel who is provided by the investigators is
deemed engaged by the accused where the latter never raised any objection against the former’s
appointment during the course of the investigation but, on the contrary, thereafter subscribed to the
veracity of his statement before the swearing officer.[45] Contrary to the assertions of accused-appellant,
Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato
Abutan.[46]
Accused-appellant contends that the rulings in People vs. Andan[47] and People vs. Mantung[48] do not
apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In all
these cases, the accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In
all of them, the extrajudicial confessions were held admissible in evidence, being the spontaneous, free,
and voluntary admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan
was never objected to by the defense.

Indeed, the mayor’s questions to accused-appellant were not in the nature of an interrogation, but rather
an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan
testified:[49]

“PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell
you?

A: At first he said that he did not do that. That was the first thing he told me. Then I told him
that I will not be able to help him if he will not tell me the truth.

Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: What else did he tell you?

A: I told him, “What reason pushed you to do that thing?” x x x

Q: Please tell us in tagalog, the exact words that the accused used in telling you what happened.

A: He told me that he saw the child as if she was headless at that time. That is why he strangled
the child, Sir. (“Ang sabi niya po sa ‘kin, nakita niya raw ‘yung bata na parang walang ulo na
naglalakad. Kaya po sinakal niya.”)

xxx xxx xxx

COURT:

Q: When you told the accused that you will help him, what kind of help were you thinking at that
time?

A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor.”

In People vs. Mantung,[50] this Court said:

“Never was it raised during the trial that Mantung’s admission during the press conference was coerced or
made under duress. As the records show, accused-appellant voluntarily made the statements in response
to Mayor Marquez’ question as to whether he killed the pawnshop employees. Mantung answered in the
affirmative and even proceeded to explain that he killed the victims because they made him eat
pork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides,
he could have chosen to remain silent or to do deny altogether any participation in the robbery and
killings but he did not; thus accused-appellant sealed his own fate. As held in People v. Montiero, a
confession constitutes evidence of high order since it is supported by the strong presumption that no
person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and
his conscience.”

And in People vs. Andan, it was explained:

“Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a
spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary
manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the
compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed
to preclude the slightest use of coercion by the state as would lead the accused to admit something false,
not prevent him from freely and voluntarily telling the truth.”[51]

For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron
Buan is admissible. Accused-appellant would have this Court exclude this confession on the ground that it
was uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was part of
the NBI. The issue concerning the sufficiency of the assistance given by Atty. Leyva has already been
discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were asked out of
mere personal curiosity and clearly not as part of his tasks. As Buan testified:[52]

“PROSECUTOR LU:

Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination, we talk to them for
me to add knowledge on the case, Sir.

Q: What did you talk about during your conversation?

A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.

Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?

A: I remember that while asking him, he was crying as if feeling remorse on the killing, Sir.

....

Q: And it was you who initiated the conversation?

A: Yes, Sir.

Q: Do you usually do that?

A: Yes, Sir. We usually do that.

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any
information either on the victim or from the suspect will help me personally. It’s not an SOP,
Sir.”
The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is,
therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the
ground that these were extracted from him by means of torture, beatings, and threats to his life. The
bare assertions of maltreatment by the police authorities in extracting confessions from the accused are
not sufficient. The standing rule is that “where the defendants did not present evidence of compulsion, or
duress nor violence on their person; where they failed to complain to the officer who administered their
oaths; where they did not institute any criminal or administrative action against their alleged intimidators
for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did
not have themselves examined by a reputable physician to buttress their claim,” all these will be
considered as indicating voluntariness.[53] Indeed, extrajudicial confessions are presumed to be voluntary,
and, in the absence of conclusive evidence showing that the declarant’s consent in executing the same has
been vitiated, the confession will be sustained.[54]

Accused-appellant’s claim that he was tortured and subjected to beatings by policemen in order to extract
the said confession from him is unsupported by any proof: [55]

“ATTY. ESPIRITU:

Q: Did they further interrogate you?

A: Yes, sir.

Q: What else did they ask you?

A: They were asking me the project, Sir.

Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?

A: The investigator, Sir.

Q: How many were they inside that room?

A: Five, Sir.

Q: They are all policemen?

A: Yes, Sir.

xxx xxx xxx

Q: Until what time did they keep you inside that room?

A: Up to 11:00 in the evening, Sir.

Q: Between 10:30 in the morning up to 11:00 o’clock in the evening, what did you do there?

A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.

Q: The 5 of them?

A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning?

A: Yes, Sir.

Q: In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.

Q: Who is this Mercado?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.

Q: Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time, Sir.

Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.

Q: What?

A: They boxed me, Sir.

Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette butt?

A: It was painful, Sir.

Q: In what part of your body were you pricked by a needle?

A: At my private part, Sir.”

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in
the municipal hall from 10:00 o’clock in the morning until 11:00 o’clock that night of July 10, 1999, during
which time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to the
crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 o’clock
in the evening of the same day. While the results show that accused-appellant did sustain injuries, the
same are incompatible with his claim of torture. As Dr. Vertido testified:[56]

“PROSECUTOR LU:

Q: What were your findings when you conducted the physical examination of the suspect?

A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and
I also found hematoma on the left ring finger, posterior aspect and at the same time, a
laceration on the left ring finger.

xxx xxx xxx

Q: In your findings, it appears that the accused in this case suffered certain physical injuries on
his person like this abrasion on the thigh, right anterior lateral aspect lower third of the
knee, what could have caused this injury?

A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir.
Hematoma are usually caused by a blunt instrument or object and laceration is the forcible
contact of the skin from that blunt object.

Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect
and laceration left ring finger posterior aspect, what could have caused those injuries on the
accused?

A: My opinion to these hematoma and laceration found on the said left ring finger was that it was
caused by a bite, Sir.”

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found
more than mere abrasions and hematoma on his left finger. Dr. Vertido’s findings are more consistent
with the theory that accused-appellant sustained physical injuries as a result of the struggle made by the
victim during the commission of the rape in the “compuerta.”

At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the
circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable
doubt. The prosecution witnesses presented a mosaic of circumstances showing accused-appellant’s
guilt. Their testimonies rule out the possibility that the crime was the handiwork of some other evil
mind. These witnesses have not been shown to have been motivated by ill will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to corroborate his
claim. The defense presented only accused-appellant’s sister, Aimee Vallejo, to corroborate his story. We
have held time and again that alibi cannot prosper if it is established mainly by the accused and his
relatives, and not by credible persons.[57] It is well settled that alibi is the weakest of all defenses as it is
easy to contrive and difficult to disprove. For this reason, this Court looks with caution upon the defense
of alibi, especially when, as in this case, it is corroborated only by relatives or friends of the accused. [58]
Article 266-B of the Revised Penal Code provides that “When by reason or on the occasion of the rape,
homicide is committed, the penalty shall be death.”[59] Therefore, no other penalty can be imposed on
accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch
88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of
the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him
to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages, is hereby AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality
of this decision, let the records of this case be forthwith forwarded to the President of the Philippines for
the possible exercise of the pardoning power.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 155023, May 28, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. CORNELIO CAJUMOCAN, APPELLANT.

DECISION

YNARES-SATIAGO, J.:

On appeal is a Decision of the Regional Trial Court (RTC) of Morong, Rizal, Branch 79 in Criminal Case No.
99-3576-M[1] finding appellant Cornelio Cajumocan y Birdin guilty beyond reasonable doubt of Murder
under Article 248 of the Revised Penal Code, sentencing him to suffer the penalty of reclusión
perpetua, and ordering him to pay the heirs of the victim, Apolinario Mirabueno y Morao, the amount of
P50,000.00 as civil indemnity, P50,000.00 as actual damages, and costs of the suit.

At 11:30 p.m. of September 30, 1999, while the deceased, Apolinario Mirabueno, was asleep beside his
fourteen year old brother Leo inside their house in Sitio Waray, Barangay Plaza Aldea, Tanay, Rizal, the
latter was roused from his slumber by the rustling of dried leaves outside the house. He saw a solitary
figure walk toward their house, paused outside their room, and removed the fish net covering the window
and looked inside the house. From the light of the fluorescent lamp inside the house, Leo recognized the
man as appellant Cornelio Cajumocan, who drew a gun and shot Apolinario in the head, and thereafter ran
away. Leo cried out to his older sister, Margarita and they brought Apolinario to a hospital in Morong, but
he was declared dead on arrival.[2]

Appellant was charged with Murder before the RTC of Morong, Rizal, Branch 79, in the following
Information dated October 4, 1999 which reads:[3]
That on or about 30th day of September 1999, in the Municipality of Tanay, Province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with
intent to kill, treachery and evident premeditation, and taking advantage of nighttime did, then and there
willfully, unlawfully and feloniously shot (sic) with said gun, one Apolinario Mirabueno y Morao hitting him
on his head, thereby inflicting upon the latter intracranial hemorrhage, which directly caused his
immediate death.

CONTRARY TO LAW.
During the arraignment, appellant, assisted by counsel de parte pleaded “not guilty” to the charge.

