1

G.R. No. 150224. May 19, 2004. *

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias

KAWIT, appellant.

Criminal Law; Witnesses; The Supreme Court will not interfere with the judgment of
the trial court in determining the credibility of 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.The issue regarding the credibility of the
prosecution witnesses should be resolved against appellant. This Court will not interfere
with the judgment of the trial court in determining the credibility of 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. Well-entrenched is the rule
that the findings of the trial court on credibility of witnesses are entitled to great weight on
appeal unless cogent reasons are presented necessitating a reexamination if not the
disturbance of the same; the reason being that the former is in a better and unique position
of hearing first hand the witnesses and observing their deportment, conduct and attitude.
Absent any showing that the trial judge overlooked, misunderstood, or misapplied some
facts or circumstances of weight which would affect the result of the case, the trial judges
assessment of credibility deserves the appellate courts highest respect. Where there is
nothing to show that the witnesses for the prosecution were actuated by improper motive,
their testimonies are entitled to full faith and credit.
Same; Same; Circumstantial Evidence; An accused can be convicted even if no
eyewitness is available, so long as sufficient circumstantial evidence is presented to prove
beyond doubt that the accused committed the crime.The weight of the prosecutions
evidence must be appreciated in light of the well-settled rule which provides that an
accused can be convicted even if no eyewitness is available, as long as sufficient
circumstantial evidence is presented by the prosecution to prove beyond doubt that the
accused committed the crime.

Same; DNA Testing; Words and Phrases; DNA is a molecule that encodes the
genetic information in all living organisms, and a persons DNA is the same in each
cell and it does not change throughout a persons lifetimethe DNA in a persons
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.Significantly,
subsequent testingshowed that the Deoxyribonucleic acid (DNA) of the sperm specimen from
the vagina of the victim was identical semen to be that of appellants gene type. DNA is a
molecule that encodes the genetic information in all living organisms. A persons DNA is the
same in each cell and it does not change throughout a persons lifetime; the DNA in a persons
blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax,
 2

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.

Same; Same; DNA print or identification technology has been advanced as a uniquely
effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where
biological evidence has been left.DNA print or identification technology has been advanced as
a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused
suspect, where biological evidence has been left. For purposes of criminal investigation, DNA
identification is a fertile source of both inculpatory and exculpatory evidence. It can assist
immensely in effecting a more accurate account of the crime committed, efficiently facilitating
the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper
administration of justice in every case. DNA evidence collected from a crime scene can link a
suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.
Incidents involving sexual assault would leave biological evidence such as hair, skin tissue,
semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and
fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body
during the assault. Forensic DNA evidence is helpful in proving that there was physical contact
between an assailant and a victim. If properly collected from the victim, crime scene or assailant,
DNA can be compared with known samples to place the suspect at the scene of the crime.

Same; Same; In assessing the probative value of DNA evidence, courts should consider,
inter alia, the following factorshow 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; 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 though we can
benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions.
The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in
this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem
Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be
copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much
easier since it became possible to reliably amplify small samples using the PCR method. 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 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, Dr. Maria Corazon Abogado de Ungria was duly qualified
 3

by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr.
de Ungrias 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, DHFRP2 9/10
and CSF1PO 10/11, which are identical with semen taken from the victims 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.

Same; Same; Evidence; Evidence is relevant when it relates directly to a fact in issue as to
induce belief in its existence or non-existence.In Daubert v. Merrell Dow, 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.

Same; Same; Same; Self-Incrimination; The right against self-incrimination is simply

against the legal process of extracting from the lips of the accused an admission of guiltit
does not apply where the evidence sought to be excluded is not an incrimination but as part
of object evidence.In an attempt to exclude the DNA evidence, the appellant contends that
the blood sample taken from him as well as the DNA tests were conducted in violation of his
right to remain silent as well as his right against self-incrimination under Secs. 12 and 17
of Art.III of the Constitution. This 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.

Same; Same; Same; Ex Post Facto Laws; No ex-post facto law is involved in DNA testing
since the science of DNA typing involves the admissibility, relevance and reliability of the
evidence obtained under the Rules of Courtwhereas an ex-post facto law refers primarily to
 4

a question of law, DNA profiling requires a factual determination of the probative weight of
the evidence presented.Appellant further argues that the DNA tests conducted by the
prosecution against him are unconstitutional on the ground that resort thereto is
tantamount to the application of an ex-post facto law. This argument is specious. No ex-post
facto law is involved in the case at bar. The science of DNA typing involves the admissibility,
relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-
post facto law refers primarily to a question of law, DNA profiling requires a factual
determination of the probative weight of the evidence presented.

Same; Same; Same; Words and Phrases; The legal relevancy of evidence denotes
something more than a minimum of probative value, suggesting that such evidentiary
relevance must contain a plus valueevidence without plus value may be logically
relevant but not legally sufficient to convict.Generally, courts should only consider and rely
upon duly established evidence and never on mere conjectures or suppositions. The legal
relevancy of evidence denotes something more than a minimum of probative value,
suggesting that such evidentiary relevance must contain a plus value. This may be
necessary to preclude the trial court from being satisfied by matters of slight value, capable
of being exaggerated by prejudice and hasty conclusions. Evidence without plus value may
be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court
to balance the probative value of such evidence against the likely harm that would result
from its admission. The judgment in a criminal case can be upheld only when there is
relevant evidence from which the court can properly find or infer that the accused is guilty
beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in
order to sustain a conviction. Moral certainty is that degree of certainty that convinces and
directs the understanding and satisfies the reason and judgment of those who are bound to
act conscientiously upon it. It is certainty beyond reasonable doubt. This requires that the
circumstances, taken together, should be of a conclusive nature and tendency; leading, on
the whole, to a satisfactory conclusion that the accused, and no one else, committed the
offense charged. In view of the totality of evidence appreciated thus far, we rule that the
present case passes the test of moral certainty.

Same; Same; Same; Presumption of Innocence; Motive; As a matter of procedure, and

for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is
essential for conviction when there is doubt as to the identity of the culprit. As a matter of
procedure, and for the purpose of meeting the requirement of proof beyond reasonable
 5

doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.
Thus, appellants motive to sexually assault and kill the victim was evident in the instant
case. It is a rule in criminal law that motive, being a state of mind, is established by the
testimony of witnesses on the acts or statements of the accused before or immediately after
the commission of the offense, deeds or words that may express it or from which his motive
or reason for committing it may be inferred.

Same; Rape with Homicide; Elements.Accordingly, we are convinced that the

appellant is guilty beyond reasonable doubt of the special complex crime of rape with
homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion
thereof, in order to conceal his lustful deed, permanently sealed the victims lips by stabbing
her repeatedly, thereby causing her untimely demise. The following are the elements
constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2)
carnal knowledge of a woman was achieved by means of force, threat or intimidation; and
(3) by reason or on the occasion of such carnal knowledge by means of force, threat or
intimidation, appellant killed the woman. However, in rape committed by close kin, such as
the victims father, step-father, uncle, or the common-law spouse of her mother, it is not
necessary that actual force or intimidation be employed. Moral influence or ascendancy
takes the place of violence and intimidation. The fact that the victims hymen is intact does
not negate a finding that rape was committed as mere entry by the penis into the lips of the
female genital organ, even without rupture or laceration of the hymen, suffices for
conviction of rape. The strength and dilatability of the hymen are invariable; it may be so
elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations
does not disprove sexual abuse especially when the victim is of tender age.

AUTOMATIC REVIEW of a decision of the Regional Trial Court of Bulanao, Tabuk,

Kalinga, Br. 25.

The facts are stated in the opinion of the Court.

The Solicitor General for appellee.

On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk,

Kalinga, Branch 25, sentencing appellant Joel Yatar alias Kawit to Death for the
special complex crime of Rape with Homicide, and ordering him to pay the heirs of
 6

the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral
damages in the amount of P200,000.00, exemplary damages in the amount of
P50,000.00, actual damages in the amount of P186,410.00, or total damages
amounting to P511,410.00, and costs of litigation. 1

Appellant was charged with Rape with Homicide under the following
Information:

That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within
the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a
certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and
with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the
death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully
and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D.
Uba against her will.

CONTRARY TO LAW. 2

The facts are:

On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year
old Kathylyn Uba, were on the ground floor of the house of their grandmother,
Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter
sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through
Kathylyns friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier
that morning. 3

At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel
Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn
and her husband departed, Kathylyn told Judilyn that she intended to go to
Tuguegarao, but in the event she would not be able to leave, she would just stay
home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn
was left alone in the house. 4
 7

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by
the house of Isabel. They saw appellant at the back of the house. They went inside
the house through the back door of the kitchen to have a drink of water. Anita asked
appellant what he was doing there, and he replied that he was getting lumber to
bring to the house of his mother. 5

At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw
appellant descend the ladder from the second floor of the house of Isabel Dawang
and run towards the back of the house. She later noticed appellant, who was
6

wearing a white shirt with collar and black pants, pacing back and forth at the back
of the house. She did not find this unusual as appellant and his wife used to live in
the house of Isabel Dawang. 7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house.
This time, he was wearing a black shirt without collar and blue pants. Appellant
told her that he would not be getting the lumber he had stacked, and that Isabel
could use it. She noticed that appellants eyes were reddish and sharp. Appellant
asked her where her husband was as he had something important to tell him.
Judilyns husband then arrived and appellant immediately left and went towards
the back of the house of Isabel. 8

In the evening of the same day, Isabel Dawang arrived home and found that the
lights in her house were off. She called out for her granddaughter, Kathylyn Uba.
The door to the ground floor was open. She noticed that the water container she
asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to
the second floor of the house to see if Kathylyn was upstairs. She found that the
door was tied with a rope, so she went down to get a knife. While she groped in the
dark, she felt a lifeless body that was cold and rigid. 9

Isabel moved her hand throughout the entire body. She found out that it was the
naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her
husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and
saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her
 8

stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of

Isabel, Cion, called the police. 10

At 9:00 that evening, SPO4 Melchor Faniswa received a report that a dead
woman was found in Isabel Dawangs house. Together with fellow police officers,
Faniswa went to the house and found the naked body of Kathylyn Uba with multiple
stab wounds. The people in the vicinity informed the police officers that appellant
was seen going down the ladder of the house of Isabel Dawang at approximately
12:30 p.m.

The police discovered the victims panties, brassiere, denim pants, bag and
sandals beside her naked cadaver at the scene of the crime, and they found a dirty
white shirt splattered with blood within 50 meters from the house of Isabel.

When questioned by the police authorities, appellant denied any knowledge of

Kathylyns death, however, he was placed under police custody.
11

On July 3, 1998, appellant asked the police officers if he could relieve himself. Police
Officer Cesar Abagan accompanied him to the toilet around seven to ten meters
away from the police station. They suddenly heard someone shout in the Ilocano
dialect, Nagtaray! (Hes running away!). Police Officer Orlando Manuel exited
through the gate of the Police Station and saw appellant running away. Appellant
was approximately 70 meters away from the station when Police Officer Abagan
recaptured him. He was charged with Rape with Homicide. When he was arraigned
12

on July 21, 1998, appellant pleaded not guilty.

After trial, appellant was convicted of the crime of Rape with Homicide, defined
and penalized under Article 266-A of the Revised Penal Code, as amended by R.A.
8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly,
sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code,
as amended. In his Brief, appellant assigns the following errors:
 9

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE

EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR
DOUBTFULNESS.

II

THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-

APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellants contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved
against appellant. This Court will not interfere with the judgment of the trial court
in determining the credibility of 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. Well-entrenched is the rule that the
13

findings of the trial court on credibility of witnesses are entitled to great weight on
appeal unless cogent reasons are presented necessitating a re-examination if not the
disturbance of the same; the reason being that the former is in a better and unique
position of hearing first hand the witnesses and observing their deportment,
conduct and attitude. Absent any showing that the trial judge overlooked,
14

misunderstood, or misapplied some facts or circumstances of weight which would

affect the result of the case, the trial judges assessment of credibility deserves the
appellate courts highest respect. Where there is nothing to show that the witnesses
15

for the prosecution were actuated by improper motive, their testimonies are entitled
to full faith and credit. 16

The weight of the prosecutions evidence must be appreciated in light of the well-
settled rule which provides that an accused can be convicted even if no eyewitness is
available, as long as sufficient circumstantial evidence is presented by the
prosecution to prove beyond doubt that the accused committed the crime. 17
 10

Reference to the records will show that a total of eleven (11) wounds, six (6) stab
and five (5) incised, were found on the victims abdomen and back, causing a portion
of her small intestines to spill out of her body. Rigor mortis of the victims body was
18

complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998.
According to him, the time of death may be approximated from between nine (9) to
twelve (12) hours prior to the completion of rigor mortis. In other words, the
19

estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30,
1998. This was within the timeframe within which the lone presence of appellant
lurking in the house of Isabel Dawang was testified to by witnesses.

It should also be noted that, although the Postmortem Report by the attending
physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations,
contusions or hematoma were noted on the victim, Dr. Bartolo discovered the
20

presence of semen in the vaginal canal of the victim. During his testimony, Dr.
Bartolo stated that the introduction of semen into the vaginal canal could only be
done through sexual intercourse with the victim. In addition, it is apparent from
21

the pictures submitted by the prosecution that the sexual violation of the victim was
manifested by a bruise and some swelling in her right forearm indicating resistance
to the appellants assault on her virtue. 22

Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of

the sperm specimen from the vagina of the victim was identical semen to be that of
appellants gene type.

DNA is a molecule that encodes the genetic information in all living

organisms. A persons DNA is the same in each cell and it does not change
23

throughout a persons lifetime; the DNA in a persons 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
24
importantly, because of
polymorphisms in human genetic structure, no two individuals have the same DNA,
with the notable exception of identical twins. 25
 11

DNA print or identification technology has been advanced as a uniquely effective

means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where
biological evidence has been left. For purposes of criminal investigation, DNA
identification is a fertile source of both inculpatory and exculpatory evidence. It can
assist immensely in effecting a more accurate account of the crime committed,
efficiently facilitating the conviction of the guilty, securing the acquittal of the
innocent, and ensuring the proper administration of justice in every case.