Dr. Emmanuel Reyes, Medico-Legal of the PNPC Crime Laboratory in Camp Crame, Quezon City,
conducted the physical examination of the victim’s cadaver. He found an open gunshot wound, located at
the front part of the head, measuring 2.5 c.m., 3.5 c.m. left of the anterior midline with an abraded collar
measuring 0.1 c.m., 158 c.m., from the heel, making a point of exit at the right parietal region, measuring
2.5 x 3 c.m., 6 c.m. from the midsagital line.[4] The point of entry of the bullet was 3 to 4 c.m. above the
left eyebrow, and the point of exit was at the back of the head. The gunshot wound was fatal, damaging
both cerebral hemispheres of the brain.[5] According to his report, the victim’s death resulted
instantaneously.[6] The cause of death was intracranial hemorrhage secondary to gunshot wound of the
head.[7]

Virginia Mirabueno, the victim’s mother, testified that she incurred the following expenses due to the
death of her son: funeral service, P15,000.00; expenses for the wake, P5,000.00; and burial lot,
P2,500.00. She further testified that she mortgaged her house and lot in order to pay for the funeral
expenses. However, she could not present receipts since some of the expenses for the wake came from
the neighbors and relatives in the form of “abuloy.” She also alleged that her son was engaged in the
business of buying and selling goods, earning P150.00 per day.[8]

Ernesto Carpo, an inspector/investigator of AFSLAI Security Service where appellant was employed as a
security guard was presented by the defense as its first witness. Carpo testified that as inspector, he was
assigned the task of overseeing security detachments. As investigator, his responsibility was to check
unusual incidents and report them directly to the AFSLAI President. He further testified that appellant was
one of the agency’s security guards. According to Carpo, appellant was assigned at the Monterey Farm in
1999, then he transferred to Tanay, Rizal to the property of Gen. Rene Cruz, and was assigned a long
firearm, specifically a 12-gauge shotgun. In the evening of September 30, 1999, he made a roving
inspection of the detachment in Sitio Bathala, Barangay Plaza Aldea, Tanay, Rizal, located inside the
compound of Gen. Rene Cruz where appellant was one of the security guards detailed. The head of the
security guards stationed in the Cruz property informed Carpo that appellant was picked up by Tanay
police authorities because he was a suspect in a killing incident. Carpo made inquiries and found out that
appellant’s tour of duty was from 7 p.m. to 7 a.m., and concluded that he never left the place as shown by
a photocopy of the Detail Order signed by the head of the security guards stationed in the Cruz property.
They told him that the place where the shooting incident took place was about one kilometer. Carpo
inspected the logbook and saw the signature of the appellant.[9]

For his part, appellant testified that prior to 7 p.m. on September 30, 1999, he arrived at his assignment
in the Cruz property, located in Sitio Bathala, Plaza Aldea, Tanay, Rizal. He went to their outpost, signed
the logbook and stayed up to 8:30 p.m. He then went to the bodega where construction equipment and
materials were kept and, upon seeing that they were secure, he returned to the outpost and watched
television. He asked permission from the head of the security guards to sleep. At 7 a.m., he signed the
logbook to end his tour of duty.[10] While still at the compound, police officers from Tanay, Rizal came and
invited him to the police station. During the investigation, he denied any participation in the killing of
Apolinario. The following day, on October 1, 1999, he was brought to Camp Crame to undergo paraffin
testing.[11] The paraffin test showed him negative for powder burns.[12]

On January 7, 2002, the trial court rendered a decision finding appellant guilty of Murder, the dispositive
portion of which reads:[13]
WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of MURDER, as defined and
penalized by the Revised Penal Code, he is hereby sentenced to suffer the penalty prescribed by Art. 248,
in its medium period, that is RECLUSION PERPETUA. Accused is hereby ordered to pay the heirs of the
victim in the amount of P50,000.00 in accordance with recent jurisprudence, and the further amount of
P50,000.00 as actual damages. With costs.

SO ORDERED.
Hence, this appeal, based on the following assignment of errors:
I

THE TRIAL COURT ERRED IN EXTENDING FULL RELIANCE AND CREDENCE TO THE PROSECUTION’S
PURPORTED EYEWITNESS LEO MIRABUENO, OBVIOUSLY A BIASED AND PREDISPOSED WITNESS BY
REASON OF RELATIONSHIP, BEING A BROTHER OF THE DECEASED VICTIM.

II

THE COURT A QUO LIKEWISE ERRED IN DISBELIEVING AND EXTENDING SCANT CONSIDERATION TO THE
OFFICIAL NEGATIVE FINDINGS ON THE PARAFFIN GUNPOWDER EXAMINATION ON THE PERSON OF THE
ACCUSED-APPELLANT.

III

THE LOWER COURT COMMITTED A GRIEVOUS ERROR IN APPRECIATING THE CIRCUMSTANCE OF

TREACHERY AND CONSIDERING THE SAME AS A QUALIFYING CIRCUMSTANCE.

IV

THE HONORABLE TRIAL COURT GRAVELY ERRED IN REFUSING TO EXTEND CREDENCE TO APPELLANT’S
CLAIM OF DENIAL AND ALIBI.

THE COURT A QUO AGAIN ERRED GRIEVOUSLY IN FINDING THE APPELLANT GUILTY FOR MURDER AND IN
IMPOSING THE PENALTY OF RECLUSIÓN PERPETUAAND AWARDING THE TOTAL AMOUNT OF P100,000.00
AS AND BY WAY OF ACTUAL DAMAGES.[14]
The foregoing issues need to be resolved: (1) Whether the negative findings of the paraffin test conducted
on the appellant is conclusive proof of his innocence; (2) Whether treachery can be appreciated in the
instant case to qualify the crime to Murder; and (3) Whether the appellant is guilty beyond reasonable
doubt of Murder under Art. 248 of the Revised Penal Code.

As to the first issue, appellant alleges that the trial court failed to give consideration to the results of the
chemical test indicating that appellant was negative of gunpowder nitrates consequent to the paraffin test
conducted.

Paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the
view that the paraffin test has proved extremely unreliable in use. It can only establish the presence or
absence of nitrates or nitrites on the hand; still, the test alone cannot determine whether the source of
the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an
indication of a possibility or even of a probability but not of infallibility that a person has fired a gun, since
nitrates are also admittedly found in substances other than gunpowder. [15]

Appellant’s argument that the negative result of gunpowder nitrates from the paraffin test conducted on
him the day after the crime was committed, thereby showing an absence of physical evidence that he fired
a gun, is untenable. In the case of People v. Manalo,[16] we stressed:
x x x even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be
definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative
for the presence of nitrates as when the hands are washed before the test. The Court has even recognized
the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet
was fired from a .45 Caliber pistol.
In People v. Abriol, et al.,[17] we reiterated the rule on the admissibility of this kind of evidence:
A paraffin test could establish the presence or absence of nitrates on the hand. However, it cannot
establish that the source of the nitrate was the discharge of firearms. Nitrates are also found in
substances other than gunpowder. A person who tests positive may have handled one or more substances
with the same positive reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals,
tobacco, and leguminous plants. Hence, the presence of nitrates should only be taken as an indication of a
possibility that a person has fired a gun. However, it must be borne in mind that appellants were not
convicted on the sole basis of the paraffin test.
Paraffin tests, it must be emphasized, merely corroborate direct evidence that may be presented by the
prosecution.

In the case at bar, the positive, clear and categorical testimony of the lone eyewitness to the crime
deserves full merit in both probative weight and credibility over the negative results of the paraffin test
conducted on the appellant. Verily, establishing the identity of the malefactor through the testimony of the
witness is the heart and cause of the prosecution.[18] All other matters, such as the paraffin test, are of
lesser consequence where there is positive identification by the lone eyewitness, Leo Mirabueno, of
appellant as the perpetrator of the crime. Hence, a paraffin test cannot be considered as conclusive proof
of appellant’s innocence.

As to the second issue, appellant avers that there is no treachery in the case at bar since there is no direct
and positive evidence to prove the same.

We do not agree.

The court a quo correctly found the presence of the qualifying circumstance of treachery in the instant
case. Treachery is present when the offender commits any of the crimes against persons, employing
means, methods 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. [19] The essence of
treachery is the swift and unexpected attack on the unarmed victim without the slightest provocation on
his part.[20]

Two conditions must concur for treachery to be present: (1) the employment of means of execution that
gives the person attacked no opportunity to defend himself or retaliate, and; (2) the deliberate or
conscious adoption of the means of execution.[21]

In the case at bar, appellant took advantage that Apolinario Mirabueno was asleep when he shot the
unsuspecting victim. The unexpected attack on the victim rendered him unable and unprepared to defend
himself by reason of the suddenness and severity of the attack. The nature of the wounds and the
testimony of the eyewitness sufficiently established that, first, at the time of the attack, the victim was not
in a position to defend himself, as he was asleep; and second, appellant consciously adopted the particular
means, method or form of attack, armed and stealthily performed the criminal act at an unexpected time
while the victim was asleep in his dwelling.

As to the third issue, appellant contends that the court a quo gravely erred in giving probative weight and
credibility to the lone eyewitness, Leo Mirabueno, whom he claims to be a biased and predisposed witness
by reason of relationship, being the brother of the deceased victim. He likewise argues that the trial court
erred in refusing to lend credence to appellant’s claim of denial and alibi and finding him guilty of Murder,
imposing the penalty of reclusión perpetua and awarding actual damages in the amount of P100,000.00.

We find no reversible error in the case at bar.

The positive identification of the appellant at the scene of the crime by Leo Mirabueno should be given due
weight and credence. Relationship by consanguinity between the witness and the victim does not per
se impair the credibility of the former. In certain cases relationship may even strengthen credibility for it is
unnatural for an aggrieved relative to falsely accuse someone other than the actual perpetrator. We held
in People v. Realin[22] that the earnest desire to seek justice for a dead kin is not served should the
witness abandon his conscience and prudence and blame one who is innocent of the crime. As further
elaborated in People v. Javier,[23] there is absolutely nothing in this jurisdiction which disqualifies a person
from testifying in a criminal case in which a relative is involved, if the former was really at the scene of
the crime and witnessed the execution of the criminal act.

Appellant’s bare denial and alibi cannot prevail over the positive and categorical testimony of Leo
Mirabueno concerning appellant’s identification and presence at the crime scene. Well-settled is the rule
that for alibi to prosper, appellant must prove that he was somewhere else when the crime was committed
and that it was physically impossible for him to have been at the scene of the crime. [24] Physical
impossibility refers to the distance between the place where the appellant was when the crime transpired
and the place where it was committed, as well as the facility of access between the two places. [25]

Appellant failed to show that it was physically impossible for him to be at the locus criminis. Sitio Bathala,
the place where appellant was on duty at the time of the commission of the crime, and Sitio Waray, the
place where the crime was actually committed, were within walking distance. Since Sitio Bathala was
approximately one kilometer from Sitio Waray, appellant could have easily accessed the scene of the
crime in a matter of minutes, leading to the conclusion that it was not physically impossible for appellant
to be in the house of Apolinario Mirabueno in Sitio Waray. Clearly, appellant had access to the locus
criminis from his place of work.

This Court has consistently ruled that findings of fact and assessment of credibility of witnesses are
matters best left to the trial court because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses’ behavior on the stand while testifying, which opportunity is
denied to the appellate courts. The trial court’s findings are accorded finality, unless there appears in the
record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or
misappreciated and which, if properly considered, would alter the results of the case.[26] We find none of
the circumstances that give rise to the exceptions in the case at bar.

The court a quo gave credence and full probative value to the testimony of Leo Mirabueno, the victim’s
brother. Having observed at close range the deportment, conduct and demeanor of the sole eyewitness
and the appellant when they testified, the findings of the trial court, its calibration of the testimonial
evidence of the parties and its assessment and probative weight of the said evidence were all accorded by
the appellate court high respect, if not conclusive effect.[27]

Thus, there is moral certainty that appellant is guilty beyond reasonable doubt of the crime of Murder. As
defined under Art. 248 of the Revised Penal Code, Murder is the unlawful killing of any person which is not
parricide or infanticide, and committed with any of the qualifying circumstances under the same article. [28]

Murder was evidently perpetrated when the appellant killed the victim, Apolinario Mirabueno, which was
attended by the qualifying circumstance of treachery. The elements of Murder have been proven in this
case, viz.: (1) A person is killed; (2) The appellant killed him; (3) The killing was attended by treachery;
and (4) The killing is not parricide or infanticide. The killing was qualified to Murder by alevosia since the
treacherous means employed to kill the victim was duly proven.

The penalty for Murder is reclusion perpetua to death. There being no mitigating or aggravating
circumstance, the lesser of the two indivisible penalties shall be imposed. [29] Hence, the trial court
correctly sentenced appellant to suffer the penalty of reclusion perpetua.

Civil indemnity in the amount of P50,000.00 given by the court a quo to the heirs of the victim should be
upheld as being consistent with current jurisprudence.[30] Civil indemnity is automatically imposed upon
the accused without need of proof other than the fact of the commission of murder or
homicide.[31] However, the P50,000.00 awarded as actual damages for the hospitalization, medical and
funeral expenses incurred by the family of the victim cannot be sustained for being unsubstantiated by
receipts.

WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Morong, Rizal, Branch
79 in Criminal Case No. 99-3576-M finding appellant Cornelio Cajumocan y Birdin guilty beyond
reasonable doubt of Murder under Art. 248 of the Revised Penal Code, sentencing him to suffer the
penalty of reclusión perpetua, and ordering him to pay the heirs of the victim Apolinario Mirabuena civil
indemnity in the amount of P50,000.00, is AFFIRMED with the MODIFICATION that the award of actual
damages is DELETED for lack of factual basis.
Costs de oficio.

SO ORDERED.

THIRD DIVISION

[ G.R. No. 178196, August 06, 2008 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUDY BUDUHAN Y BULLAN AND

ROBERT BUDUHAN Y BULLAN, DEFENDANTS-APPELLANTS.

CHICO-NAZARIO, J.:

Before Us is a review of the Decision[1] of the Court of Appeals dated 29 December 2006 in CA-G.R. CR-HC
No. 01940, which affirmed with modifications the Decision [2]dated 24 July 2003 of the Regional Trial Court
(RTC) of Maddela, Quirino, Branch 38, in Criminal Case No. 38-18, finding accused-appellants Robert
Buduhan y Bullan and Rudy Buduhan y Bullan guilty of the special complex crime of robbery with homicide
with respect to the deceased Larry Erese, and of the crime of homicide with respect to the deceased
Romualde Almeron. The Court of Appeals ordered the payment of moral damages to the heirs of said
victims, in addition to the award already given by the trial court.

On 26 August 1998, an Information[3] was filed against Robert Buduhan, Rudy Buduhan, Boy Guinhicna,
Boyet Ginyang and 3 John Does before the RTC of Maddela, Quirino, for the crime of Robbery with
Homicide and Frustrated Homicide. Docketed as Criminal Case No. 38-18, the accusatory portion of the
information provides:

That on or about 10:40 o'clock in the evening of July 24, 1998 in Poblacion Norte, Municipality of Maddela,
Province of Quirino, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, four of them are armed and after first conspiring, confederating and mutually helping one
another and with force and violence did then and there willfully, unlawfully and feloniously rob ROMUALDE
ALMERON of his wallet and wrist watch and LARRY ERESE of his wrist watch to the damage and prejudice
of the said ROMUALDE ALMERON and LARRY ERESE;

That on the occasion of the Robbery, the said accused, armed with firearms of different caliber and after
first conspiring, confederating and mutually helping one another did then and there willfully, unlawfully
and feloniously, shoot and fire upon ROMUALDE ALMERON, LARRY ERESE and ORLANDO PASCUA resulting
to their instanteneous (sic) death and the injuries to the persons of FERNANDO PERA and GILBERT
CORTEZ.

On 20 October 1998, the accused filed a Motion to Quash[4] the above information, alleging that the court
did not legally acquire jurisdiction over their persons. The accused contended they were neither caught in
flagrante delicto, nor did the police have personal knowledge of the commission of the offense at the time
when their warrantless arrests were effected.[5]

In an Order dated 25 August 1999, the RTC denied the above motion on the ground that the assertion of
lack of personal knowledge on the part of the arresting officers regarding the commission of the crime is a
matter of defense, which should be properly taken up during the trial.[6]

When arraigned on 12 January 2000, the accused Rudy Buduhan, Robert Buduhan and Boyet Ginyang,
with the assistance of their counsel de oficio, entered their pleas of "Not Guilty" to the crime
charged.[7] With respect to accused Boy Guinhicna, counsel for the accused informed the trial court of his
death and thus moved for the dismissal of the charges against him.[8]

On the same date, the pre-trial conference was terminated and both parties agreed on the following
stipulation of facts, namely:

1. That the incident transpired at about 10:40 in the evening of July 24, 1998;

2. That the incident happened at Poblacion Norte, Maddela, Quirino;

3. That no firearm has been confiscated from any of the accused.[9]

Upon the submission of accused Boy Guinhicna's Certificate of Death,[10] the RTC dismissed the case
against him on 14 February 2000.[11] Thereafter, trial of the case ensued.

The prosecution presented the following witnesses: (1) Cherry Rose Salazar, an employee of the
establishment where the crime was committed[12]; (2) Senior Police Officer 1 (SPO1) Leo Saquing, a police
officer at the Maddela Police Station who investigated the crime committed [13]; (3) Dr. Fernando T.
Melegrito, the medical examiner who conducted the autopsies on the bodies of the victims[14]; (4) Myrna
Almeron, the widow of the victim Romualde Almeron[15]; and (5) Laurentino Erese, Sr., the father of the
victim Larry Erese.[16]

The defense, on the other hand, presented: (1) appellant Robert Buduhan [17]; (2) accused Boyet
Ginyang[18]; (3) Police Inspector Ma. Leonora Chua-Camarao, a Forensic Chemist of the Philippine National
Police (PNP) Crime Laboratory at Camp Crame, Quezon City[19]; (4) appellant Rudy Buduhan[20]; and (5)
Reynaldo Gumiho, an eyewitness who was allegedly present at the scene of the crime shortly before the
incident in question occurred.[21]

The People's version of the incident as narrated by its principal witness, Cherry Rose Salazar (Cherry
Rose), is as follows:

On 24 July 1998, Cherry Rose was working as a guest relations officer at the RML Canteen, a beerhouse
and a videoke bar in Maddela, Quirino.[22] At about 9:00 to 10:00 p.m., there were only two groups of
men inside the beerhouse.[23] The group that went there first was that of the appellants,[24] which was
composed of Robert Buduhan, who was wearing a white T-shirt marked Giordano,[25] Rudy Buduhan, who
was wearing a red T-shirt,[26] a man wearing a blue T-shirt,[27] and another man wearing a blue T-shirt
with a black jacket.[28] The second group was composed of Larry Erese and his companions Gilbert Cortez
(alias Abe) and Fernando Pera (alias Nanding).

At 10:40 p.m., while Cherry Rose was entertaining the group of Larry Erese, Robert approached them and
poked a gun at Larry.[29] Immediately, the man wearing a blue T-shirt likewise approached Cherry Rose's
Manager Romualde Almeron (alias Eddie), who was seated at the counter.[30] The man in blue poked a gun
at Romualde and announced a hold-up.[31] Larry then handed over his wristwatch to Robert.
Instantaneously, all four men from Robert's group fired their guns at Larry and Romualde, which caused
them to fall down.[32] Abe and Nanding ran out of the RML Canteen when the shooting occurred, and
Cherry Rose hid below the table.[33]

SPO1 Leo T. Saquing[34] testified that on 24 July 1998, at 11:00 p.m., he and SPO4 Alex M. Gumayagay
were detailed as duty investigators at the Maddela Police Station when Eddie Ancheta, a fireman, reported
to them a shooting incident at the RML Canteen in Barangay Poblacion Norte, Maddela, Quirino. SPO1
Saquing and SPO4 Gumayagay then proceeded to the said place. About 50 meters from the scene of the
crime, they encountered four male individuals who were running away therefrom. [35]The policemen
immediately halted the men and asked them where they came from. When they could not respond
properly and gave different answers, the policemen apprehended them and brought them to the Maddela
Police Station for questioning and identification.[36] Afterwards, the policemen went back to the RML
Canteen to conduct an investigation therein.[37] Later that night, the witnesses[38] of the shooting incident
went to the police station and they positively pointed to the four persons, later identified as Robert
Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants in the said incident.[39]

Dr. Fernando Melegrito,[40] the Chief of Hospital at the Maddela Hospital, testified that he conducted the
autopsies on the bodies of the victims Romualde Almeron, Larry Erese and Orlando Pascua. [41] With
respect to Romualde, Dr. Melegrito found that the former sustained a gunshot wound 1/2 x 1/2 centimeter
in diameter, one inch above the right nipple, perforating the fourth rib of the right chest, penetrating the
superior aspect of the right lung, the aorta of the heart, the midportion of the left lung and exited through
the back, two inches below the lower portion of the left scapular region.[42] These findings were also
contained in Romualde Almeron's Autopsy Report.[43]From the nature of the wound, Dr. Melegrito
concluded that the victim was near and was in front of the assailant when he was fatally shot.