DNA evidence collected from a crime scene can link a suspect to a crime or
eliminate one from suspicion in the same principle as fingerprints are
used. Incidents involving sexual assault would leave biological evidence such as
26

hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at
the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could
also be transferred to the victims body during the assault. Forensic DNA evidence
27

is helpful in proving that there was physical contact between an assailant and a
victim. If properly collected from the victim, crime scene or assailant, DNA can be
compared with known samples to place the suspect at the scene of the crime. 28

The U.P. National Science Research Institute (NSRI), which conducted the DNA
tests in this case, used the Polymerase chain reaction (PCR) amplification method
by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a
specific DNA sequence can be copied exponentially within hours. Thus, getting
sufficient DNA for analysis has become much easier since it became possible to
reliably amplify small samples using the PCR method.

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 the proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who conducted the tests. 29

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
30
 12

on Dr. de Ungrias 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
31

sample taken from the appellant showed that he was of the following gene types:
vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with
semen taken from the victims vaginal canal. Verily, a DNA match exists between
32

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, it was ruled that pertinent evidence based on

33

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
34

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.

Independently of the physical evidence of appellants semen found in the victims

vaginal canal, the trial court appreciated the following circumstantial evidence as
being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and
his wife were living in the house of Isabel Dawang together with the victim,
Kathylyn Uba; (2) In June 1998, appellants wife left the house because of their
frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter
 13

from his estranged wife in the early morning of June 30, 1998; (4) Appellant was
seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the
kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white
shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house
of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time
wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-
a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt
coming down the ladder of the house of Isabel on the day Kathylyn Uba was found
dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied
by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her
intestines protruding from her body on the second floor of the house of Isabel
Dawang, with her stained pants, bra, underwear and shoes scattered along the
periphery; (10) Laboratory examination revealed sperm in the victims vagina
(Exhibits H and J); (11) The stained or dirty white shirt found in the crime scene
was found to be positive with blood; (12) DNA of slide, Exhibits J and H,
compared with the DNA profile of the appellant are identical; and (13) Appellant
escaped two days after he was detained but was subsequently apprehended, such
flight being indicative of guilt. 35

Circumstantial evidence, to be sufficient to warrant a conviction, must form an

unbroken chain which leads to a fair and reasonable conclusion that the accused, to
the exclusion of others, is the perpetrator of the crime. To determine whether there
is sufficient circumstantial evidence, three requisites must concur: (1) there is more
than one circumstance; (2) facts on which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. 36

In an attempt to exclude the DNA evidence, the appellant contends that the blood
sample taken from him as well as the DNA tests were conducted in violation of his
right to remain silent as well as his right against self-incrimination under Secs. 12
and 17 of Art.III of the Constitution.
 14

This contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. The
37
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.

We ruled in People v. Rondero that although accused-appellant insisted that

38

hair samples were forcibly taken from him and submitted to the National Bureau of
Investigation for forensic examination, the hair samples may be admitted in
evidence against him, for what is proscribed is the use of testimonial compulsion or
any evidence communicative in nature acquired from the accused under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing,

paraffin, blood and DNA, as there is no testimonial compulsion involved.
Under People v. Gallarde, where immediately after the incident, the police
39

authorities took pictures of the accused without the presence of counsel, we ruled
that there was no violation of the right against self-incrimination. The accused may
be compelled to submit to a physical examination to determine his involvement in
an offense of which he is accused.

It must also be noted that appellant in this case submitted himself for blood
sampling which was conducted in open court on March 30, 2000, in the presence of
counsel.

Appellant further argues that the DNA tests conducted by the prosecution
against him are unconstitutional on the ground that resort thereto is tantamount to
the application of an ex-post facto law.

This argument is specious. No ex-post facto law is involved in the case at bar. The
science of DNA typing involves the admissibility, relevance and reliability of the
evidence obtained under the Rules of Court. Whereas an ex-post facto law refers
primarily to a question of law, DNA profiling requires a factual determination of the
probative weight of the evidence presented.
 15

Appellants twin defense of denial and alibi cannot be sustained. The forensic
DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his
presence at Isabel Dawangs house during the time when the crime was committed,
undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate
with clear and convincing evidence an impossibility to be in two places at the same
time, especially in this case where the two places are located in the same
barangay. He lives within a one hundred (100) meter radius from the scene of the
40

crime, and requires a mere five minute walk to reach one house from the other. This
fact severely weakens his alibi.

As to the second assignment of error, appellant asserts that the court a

quo committed reversible error in convicting him of the crime charged. He alleges
that he should be acquitted on reasonable doubt.

Appellants assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence
and never on mere conjectures or suppositions. The legal relevancy of evidence
denotes something more than a minimum of probative value, suggesting that such
evidentiary relevance must contain a plus value. This may be necessary to
41

preclude the trial court from being satisfied by matters of slight value, capable of
being exaggerated by prejudice and hasty conclusions. Evidence without plus
value may be logically relevant but not legally sufficient to convict. It is incumbent
upon the trial court to balance the probative value of such evidence against the
likely harm that would result from its admission.

The judgment in a criminal case can be upheld only when there is relevant evidence
from which the court can properly find or infer that the accused is guilty beyond
reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in
order to sustain a conviction. Moral certainty is that degree of certainty that
convinces and directs the understanding and satisfies the reason and judgment of
those who are bound to act conscientiously upon it. It is certainty beyond reasonable
doubt. This requires that the circumstances, taken together, should be of a
42
 16

conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion

that the accused, and no one else, committed the offense charged. In view of the
43

totality of evidence appreciated thus far, we rule that the present case passes the
test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the

requirement of proof beyond reasonable doubt, motive is essential for conviction
when there is doubt as to the identity of the culprit. 44

Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified
that she last saw the victim alive in the morning of June 30, 1998 at the house of
Isabel Dawang. She witnessed the appellant running down the stairs of Isabels
45

house and proceeding to the back of the same house. She also testified that a few
46

days before the victim was raped and killed, the latter revealed to her that Joel
Yatar attempted to rape her after she came from the school. The victim told
47

Judilyn about the incident or attempt of the appellant to rape her five days before
her naked and violated body was found dead in her grandmothers house on June
25, 1998. In addition, Judilyn also testified that when her auntie Luz Dawang
48

Yatar, wife of appellant, separated from her husband, this Joel Yatar threatened to
kill our family. According to Judilyn, who was personally present during an
49

argument between her aunt and the appellant, the exact words uttered by appellant
to his wife in the Ilocano dialect was, If you leave me, I will kill all your family and
your relatives x x x. These statements were not contradicted by appellant.
50

Thus, appellants motive to sexually assault and kill the victim was evident in the
instant case. It is a rule in criminal law that motive, being a state of mind, is
established by the testimony of witnesses on the acts or statements of the accused
before or immediately after the commission of the offense, deeds or words that may
express it or from which his motive or reason for committing it may be inferred. 51

Accordingly, we are convinced that the appellant is guilty beyond reasonable

doubt of the special complex crime of rape with homicide. Appellant sexually
assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to
 17

conceal his lustful deed, permanently sealed the victims lips by stabbing her
repeatedly, thereby causing her untimely demise.

The following are the elements constitutive of rape with homicide: (1) the appellant
had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by
means of force, threat or intimidation; and (3) by reason or on the occasion of such
carnal knowledge by means of force, threat or intimidation, appellant killed the
woman. However, in rape committed by close kin, such as the victims father, step-
52

father, uncle, or the common-law spouse of her mother, it is not necessary that
actual force or intimidation be employed. Moral influence or ascendancy takes the
53

place of violence and intimidation. The fact that the victims hymen is intact does
54

not negate a finding that rape was committed as mere entry by the penis into the
lips of the female genital organ, even without rupture or laceration of the hymen,
suffices for conviction of rape. The strength and dilatability of the hymen are
55

invariable; it may be so elastic as to stretch without laceration during intercourse.

Absence of hymenal lacerations does not disprove sexual abuse especially when the
victim is of tender age. 56

In the case at bar, appellant is the husband of the victims aunt. He is seven
years older than the victim Kathylyn Uba. Before he and his wife separated,
appellant lived in the house of his mother-in-law, together with the victim and his
wife. After the separation, appellant moved to the house of his parents,
approximately one hundred (100) meters from his mother-in-laws house. Being a
relative by affinity within the third civil degree, he is deemed in legal contemplation
to have moral ascendancy over the victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed
when by reason or on the occasion of the rape, homicide is committed. Although
three (3) Justices of this Court maintain their position that R.A. 7659 is
unconstitutional insofar as it prescribes the death penalty, they nevertheless submit
to the ruling of the majority that the law is not unconstitutional, and that the death
penalty can be lawfully imposed in the case at bar.
 18

As to damages, civil indemnity ex delicto of P100,000.00, actual damages

57

incurred by the family of the victim that have been proved at the trial amounting to
P93,190.00, and moral damages of P75,000.00 should be awarded in the light of
58 59

prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of

the civil liability since the crime was not committed with one or more aggravating
circumstances. 60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao,

Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel
Yatar alias Kawit to Death for the special complex crime of Rape with Homicide is
AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of
the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00,
P93,190.00 in actual damages and P75,000.00 in moral damages. The award of
exemplary damages is DELETED. Upon the finality of this Decision and in
accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep.
Act No. 7659, let the records of this case be forthwith forwarded to the President of
the Philippines for the possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.

G.R. Nos. 118757 & 121571. October 19, 2004. *

ROBERTO BRILLANTE, petitioner, vs. COURT OF APPEALS and THE PEOPLE

OF THE PHILIPPINES, respondents.
 19

Criminal Law; Libel; Prescription; In determining when the one-year prescriptive period
should be reckoned, reference must be made to Article 91 of the same code which sets forth
the rule on the computation of prescriptive periods of offenses.With respect to the issue of
prescription, the fourth paragraph of Article 90 of the Revised Penal Code provides that the
crime of libel or other similar offenses shall prescribe in one year. In determining when
the one year prescriptive period should be reckoned, reference must be made to Article 91 of
the same code which sets forth the rule on the computation of prescriptive periods of
offenses.

Same; Same; Same; The filing of the complaint for purposes of preliminary
investigation interrupts the period of prescription of criminal responsibility.The meaning
of the phrase shall be interrupted by the filing of the complaint or information in Article
91 has been settled in the landmark case of People v. Olarte, where the Court settled
divergent views as to the effect of filing a complaint with the Municipal Trial Court for
purposes of preliminary investigation on the prescriptive period of the offense. The Court
therein held that the filing of the complaint for purposes of preliminary investigation
interrupts the period of prescription of criminal responsibility.

Same; Same; Same; The filing of the complaint with the fiscals office also suspends the
running of the prescriptive period of a crime.The Court in Francisco v. Court of
Appeals clarified that the filing of the complaint with the fiscals office also suspends the
running of the prescriptive period of a crime:

Same; Same; To be liable for libel, the following elements must be shown to exist: (a) the
allegation of a discreditable act or condition concerning another; (b) publication of the
charge; (c) identity of the person defamed; and (d) existence of malice.To be liable for libel,
the following elements must be shown to exist: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice. There could be no dispute as to the existence of the
first three elements of libel in the cases at bar.

Same; Same; An allegation made by a person against another is considered defamatory

if it ascribes to the latter the commission of a crime; the possession of a vice or defect,
whether real or imaginary; or any act, omission, condition, status or circumstance which
tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory
of one who is dead.An allegation made by a person against another is considered
 20

defamatory if it ascribes to the latter the commission of a crime; the possession of a vice or
defect, whether real or imaginary; or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which tends to blacken the
memory of one who is dead. Brillantes statements during the January 7, 1988 press
conference and in the open letter explicitly referred to reprehensible acts allegedly
committed by Binay, Prudente and their associates, such as the use of goons to threaten
Binays opponents in the election and the plotting of Syjucos assassination.

Same; Same; Publication; There is publication if the defamatory material is

communicated to a third person, i.e., a person other than the person to whom the defamatory
statement refers.There is publication if the defamatory material is communicated to a
third person, i.e., a person other than the person to whom the defamatory statement refers.
In the cases at bar, it was proven that Brillante uttered defamatory statements during the
press conference attended by some fifty journalists and caused the open letter to be
published in several newspapers, namely, News Today, Peoples Journal, Balita,
Malaya and Philippine Daily Inquirer.

Same; Same; Malice; Privileged Communication; Article 354 of the Revised Penal Code
states, as a general rule, that every defamatory imputation is presumed to be malicious, even
if true, if no good intention and justifiable motive is shownas an exception to the rule, the
presumption of malice is done away with when the defamatory imputation qualifies as
privileged communication.Article 354 of the Revised Penal Code states, as a general rule,
that every defamatory imputation is presumed to be malicious, even if true, if no good
intention and justifiable motive is shown. As an exception to the rule, the presumption of
malice is done away with when the defamatory imputation qualifies as privileged
communication.

Same; Same; Same; Same; Elements; In order to prove that a statement falls within the
purview of a qualifiedly privileged communication under Article 354, No. 1, the following
requisites must concur: (1) the person who made the communication had a legal, moral, or
social duty to make the communication, or at least, had an interest to protect, which interest
may either be his own or of the one to whom it is made; (2) the communication is addressed
to an officer or a board, or superior, having some interest or duty in the matter, and who has
the power to furnish the protection sought; and (3) the statements in the communication are
made in good faith and without malice.In order to prove that a statement falls within the
 21

purview of a qualifiedly privileged communication under Article 354, No. 1, the following
requisites must concur: (1) the person who made the communication had a legal, moral, or
social duty to make the communication, or at least, had an interest to protect, which
interest may either be his own or of the one to whom it is made; (2) the communication is
addressed to an officer or a board, or superior, having some interest or duty in the matter,
and who has the power to furnish the protection sought; and (3) the statements in the
communication are made in good faith and without malice.

Same; Same; Same; The interest sought to be protected by the person making the
communication need not be his own, but may refer to an interest shared by the other
members of society.With respect to the first requisite, the Court in U.S. v. Caete clarified
that the interest sought to be protected by the person making the communication need not
be his own, but may refer to an interest shared by the other members of society.

Same; Same; Same; The law requires that for a defamatory imputation made out of a
legal, moral or social duty to be privileged, such statement must be communicated only to the
person or persons who have some interest or duty in the matter alleged, and who have the
power to furnish the protection sought by the author of the statement.It is however, the
absence of the second element of a privileged communication that unequivocally negates the
characterization of Brillantes statements as privileged communication. The law requires
that for a defamatory imputation made out of a legal, moral or social duty to be privileged,
such statement must be communicated only to the person or persons who have some
interest or duty in the matter alleged, and who have the power to furnish the protection
sought by the author of the statement.

Same; Same; Same; The purpose of affording protection to privileged communication is

to permit all interested persons or citizens with grievances to freely communicate, with
immunity, to the persons who could furnish the protection asked for.The purpose of
affording protection to privileged communication is to permit all interested persons or
citizens with grievances to freely communicate, with immunity, to the persons who could
furnish the protection asked for. However, to shield such privilege from abuse, the law

itself requires at all times that such petitions or communications shall be made in good
faith or with justifiable motives. If it is established that the communication was made
maliciously or to persons who could not furnish the protection sought, then the author
thereof cannot seek protection under the law.
 22

Same; Same; Same; Although wider latitude is given to defamatory utterances against
public officials in connection with or relevant to their performance of official duties, or
against public figures in relation to matters of public interest involving them, such
defamatory utterances do not automatically fall within the ambit of constitutionally
protected speech; If the utterances are false, malicious or unrelated to a public officers
performance of his duties, the same may give rise to criminal and civil liability.Unfounded
and malicious statements made by one against another in the course of an election
campaign, or by reason of differences in political views are not per se constitutionally
protected speech. Our laws on defamation provide for sanctions against unjustified and
malicious injury to a persons reputation and honor. Although wider latitude is given to
defamatory utterances against public officials in connection with or relevant to their
performance of official duties, or against public figures in relation to matters of public
interest involving them, such defamatory utterances do not automatically fall within the
ambit of constitutionally protected speech. If the utterances are false, malicious or
unrelated to a public officers performance of his duties, the same may give rise to criminal
and civil liability.

Political Law; Equal Protection Clause; The equal protection clause is not absolute
rather, it permits of reasonable classification; If the classification is characterized by real
and substantial differences, one class may be treated differently from another.The equal
protection clause is not absolute; rather, it permits of reasonable classification. If the
classification is characterized by real and substantial differences, one class may be treated
differently from another. It is sufficient that the law operates equally and uniformly on all
persons under similar circumstances or that all persons are treated in the same manner,
the conditions not being different, both in the privileges conferred and the liabilities
imposed.

Criminal Law; Libel; Multiple Publication Rule; Penalty; A single defamatory

statement, if published several times, gives rise to as many offenses as there are publications
this is the multiple publication rule which is followed in our jurisdiction.The penalty
for libel by means of writing or similar means is prision correccional in its minimum and
medium periods, or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil
action which may be brought by the offended party. It is likewise settled that a single
defamatory statement, if published several times, gives rise to as many offenses as there are
publications. This is the multiple publication rule which is followed in our jurisdiction.
 23

PETITIONS for review on certiorari of the decisions of the Court of Appeals.

The facts are stated in the opinion of the Court.

Ricardo J.M. Rivera Law Office for petitioner.

Balane, Tamase and Alampay Law Offices for private respondent J.C. Binay.

TINGA, J.:

Good name in man and woman, dear my Lord,

Is the immediate jewel of their souls:

Who steals my purse steals trash; tis

Something, nothing; . . .

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.

Shakespeare: Othello, III, iii, 155.

Every man has a right to build, keep and be favored with a good name. This right is
protected by law with the recognition of slander and libel as actionable wrongs,
whether as criminal offenses or tortious conduct.

In these consolidated petitions for review on certiorari, petitioner Roberto Brillante

1

(Brillante), also known as Bobby Brillante, questions his convictions for libel for
writing and causing to be published in 1988 an open letter addressed to then
President of the Republic of the Philippines Corazon C. Aquino discussing the
alleged participation of Atty. Jejomar Binay (Binay), then the OIC Mayor and a
2

candidate for the position of Mayor in the Municipality (now City) of Makati, and
 24

Dr. Nemesio Prudente (Prudente), then President of the Polytechnic University of

the Philippines, in an assassination plot against Augusto Syjuco (Syjuco), another
candidate for Mayor of Makati at that time.

On January 7, 1988, Brillante, then a candidate for the position of Councilor in

Makati, held a press conference at the Makati Sports Club which was attended by
some 50 journalists. In the course of the press conference, Brillante accused Binay
of plotting the assassination of Syjuco. He further accused Binay of terrorism,
intimidation and harassment of the Makati electorate. Brillante also circulated
among the journalists copies of an open letter to President Aquino which discussed
in detail his charges against Binay. 3

Several journalists who attended the press conference wrote news articles about
the same. Angel Gonong, a writer for the Peoples Journal, wrote a news article
entitled Binay Accused of Plotting Slays of Rivals. It was cleared for publication by
Max Buan, Jr. (Buan), and Luis Camino (Camino), Editor-in-Chief and News Editor,
respectively, of the Peoples Journal. Gloria Hernandez (Hernandez) wrote a similar
article entitled Binay Slay Plan on Syjuco which was cleared for publication by
Augusto Villanueva (Villanueva) and Virgilio Manuel (Manuel), Editor-in-Chief and
News Editor, respectively, of the News Today. 4

The open letter was subsequently published under the title Plea to CorySave
Makati in newspapers such as the Peoples Journal, Balita, Malaya and Philippine
Daily Inquirer. The pertinent portions of the open letter read:
5

4. We have received reports that Atty. Binay and his group are plotting the assassination of
Mr. Augusto Bobby Syjuco, now frontrunner in the Makati mayoralty race.

These reports are:

1. On December 14, 1987, Atty. Binay and Dr. Nemesio Prudente, president of the
Polytechnic University of the Philippines (PUP), met at Puerto Azul in Cavite with, among
others, a Commander Luming, a Major Rafael Nieva, and a commander Francis Baloloy.
Subject of the meeting was Winning the Election at all Costs.
 25

xxx xxx xxx

3. On December 17, 1987, Dr. Prudente, Atty. Binay and others including some unidentified
government officials discussed operation Dirty Fingers after the ASEAN Summit Meeting.
The operation involves terrorism, the use of public school teachers, the threat to kill or hurt
political ward and precinct leaders not supporting or opposed to Atty. Binay, and to use
these as samples to show rivals that his group is capable of doing so, the planting of his
squads in places close to potential targets, the mobilization of marshals who will bring
firearms and to ferry hitmen to target points. The marshals will also be used as pointers
and to shelter the hitmen after accomplishing or performing their missions.

xxx xxx xxx

4. On December 8, 1987, a certain Emilio Anecito, tagged as a hitman in the group of

Dr. Prudente, has been specifically assigned to assassinate Mr. Syjuco, Aniceto has been
described as Iranian mestizo looking, about five (5) feet in height, fair complexioned curly
haired, sporting a mustache, and fairly built bodily. He is said to be a silent person and
supposedly has a perfect score in hit missions assigned to him.

xxx xx xxxx

5. On December 10, 1987, it was reported that Major Rafael Nieva had been assigned to
work with Mr. Aniceto, Nievas background report is that he:

xxx xxx xxx

c. Was hired by Dr. Prudente as security officer and personal bodyguard.

d. Is a notorious killer used by the PUP forces and only his employer can control or stop him. 6

As a result of the publication of the open letter, Binay filed with the Makati fiscals
office four complaints for libel against Brillante, as the author of the letter; Gonong,
Buan and Camino for writing and publishing the news article on Bril-lantes
accusations against him in the Peoples Journal; Hernandez, Villanueva and
7

Manuel for writing and publishing a similar news article in the News Today; and for 8
 26

publishing the open letter, Buan and Camino of the Peoples Journal; and Arcadio 9

A. Sison (Sison) as President of A. Sison and Associates, an advertising agency. 10

Francisco Baloloy (Baloloy), who was identified in the open letter as among the
persons who attended the meeting organized by Binay and Prudente to plan the
assassination of Syjuco, likewise filed a criminal complaint for libel against
Brillante, Domingo Quimlat (Quimlat), Publisher and Editor-in-Chief of Balita, and
Sison as President of A. Sison and Associates. 11

Subsequently, five Informations for libel against Brillante were filed with the
Regional Trial Court (RTC) of Makati.

Similarly, on January 15, 1988, Prudente filed four complaints for libel against
Brillante and the editors and publishers of the newspapers where the open letter
was published. On January 16, 1989, four Informations for libel were filed against
Brillante and several co-accused with the RTC of Manila. Brillantes co-accused in
these cases were: (i) Buan, Editor-in-Chief of the Peoples Journal; (ii) Amado P.
12

Macasaet (Macasaet), Publisher, and Noel Albano (Albano), Editor, of

the Malaya; (iii) Sison, Public Relations Officer and Federico D. Pascual (Pascual),
13

Publisher and Executive Editor of the Philippine Daily Inquirer; and (iv) Sison,
14

Public Relations Officer and Quimlat, Publisher and Editor-in-Chief of Balita. 15

Buan was not included in the trial of the cases in the RTC-Manila because he
eluded arrest and was not arraigned. The charges against Pascual and Quimlat
were dropped upon motion of the Assistant Prosecutor. The charges against
Macasaet and Albano were also eventually dismissed upon motion of the
prosecution. Only Brillante and Sison remained as accused. Both pleaded not guilty
16

to the charges against them.

On January 25, 1993, the RTC-Manila acquitted Sison but found Brillante guilty
of libel on four counts. The dispositive portion of the trial courts Decision in the
consolidated cases reads:
 27

WHEREFORE, judgment is rendered pronouncing accused Bobby Brillante, also known as

Roberto Brillante, guilty beyond reasonable doubt on four (4) counts, as author or writer, of
LIBEL defined under Article 353 of the Revised Penal Code and penalized under Article
355 of the same code, and sentencing him in each count to the indeterminate penalty of
FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS of prision mayor, as
maximum, and to pay a fine of P2,000.00 with subsidiary imprisonment in case of
insolvency at the rate of ONE (1) DAY for every P8.00 that he is unable to pay, but which
subsidiary imprisonment shall not exceed EIGHT (8) months.

Accused Bobby Brillante is ordered to pay the private offended party, Dr. Nemesio
Prudente, the total sum of P1,000,000.00 in these four (4) cases for moral damages which
the latter suffered.

Accused Arcadio Sison is acquitted in the two cases against him, his guilt of the charges
against him not having been established beyond reasonable [doubt].

Two-third (2/3) of the costs is assessed against accused Bobby Brillante while the
remaining one-third (1/3) is charged de oficio. 17

Subsequently, Brillante appealed the Decision of the RTC-Manila to the Court of

Appeals. Brillante contended that when the Informations in Criminal Cases No. 89-
18

69614 to 17 were filed by the prosecutor on January 16, 1989, the offense had
already prescribed because more than one year had elapsed since the publication of
the open letter on January 10, 11 and 12, 1988. He also averred that the open letter
which he wrote and caused to be published was not defamatory and was without
malice. Brillante also claimed that the publication is considered privileged
communication. Finally, he argued that he is entitled to equal protection of the laws
and should be acquitted of the offenses charged like his co-accused. 19

On September 27, 1994, the Court of Appeals promulgated its Decision in CA-
G.R. No. 14475 affirming the decision of the RTC-Manila. The appellate court held
that the offense of libel had not yet prescribed because the one-year prescription
period should be reckoned from the time that the private complainant Prudente
filed his complaint with the fiscals office on January 15, 1988 and not when
 28

the Informations were filed by the prosecutor on January 16, 1989. The Court of
Appeals added that under Section 1, Rule 110, which took effect during the
pendency of the cases against Brillante, the institution of the complaint before the
fiscals office or the courts for preliminary investigation interrupts the prescriptive
period of the offense charged. It held that being a procedural rule, Section 1, Rule
110, applies to the cases against Brillante. 20

The Court of Appeals further held that the RTC-Manila did not err in finding that
Brillante had committed libel against Prudente. It explained that the open letter,
when read in its entirety, gives the impression that Prudente is part of a purported
criminal conspiracy to kill Syjuco. According to the appellate court, the open letter
is a malicious defamation which produced in the minds of the readers Brillantes
intent and purpose to injure the reputation of Prudente, thereby exposing him to
public hatred, contempt and ridicule. The Court of Appeals rejected Brillantes
21

argument that the open letter may be considered privileged communication because
the evidence does not show that Brillante wrote and published it out of a legal,
moral or social duty. 22

The appellate court also debunked Brillantes allegation that he was denied the
equal protection of the laws because while the charges against his co-accused were
dropped, those against him were not. According to the appellate court, he and his
co-accused are not similarly situated because he was convicted of libel upon a
finding that there existed evidence beyond reasonable doubt to sustain his
conviction. In contrast, the charges against his co-accused were dismissed and their
guilt was not proven beyond reasonable doubt. 23

Brillantes contention that his conviction for libel on four counts gave rise to
double jeopardy because under our jurisdiction protection against double jeopardy
may be invoked only for the same offense or identical offenses was also over-ruled by
the appellate court. It held that each and every publication of the same libel
constitutes a separate distinct offense and the charge for one instance of publication
shall not bar a charge for subsequent and separate publications. 24
 29

Brillante filed a Motion for Reconsideration of the decision of the Court of

Appeals, but the motion was denied in a Resolution dated January 19, 1995. 25

In the meantime, Brillante was likewise convicted for libel on five counts by the
RTC-Makati in Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-
721. The dispositive portion of the Decision dated March 22, 1993 of the RTC-
Makati reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. 1.In Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-721, finding
accused Bobby Brillante, also known as Roberto Brillante, GUILTY beyond
reasonable doubt of the offense of libel charged in each of these five (5) cases, and
sentencing him in each of the cases to suffer imprisonment of FOUR (4) MONTHS
of arresto mayor, as minimum, to TWO (2) YEARS prision correccional, as
maximum, and to pay fine, likewise in each of these (5) cases, of Four Thousand
(P4,000.00) Pesos, Philippine Currency, with subsidiary imprisonment in case of
insolvency pursuant to Article 39, paragraph 1, of the Revised Penal Code.

2. 2.As to moral damages, said accused is also ordered to pay complainant, Jejomar C.
Binay, the sum of One Million Pesos (P1,000,000.00), Philippine Currency, in all the
four (4) charges (Crim. Cases Nos. 88-410, 88-1411, 88-1412 and 89-721),
considering the latters professional and political standing in society, he being a
lawyer and former Governor of the Metro Manila Commission as well as director of
various government agencies.

3. 3.As to moral damages, said accused is also ordered to pay complainant, Francisco
Baloloy, the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, in
Criminal Case No. 88-3060.