As regards Larry Erese, Dr. Melegrito testified that said victim sustained a gunshot wound 1/2 x 1/2
centimeter in diameter in the sternal region of the chest, between the third left and right rib, perforating
the arch of the aorta of the heart and penetrating the subcutaneous tissue of the left lower back at the
level of the seventh rib, where a slug (bullet)[44] was extracted.[45] These findings were likewise contained
in Larry Erese's Autopsy Report.[46]

Concerning the victim Orlando Pascua, Dr. Melegrito testified that the gunshot wound that the former
sustained resulted into a massive disruption of the lung.[47] As presented in Pascua's Autopsy
Report,[48] the gunshot wound was 1 x 1 inch in diameter, perforating the midportion of the fourth rib of
the left chest, macerating the three-fourth (3/4) portion of the left lung, and penetrating the
subcutaneous tissues of the left back at the level of the third and fourth ribs, then the fourth and fifth ribs
where pellets were extracted therein.

Myrna Almeron[49] testified that as a result of the untimely death of her husband Romualde Almeron,
which fact was evidenced by a Death Certificate,[50] she incurred expenses for funeral services in the
amount of P38,000.00 and expenses during her husband's wake in the amount of P25,000.00. She also
claimed that during the night of the shooting incident, Romualde brought with him the amount of
P50,000.00 in his wallet, but the same was no longer recovered. Among these figures, however, Myrna
Almeron was only able to present a receipt for the expenses for funeral services [51] and only in the
amount of P26,000.00.

Laurentino Erese testified that during the wake of his deceased son, whose death was evidenced by a
Death Certificate,[52] he incurred funeral expenses for Larry in the amount of P18,000.00.[53] From the
wake to the first death anniversary, the total expenses were claimed to be more or less
P100,000.00.[54] However, only the receipt for the above funeral services[55] was offered.

The prosecution did not present the other surviving victims in the shooting incident, namely Gilbert Cortez
and Fernando Pera. The latter were fearful of reprisals from unknown individuals. No evidence was
likewise adduced on their behalf. Also, the other employees who worked as guest relations officers in the
RML Canteen and who likewise witnessed the incident were said to have absconded already. [56]

For the defense, appellant Robert Buduhan[57] testified that on the evening of 24 July 1998, he was at
their boarding house in Poblacion, Maddela, Quirino, together with Rudy Buduhan, Boyet Ginyang, and
Boy Guinhicna. The group drank one bottle of San Miguel Gin, and then went to sleep. Unknown to him
and Guinhicna, Rudy and Ginyang still went out to continue their drinking sessions. While he was sleeping,
Ginyang arrived and woke him up. Ginyang told him that they had to go to the beerhouse where he
(Ginyang) and Rudy had been to because something might have happened to Rudy, as there was a fight
there. Robert, Ginyang and Guinhicna then proceeded to look for Rudy. On their way there, at the junction
of the National Highway, they encountered some policemen who asked them where they were headed.
When Robert said that they were looking for Rudy, the policemen told them to board the police vehicle
and the group was given a ride. As it turned out, Robert's group was taken to the Municipal Jail of Maddela
where they were detained. The policemen went out to look for Rudy and they likewise put him in jail. The
following day, the policemen confiscated the shirts worn by the group. They were also taken to Santiago
City where paraffin tests were conducted. On the evening of 26 July 1998, the policemen went to the jail
with three ladies who were asked to identify Robert's group. The ladies, however, did not recognize Robert
and his companions.

Boyet Ginyang[58] testified that on 24 July 1998, at 10:00 p.m., he and Rudy went to a beerhouse in
Maddela, Quirino. After ordering some drinks and chatting, they suddenly heard gunshots from the
outside. Looking towards the direction of the sound, he saw somebody fall to the ground and at that point,
he and Rudy ran to get away from the place. While running towards their boarding house, Rudy was
stopped by an unknown armed person in a white T-shirt. When Ginyang reached the boarding house, he
roused appellant Robert and Guinhicna from their sleep and asked them to go with him and search for
Rudy. Upon reaching the junction at the National Highway, they were halted by a man who asked where
they were heading. After hearing their story, the man said they should wait for a vehicle that would help
them look for Rudy. When the vehicle arrived, he and the others were brought to the municipal jail.
Thereafter, Rudy was likewise picked up by the police and detained with the group. On the morning of 25
July 1998, three ladies were brought to the municipal jail to identify his group, but the former did not
recognize them. On the morning of 26 July 1998, Ginyang and his three companions were brought to
Santiago City where they were made to undergo paraffin testing. Afterwards, the group was brought back
to the municipal jail in Maddela, Quirino. Ginyang also testified that the policemen took the shirts they
wore on the night of 24 July 1998, but he could not remember when they did.

Police Inspector Maria Leonora Chua-Camarao[59] testified that she was the one who conducted the
examination proper of the paraffin casts taken from Robert Buduhan, Rudy Buduhan, Boyet Ginyang and
Boy Guinhicna. She likewise brought before the trial court the original Letter Request [60] of the Maddela
Police Station for the conduct of paraffin casting; the Letter of Request [61] addressed to the Officer-in-
Charge the PNP Crime Laboratory in Region 2 for the conduct of paraffin examination; and the paraffin
casts of subjects Rudy, Ginyang, Guinhicna and Robert.[62] Police Inspector Chua-Camarao explained that
the purpose of conducting a paraffin test was to determine the presence of gunpowder residue in the
hands of a person through extraction using paraffin wax. The process involves two stages: first, the
paraffin casting, in which the hands of the subject are covered with paraffin wax to extract gunpowder
residue; and second, the paraffin examination per se, which refers to the actual chemical examination to
determine whether or not gunpowder residue has indeed been extracted. For the second stage, the
method used is the diphenyl amine test, wherein the diphenyl amine agent is poured on the paraffin casts
of the subject's hands. In this test, a positive result occurs when blue specks are produced in the paraffin
casts, which then indicates the presence of gunpowder residue. When no such reaction takes place, the
result is negative.

The findings and conclusion on the paraffin test that Police Inspector Chua-Camarao conducted were
contained in Physical Science Report No. C-25-98[63] which yielded a negative result for all the four
accused. Nonetheless, the forensic chemist pointed out that the paraffin test is merely a corroborative
evidence, neither proving nor disproving that a person did indeed fire a gun. The positive or negative
results of the test can be influenced by certain factors, such as the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the
barrel of the firearm or the open or closed trigger guard of the firearm. [64]

Appellant Rudy Buduhan testified that at past 10:00 p.m. of 24 July 1998, he and Ginyang went to a
beerhouse. Shortly after ordering their drinks, they heard gunshots, and a person seated near the door
fell. They then ran towards the road.[65] While running, an armed man wearing a white T-shirt held him,
while Ginyang was able to get away.[66] After a while, the police arrived and they took him to the Maddela
police station where he was jailed along with Robert, Ginyang and Guinhicna. [67] The rest of his testimony
merely corroborated the testimonies of Robert and Ginyang.

Reynaldo Gumiho (Reynaldo)[68] testified that on the evening of 24 July 1998, he was in Poblacion,
Maddela, Quirino, for a business transaction involving the sale of a 6x6 truck with a certain alias Boy. At
about 8:00 p.m., Reynaldo and Boy proceeded to a beerhouse in Maddela. After settling with their drinks,
Reynaldo heard a group of five men near their table who were conversing and he recognized from the
accent of their voices that they were from Lagawe (Ifugao). One of the men then told him that they
should leave after finishing their drinks because the former were looking for someone who killed their
relative. Reynaldo disclosed that he recognized one of the persons whom he usually saw in Lagawe, and
that the group was composed of relatively tall people who were mostly wearing jackets. Not long after,
Reynaldo and Boy left the beerhouse so as not to get involved in any trouble. Two days after he left
Maddela, Reynaldo learned of the shooting incident in the beerhouse.

In a Decision dated 24 July 2003, the trial court found appellants guilty of the charges, the dispositive
portion of which reads:
WHEREFORE, premises considered, the court renders judgment as follows:

1) Finding accused Robert and Rudy, both surnamed Buduhan, GUILTY beyond reasonable doubt of the
special complex crime of Robbery with Homicide (Par. 1 Article 294 of the Revised Penal Code) with
respect to the deceased Larry Erese and sentences each of them to suffer the penalty of reclusion
perpetua;

2) As to the victim Romualde Almeron, the court also finds them GUILTY beyond reasonable doubt of
Homicide (Article 249 of the Revised Penal Code) and sentences each of them to the indeterminate
penalty of 12 years of Prision Mayor as minimum to 20 years of Reclusion Temporal as maximum;

However, they shall be entitled to a deduction of their preventive imprisonment from the term of their
sentences in accordance with Article 29 of the Revised Penal Code, as amended by R.A. No. 6127.

3) To pay jointly the heirs of Larry Erese the amount of P50,000.00 as civil indemnity, P25,000 as
exemplary damages, P18,000 as actual expenses and P5,000 as temperate damages; and the heirs of Mr.
Almeron: P50,000 as civil indemnity, P25,000 as exemplary damages, P38,000.00 as actual expenses and
P5,000.00 as temperate damages.