4. 4.In Criminal Cases Nos. 88-1410 and 88-1412, ACQUITTING accused Max Buan,
Jr., Angel Gonong and Louie Camino, of the two charges against them on the
ground that their guilt has not been proven beyond reasonable doubt.

5. 5.In Criminal Case No. 88-1411 (except for accused Brillante) ordering the same
ARCHIVED on the ground that the other accused herein, Gloria Hernandez,
Augusto Villanueva and Virgilio Manuel, have not been brought to the jurisdiction
of this Court; let alias warrant issue for their arrest.
 30

6.In Criminal Cases Nos. 88-3060 and 89-721, likewise ordering the same
ARCHIVED ONLY WITH RESPECT TO accused Arcadio Sison, who has not been
brought to the jurisdiction of this Court; let alias warrant issue for his arrest.

1. 7.In all these cases, ordering accused Bobby Brillante, also known as Roberto
Brillante, to pay the proportionate costs. SO ORDERED. 26

Brillante appealed the Decision of the RTC-Makati to the Court of Appeals, raising 27

essentially the same arguments in his appeal in CA-G.R. CR No. 14475.

On February 28, 1995, the Court of Appeals rendered its Decision in CA-G.R. CR
No. 15174 affirming the decision of the RTC-Makati. It held that the filing of the
complaint before the fiscals office interrupts the period of prescription because
Article 91 of the Revised Penal Code did not make any distinction whether the
complaint is filed in court for preliminary investigation or for trial on the merits,
because the filing of the complaint for preliminary investigation is the initial step of
criminal proceedings. It added that it would be unfair to deprive the injured party of
the right to obtain vindication on account of delays which are not within his control. 28

The appellate court also ruled that the open letter cannot be considered
privileged communication because it contains libelous matter and was circulated to
the public. Citing U.S. v. Galeza, it held that while it is the right and duty of a
29

citizen to file a complaint regarding a misconduct on the part of a public official,

such complaint must be addressed solely to the officials having jurisdiction to
inquire into the charges. 30

Lastly, the Court of Appeals sustained the trial courts observation that unlike
Brillante, his co-accused editors andpublishers could not be held liable for libel
because the news reports regarding the January 7, 1988 press conference which
were published in their respective newspapers sufficiently informed the readers that
the reference to Binays involvement in the assassination plot were allegations made
by Brillante during the press conference and that said allegations were reported for
the sole purpose of informing the public of the news regarding the candidates
adverted to in the report. 31

Brillante filed a Motion for Reconsideration of the appellate courts decision, but
the motion was denied in a Resolution dated August 17, 1995. 32
 31

Thereafter, Brillante filed the present Petitions for Review on March 13, 1995
in G.R. No. 118757 and on October 10, 1995 in G.R. No. 121571. In G.R. No. 118757,
he raises the following arguments:
I

THE OFFENSE OF LIBEL CHARGED IN THE INFORMATION (sic) HAD ALREADY

PRESCRIBED WHEN THE SAID INFORMATION (sic) WAS FILED.

II

HE IS NOT GUILTY OF LIBEL HE IS CHARGED WITH, BECAUSE THE LETTER HE

CAUSED TO BE PUBLISHED WAS WRITTEN AND PUBLISHED WITHOUT ANY
MALICE [N]OR MALICIOUS INTENT TO MALIGN THE PERSON, HONOR AND
REPUTATION OF THE COMPLAINANT [PRUDENTE/BINAY] BUT SOLELY FOR THE
JUSTIFIED AND HONEST PURPOSE OF BRINGING TO THE ATTENTION OF ALL
AUTHORITIES CONCERNED THE REPORTS THEREIN MENTIONED FOR
APPROPRIATE ACTION. WHERE THERE IS NO MALICE, THERE IS NO LIBEL.

III

IN TRUTH, PUBLICLY KNOWN PARAMILITARY ACTIVITIES OF COMPLAINANT, DR.

NEMESIO PRUDENTE, ALREADY IN OPERATION LONG BEFORE JANUARY 12, 1988,
INDICATE THAT HE WAS NOT INCAPABLE OF NOURISHING VIOLENT INTENTIONS
AGAINST THE POLITICAL OPPONENTS OF MAYOR BINAY.

IV

MOREOVER, CONSIDERING THAT THE MATTER REFERRED TO IN THE LETTER

INDUBITABLY RELATES TO THE ELECTION CAMPAIGN THEN GOING ON AS WELL
AS THE PARTICIPATION OF PETITIONER AND COMPLAINANT THEREIN,
WHATEVER IS CONTAINED IN SAID LETTER CAN AT MOST BE NO MORE THAN A
POLITICAL LIBEL, WHICH IS NOT PUNISHABLE.
WE EARNESTLY URGE THAT THIS PROPOSITION BE ENUNCIATED AS A
FUNDAMENTAL PRINCIPLE IN THE LAW ON LIBEL.

IN THE REMOTE POSSIBILITY THAT THIS HONORABLE COURT MAY PERCEIVE

ANY CRIMINAL LIBEL IN THIS CASE, THE PENALTY IMPOSED UPON PETITIONER
IS CRUEL AND EXCESSIVE, PARTICULARLY, AS TO THE AMOUNT OF DAMAGES
AWARDED TO COMPLAINANTS. 33
 32

In G.R. No. 121571, he makes the following assignments of error:

I

THE OFFENSE HAD PRESCRIBED

II

THE PUBLICATION WAS A PIVILEGED COMMUNICATION

III

THE PUBLICATION WAS MADE WITHOUT MALICE

IV

IT MAY, AT MOST, ALSO BE CONSIDERED A POLITICAL LIBEL WHICH IS NOT

PUNISHABLE

THE DECISION VIOLATES PETITIONERS RIGHT TO EQUAL PROTECTION OF

THE LAWS

VI

THE PENALTY IS CRUEL AND EXCESSIVE 34

With respect to the issue of prescription, Brillante anchors his claim on the Courts
ruling in People v. Tayco that the prescriptive period of a crime is interrupted only
35

upon the filing of the complaint in court and not the filing thereof with the fiscals
office. According to Brillante, the ruling in People v. Olarte did not modify the
36

doctrine in Tayco because in Olarte, the Court referred to a complaint filed in

court, not in the fiscals office. The ruling in Francisco v. Court of Appeals that a
37

complaint filed with the fiscals office also interrupts the prescriptive period of a
criminal offense allegedly cannot overturn the ruling in Olarte because the latter
was decided by the Court En Banc while Francisco was decided by a mere division
of the Court.38

It is further asserted by Brillante that the rule in the 1985 Rules on Criminal
Procedure that the filing of the criminalcomplaint with the fiscals office interrupts
the prescriptive period, cannot be applied retroactively to the cases against him
 33

because it impairs his vested right to have the cases against him dismissed on the
ground of prescription. In addition, he claims that Section 6(b), Rule 3 of the 1985
39

Rules on Criminal Procedure which states that [t]he pendency of a petition for
suspension of the criminal action still undergoing preliminary investigation in the
fiscals office shall interrupt the prescriptive period for filing the corresponding
complaint of information supports his position that prior to the amendment of the
Rules on Criminal Procedure in 1985, the prevailing rule was that only the filing of
the complaint or information in court tolls the prescriptive period for a criminal
offense. 40

Brillante denies that he is liable for libel for causing to be published his open
letter implicating Binay, Prudente and their associates in a planned assassination
of Syjuco as well as election-related terrorism, and in uttering remarks against
Binay and his associates during the January 7, 1988 press conference. According to
Brillante, his statements and utterances were privileged communication because he
made them public out of a legal, moral and social duty to safeguard the sanctity of
the elections to be held on January 18, 1988, and to avoid the unnecessary loss of
life. Since his statements were privileged communication, malice cannot be
41

presumed from them. Brillante adds that at the time he made the statements, he
42

honestly believed that they were true. Citing an American case, Bays v. Hunt, he 43

contends that where there is an honest belief in the truth of the charges made, and
the publication is in good faith, one is not responsible even for publishing an
untruth. 44

It is further asserted by Brillante that since Binay, the subject of the allegedly
defamatory statements is a public figure, his (Brillantes) comments affecting
Binays reputation is constitutionally protected speech.
45

Brillante also urges the Court to reverse his convictions, reasoning that at most,
what he may have committed is political libel which should exempt him from
criminal liability, considering that election campaigns can become very heated and
candidates from rival camps often make charges and countercharges which are
offensive to the name, honor and prestige of their opponents. He contends that
statements made by a candidate against his rivals, although derogatory, are for the
purpose of convincing the electorate to prevent suspicious characters from holding
public office. In essence, he posits the view that political libel should be deemed
constitutionally protected speech.46
 34

Brillante likewise argues that the multiple publication rule, i.e., that each
publication constitutes one offense of libel, should not have been applied to him,
considering the factual background of the open letter and the statements uttered by
him during the press conference. 47

Anent the issue of equal protection, Brillante contends that he should have been
acquitted like his co-accused Angel Gonong who wrote the news article in
the Peoples Journal regarding the January 7, 1988 press conference and Buan and
Camino who were the editors of that publication.
The Solicitor General filed a Comment on each of the petitions.
The Solicitor General insists that the one-year prescriptive period for libel should
be reckoned from the date of filing of the complaints with the office of the prosecutor
as clarified by the Court in Olarte and Francisco and as stated in the 1985 Rules on
Criminal Procedure, as amended in 1988, which applies to the complaints filed
against Brillante as of October 1988. 49

On the issue of libel, the Solicitor General insists that Brillantes statements in
the open letter clearly impute upon Prudente and Binay a criminal conspiracy to
assassinate Syjuco. The Solicitor General also maintains that contrary to
50

Brillantes claims, the open letter cannot be considered privileged communication

because it was published without justifiable motives and it was circulated for the
information of the general public instead of addressing the letter solely to the
authorities who had the power to curb the dangers alleged by Brillante in the letter. 51

The Solicitor General disagrees with Brillantes contention that his statements
are constitutionally protected because they are criticisms of official conduct and deal
with public figures. According to the Solicitor General, the record shows that
Brillante did not have enough basis to pass off his accusations as true considering
that he admitted to relying on unnamed intelligence sources. 52

It is also argued by the Solicitor General that Brillantes statements cannot be

exempt from criminal liability on the ground that such statements were political
libel. Brillantesclaim, the Solicitor General asserts, has no basis in law or
jurisprudence. 53

With respect to the issue of equal protection, the Solicitor General avers that
Brillante cannot be acquitted like his coaccused publishers, editors and writers
because their alleged participation in the commission of the libel are different from
Brillante who is the author of the libelous statements. The writers of the news
 35

reports were only narrating what took place during the January 7, 1988 press
conference, and wrote the news articles to inform the public of Brillantes
statements. In the case of the editors and publishers who published the open letter,
they indicated in their respective publications that the open letter was a paid
advertisement. The publication of the news reports in the newspapers was also done
to inform the public of what transpired during the January 7, 1988 press
conference. 54

The Solicitor General further argues that the penalty imposed upon Brillante is
not excessive but is in accordance with law, which considers one publication of a
libelous statement as a distinct offense from another publication of the same
statement. 55

Thus, the Solicitor General prays that Brillantes petitions be denied. 56

Brillante thereafter filed a Reply to each of the Solicitor

Generals Comments. The replies reiterate Brillantes arguments in his petitions. 57

The Court is tasked to resolve the following issues: (1) whether the offense of libel
had already prescribed when the Informations were filed with the RTC-Manila and
RTC-Makati; (2) whether Brillante is guilty beyond reasonable doubt of libel; (3)
whether Brillante was denied the equal protection of the laws; and (4) whether the
penalty imposed upon him is excessive.

Save for the issue on the amount of moral damages, there is no merit in the
petitions.
With respect to the issue of prescription, the fourth paragraph of Article 90 of the
Revised Penal Code provides that the crime of libel or other similar offenses shall
prescribe in one year. In determining when the one-year prescriptive period should
be reckoned, reference must be made to Article 91 of the same code which sets forth
the rule on the computation of prescriptive periods of offenses:
Computation of prescription of offenses.The period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.

The aforequoted provision expressly states that prescriptive period shall be

interrupted by the filing of the complaint or information. The meaning of the phrase
shall be interrupted by the filing of the complaint or information in Article 91 has
 36

been settled in the landmark case of People v. Olarte, where the Court settled
58

divergent views as to the effect of filing a complaint with the Municipal Trial Court
for purposes of preliminary investigation on the prescriptive period of the offense.
The Court therein held that the filing of the complaint for purposes of preliminary
investigation interrupts the period of prescription of criminal responsibility. It
explained thus:
. . . the filing of the complaint with the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the period of
prescription of the criminal responsibility, even if the court where the complaint or
information is filed can not try the case on its merits. Several reasons buttress this
conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the
period of prescription shall be interrupted by the filing of the complaint or information
without distinguishing whether the complaint is filed in the court for preliminary
examination or investigation merely, or for action on the merits. Second, even if the court
where the complaint or information is filed may only proceed to investigate the case, its
actuations already represent the initial step of the proceedings against the offender. Third,
it is unjust to deprive the injured party the right to obtain vindication on account of delays
that are not under his control. All that the victim of the offense may do on his part to
initiate the prosecution is to file the requisite complaint.
And it is no argument that Article 91 also expresses that the interrupted prescription
shall commence to run again when such proceedings terminate without the accused being
convicted or acquitted, thereby indicating that the court in which the complaint or
information is filed must have the power to convict or acquit the accused. Precisely, the trial
on the merits usually terminates in conviction or acquittal, not otherwise. But it is in the
court conducting a preliminary investigation where the proceedings may terminate without
conviction or acquittal, if the court should discharge the accused because no prima
facie case had been shown. 59

Thereafter, the Court in Francisco v. Court of Appeals clarified that the filing of the
60

complaint with the fiscals office also suspends the running of the prescriptive period
of a crime:
As is a well-known fact, like the proceedings in the court conducting a preliminary
investigation, a proceeding in the Fiscals Office may terminate without conviction or
acquittal.

As Justice Claudio Teehankee has observed:

To the writers mind, these reasons logically call with equal force, for the express overruling also of
the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint or denuncia by the
offended party with the City Fiscals Office which is required by law to conduct the preliminary
 37

investigation does not interrupt the period of prescription. In chartered cities, criminal prosecution is
generally initiated by the filing of the complaint or denuncia with the city fiscal for preliminary
investigation. In the case of provincial fiscals, besides being empowered like municipal judges to
conduct preliminary investigations, they may even reverse actions of municipal judges with respect
to charges triable by Courts of First Instance . . . .61

There is no conflict in the pronouncements of the Court in Olarte and Francisco as

Brillante erroneously suggests. Olarte laid down the doctrine that a complaint filed
for purposes of preliminary investigation tolls the running of the prescriptive period
of a criminal offense. The criminal complaint for libel in that case was filed, for the
purpose of preliminary investigation, with the Justice of the Peace Court in
Pozorrubio, Pangasinan. Hence, in setting the doctrine, the Court referred to the
filing of the complaint in the Municipal Court. The question of whether the
62

doctrine laid down in Olarte also applies to criminal complaints filed with the
prosecutors office was settled in Francisco. Specifically, the Court
in Francisco amplified the Olarte doctrine when it categorically ruled that the filing
of a complaint with the fiscals office suspends the running of the prescriptive period
of a criminal offense.
Thus, the Court of Appeals committed no reversible error in ruling that the
offense of libel had not yet prescribed when the informations against Brillante and
his co-accused were filed in the RTC-Manila and RTC-Makati.
Neither did the appellate court err in sustaining Brillantes conviction for libel.
Libel is defined under Article 353 of the Revised Penal Code as a public and
malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the dishonor, discredit
or contempt of a natural or juridical person, or to blacken the memory of one who is
dead.
To be liable for libel, the following elements must be shown to exist: (a) the
allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice. 63

There could be no dispute as to the existence of the first three elements of libel in
the cases at bar.
An allegation made by a person against another is considered defamatory if it
ascribes to the latter the commission of a crime; the possession of a vice or defect,
whether real or imaginary; or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead. Brillantes statements during the January
64

7, 1988 press conference and in the open letter explicitly referred to reprehensible
 38

acts allegedly committed by Binay, Prudente and their associates, such as the use of
goons to threaten Binays opponents in the election and the plotting of Syjucos
assassination.

The element of publication was likewise established. There is publication if the

defamatory material is communicated to a third person, i.e., a person other than the
person to whomthe defamatory statement refers. In the cases at bar, it was proven
65

that Brillante uttered defamatory statements during the press conference attended
by some fifty journalists and caused the open letter to be published in several
newspapers, namely, News Today, Peoples Journal, Balita, Malaya and Philippine
Daily Inquirer.

Further, Brillante himself admitted that he named Binay, Prudente and their
associates as the persons who participated in the planning of the election-related
terrorism and the assassination of Syjuco not only in his open letter but also during
the press conference.
Thus, the determination of Brillantes culpability for libel hinges on the question
of whether his statements were made with malice.
Malice is a term used to indicate the fact that the offender is prompted by
personal ill-will or spite and speaks not in response to duty, but merely to injure the
reputation of the person defamed; it implies an intention to do ulterior and
unjustifiable harm. It is present when it is shown that the author of the libelous
66

remarks made such remarks with knowledge that it was false or with reckless
disregard as to the truth or falsity thereof. 67

Article 354 of the Revised Penal Code states, as a general rule, that every
defamatory imputation is presumed to be malicious, even if true, if no good
intention and justifiable motive is shown. 68

As an exception to the rule, the presumption of malice is done away with when
the defamatory imputation qualifies as privileged communication.
Privileged communication may either be absolutely privileged or conditionally
privileged. The Court in Orfanel v. People of the Philippines differentiated 70

absolutely privileged communication from conditionally privileged communication

in this manner:
. . . A communication is said to be absolutely privileged when it is not actionable, even if its
author acted in bad faith. This class includes statements made by members of Congress in
the discharge of their functions as such, official communications made by public officers in
 39

the performance of their duties, and allegations or statements made by the parties or their
counsel in their pleadings or motions or during the hearing of judicial proceedings, as well
as the answers given by witnesses in reply to questions propounded to them, in the course
of said proceedings, provided that said allegations or statements are relevant to the issues,
and the answers are responsive or pertinent to the questions propounded to said witnesses.
Upon the other hand, conditionally or qualifiedly privileged communications are those
which, although containing defamatory imputations, would not be actionable unless made
with malice or bad faith. (Emphasis supplied.)
71

Conditionally or qualifiedly privileged communications are those mentioned in

Article 354 of the Revised Penal Code, to wit:

1. 1.A private communication made by a person to another in the performance

of any legal, moral, or social duty; and

2. 2.A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative, or other official proceedings which are
not of confidential nature, or of any statement, report, or speech delivered in
said proceedings, or of any act performed by public officers in the exercise of
their functions.

Brillante claims that he wrote the open letter and uttered the statement complained
of during the January 7, 1988 press conference out of a social duty to disclose to all
concerned the dangers to which he and his fellow candidate Syjuco were exposed in
view of the concerted actions of Binay and Prudente. In effect, he argues that his
73

defamatory statements and utterances fall under Article 354, No. 1 and are in the
nature of privileged communication; hence, malice cannot be presumed but must be
established beyond reasonable doubt.

The Court is not convinced.

In order to prove that a statement falls within the purview of a qualifiedly
privileged communication under Article 354, No. 1, the following requisites must
concur: (1) the person who made the communication had a legal, moral, or social
duty to make the communication, or at least, had an interest to protect, which
interest may either be his own or of the one to whom it is made; (2) the
communication is addressed to an officer or a board, or superior, having some
interest or duty in the matter, and who has the power to furnish the protection
 40

sought; and (3) the statements in the communication are made in good faith and
without malice. 74

With respect to the first requisite, the Court in U.S. v. Caete clarified that the
75

interest sought to be protected by the person making the communication need not
be his own, but may refer to an interest shared by the other members of society.

It may therefore be argued that Brillantes statements, which according to him were
made in order to protect himself and Syjuco as Binays rivals in the 1988 elections,
as well as to protect the electorate from possible acts of terrorism byBinay, Prudente
and their associates and from casting their votes for undeserving candidates, satisfy
the first requisite.

However, as the Solicitor General noted, Brillantes statements were based

merely on unconfirmed intelligence reports. His belief in such intelligence reports
hardly justifies the publication of such serious imputations against his political
rivals. As a journalist and as a candidate for public office, Brillante should have
known that it is necessary to further verify the truth or at least the reliability of the
intelligence reports before making them public. His hasty publication thereof
negates the existence of good faith and justifiable motives.
The pronouncement of the Court in U.S. v. Galeza is enlightening:
76

. . . Every communication is privileged which is made in good faith with a view to obtain
redress for some injury received or to prevent or punish some public abuse. The privilege
should not be abused. If such communication be made maliciously and without probable
cause, the pretense under which it is made, instead of furnishing a defense, will aggravate
the case of the defendant. And a party will be taken to have acted maliciously if he eagerly
seizes on some slight and frivolous matter, and without any inquiry into the merits, without
even satisfying himself that the account of the matter that has reached him is correct,
hastily concludes that a great public scandal has been brought to light which calls for the
immediate intervention of the people . . . . (Citations omitted.)
77

It is, however, the absence of the second element of a privileged communication that
unequivocally negates the characterization of Brillantes statements as privileged
communication. The law requires that for a defamatory imputation made out of a
legal, moral or social duty to be privileged, such statement must be communicated
only to the person or persons who have some interest or duty in the matter
 41

alleged,and who have the power to furnish the protection sought by the author of
the statement.

In the cases at bar, although the open letter was primarily addressed to then
President Aquino, the communication thereof was not limited to her alone. It was
also published in several newspapers of general circulation and was thus made
known to the general public. Even if the interest sought to be protected belongs not
just to Brillante but to the public in general, certainly, the general public does not
have the power to remedy the alleged dangers sought to be prevented by Brillante in
publishing the open letter or in uttering similar statements during the January 7,
1988 press conference. Brillante employed the shotgun approach to disseminate the
information which essentially destroyed the reputations of the complainants. His
lack of selectivity is indicative of malice and is anathema to his claim of privileged
communication.
In Daez v. Court of Appeals, Daez was charged with libel for publishing a letter
78

which accused the Mayor of Meycauayan, Bulacan of corruption. The letter

addressed to the Mayor was sent not only to him but also to the Municipal Court,
Municipal Council and Chief of Police of Meycauayan, Bulacan. Daez contended
therein that he was not guilty of libel because he was not motivated by malice or ill-
will in publishing the letter, but rather, he did it out of good intentions and a social
duty to bring about reforms in the administration of the municipal government of
Meycauayan, Bulacan. The Court affirmed his conviction for libel and held:

. . . The goodness of the intention is not always sufficient by itself to justify the
publication of an injurious fact; thus the goodness of the end is not a sufficient
motive to warrant the employment of illicit means to obtain it. The existence of
justifiable motives is a question which has to be decided by taking into consideration
not only the intention of the author of the publication but all the other
circumstances of each particular case . . . . A communication made bona fide upon any
subject matter in which the party communicating has an interest, or in reference to which
he has a duty, is privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be slanderous
and actionable. However, a written letter containing libelous matter cannot be classified as
privileged when it is published and circulated among the public. . . . As a rule, it is the right
and duty of a citizen to make a complaint of any misconduct on the part of public officials,
 42

which comes to his notice, to those charged with supervision over them. Such a
communication is qualifiedly privileged and the author is not guilty of libel. The rule on
privilege, however, imposes an additional requirement. Such complaints should be
addressed solely to some official having jurisdiction to inquire into the charges, or power to
redress the grievance or has some duty to perform or interest in connection therewith. In
the instant case, none of the persons to whom the letter was sent, was vested with the
power of supervision over the mayor or the authority to investigate the charges made
against the latter. (Citations omitted.) 79

Thus, the Court agrees with the finding of the Court of Appeals that the statements
made by Brillante during the press conference and in the open letter do not qualify
as privileged communication.
Indeed, the purpose of affording protection to privileged communication is to
permit all interested persons or citizens with grievances to freely communicate,
with immunity, to the persons who could furnish the protection asked for. However,
to shield such privilege from abuse, the law itself requires at all times that such
petitions or communications shall be made in good faith or with justifiable motives.
If it is established that the communication was made maliciously or to persons who
could not furnish the protection sought, then the author thereof cannot seek
protection under the law. As was explained by the Court in Caete:
80

The plainest principles of natural right and sound public policy require that the utmost
possible freedom should be accorded every citizen to complain to the supervising, removing
and appointing authorities of the misconduct of the public officials with whom he comes into
contact, and like considerations make it equally proper that members of a religious
organization should enjoy equal freedom in bringing to the attention of the church
authorities the misbehavior of their spiritual leaders or of fellow-members. Manifestly, the
right must be exercised in good faith, and may not with impunity be made the occasion for
the venting of private spite. It is subject to the limitation and restriction that such
complaints must be made to a functionary having authority to redress the evils complained
of; that they must be made in good faith and that they must not be actuated by malice. 81

The Court in Lu Chu Sing v. Lu Tiong Gui clarified that the fact that a
82

communication is privileged does not mean that it is not actionable; the privileged
character of the communication simply does away with the presumption of malice,
and the plaintiff has to prove the fact of malice in such case.
However, since the open letter and the statements uttered by Brillante during the
January 7, 1988 press conference are defamatory and do not qualify as conditionally
 43

privileged communication, malice is presumed and need not be proven separately

from the existence of the defamatory statement. 83

Considering that all the elements of libel are present in the cases against
Brillante, the Court finds that no reversible error was committed by the Court of
Appeals in affirming his convictions by the RTC-Manila and RTC-Makati.

Neither does the Court find any basis in law to uphold Brillantes proposition that
his statements made during the January 7, 1988 press conference and those in his
open letter constitute political libel and should thus be exempt from liability.
Unfounded and malicious statements made by oneagainst another in the course of
an election campaign, or by reason of differences in political views are not per
se constitutionally protected speech. Our laws on defamation provide for sanctions
84

against unjustified and malicious injury to a persons reputation and honor.

Although wider latitude is given to defamatory utterances against public officials in
connection with or relevant to their performance of official duties, or against public
85

figures in relation to matters of public interest involving them, such defamatory

86

utterances do not automatically fall within the ambit of constitutionally protected

speech. If the utterances are false, malicious or unrelated to a public officers
performance of his duties, the same may give rise to criminal and civil liability.

With respect to the third issue, the Court agrees with the appellate court that
Brillantes right to equal protection of the laws was not violated when he was
convicted of libel while his co-accused were acquitted.
The equal protection clause is not absolute; rather, it permits of reasonable
classification. If the classification is characterized by real and substantial
differences, one class may be treated differently from another. It is sufficient that
87

the law operates equally and uniformly on all persons under similar circumstances
or that all persons are treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. 88

As mentioned earlier, the cases against some of Brillantes co-accused were

dismissed during the pendency of the cases before the trial courts. Still, some of his
89

co-accused remained at large, leaving the trial courts with no option but to archive
90

the case as against them. Brillantes other co-accused were acquitted since, unlike
Brillante, their guilt was not proven beyond reasonable doubt. 91
 44

The foregoing clearly shows that Brillante was in a situation different from his
co-accused. The prosecution was able to prove beyond reasonable doubt his liability
for libel, as the author of the open letter and the source of the defamatory
statements uttered against Binay, et al. during the January 7, 1988 press
conference.
As such, his conviction for libel was not violative of the equal protection clause.
The Court likewise finds no error on the part of the Court of Appeals in affirming
the penalties imposed upon him by the trial courts of Manila and Makati.