With costs against them.

However, with respect to accused Boyet Ginyang, the court ACQUITS him of the offense charged since the
prosecution had failed to overcome, with the required quantum of evidence, the constitutional
presumption of innocence. Consequently, the Chief of the BJMP, Cabarroguis, Quirino, is hereby ordered to
immediately release him from confinement unless being held for some other lawful cause; and to make a
report hereon within three (3) days from receipt hereof.[69]

On 1 August 2003, the appellants filed a Notice of Appeal [70] raising questions of law and facts.

On 7 June 2004, the Court initially resolved to accept the appeal, docketed as G.R. No. 159843, [71] and
required the appellants to file their Brief.[72]

However, on 5 October 2005, we resolved to transfer the case to the Court of Appeals in view of our ruling
in People v. Mateo.[73] The case was then docketed as CA-G.R. CR-HC No. 01940.

On 29 December 2006, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the July 24, 2003 Decision of the Regional Trial Court of Maddela,
Quirino, Branch 38, in Civil Case No. 39-18, is hereby MODIFIED only in that, in addition to the award
already given by the trial court, in consonance with current jurisprudence, the heirs of ERESE are also
entitled to moral damages of P50,000 and in addition to the award already given by the trial court, the
heirs of ALMERON are also entitled to moral damages of P50,000.00.

Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-
5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this judgment of the
Court of Appeals may be appealed to the Supreme Court by notice of appeal filed with the Clerk of Court
of the Court of Appeals.[74]

From the Court of Appeals, the case was then elevated to this Court for automatic review. In a
Resolution[75] dated 5 September 2007, we required the parties to file their respective supplemental briefs,
if they so desired, within 30 days from notice.

In a Manifestation[76] filed on 30 October 2007, the People informed the Court that it will no longer file a
supplemental brief, as the arguments raised by appellants had already been discussed in the brief[77] filed
before the Court of Appeals.

Appellants, on the other hand, filed their supplemental brief on 28 November 2007.

As a final plea for their innocence, appellants ask this Court to consider the following assignment of
errors:

I.

IN GIVING COMPLETE CREDENCE TO THE TESTIMONY OF THE PRINCIPAL WITNESS OF THE

PROSECUTION DESPITE THE PRESENCE OF FACTS TAINTING THE CREDIBILITY OF THE WITNESS.

II.

IN DISREGARDING THE DEFENSE OF THE APPELLANTS, WHICH WAS CORROBORATED BY THE FINDINGS
OF THE FORENSIC CHEMIST.

III.

IN FAILING TO MAKE A DIRECT RULING ON THE MOTION OF THE ACCUSED TO QUASH THE
INFORMATION ON THE GROUND THAT THE ARREST OF THE ACCUSED WITHOUT A WARRANT OF ARREST
IS ILLEGAL AS THERE WAS NO PERSONAL KNOWLEDGE OF THE ARRESTING OFFICERS REGARDING THE
COMMISSION OF THE CRIME.

To state differently, appellants argue that their guilt was not proven beyond reasonable doubt in view of
the trial court's error in the appreciation of the evidence for and against them. They fault the trial court's
over-reliance on the testimony of the prosecution's main witness and its failure to consider the glaring
inconsistencies in Cherry Rose's previous accounts of the shooting incident.

The appeal lacks merit.

Appellants insist that Cherry Rose is not a credible witness in view of the conflicting answers she gave in
her sworn statement before the police,[78] in the preliminary investigation of the case and in her testimony
in open court. They contend that the trial court failed to scrutinize the entirety of the statements made by
Cherry Rose vis-à-vis the shooting incident.

Appellants called attention to the fact that during the preliminary investigation of the case, Cherry Rose
stated that a man wearing a white Giordano T-shirt shot Larry after Larry handed his
wristwatch.[79] Thereafter, when Cherry Rose was asked whom she saw wearing a white Giordano T-shirt,
she pointed to Boy Guinhicna.[80] With respect to appellant Robert Buduhan, Cherry Rose identified him as
the one who shot Orlando Pascua.[81]

In the testimony of Cherry Rose in open court, however, she identified appellant Robert as the man who
was wearing a white Giordano T-shirt and who shot Larry Erese.[82]

Also, in Cherry Rose's sworn statement before the police, she narrated that the group of the appellants,
consisting of five persons, was already inside the RML Canteen before the shooting incident
occured.[83] However, in her direct examination, Cherry Rose stated that appellant Robert had only three
other companions.[84]

Finally, in the preliminary investigation, appellants pointed out that Cherry Rose unhesitatingly admitted
that Larry Erese was her intimate boyfriend and that was why she embraced him after the latter was
shot.[85]

In her cross-examination, however, Cherry Rose stated that Larry was only a customer and not her
boyfriend.[86] When questioned about her prior statement about this fact given during the preliminary
investigation, Cherry Rose changed her answer and said that Larry was indeed her boyfriend.[87]

Taking all these circumstances into account, appellants argue that, judging from the conflicting statements
of Cherry Rose, the identification of the accused is highly doubtful.

We are not persuaded.

As between statements made during the preliminary investigation of the case and the testimony of a
witness in open court, the latter deserves more credence. Preliminary investigations are commonly fairly
summary or truncated in nature, being designed simply for the determination, not of guilt beyond
reasonable doubt, but of probable cause prior to the filing of an information in court. It is the statements
of a witness in open court which deserve careful consideration. [88]

In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the matter of inconsistent
statements by a witness, is revealing:

Section 13. How witness impeached by evidence of inconsistent statements. -- Before a witness can be
impeached by evidence that he has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the circumstances of the times and places and the
persons present, and he must be asked whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the witness before any question is put to him
concerning them.

The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent
statements of a witness is founded upon common sense and is essential to protect the character of a
witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements
referred to and to show that they were made by mistake, or that there was no discrepancy between them
and his testimony.[89]

In the present case, the statements made by Cherry Rose during the preliminary investigation with
respect to the identities of the accused were not related to her during the trial. Indeed, it is only during
the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry Rose's
identification of the appellants in order to destroy her credibility as a witness. No opportunity was ever
afforded her to provide an explanation. Without such explanation, whether plausible or not, we are left
with no basis to evaluate and assess her credibility, on the rationale that it is only when no reasonable
explanation is given by a witness in reconciling her conflicting declarations that she should be deemed
impeached.[90]

In this regard, what the defense brought to Cherry Rose's attention during the trial were her contradictory
statements about her romantic relationship with Larry Erese. As a result of this confrontation, Cherry Rose
changed her answer. We rule, however, that this inconsistency relates only to an insignificant aspect of
the case and does not involve a material fact in dispute.

Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility
of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of Cherry
Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for
her to bear false witness against them. As a matter of fact, Cherry Rose testified during cross-examination
that she did not personally know appellant Robert, and that she had first seen him only during the night
when the shooting incident took place.[91]

As the trial judge who penned the assailed decision did not hear the testimonies of the witnesses for the
prosecution,[92] the rule granting finality to the factual findings oftrial courts does not find applicability to
the instant case.[93]

After a careful review of the entire records of this case, the Court finds no reason to disagree with the
factual findings of the trial court that all the elements of the crime of Robbery with Homicide were present
and proved in this case.

Robbery with Homicide is penalized under Article 294, paragraph 1 of the Revised Penal Code, [94] which
provides:

Art. 294. Robbery with violence against or intimidation of persons-Penalties. - Any person guilty of
robbery with the use of violence against or intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of
homicide shall have been committed, or when the robbery shall have been accompanied by rape or
intentional mutilation or arson.

To warrant conviction for the crime of robbery with homicide, one that is primarily classified as a crime
against property and not against persons, the prosecution has to firmly establish the following elements:
(1) the taking of personal property with the use of violence or intimidation against the person; (2) the
property thus taken belongs to another; (3) the taking is characterized by intent to gain or animus
lucrandi; and (4) on the occasion of the robbery or by reason thereof, the crime of homicide, which is
therein used in a generic sense, is committed.[95]

In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before,
during or after the robbery. It is immaterial that death would supervene by mere accident, or that the
victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a
homicide is committed by reason or on the occasion of the robbery, the felony committed is the special
complex crime of Robbery with Homicide.[96]

The original design must have been robbery; and the homicide, even if it precedes or is subsequent to the
robbery, must have a direct relation to, or must be perpetrated with a view to consummate, the robbery.
The taking of the property should not be merely an afterthought, which arose subsequently to the
killing.[97]

With respect to the elements of the crime, the following excerpts from the direct testimony of Cherry Rose
clearly illustrates the same, viz:

PROVINCIAL PROSECUTOR FERDINAND D. ORIAS -

Q: At that night of July 24, 1998 at around 10:40 in the evening, what were you doing at RML
Canteen?

A: I was entertaining a costumer sir.

xxxx

Q: Who was that person who requested you to entertain him?

A: Larry Erese sir.

Q: Do you recall if this Larry Erese have a companions (sic) that time?

A: Yes, sir.

Q: Name them?

A: Abe at Nanding sir.

Q: That night while you were entertaining them, this three (3) what transpired next?

A: An Ifugao approached us sir and he poke a gun at Larry Erese sir.

Q: And what did Larry Erese do when a gun was poke at him?

A: He gave his wrist watch sir.

Q: To whom did Larry Erese gave his wrist watch?

A: To the Ifugao who poke a gun at him sir.

xxxx

Q: Will you please go around and see if he is inside the courtroom and point at him?

A: The witness is pointing to a man [seated] at the back bench of the court and when asked about
his name he answered Robert Buduhan.
 xxxx

Q: What was the attire of Robert Buduhan at that time?

A: White T-shirt sir.