The penalty for libel by means of writing or similar means is prision correccional in
its minimum and medium periods, or a fine ranging from 200 to 6,000 pesos, or
both, in addition tothe civil action which may be brought by the offended party. It is 92

likewise settled that a single defamatory statement, if published several times, gives
rise to as many offenses as there are publications. This is the multiple publication
rule which is followed in our jurisdiction, as explained in Soriano v. Intermediate
Appellate Court: 93

We follow the multiple publication rule in the Philippines. Thus, in the cases
of Montinola D. Montalvo (34 Phil. 662 [1916]) and United States v. Sotto (36 Phil.
389 [1917]), this Court ruled that each and every publication of the same libel constitutes a
distinct offense. Stated more succinctly for purposes of ascertaining jurisdiction under Art.
360 of the Revised Penal Code, as amended, every time the same written matter is
communicated such communication is considered a distinct and separate publication of the
libel.
We explained this as follows:
The common law as to causes of action for tort arising out of a single publication was to the effect
that each communication of a written or printed matter was a distinct and separate publication of a
libel contained therein, giving rise to a separate cause of action. This rule (multiple publication
rule) is still followed in several American jurisdictions, and seems to be favored by the American Law
Institute. Other jurisdictions have adopted the single publication rule which originated in New York,
under which any single integrated publication, such as one edition of a newspaper, book, or
magazine, or one broadcast, is treated as a unit, giving rise to only one cause of action, regardless of
the number of times it is exposed to different people . . . (50 Am. Jur. 2d 659 cited in Time, Inc. v.
Reyes) (39 SCRA 301, 313 [1971]). 94

There is therefore no legal basis for Brillantes claim that the penalties imposed
upon him are excessive.
 45

The Court however agrees with Brillante that the awards of moral damages in the
two cases to private complainants Binay, Prudente and Baloloy are excessive
considering the circumstances surrounding the making and the publication of the
defamatory statements. Accordingly, the award of moral damages in favor of private
complainant Prudente is reduced to a total of Five Hundred Thousand Pesos
(P500,000.00) in Criminal Cases No. 89-69614, 89-69615, 89-69616 and 89-69617;
and the award of moral damages to private complainant Binay is reduced to Five
Hundred Thousand Pesos (P500,000.00) in Criminal Cases No. 88-1410, 88-1411,
88-1412 and 89-721. The award of moral damages to private complainant Baloloy in
Criminal Case No. 88-3060 is likewise reduced to Twenty Five Thousand Pesos
(P25,000.00).
WHEREFORE, in view of the foregoing, the petitions are GRANTED in part.
The Decision of the Court of Appeals in CA-G.R. CR No. 14475 is AFFIRMED
with the MODIFICATION that the award of moral damages to private complainant
Dr. Nemesio Prudente in Criminal Cases No. 89-69614, 89-69615, 89-69616 is
reduced to Five Hundred Thousand Pesos (P500,000.00). The Decision of the Court
of Appeals in CA-G.R. CR No. 15174 is likewise AFFIRMED with the
MODIFICATION that the award of moral damages to private complainants Atty.
Jejomar Binay and Francisco Baloloy is reduced to Five Hundred Thousand Pesos
(P500,000.00) in Criminal Cases No. 88-1410, 88-1411, 88-1412 and 89-721, and
Twenty Five Thousand Pesos (P25,000.00) in Criminal Case No. 88 3060,
respectively.
SO ORDERED.
 46

G.R. Nos. 118757 & 121571. November 11, 2005. *

ROBERTO BRILLANTE, petitioner, vs. COURT OF APPEALS and THE PEOPLE

OF THE PHILIPPINES, respondents.

Criminal Procedure; Appeals; It is a well-established rule that an appeal in a criminal

proceeding throws the whole case open for review of all its aspects, including those not raised
by the parties.As correctly noted by the OSG, the basic issues raised in the instant motion
have already been thoroughly discussed and passed upon by the Court in its Decision. For
this reason, we shall no longer dwell on them. We believe, however, that the penalty of
imprisonment imposed against Brillante should be reexamined and reconsidered. Although
this matter was neither raised in Brillantes petition nor in the instant motion, we advert to
the well-established rule that an appeal in a criminal proceeding throws the whole case
open for review of all its aspects, including those not raised by the parties.

Criminal Law; Slander; Penalties; The circumstances surrounding the writing of the
open letter on which the libelous publications were based in the instant case warrant the
imposition of the penalty of fine only, instead of both imprisonment and finethe intensely
feverish passions evoked during election period in 1988 must have agitated the accused into
writing his open letter.In Mari v. Court of Appeals, petitioner therein was found guilty of
slander by deed penalized under Art. 359 of the Revised Penal Code (Penal Code) by either
imprisonment or fine. In view of the fact that the offense was done in the heat of anger and
in reaction to a perceived provocation, the Court opted to impose the penalty of fine instead
 47

of imprisonment. In this case, Brillante claims that on January 6, 1988, his friends house
was bombed resulting in the death of three people. This incident allegedly impelled him, out
of moral and social duty, to call a press conference on January 7, 1988 with the intention of
exposing what he believed were terrorist acts committed by private respondents against the
electorate of Makati City. We find that the circumstances surrounding the writing of the
open letter on which the libelous publications were based similarly warrant the imposition
of the penalty of fine only, instead of both imprisonment and fine, in accordance with Art.
355 of the Penal Code. The intensely feverish passions evoked during the election period in
1988 must have agitated petitioner into writing his open letter.
Same; Same; Freedom of Expression; Public Officers; Qualified Privilege
Communication; Wide latitude is traditionally given to defamatory utterances against public
officials in connection with or relevant to their performance of official duties or against
public figures in relation to matters of public interest involving them.While petitioner
failed to prove all the elements of qualified privileged communication under par. 1, Art. 354
of the Penal Code, incomplete privilege should be appreciated in his favor, especially
considering the wide latitude traditionally given to defamatory utterances against public
officials in connection with or relevant to their performance of official duties or against
public figures in relation to matters of public interest involving them.

MOTION FOR RECONSIDERATION of a decision of the Supreme Court.

The facts are stated in the resolution of the Court.

RESOLUTION

TINGA, J.:

This treats of the Motion for Reconsideration dated November 25, 2004 filed by
Roberto Brillante (Brillante) assailing the Decision of this Court dated October 19,
2004 which affirmed his conviction for the crime of libel but reduced the amount of
moral damages he is liable to pay.

Brillante avers that his conviction, without the corresponding conviction of the
writers, editors and owners of the newspapers on which the libelous materials were
published, violates his right to equal protection. He also claims that he should have
been convicted only of one count of libel because private respondents were not
defamed separately as each publication was impelled by a single criminal intent.
Finally, he claims that there is a semblance of truth to the accusations he hurled
 48

at private respondents citing several instances of alleged violent acts committed by

the latter against his person.

Private respondent Jejomar Binay (Binay) filed a Comment dated March 3, 2005,
maintaining that the equal protection clause does not apply because there are
substantial distinctions between Brillante and his co-accused warranting dissimilar
treatment. Moreover, contrary to Brillantes claim that he should have been
convicted only of one count of libel, Binay asserts that there can be as many
convictions for libel as there are persons defamed. Besides, this matter should have
been raised at the time the separate complaints were filed against him and not in
this motion.

For its part, the Office of the Solicitor General (OSG) filed a Comment dated April 4,
2005, stating that the issues raised in Brillantes motion have already been
discussed and passed upon by the Court. Hence, the motion should be denied.

Brillante filed a Consolidated Reply dated May 26, 2005 in reiteration of his
arguments.
As correctly noted by the OSG, the basic issues raised in the instant motion have
already been thoroughly discussed and passed upon by the Court in its Decision. For
this reason, we shall no longer dwell on them.
We believe, however, that the penalty of imprisonment imposed against Brillante
should be re-examined and reconsidered. Although this matter was neither raised in
Brillantes petition nor in the instant motion, we advert to the well-established rule
that an appeal in a criminal proceeding throws the whole case open for review of all
its aspects, including those not raised by the parties.
1

In Mari v. Court of Appeals, petitioner therein was found guilty of slander by

2

deed penalized under Art. 359 of the Revised Penal Code (Penal Code) by either
imprisonment or fine. In view of the fact that the offense was done in the heat of
anger and in reaction to a perceived provocation, the Court opted to impose the
penalty of fine instead of imprisonment.
In this case, Brillante claims that on January 6, 1988, his friends house was
bombed resulting in the death of three people. This incident allegedly impelled him,
out of moral and social duty, to call a press conference on January 7, 1988 with the
 49

intention of exposing what he believed were terrorist acts committed by private

respondents against the electorate of Makati City.
We find that the circumstances surrounding the writing of the open letter on
which the libelous publications were based similarly warrant the imposition of the
penalty of fine only, instead of both imprisonment and fine, in accordance with Art.
355 of the Penal Code. The intensely feverish passions evoked during the election
3

period in 1988 must have agitated petitioner into writing his open letter.
Moreover, while petitioner failed to prove all the elements of qualified privileged
communication under par. 1, Art. 354 of the Penal Code, incomplete privilege should
be appreciated in his favor, especially considering the wide latitude traditionally
given to defamatory utterances against public officials in connection with or
relevant to their performance of official duties or against public figures in relation to
matters of public interest involving them. 4

The foregoing circumstances, in our view, justify the deletion of the penalty of
imprisonment and the retention of the meted fine only.
WHEREFORE, the Decision dated October 19, 2004 is AFFIRMED with
MODIFICATION consisting of the deletion of the penalty of imprisonment imposed
upon petitioner.
SO ORDERED.
Puno (Chairman), Austria-Martinez and Callejo, Sr., JJ.,concur.
Chico-Nazario, J.,On Leave.

Judgment affirmed with modification.

Notes.Reliance on the rule of privileged communication in a suit for malicious
prosecution is misplaced, such defense being peculiar to actions for libel. (Lao vs.
Court of Appeals, 271 SCRA 477 [1997])
 50

G.R. No. 121099. February 17, 1999. *

FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION,

respondent.

Criminal Law; Malversation; Public Officers; One essential element of the crime of
malversation is that a public officer must take public funds, money or property, and
misappropriate it to his own private use or benefitthere must be asportation of public funds
 51

or property, akin to the taking of anothers property in theft.One essential element of the crime
of malversation is that a public officer must take public funds, money or property, and
misappropriate it to his own private use or benefit. There must be asportation of public funds or
property, akin to the taking of anothers property in theft. The funds, money or property taken
must be public funds or private funds impressed with public attributes or character for which the
public officer is accountable.

Same; Same; Same; Elements of Malversation.The elements of malversation, essential

for the conviction of an accused, under the above penal provisions are that(a) the offender is
a public officer; (b) he has the custody or control of funds or property by reason of the duties of
his office; (c) the funds or property involved are public funds or property for which he is
accountable; and (d) he has appropriated, taken or misappropriated, or has consented to, or
through abandonment or negligence permitted, the taking by another person of, such funds or
property.

Same; Same; Same; Where there is no reason to surrender or confiscate a

privately owned gun, its turnover to a public officer does not invest the gun with
public character sufficient to consider such gun as public propertyconsequently, the
public officers failure to return the gun after demand by the private owner does not
constitute a prima facie evidence of malversation.The question may be asked: Did
Antonios surrender of the gun to petitioner mayor invest the gun with public
character sufficient to consider the gun as public property for which the mayor is
accountable? We believe not. There was no reason to surrender or confiscate the
gun. It was duly licensed to Ponciano Benavidez. The license is not transferable.
Antonio could not validly possess the gun. He should have returned the gun to
Ponciano, the licensed owner or surrendered it to the local police or to the
Constabulary Provincial Commander. By turning over the gun to petitioner mayor,
the gun did not become public property because it was not intended for public use or
purpose nor was it lawfully seized. The gun continued to be private property, that is
why the gun owner rightfully asked for its return to him, not to be turned over to
the public coffer or treasury. Petitioners failure to return the gun after demand by
the private owner did not constitute a prima facie evidence of malversation. The
property was private and the one who demanded its return was a private person, not a person
in authority. The presumption of conversion will not apply.

Same; Same; Same; A public official not responsible for public funds or property and
without authority to safeguard the same can not be convicted of malversation.A respected
 52

author in Criminal Law wrote Malversation can only be committed by a public official who has
charge of public funds or property by virtue of his official position. A public official not
responsible for public funds or property and without authority to safeguard the same can not be
convicted of malversation.
Same; Same; Same; The legal presumption of malversation created by a demand for
restitution of public funds or property is not applicable where the gun was private property and a
public officer entitled to its possession did not make a demand for its return.What is more, the
gun was confiscated by a police officer at a checkpoint in Quezon City. The policeman should
have turned over the confiscated gun to the Constabulary Firearm and Explosive Unit, in Camp
Crame, Quezon City. Instead, he returned the gun to a security aide of petitioner mayor, as a
favor to the mayor. The security aide died in the meantime, and, apparently, the gun got lost.
Assuming that the loss was due to petitioners fault or negligence, he is not criminally liable for
malversation through negligence because there was no evidence of conversion of public funds or
property to the use or benefit of the accused. The legal presumption of malversation created by a
demand for restitution of public funds or property is not applicable because the gun was private
property and a public officer entitled to its possession did not make the demand for its return.

Same; Same; Evidence; Judicial Notice; It is a grievous error for a court to take
judicial notice of the market value of a gunthe value must be proved in evidence as
a fact, as the court can not take judicial notice of a disputed fact.One more point.
Admittedly, there was no evidence submitted to the court of the value of the gun to
enable the court to fix the penalty to be imposed on the accused. Assuming that
petitioner malversed the gun, in malversation, the penalty for the offense is
dependent on the value of the public funds, money or property malversed. In this
case, the Sandiganbayan did not base the penalty on the minimum value of the gun
in the absence of evidence of its true worth. It took judicial notice of its mar ket value
and estimated its reasonable value at P5,000.00. This is a grievous error. The
Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved
in evidence as a fact. The court can not take judicial notice of a disputed fact. The court may
take judicial notice of matters of public knowledge, or which are capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions.
Otherwise, the court must receive evidence of disputed facts with notice to the parties. This
is an innovation introduced in the Revised Rules of Evidence the Supreme Court adopted on
July 1, 1989, which should not be unknown to the lower courts. The new rule of evidence
governs this case, since it was decided in 1995, six years after its effectivity.

PETITION for review on certiorari of a decision of the Sandiganbayan (First

Division).
 53

The facts are stated in the opinion of the Court.

Fortun & Narvasa for petitioner.
The Solicitor General for respondent.

PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the
Sandiganbayan and its resolution convicting him of malversation of public property
defined and penalized in Article 217 in relation to Article 222 of the Revised Penal
Code, and appreciating the mitigating circumstance of full restitution, imposing
upon him the indeterminate sentence of two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to six (6) years and one (1) day of prision
mayor, as maximum; the penalty of perpetual special disqualification, and a fine of
P5,000.00, the value of the .38 Cal. Smith & Wesson Revolver, with Serial No.
879886.
We reverse.
The facts may be related as follows:
On February 2, 1988, petitioner was elected to and assumed the position of mayor of
the municipality of Casiguran, province of Aurora.
Later that month, he received from Casiguran Barangay Captain Antonio 1

Benavidez one .38 Caliber Smith & Wesson Revolver, with Serial No. 879886. The
gun was owned by and licensed to Ponciano Benavidez, an uncle of Antonio, who
mortgaged it to him. Petitioner placed the gun in an attache case.
After about a week, petitioner together with his security men, went to Manila,
and brought with them the attache case with the gun in it. On their return to the
province, their car was stopped at a spot checkpoint in Quezon City, where Pat.
Alfredo B. Villanueva of the Quezon City Police saw the revolver. On petitioners
instruction, his security men surrendered the gun to police officer Villanueva.
Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of
the gun claimed it from petitioner. The latter informed Ponciano that the gun was
confiscated by the Quezon City Police.
On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial
Prosecutor of Aurora a complaint for theft against petitioner and Antonio
Benavidez.
On December 13, 1988, Ponciano Benavidez filed with the Department of Local
Government, an administrative complaint against petitioner for abuse of authority,
ignorance of the law and conduct unbecoming of a public servant.
 54

On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for
theft.
On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft
against petitioner with the Office of the Ombudsman in Manila.

On August 21, 1990, during the investigation of the administrative case by the
Sangguniang Panlalawigan ofAurora, complainant Ponciano Benavidez executed an
affidavit of desistance acknowledging that petitioner had paid the value of the gun,
and withdrawing the administrative case and the criminal case he filed against
petitioner with the Ombudsman.

On August 22, 1990, the Sangguniang Panlalawigan approved a resolution

dismissing the administrative case against petitioner.
On March 9, 1992, the Ombudsman approved the filing by Special Prosecution
Officer Prospero G. Pelayo of an information against petitioner for malversation of
public funds, which was duly filed on March 12, 1992, with the Sandiganbayan,
Manila.
On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30,
1992, petitioner posted a cash bail of P20,000.00, which he deposited with the
provincial treasurer of Aurora, duly approved by Regional Trial Court Judge
Filemon N. Tan of Baler, Aurora. 2

Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division,

petitioner entered a plea of not guilty, and accordingly, the court scheduled the case
for pre-trial conference.
Meantime, on or about August 14, 1992, petitioner was able to contact Pat.
Villanueva in Camp Karingal, Quezon City. The latter said that he returned the gun
to Patrolman Orgas, one of petitioners security men on the very next day after he
had confiscated it. Unfortunately, Pat. Orgas did not inform petitioner about the
recovery of the gun, and, at the time Villanueva so informed petitioner, Pat. Orgas
had died.
At the pre-trial conference held on August 28, 1992, the prosecution and the
accused (petitioner herein) assisted by counsel de parte, entered into a stipulation of
facts signed by them, as follows:

1. 1.At all times relevant to this case, the accused was the Mayor of the
Municipality of Casiguran, Aurora;
 55

2. 2.That in the exercise of his functions as Mayor, the accused had the occasion
to confiscate one .38 caliber Smith & Wesson revolver with Serial No. 879886
from Barangay Captain Antonio Benavidez;

3. 3.This weapon was actually owned by Ponciano Benavidez, the value of which
the parties have not agreed upon;

4. 4.That the accused confiscated this weapon in the performance of his official
functions and was, therefore, in custody thereof in his capacity as such;

5. 5.That demand was made from the accused by Ponciano Benavidez sometime
in June of 1988 to produce the above-mentioned firearm but the accused
failed to do so;

6. 6.That at a subsequent time, the accused and Ponciano Benavidez went to the
offices of the Quezon City Police Department in search of this weapon;

7. 7.That there has been restitution of the value of the firearm by the accused to
the complaining witness Ponciano Benavidez although there is disagreement
as to the amount of the restitution;

8. 8.That the following affidavits were executed:

1. a.By complaining witness Ponciano Benavidez indicating his desistance from

further prosecution thereof for reasons stated therein;

2. b.By Alfredo Villanueva of the Quezon City Police Department purporting to

describe the circumstances under which he allegedly confiscated the weapon
in question from the accused Mayor.

Further to the above stipulations, the Government now marks the following exhibit
which is admitted by the accused:
Exhibit Aa xerox copy of the License to Carry Firearm No. 0188490, issued by Necesitas
Katigbak of the Firearm and Explosives Unit, to Ponciano Benavidez involving .38 caliber
Smith & Wesson revolver with SN 879886.
The accused for his part has marked the following exhibits:

Exhibit 1The Order of the Fiscal dated January 20, 1989, dismissing the charge of
Theft, which is Annex 1 to the Supplemental Affidavit;
 56

Exhibit 2The administrative complaint filed by the complaining witness dated

December 13, 1988, which is Annex 2 to the Supplemental Affidavit;
Exhibit 3The Complaint for the filing of the case before the Ombudsman on April 6,
1989, which is Annex 3 to the Supplemental Affidavit;
Exhibit 4The investigation before the Sangguniang Panlalawigan dated August 21,
1990 at Baler, Aurora, wherein the owner of the gun submitted his affidavit of desistance
and admitting therein that he was paid for the loss of the gun, which is Annex 4 to the
Supplemental Affidavit;
Exhibit 5The Affidavit of Desistance executed by the owner of the gun dated August
21, 1990, marked as Annex 5 to the Supplemental Affidavit, wherein the owner of the gun
admitted that he verified the loss of the gun to be true and also admitted that the
equivalent amount in cash and in kind for the .38 caliber revolver was paid to him, for
which he promised to dismiss the criminal case and the administrative case.
Exhibit 6The Minutes of the Sangguniang Panlalawigan of Aurora dated August 22,
1990, which decided to dismiss the administrative case, which is marked as Annex 6 to
the Supplemental Affidavit;
Exhibit 7The Resolution of the Investigating Fiscal for the Ombudsman dated
February 24, 1992, which is marked as Annex 7 to the Supplemental Affidavit;
Exhibit 8The Resolution of the Ombudsman, which is marked as Annex 8 to the
Supplemental Affidavit;
Exhibit 9A copy of the Order of Arrest issued by the Sandiganbayan, marked as
Annex 9 to the Supplemental Affidavit;
Exhibit 10The payment of the Bond for the provisional release of the accused,
marked as Annex 10 to the Supplemental Affidavit;
Exhibit 11The Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and
a certain Angelito Salamera stating that they were present when payment was made for the
gun to the owner, which is marked as Annex 11 to the Supplemental Affidavit;

Exhibit 12The Affidavit executed by Alfonso Villanueva dated August 14, 1992,
wherein he admitted that he had confiscated the gun at a checkpoint in Quezon City, which
is marked as Annex 12 to the Supplemental Affidavit;
Exhibit 13The Affidavit executed by Antonio Benavidez dated July 30, 1989, which is
marked as Annex 13 to the Supplemental Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit
A and upon the admission thereof, rested its case.
3

On the other hand, the defense presented two (2) witnesses including petitioner.
After the testimony of the witnesses on July 21, 1993, the court gave the defense
counsel ten (10) days to formally offer his evidence in writing. In time, the defense
 57

formally offered its exhibits, and on September 6, 1993, the court admitted all
exhibits except Exhibits 11 and 13, which were rejected for being hearsay.
On February 17, 1995, more than a year after the case was submitted for
decision, the Sandiganbayan promulgated its decision, the decretal portion of which
is narrated in the opening paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for reconsideration of the decision;
however, on July 5, 1995, the Sandiganbayan denied the motion.
Hence, this appeal.
On October 4, 1995, the Court required respondent to file its comment on the
petition. On January 4, 1996, the Office of the Special Prosecutor filed its comment
on the petition for review. On January 30, 1996, the Solicitor General also filed his
comment.
We give due course to the petition.
To begin with, petitioner is charged with malversation under Article 217 in relation
to Article 222 of the Revised Penal Code, providing as follows:
Article 217. Malversation of public funds or propertyPresumption of malversation.Any
public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take or misappropriate or shall consent, or
through abandonment or negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation of
malversation of such funds or property, shall suffer:

1. 1.The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.

2. 2.The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than 200 pesos but does not exceed 6,000 pesos.

3. 3.The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than 6,000 pesos but is less than
12,000 pesos.

4. 4.The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
 58

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or equal to
the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses. (As
amended by Rep. Act No. 1060, approved June 12, 1954).
Article 222. Officers included in the preceding provisions.The provisions of this
chapter shall apply to private individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and to any administrator or
depository of funds or property attached, seized or deposited by

public authority, even if such property belongs to a private individual.

One essential element of the crime of malversation is that a public officer must take
public funds, money or property, and misappropriate it to his own private use or
benefit. There must be asportation of public funds or property, akin to the taking of
anothers property in theft. The funds, money or property taken must be public
funds or private funds impressed with public attributes or character for which the
public officer is accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber
Smith & Wesson revolver, to petitioner mayor of the town of Casiguran, Aurora.
Antonio surrendered the gun to the mayor. The gun was duly licensed. It was not
seized or confiscated. Antonio obtained possession of the gun from Ponciano
Benavidez, an uncle of his, who was the owner and licensee of the gun. Ponciano
mortgaged it to Antonio.
The elements of malversation, essential for the conviction of an accused, under
the above penal provisions are that

1. (a)the offender is a public officer;

2. (b)he has the custody or control of funds or property by reason of the duties of
his office;

3. (c)the funds or property involved are public funds or property for which he is
accountable; and
 59

4. (d)he has appropriated, taken or misappropriated, or has consented to, or

through abandonment or negligence permitted, the taking by another person
of, such funds or property.4

The question may be asked: Did Antonios surrender of the gun to petitioner mayor
invest the gun with public character sufficient to consider the gun as public property
for which the mayor is accountable? We believe not. There was no reason to
surrender or confiscate the gun. It was duly licensed to Ponciano Benavidez. The
license is not transferable. Antonio
could not validly possess the gun. He should have returned the gun to Ponciano, the
licensed owner or surrendered it to the local police or to the Constabulary Provincial
Commander. By turning over the gun to petitioner mayor, the gun did not become
public property because it was not intended for public use or purpose nor was it
lawfully seized. The gun continued to be private property, that is why the gun owner
rightfully asked for its return to him, not to be turned over to the public coffer or
treasury. Petitioners failure to return the gun after demand by the private owner
did not constitute a prima facie evidence of malversation. The property was private
and the one who demanded its return was a private person, not a person in
authority. The presumption of conversion will not apply.
A respected author in Criminal Law wrote Malversation can only be committed
by a public official who has charge of public funds or property by virtue of his official
position. A public official not responsible for public funds or property and without
authority to safeguard the same can not be convicted of malversation. 5

What is more, the gun was confiscated by a police officer at a checkpoint in

Quezon City. The policeman should have turned over the confiscated gun to the
Constabulary Firearm and Explosive Unit, in Camp Crame, Quezon City. Instead,
he returned the gun to a security aide of petitioner mayor, as a favor to the mayor.
The security aide died in the meantime, and, apparently, the gun got lost. Assuming
that the loss was due to petitioners fault or negligence, he is not criminally liable
for malversation through negligence because there was no evidence of conversion of
public funds or property to the use or benefit of the accused. The legal presumption
of malversation created by a demand for restitution of public funds or property is
not applicable because the gun was private property and a public officer entitled to
its possession did not make the demand for its return.
The presumption takes the place of affirmative proofs showing the actual
conversion. It obviates the necessity of proving acts of conversion; a thing most
extremely difficult to do. If in a particular case a demand was made upon an
 60

accountable public official to produce the funds in his custody and he failed to do so,
the presumption thereby arising would render unnecessary further proof of
conversion. The disappearance of public funds in the hands of the accountable
public officer is prima facie evidence of its conversion. Here, there is no
6

presumption of conversion nor evidence of actual conversion.

Nevertheless, petitioner made restitution of the value of the gun to the private
owner, Ponciano Benavidez. Obviously, petitioner did not malverse the gun by dolo
or culpa to his private use or benefit.
One more point. Admittedly, there was no evidence submitted to the court of the
value of the gun to enable the court to fix the penalty to be imposed on the accused.
Assuming that petitioner malversed the gun, in malversation, the penalty for the
offense is dependent on the value of the public funds, money or property malversed.
In this case, the Sandiganbayan did not base the penalty on the minimum value of
the gun in the absence of evidence of its true worth. It took judicial notice of its
market value and estimated its reasonable value at P5,000.00. This is a grievous
error.

The Sandiganbayan could not take judicial notice of the value of the gun. It must be
duly proved in evidence as a fact. The court can not take judicial notice of a disputed
fact. The court may take judicial notice of matters of public knowledge, or which are
capable of unquestionable demonstration, or ought to be known to judges because of
their judicial functions. Otherwise, the court must receive evidence of disputed facts
7

with notice to the parties. This is an innovation introduced in the Revised Rules of
8

Evidence the Supreme Court adopted on July 1, 1989, which should not be unknown
to the lower courts. The new rule of evidence governs this case, since it was decided
9

in 1995, six years after its effectivity.

WHEREFORE, the Court hereby REVERSES the appealed decision and

resolution of the Sandiganbayan in its Criminal Case No. 17563, and ACQUITS the
accused Fidel Salamera y Torres, with costs de oficio.
The Court orders the Sandiganbayan to forthwith cancel the cash bail of the
accused, and immediately reimburse the amount to him.
SO ORDERED.
 61

G.R. No. 116720. October 2, 1997. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROEL ENCINADA,

accused-appellant.

Criminal Law; Dangerous Drugs Act; Evidence; Proof of ownership is not necessary in the
prosecution of illegal drug casesit is sufficient that the drug is found in the possession of the
accused.Furthermore, proof of ownership of the marijuana is not necessary in the prosecution of
illegal drug cases; it is sufficient that such drug is found in appellants possession.

Searches and Seizures; A search and seizure is normally unlawful unless authorized by
a validly issued search warrant or warrant of arrest.The plain import of the foregoing
provision is that a search and seizure is normally unlawful unless authorized by a validly
issued search warrant or warrant of arrest. This protection is based on the principle that,
between a citizen and the police, the magistrate stands as a mediator, nay, an authority
clothed with power to issue or refuse to issue search warrants or warrants of arrest.

Same; Exceptions to the Right Against Warrantless Searches.The right against

warrantless searches, however, is subject to legal and judicial exceptions, as follows: (1)
search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view,
(4) customs searches, and (5) waiver by the accused themselves of their right against
unreasonable search and seizure. In these cases, the search and seizure may be made only
upon probable cause as the essential requirement.