Q: Can you name or can you recall any particular description of that T-shirt worn by Robert
Buduhan at that time?

xxxx

A: It was marked with Giordano sir.

xxxx

Q: When Robert Buduhan approached Larry Erese and Larry Erese gave his wrist watch, do you
recall if Robert Buduhan have a companions (sic) at that time?

A: There was sir.

Q: How many of them?

A: Four (4) sir.

xxxx

Q: Where are these companions of Robert Buduhan at the time Robert Buduhan poke a gun at
Larry Erese?

A: The other one was there to my Manager [Romualde] Eddie Almeron sir.

Q: What was the attire of this person who approached Eddie Almeron, your Manager?

A: He was in blue sir.

xxxx

Q: He wore blue T-shirt?

A: Yes, sir.

xxxx

Q: What about the other two (2) companions of Robert Buduhan where are they?

A: They were inside sir.

Q: The first of the two (2) what is the attire?

A: Color red sir.

Q: What about the last one?

A: He was in blue T-shirt and with black jacket sir.

xxx

Q: The person in red T-shirt whom you claim the companion of Robert Buduhan, can you identify
him?

A: Yes, sir.

xxxx

Q: Stand and point at him?

A: Witness pointed one of the accused sitting infront and when asked about his name he answered
Rudy Buduhan.

xxxx

Q: You mention about a person wearing blue T-shirt who approached your Manager Eddie
Almeron. What did he do first before he approached your Manager if [any]?

A: He poke a gun at our Manager sir.

Q: What did he tell to you (sic) Manager if any while poking a gun?

A: Holdup sir.
Q: Are they simultaneous in approaching Larry Erese and Eddie Almeron, this person in blue T-
shirt and the accused Robert Buduhan?

A: No, sir. Robert Buduhan approached first.

Q: And then the person in blue T-shirt likewise approached Eddie Almeron?

A: Yes, sir.

xxxx

Q: What transpired first before Larry Erese gave his wrist watch. The announcement of holdup or
the giving of his wrist watch?

A: The announcement of the holdup comes first sir.

Q: When Larry Erese gave his watch to Robert Buduhan with Robert Buduhan poking a gun at
Larry Erese, what transpired next?

A: They fired sir.

Q: Who fired?

A: All of them sir.

xxxx

Q: You mentioned a while ago that Robert Buduhan poke a gun at Larry Erese?

A: Yes, sir.

Q: Do you know the caliber of the gun?

A: It looks like a 38 but it is long sir.

Q: You likewise mention that the person in blue T-shirt poke a gun at Eddie Almeron?

A: Yes, sir.

Q: What about the person in red?

A: It looks like an armalite sir.

Q: What about the person in blue T-shirt with black jacket?

A: Armalite sir.

Q: When Rudy Buduhan fired his gun was there any person who was hit?

A: There was sir.

Q: Name that person?

A: Larry Erese sir.

Q: When the person in blue T-shirt who was poking a gun at Eddie Almeron fired his gun was there
any person who was hit?

A: There was sir.

Q: Who was that person who was hit?

A: Eddie Almeron sir.

xxxx

Q: How far is Robert Buduhan from Larry Erese when Robert Buduhan fired his gun?

A: He was arms like sir.

Q: You mention also about a person in blue T-shirt fired a gun at Eddie Almeron. How far was he
from Eddie Almeron when he fired his gun?

A: The witness pointed to a place in the courtroom.

xxxx

COURT -
 About 2 to 3 meters?

PROVINCIAL PROSECUTOR FERDINAND D. ORIAS -

Yes, 2 to 3 meters.

xxxx

Q: Do you know what happened to Larry Erese?

A: Yes, sir.

Q: Where is he now?

A: He was dead already sir.

Q: What about Eddie Almeron. Do you know what happened to him?

A: He was also dead sir.[98]

Quite obvious from the foregoing testimony is that the act of appellant Robert and his companion in blue
T-shirt of poking their guns towards Larry and Romualde, respectively, and the announcement of a hold-
up were what caused Larry to give his watch to Robert. At this point, there already occurred the taking of
personal property that belonged to another person, which was committed with violence or intimidation
against persons.

Likewise, the intent to gain may already be presumed in this case. Animus lucrandi or intent to gain is an
internal act, which can be established through the overt acts of the offender.[99] The unlawful act of the
taking of Larry's watch at gunpoint after the declaration of a hold-up already speaks well enough for itself.
No other intent may be gleaned from the acts of the appellant's group at that moment other than to divest
Larry of his personal property.

The appellants acted in conspiracy in perpetrating the crimes charged. As found by the trial court,
conspiracy was proved by the concurrence of the following facts: that the four men were together when
they entered the RML canteen; that they occupied the same table; that they were all armed during that
time; that while the robbery was in progress, neither Rudy nor the one in blue T-shirt with black jacket
prevented the robbery or the killing of the victims; that all four fired their firearms when the robbery was
going on and that they fled all together and were seen running by the police before they were intercepted
just a few meters from the scene of the crime.

There is conspiracy when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The same degree of proof necessary to prove the crime is required to
support a finding of criminal conspiracy. Direct proof, however, is not essential to show
conspiracy.[100] Proof of concerted action before, during and after the crime, which demonstrates their
unity of design and objective is sufficient.[101]

As the fatal shooting of both Larry Erese and Romualde Almeron happened on the occasion of the robbery
and was subsequent thereto, both of the appellants must be held liable for the crime of Robbery with
Homicide on two counts.

The defense of appellants of alibi is at best weak when faced with the positive identification of the
appellants by the prosecution's principal witness. It is elemental that for alibi to prosper, the requirements
of time and place must be strictly met. This means that the accused must not only prove his presence at
another place at the time of the commission of the offense but he must also demonstrate that it would be
physically impossible for him to be at the scene of the crime at that time.[102] In the present case, there
was absolutely no claim of any fact that would show that it was well nigh impossible for appellants to be
present at the locus criminis. In fact, they all testified that they were going towards the vicinity of the area
of the shooting incident when the police apprehended them.

The testimonies of Robert Buduhan and Boyet Ginyang were also markedly inconsistent on the material
date as to when the witnesses in the shooting incident identified them. Robert Buduhan testified that the
three lady witnesses came to identify them at the municipal jail on the evening of 26 July
1998.[103] However, in the direct examination of Boyet Ginyang, he testified that said witnesses arrived on
the morning of 25 July 1998.[104] This fact only tends to lend suspicion to their already weak alibi.

Appellants likewise cannot rely on the negative findings of Police Inspector Chua-Camarao on the paraffin
tests conducted in order to exculpate themselves. The said witness herself promptly stated that paraffin
test results are merely corroborative of the major evidence offered by any party, and they are not
conclusive with respect to the issue of whether or not the subjects did indeed fire a gun. As previously
mentioned, the positive and negative results of the paraffin test can also be influenced by certain factors
affecting the conditions surrounding the use of the firearm, namely: the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the
barrel of the firearm or the open or closed trigger guard of the firearm.

Lastly, the persistent claim of appellants of the illegality of their warrantless arrest, due to the lack of
personal knowledge on the part of the arresting officers, deserves scant consideration. As aptly stated
in People v. Salazar,[105] granting arguendo that appellants were illegally arrested, such arrest did not
invest these eyewitness accounts with constitutional infirmity as "fruits of the poisonous tree." Considering
that their conviction could be secured on the strength of the testimonial evidence given in open court,
which are not inadmissible in evidence, the court finds no reason to further belabor the matter.

A determination of the appropriate imposable penalties is now in order.

The prescribed penalty for Robbery with Homicide under Article 294 of the Revised Penal Code, as
amended, is reclusion perpetua to death. In accordance with Article 63 of the Revised Penal Code, when
the law prescribes a penalty composed of two indivisible penalties, and there are neither mitigating nor
aggravating circumstances, the lesser penalty shall be applied.

The RTC and the Court of Appeals thus correctly imposed the penalty of reclusion perpetua.

As regards the charge for the death of Orlando Pascua and the injuries sustained by Fernando Pera and
Gilbert Cortez, the trial court aptly held that the prosecution failed to substantiate the same. No witnesses
were presented to testify as to the circumstances leading to the said incidents, and neither were they
proved to be caused by the criminal actions of the appellants.

The two courts below committed a mistake, however, in convicting the appellants separately of the crime
of Homicide for the death of Romualde Almeron. It bears stressing that in the special complex crime of
Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during
or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of
homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is
committed by reason or on the occasion of the robbery, the felony committed is the special complex crime
of Robbery with Homicide.[106]

As to the award of damages, we hold that the heirs of Larry Erese and Romualde Almeron are each
entitled to the amount of P50,000.00 as civil indemnity ex delicto. This award for civil indemnity is
mandatory and is granted to the heirs of the victim without need of proof other than the commission of
the crime.[107]

We agree with the Court of Appeals' grant of moral damages in this case even in the absence of proof for
the entitlement to the same. As borne out by human nature and experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the part of the victim's family. It is inherently
human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of a violent or
brutal killing.[108] The heirs of Erese and Almeron are thus entitled to moral damages in the amount of
P50,000.00 each.

On the award of actual damages, we hold that the heirs of Larry Erese are entitled to the award of
temperate damages for P25,000.00, in lieu of the lower amount of P18,000 that was substantiated by a
receipt. In People v. Villanueva,[109] we have laid down the rule that when actual damages proven by
receipts during the trial amount to less than P25,000.00, the award of temperate damages for P25,000.00
is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages
proven exceeds P25,000.00, then temperate damages may no longer be awarded. Actual damages based
on the receipts presented during trial should instead be granted.

However, with respect to the award of the amount of P38,000.00 to the heirs of Romualde Almeron, the
same is incorrect since the receipt presented therefor covers only the amount of P26,000.00. The award of
actual damages should be reduced accordingly. The grant of temperate damages to the heirs of Almeron
is thus deleted.

The award of exemplary damages is likewise deleted, as the presence of any aggravating circumstance
was neither alleged nor proved in this case.[110]

WHEREFORE, premises considered, the decision dated 29 December 2006 of the Court of Appeals in CA-
G.R. CR-HC No. 01940 is hereby MODIFIED as follows:
 1. For the death of Larry Erese, appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan are
found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each to suffer
the penalty of reclusion perpetua.

2. For the death of Romualde Almeron, appellants Robert Buduhan y Bullan and Rudy Buduhan y
Bullan are found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each
to suffer the penalty of reclusion perpetua.

3. Appellants shall be entitled to a deduction of their preventive imprisonment from the term of their
sentences in accordance with Article 29 of the Revised Penal Code, as amended by Republic Act No.
6127.

4. Appellants are ordered to indemnify jointly and severally the heirs of Larry Erese as follows: (a)
P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P25,000.00 as
temperate damages.

5. Appellants are ordered to indemnify jointly and severally the heirs of Romualde Almeron as follows:
(a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P26,000.00 as actual
damages.

6. For reasons herein stated, appellants are ACQUITTED of the separate crime of Homicide for the
death of Romualde Almeron.

No costs.

SO ORDERED.

EN BANC

[ G.R. No. 132676, April 04, 2001 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JAIME CARPO, OSCAR IBAO, WARLITO
IBAO AND ROCHE IBAO, ACCUSED-APPELLANTS.

DECISION

PER CURIAM:

The accused might as well have borrowed the famous line of Shakespeare - "How this world is given to
lying!"[1] - when they impute error to the trial court for relying on the testimony of a single witness in
convicting them of multiple murder complexed with attempted murder for the death of Florentino Dulay,
Norwela Dulay and Nissan Dulay, and the wounding of Noemi Dulay.[2]

The challenged testimony of witness Ruben Meriales follows: [3] On 25 August 1996 at about 8:00 o'clock in
the evening while he was watching television with his family his dogs barked. His mother who was
apprehensive that their cow might be stolen prodded him to check the disturbance. To allay her fears he
stood up, took his flashlight and trudged the unpaved path towards his cow that was tied to a mango tree.
Then the noise grew louder thus arousing his suspicion that something was really wrong. After transferring
his cow nearer to his house, he went inside the kitchen, stood atop the concrete washbasin, hid himself
behind the bamboo slats and peeped outside to observe. The darkness helped conceal him from outside
view while the light from the two (2) bulbs positioned at about three (3) meters from where he stood
filtered through the slats and illumined the surroundings. There was also moon in the sky.

A few minutes later, he saw barangay captain Jaime Carpo together with Warlito Ibao suspiciously
stooping near his barn. He knew Jaime and Warlito very well. Jaime was his uncle and Warlito lived in his
neighborhood. Warlito's son Roche was also there; he was standing by the mango tree. They were all
looking in the direction of Florentino Dulay's house which was about a meter to the south from where he
was. He also saw Oscar Ibao, another son of Warlito, striding towards Dulay's hut. As soon as he reached
the hut Oscar lifted the sawali mat near the wall and hurled something inside. Oscar then scurried off
towards the nearby creek with Roche following him. Seconds later, a loud explosion shook the entire
neighborhood and Teresita Dulay's screams broke into the night.

Ruben Meriales, rushed outside. He ran towards Florentino's hut but was deterred by darkness. He
returned home to take his flashlight and raced back to lend aid to Teresita. Inside the hut he was stunned
by the terrifying gore that greeted him - a bloodied Florentino cradled in the arms of his weeping widow,
Norwela and Nissan lying side by side on a cot both doused in blood, and a motionless Norma whose head
was oozing with blood.

Realizing the exigency of the situation, he left the crime scene to borrow the jeepney of Brgy.
Kagawad Edgardo Marquez for the hapless victims. The neighbors milling around at once gave up hope on
Florentino so that only Norwela, Nissan and Noemi were loaded in the jeepney and rushed to the Eastern
Pangasinan District Hospital. On their way, Norwela who had injuries on her chest and lower appendage
died. Nissan who was five (5) years old and the youngest of the victims died later due to "shock from
pains" caused by the shrapnel wounds in her left shoulder, abdomen and lower extremities.[4] Noemi
luckily survived. Her attending physician, Dr. Emiliano Subido, testified that Noemi was semi-conscious
and vomiting although ambulatory at the time he examined her. But due to the seriousness of her wounds
and the hospital's lack of facilities she was taken to another hospital in Dagupan City. [5]

In the course of their investigation, the policemen questioned the people who might have witnessed the
carnage. Fearful however that the culprits would return, Ruben Meriales refused to give any statement but
intimated to Police Officer Guillermo Osio that he would go to the police station after the burial.

On 4 September 1996, or a week later, Ruben kept his promise and went to the police station where he
gave his statement to Police Officer Osio. He named Jaime Carpo, Warlito lbao, Oscar lbao and Roche Ibao
as the perpetrators of the crime. He further said that Florentino was killed because he was about to testify
against Roche Ibao for the murder of his brother Delfin Meriales.[6]

On 3 October 1996, solely on the basis of Ruben's testimony, a criminal complaint for the murder of
Florentino Dulay and his two (2) daughters Norwela, and Nissan as well as the frustrated murder of his
daughter Noemi was filed against Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao. Warrants for
their immediate arrest were issued by the municipal circuit trial court.

On 25 October 1996 Jaime Carpo was taken into custody by the police, while Roche Ibao eluded arrest
until 9 December 1996 when he was apprehended by police officers in La Union. With Roche's arrest,
Oscar and Warlito realized the futility of hiding and surrendered themselves to the National Bureau of
Investigation (NBI) in La Union.

At the trial, the prosecution presented Ruben, Noemi, Dr. Rosalina O. Victorio, Dr. Emiliano Subido and
Police Officers Virgilio dela Cruz, Jovencio Tapac and Guillermo Osio as witnesses.

Police Officer Osio testified that on the night of 25 August 1996 after receiving a report of an explosion
in Brgy. Baligayan, he together with Police Officers Julius Aurora, Ricardo Lugares and Jovencio Tapac
immediately responded. They were able to gather several grenade shrapnels and a grenade shifting lever
from the crime scene. He spoke with the weeping Teresita Dulay who told him that she suspected the
accused of having perpetrated the assault. He likewise conferred with Ruben Meriales who named the
same set of suspects and who promised to give his statement to the police after the funeral.

After speaking with Teresita and Ruben, he summoned his colleagues to go with him to Warlito Ibao's
house which was just across the road. Warlito's house was dark and its front door was locked. He called
out but there was no answer. They then proceeded to Oscar's house which was also padlocked and
unoccupied. He went to Roche's house and peeped inside before they left. [7] Against their positive
identification by Ruben, the four (4) accused interposed alibi claiming that they were somewhere else
when the Dulay hut was blasted. They likewise assailed Ruben's testimony for being a fabrication and
insisted that he lied to get back at them because Roche was a suspect in the killing of his brother Delfin
Meriales. Jaime and his wife Veronica Carpo were one in testifying that in the evening of 25 August 1995
Jaime was at home in Brgy. Libsong, a hundred and fifty (150) meters away from the house of the Dulays
in Brgy. Baligayan. When he heard the loud explosion, he summoned his tanods to check whether the
blast happened within their barangay. When he learned that the explosion occurred in the adjoining Brgy.
Baligayan, he went home to sleep. Brgy. Baligayan is separated from his barangay by a creek and could
be reached in ten (10) minutes. However, on the night of the incident, the creek was neck deep such that
one had to make a detour through a mountainous route for about thirty (30) minutes to reach Brgy.
Baligayan.[8]

Jaime testified that Ruben implicated him because the latter was angry at him. Ruben's grudge supposedly
started when Jaime sided with the Ibaos in the murder case instituted by the Merialeses against Roche for
the death of Delfin Meriales. As a matter of fact on 10 December 1996 while he was incarcerated at the
Balungao District Jail, Ruben supposedly visited him asking his forgiveness for having named him as one
of the perpetrators of the crime. Ruben subsequently pleaded with him to reveal the names of those
responsible but when he claimed ignorance, Ruben left in a huff.

Warlito, Oscar and Roche Ibao testified that on the night of the explosion their family was having a
farewell party for the family's only girl Maribel Ibao who was leaving for Hongkong. They heard the blast
but they did not bother to check. They denied having heard the police officers call for them an hour after
the explosion. Roche further asserted that he did not have a house in Brgy. Baligayan as reported because
he lived with his parents-in-law in Brgy. Libsong. However, on the night of the blast, he slept at his
parents' house as all of his siblings and their families were there. He only learned of the bloodbath the
following morning when they went home to his in-laws. His wife Jovelyn corroborated his testimony in the
same manner that Remedios supported the story of her husband Warlito.[9]

In convicting Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao of the multiple murder of Florentino,
Norwela and Nissan Dulay and the attempted murder of Noemi Dulay the trial Court gave full credit to the
testimony of Ruben.[10] It accepted his straightforward testimony and ruled that "at no instance
throughout the twin testimonies of Meriales did the Court notice a twitch of falsehood on his
lips."[11] Accordingly, in accordance with Sec. 6, RA 7659, and Art. 48 of The Revised Penal Code the trial
court imposed upon all of the accused the supreme penalty of death and ordered them to solidarily
indemnify the heirs of the deceased as well as Noemi Dulay in the amount of P600,000.00. [12]

Forthwith, the case was elevated to this Court for automatic review. After the filing of briefs, the accused
filed an Addendum to Appellant's Brief urging that the favorable results of their lie detector tests with the
NBI be admitted into the records.[13]

A lie detector test is based on the theory that an individual will undergo physiological changes, capable of
being monitored by sensors attached to his body, when he is not telling the truth. The Court does not put
credit and faith on the result of a lie detector test inasmuch as it has not been accepted by the scientific
community as an accurate means of ascertaining truth or deception.[14]

The explosion by means of a hand grenade on the night of 25 August 1996 resulting in the death of
Florentino, Norwela and Nissan Dulay and in the wounding of Noemi Dulay is an admitted fact. The
identity of the perpetrators, as tenaciously questioned by the accused, depends upon the credibility of
Ruben Meriales.

In this appeal, accused-appellants challenge the veracity of the testimony of Ruben Meriales primarily on
two (2) grounds: first, Ruben's testimony in court is different from and is contradictory to his affidavit of 4
October 1996; and second, Ruben is not a disinterested witness because he has a grudge against the
Ibaos. Consistent with giving due deference to the observations of the trial court on credibility of
witnesses, we agree with the court a quo when it believed Ruben Meriales more than the defense
witnesses.[15] Indeed, the trial court is best equipped to make an assessment of witnesses, and its factual
findings are generally not disturbed on appeal unless it has overlooked, misunderstood or disregarded
important facts,[16] which is not true in the present case.

The twin arguments therefore raised by accused-appellants against the testimony of Ruben Meriales are
devoid of merit. A scrutiny of the records reveals that his testimony is not inconsistent with his affidavit of
4 October 1996 inasmuch as the former merely supplied the details of the event which the latter failed to
disclose. But assuming that there was any inconsistency, it is settled that whenever an affidavit
contradicts a testimony given in court the latter commands greater respect. [17] Such inconsistency is
unimportant and would not even discredit a fallible witness.[18] The mere fact that Ruben admitted
harboring resentment against the Ibaos for the murder of his brother Delfin does not confirm that he
fabricated his story. His frankness in admitting his resentment against the Ibaos should even be
considered in his favor.[19]There is likewise nothing unnatural in Ruben's attitude of concealing himself
behind the kitchen wall instead of warning the Dulays of the looming danger to their lives. It is a well-
known fact that persons react differently to different situations - there may be some who will respond
violently to an impending danger while there may be others who will simply assume a cravenly demeanor.
In this case, Ruben was ruled by his fear rather than by his reason, but for this alone, his credibility
should not be doubted.

Apropos Jaime's imputation that Ruben had admitted to him while in jail that he lied in his testimony, we
find this accusation farcical as nothing was ever offered in support thereof. The lone corroborative
testimony, which was that of Roche, does not inspire belief since Roche himself admitted overhearing the
conversation while Jaime together with other prisoners was constructing a hut outside of his cell at about
three (3) meters away. As correctly hinted by the prosecution, the noise generated by the construction
made it unlikely for Roche to hear conversations three (3) meters away. [20]

The defense proffered by the accused is alibi. But this is futile. By his own admission, Jaime was only a
hundred and fifty (150) meters away from the scene of the crime. In fact, it would only take him thirty
(30) minutes, at the most, to be at the place of the Dulays.

More so for the Ibaos who acknowledged that they were having a party just a stone's throw away from the
crime scene at the time of the explosion. Curiously though, if they were indeed reveling inside their house
on that fateful night, then we cannot comprehend why they did not go out to investigate after hearing the
blast. Besides, it was rather strange for the Ibaos not to have joined their neighbors who had
instantaneously milled outside to view the mayhem. Their conduct indeed betrayed them.

Further, the immediate flight and tarriance of the Ibaos to La Union until Roche's arrest cannot but
demonstrate their guilt and desire to evade prosecution.[21]

The trial court also correctly ruled that accused-appellants conspired in perpetrating the offense charged.
From the detailed account of Ruben, Jaime and Warlito positioned themselves near the hay barn while
Roche casually stood by the mango tree. As observed by the trial court, the presence of Jaime, Warlito
and Roche inescapably gave encouragement and a sense of security to Oscar, the group's preceptor.
Surely, the latter was emboldened to commit the crime knowing that his co-conspirators were not far
behind.
Under the doctrine enunciated in People v. Tayo,[22] the crime committed may otherwise be more
approriately denominated as murder qualified by explosion rather than by treachery. However, since it
was treachery that is alleged in the Information and appreciated by the trial court, the explosion of the
grenade which resulted in the death of Florentino, Norwela and Nissan, and the wounding of Noemi can
only be multiple murder complexed with attempted murder.[23] The crime committed against Noemi Dulay
was correctly denominated by the trial court as attempted murder considering that none of her injuries
was fatal. Her attending physician even made conflicting statements in the assessment of her wounds, to
wit: although he said that Noemi could have died from the shrapnel wound in her head, he specifically
ruled out the possibility of "intercerebral hemorrhage"[24] and despite the seriousness of the possible
complications of her injuries she would suffer from physical incapacity for only ten (10) to fourteen (14)
days.

As none of her wounds was severe as to cause her death, accused-appellants not having performed all the
acts of execution that would have brought it about, the crime is only attempted murder. [25]

Since the three (3) murders and attempted murder were produced by a single act, namely, the explosion
caused by the hurling of a grenade into the bedroom of the Dulays, the case comes under Art. 48 of The
Revised Penal Code on complex crimes. Article 48 provides that the penalty for the more serious crime,
which in the present case is reclusion perpetua to death, should be applied in its maximum period. As the
crime was complexed, the death penalty was properly imposed by the trial court.

At this point, we take exception to the court a quo's award of damages in the "negotiated amount of
P600,00.00." It appears that under the auspices of the trial court counsel for the defense entered into an
oral compromise with the public prosecutor, which was subsequently ratified by the private complainant,
limiting the amount of civil liability to P600,000.00. We note the discourse between the court and the
counsel for both parties regarding the award.
PROS. CORPUZ: x x x x (W)e would like to enter into stipulation the civil aspect of the case.

COURT: Are the accused confident that they could be acquitted in this case? Atty Sanglay?

ATTY. SANGLAY: I think so, your Honor.

COURT: What about Atty. Rafael?

ATTY. RAFAEL: We are confident, your Honor.

COURT: All right. So you can easily stipulate. First of all, how much do you want Fiscal?

PROS. CORPUZ: P1,282,740.00, your Honor x x x x

COURT: x x x x Agree gentlemen of the defense?

ATTY. SANGLAY: P600,000.00, your Honor.

COURT: Do you agree Fiscal?

PROS. CORPUZ: Yes, your Honor.

COURT: All right so P600,000.00 is the agreed liquidated amount in case of conviction without necessarily
having to interpret this stipulation as admission of guilt on the part of any of the accused. All right so we
will dispense with the testimony on the civil aspect x x x x

COURT: x x x x Are you the private complainant in this case?

TERESITA DULAY: Yes, sir.

COURT: If the accused get convicted and I will hold them severally liable for you of damages in the
liquidated sum of P600,000.00 as agreed upon by the counsel, will you be satisfied? x x x x

TERESITA: Yes, sir.

COURT: So let that be of record. Will you sign the note so that there will be evidence.

(At this juncture private complainant Teresita Dulay affixed her signature at the bottom right margin of
the stenographic notes page 2 hereof).[26]
Article 1878 of the Civil Code and Sec. 23 of Rule 138 of the Rules of Court set forth the attorney's
power to compromise. Under Art. 1878 of the Civil Code, a special power of attorney is necessary "to
compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive
objections to the venue of an action or to abandon a prescription already acquired." On the other hand,
Sec. 23, Rule 138 of the Rules of Court provides, "(a)ttorneys have authority to bind their clients in any
case by any agreement in relation thereto made in writing, and in taking appeal, and in all matters of
ordinary judicial procedure, but they cannot, without special authority, compromise their clients' litigation
or receive anything in discharge of their clients' claims but the full amount in cash."

The requirements under both provisions are met when there is a clear mandate expressly given, by the
principal to his lawyer specifically authorizing the performance of an act. [27] It has not escaped our
attention that in the present case counsel for both parties had no special power of attorney from their
clients to enter into a compromise. However, insofar as Teresita was concerned, she was apprised of the
agreement and in fact had signed her name as instructed by the court, thereby tacitly ratifying the same.
As for accused-appellants, the aforecited dialogue between the court and counsel does not show that they
were ever consulted regarding the proposed settlement. In the absence of a special power of attorney
given by accused-appellants to their counsel, the latter can neither bind nor compromise his clients' civil
liability. Consequently, since Atty. Sanglay and Atty. Rafael had no specific power to compromise the civil
liability of all accused-appellants, its approval by the trial court which did not take the precautionary
measures to ensure the protection of the right of accused-appellants not to be deprived of their property
without due process of law, could not legalize it. For being violative of existing law and jurisprudence, the
settlement should not be given force and effect.

In light of the foregoing, the award of damages must be set aside and a new one entered with all the
circumstances of the case in mind. For the death of Florentino, Norwela and Nissan Dulay, civil indemnity
at P50,000.00 each or a total amount of P50,000.00 is awarded to their heirs. This is in addition to the
award of moral damages at an aggregate amount of P150,000.00 for their emotional and mental anguish.
With respect to Noemi, an indemnity of P30,000.00 would be just and proper. All taken, an award of
P330,000.00 is granted.
Four (4) members of the Court maintain their position that RA 7659, insofar as it prescribes the
death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by a majority vote,
that the law is constitutional and that the death penalty should be accordingly imposed.
WHEREFORE, the assailed Decision of the trial court finding accused-appellants JAIME CARPO,
OSCAR IBAO, WARLITO IBAO and ROCHE IBAO GUILTY of the complex crime of multiple murder with
attempted murder and sentencing them to the supreme penalty of death is AFFIRMED with
the MODIFICATION that they are ordered to pay the heirs of the deceased Florentino, Norwela and
Nissan, all surnamed Dulay, P50,000.00 as death indemnity and P50,000.00 as moral damages for each
death or an aggregate amount of P300,00.00. In addition, accused-appellants are ordered to pay Noemi
Dulay P30,000.00 as indemnity for her attempted murder. Costs against accused- appellants.

In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon finality of this
Decision, let the records of this case be forthwith forwarded to the Office of the President for possible
exercise of executive clemency or pardoning power.

SO ORDERED.

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