Same; Words and Phrases; Probable Cause, Explained.Although the term eludes
exact definition, probable cause signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious mans belief that the
person accused is guilty of the offense with which he is charged; or the existence of such
facts and circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s) sought in
 62

connection with said offense or subject to seizure and destruction by law is in the place to
be searched.
Same; Raw intelligence information is not a sufficient ground for a warrantless arrest.In
this case, appellant was not committing a crime in the presence of the Surigao City policemen.
Moreover, the lawmen did not have personal knowledge of facts indicating that the person to be
arrested had committed an offense. The search cannot be said to be merely incidental to a lawful
arrest. Raw intelligence information is not a sufficient ground for a warrantless arrest.
Same; Administrative Circular No. 13 allows applications for search warrants even after
court hours.Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992
at his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was
not expected to dock until 7:00 a.m. the following day. Administrative Circular No. 13 allows
applications for search warrants even after court hours: 3. Raffling shall be strictly enforced,
except only in case where an application for search warrant may be filed directly with any judge
in whose jurisdiction the place to be searched is located, after office hours, or during Saturdays,
Sundays, and legal holidays, in which case the applicant is required to certify under oath the
urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal
holidays; (Emphasis supplied)
Same; Policemen; Lawmen cannot be allowed to violate the very law they are expected to
enforce.Lawmen cannot be allowed to violate the very law they are expected to enforce.
Bolonias receipt of the intelligence information regarding the culprits identity, the particular
crime he allegedly committed and his exact whereabouts underscored the need to secure a
warrant for his arrest. But he failed or neglected to do so. Such failure or neglect cannot excuse
him from violating a constitutional right of the appellant.

Same; Same; Presumption of Regularity; Where the search was conducted

irregularly, i.e., without a warrant, the Court cannot appreciate consent based merely
on the presumption of regularity of the performance of duty.While in principle we
agree that consent will validate an otherwise illegal search, we believe that
appellantbased on the transcript quoted abovedid not voluntarily consent to
Bolonias search of his belongings. Appellants silence should not be lightly taken as
consent to such search. The implied acquiescence to the search, if there was any, could
not have been more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview of the
constitutional guarantee. Furthermore, considering that the search was conducted
irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the
presumption of regularity of the performance of duty.

Same; An illegal search cannot be undertaken and then an arrest effected on the
strength of the evidence yielded by the search.Without the illegally seized prohibited drug,
the appellants conviction cannot stand. There is simply no sufficient evidence remaining to
convict him. That the search disclosed a prohibited substance in appellants possession, and
 63

thus confirmed the police officers initial information and suspicion, did not cure its patent
illegality. An illegal search cannot be undertaken and then an arrest effected on the
strength of the evidence yielded by the search.
Same; Bill of Rights; Quick solutions of crimes and apprehensions of malefactors do not
justify a callous disregard of the Bill of Rights.We should stress that the Court is not
unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of
dangerous drugs. However, quick solutions of crimes and apprehensions of malefactors do
not justify a callous disregard of the Bill of Rights. Law enforcers are required to follow the
law and to respect the peoples rights. Otherwise, their efforts become counterproductive.
We remind them of this recent exhortation by this Court: x x x In the final analysis, we in
the administration of justice would have no right to expect ordinary people to be law-
abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors
and judges may still tend to gloss over an illegal search and seizure as long as the law
enforcers show the alleged evidence of the crime regardless of the methods by which they
were obtained. This kind of attitude condones law-breaking in the name of law enforcement.
Ironically, it only fosters the more rapid breakdown of our system of justice, and the
eventual denigration of society. While this Court appreciates and encourages the efforts of
law enforcers to uphold the law and to preserve the peace and security of society, we
nevertheless admonish them to act with deliberate care and within the parameters set by
the Constitution and the law. Truly, the end never justifies the means.

APPEAL from a decision of the Regional Trial Court of Surigao City, Br. 32.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.

Alfonso S. Casurra for accused-appellant.

PANGANIBAN, J.:

In acquitting the appellant, the Court reiterates the constitutional proscription that
evidence (in this case, prohibited drugs) seized without a valid search warrant is
inadmissible in any proceeding. A yield of incriminating evidence will not legitimize
an illegal search. Indeed, the end never justifies the means.
 64

The Case

This principle is stressed in this appeal from the Judgment, promulgated on July
1

15, 1994 by the Regional Trial Court of Surigao City, Branch 32, in Criminal Case
2

No. 3668, convicting Appellant Roel Encinada of illegal transportation of prohibited

drugs under Section 4 of Republic Act No. 6425, as amended by Batas Pambansa
Blg. 179.

An Information, dated May 22, 1992, was filed by Third Asst. Surigao City
3

Prosecutor Virgilio M. Egay charging appellant of said crime allegedly committed as

follows:

That on or about May 21, 1992, in the City of Surigao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, in gross disregard of the
prohibition of the provisions of Republic Act No. 6425 as amended by Batas Pambansa
Bilang 179, did then and there willfully, unlawfully and feloniously have in his possession,
custody and control dried marijuana leaves weighing 800 grams, more or less, which he
transported to Surigao City from Cebu City aboard a passenger ship, well knowing that
such acts are expressly prohibited by law.

Before arraignment, appellant, assisted by Counsel Antonio Casurra, offered to

plead guilty to a lesser offense, i.e., illegal possession of prohibited drugs. The trial
4

court requested the prosecution to study the offer, but the records do not show any
5

agreement on such proposal.

Upon his arraignment, appellant pleaded not guilty to the charge. After the 6

prosecution presented its evidence, the defense filed, with leave of court, a 7

Demurrer to Evidence dated September 1, 1993, questioning the admissibility of

8

the evidence which allegedly was illegally seized from appellant. The court a
quo denied the motion, ruling: 9

For resolution is the demurrer to evidence dated September 1, 1993 of the accused, Roel
Encinada, praying that he be acquitted of the crime charged on the ground of the
inadmissibility of the evidence for the prosecution consisting of the marijuana (seized) from
him by the police. The accused raised the following issues, to wit: (1) Whether the arrest
and search of the accused without a warrant would fall under the doctrine of warrantless
search as an incident to a lawful arrest; and, (2) Whether the subject marijuana is
admissible in evidence against the accused.
 65

xxx xxx xxx

A scrutiny of the evidence for the prosecution shows that the events leading to the arrest
of the accused started when SPO4 Nicolas Bolonia, chief of the PNP vice control section,
received a tip from his informer that the accused, Roel Encinada would be arriving on board
the M/V Sweet Pearl at about seven oclock in the morning of May 21, 1992. On cross-
examination SPO4 Bolonia testified that the information was given to him by his asset at
about four oclock in the afternoon of May 20, 1992. After receiving the tip he relayed the

information to SPO4 Cipriano Iligan, Jr., PNP chief of intelligence. SPO4 Bolonia
further declared that he would have applied for a search warrant but there was simply no
time for it.
xxx xxx xxx
In the later case of People vs. Tangliben (184 SCRA 220) the Supreme Court modified its
ruling in the Aminuddin case when it held that the arrest and search is lawful when the
police had to act quickly and there was no more time to secure a search warrant. It is noted
that the tip was given to SPO4 Bolonia by his informant at about the closing time of the
offices of the various courts. He still had to inform SPO4 Iligan in order to coordinate with
him. The boat carrying the accused was scheduled to dock in Surigao City at seven oclock
the following morning when the courts had not yet opened.
It is therefore quite obvious that the police did not have enough time to apply for a
search warrant in the interim. The police cannot be faulted for acting on the tip and for
stopping and searching the accused even without a warrant.
In the case at bar, the accused was caught in flagrante delicto in actual possession of the
marijuana. The search made upon his personal effects falls squarely under paragraph (a) of
Rule 113, Section 5 of the 1985 Rules on Criminal Procedure which allows a warrantless
search as an incident to a lawful arrest (People vs. Malmstedt, 198 SCRA 401).
x x x x x x x x x x x x WHEREFORE, premises considered, the demurrer to
evidence in question is denied for lack of merit.

After trial in due course, the assailed Judgment was rendered, the decretal portion
of which reads:
WHEREFORE, premises considered, the Court finds the accused, Roel Encinada, guilty
beyond reasonable doubt of the violation of Section 4, Article II, of Republic Act No. 6425 as
amended by Batas Pambansa Bilang 179, and hereby sentences him to suffer the penalty of
life imprisonment and to pay a fine of twenty thousand pesos (P20,000.00) without
subsidiary imprisonment in case of insolvency; and to pay the costs.
The marijuana (Exhibit B) involved in this case is hereby forfeited to the government to
be destroyed or disposed of pursuant to present rules and regulations. The two plastic
chairs (Exhibits D and D-1) are also forfeited to the government.
 66

The Facts Version of the Prosecution

The Solicitor General, in the Appellees Brief, recounts the events leading to
appellants arrest, as follows: 10

At around 4 p.m. of May 20, 1992, SPO4 Nicolas Bolonia was in his house when he received
a tip from an informant that Roel Encinada would be arriving in Surigao City from Cebu
City in the morning of May 21, 1992 on board the M/V Sweet Pearl bringing with him
marijuana. Bolonia was then Chief of the Vice Control Squad of the Surigao City Police
(pp. 27-29; TSN, November 27, 1992, 34-40; p. 10, TSN, May 14, 1993).

Bolonia already knew Encinada because the latter previously was engaged in illegal
gambling known as buloy-buloy. After receiving the tip, Bolonia notified the members of his
teamSPO3 Marcial Tiro, SPO3 Glen Abot and SPO3 Charlito Dueroas well as his
colleague SPO4 Cipriano Iligan, Jr., the chief of the Intelligence and Investigation Division,
of the information he received. Because the information came late, there was no more time
to secure a search warrant (pp. 38; TSN, November 27, 1992, May 14, 1993, p. 13; pp. 4, 19;
TSN, March 3, 1993).

In the early morning of May 21, 1992, Bolonia, Iligan and other police officers deployed
themselves in different strategic points at the city wharf to intercept Encinada. At about
8:15 a.m. of the same day, the M/V Sweet Pearl finally docked. The police officers saw
Encinada walk briskly down the gangplank, carrying two small colored plastic baby chairs
in his hand (p. 11 TSN, May 14, 1993; pp. 4, 5, 15-16 TSN, March 3, 1993; pp. 29-30 TSN,
November 27, 1992, pp. 29-30).

From their various positions, the police officers followed Encinada immediately boarded
a tricycle at Borromeo Street, still holding the plastic chairs. As the tricycle slowly moved
forward, Bolonia chased it and ordered the driver to stop after identifying himself as a
police officer. When the vehicle stopped, Bolonia identified himself to Encinada and ordered
him to alight from the tricycle. Bolonia asked Encinada to hand over the plastic chairs, to
which the latter complied (pp. 5, 6, 17 TSN, March 3, 1993, pp. 30-32, 35 TSN, November
27, 1992).

Bolonia noticed that there were two small chairs, one green and the other blue,
stacked together and tied with a piece of string. Between the stack of chairs, there
 67

was a bulky package. Bolonia examined it closely and smelled the peculiar scent of
marijuana. Making a small tear in the cellophane cover, Bolonia could see and smell
the what appeared to be marijuana, a prohibited drug (pp. 6-9 TSN, March 3, 1993,
Exh. B, D and sub-markings; pp. 32-34, 35-39 TSN, November 27, 1992).

Encinada was brought to the central police station. Bolonia, in the presence of
one Nonoy Lerio who is a member of the local media and a friend of Encinada,
opened the package. It was discovered that indeed, the contents consisted of dried
leaves known as marijuana. In the course of the investigation, Encinada
surrendered to Bolonia his passenger ticket issued by M/V Sweet Pearl (pp. 9-11
TSN, March 3, 1993, Exh. E; pp. 34-35, 39-40 TSN, November 27, 1992).

On July 13, 1992, Bolonia brought the package of dried leaves for examination at
the PNP Crime Laboratory at Camp Evangelista, Cagayan de Oro City. The forensic
chemist, Inspector Vicente Armada, tested the leaves and confirmed that they were
positive for marijuana. However, the marijuana only weighed 610 grams, which
Armada opined to be probably due to shrinkage and moisture loss (pp. 12-17, 19-21,
24-40, 41; TSN, November 27, 1992, Exh. A, B, C and sub-markings.)

Version of the Defense

Appellant sets up denial as his defense. In his brief, he denied ownership and
possession of said plastic baby chairs, as follows: 11

1. 1)In the morning of May 21, 1992, at around 8:00 oclock in the morning, more or
less, the accused was seen to have disembarked from MV Sweet Pearl after an
overnight trip from Cebu City;

2. 2)The accused proceeded to the Surigao PPA Gate and boarded a motorela bound for
his residence at Little Tondo, (within the City Proper), Surigao City. The Motorela
was fully loaded with passengers, with the accused as the fourth passenger;

3)When the motorela was already able to travel a distance of about ten (10)
meters more or less, the same was forcibly stopped by persons who ordered the
passengers to disembarked (sic). Thereafter, all the (baggage) of the passengers
 68

and the driver were ordered to stand in a line for which a body search was made
individually (sic);

4)After the search was made, the accused was singled out in the line and
ordered to board the service vehicle of the police and was brought to the
PNP Police Station.

Before however the accused boarded the jeep, he was openly protesting to the
action taken by the police authorities and demanded from the apprehending
officers a copy of a search warrant and/or warrant of arrest for the search made
and for his apprehension;

5)In the police headquarters, the accused was made to undergo custodial
investigation for which a plastic bag was presented to him allegedly
containing the subject marijuana leaves. The accused denied that the said
plastic bag belonged to him.

The denial was witnessed by Mr. Daniel Nonoy Lerio, Jr. a member of the
Surigao City Press, who was invited by the Police Investigators to witness the
presentation of the alleged marijuana leaves, during the said investigation;

6)After the custodial investigation, the accused was placed immediately

behind bars and the Information for Violation of RA 6425 as amended by
Batas Pambansa Blg. 179 was filed before the Court;x x x xxx x x x

Aside from appellant, the defense also presented five (5) other witnesses whose
testimony allegedly established the following: 12

8.a) Ruben Conchathe driver of the motorela who testified that he was surprised when
the motorela he was driving was forcibly stopped (while already in motion) by the police
authorities while directing his four (4) passengers, (3 males and 1 female) to disembarked
(sic) together with their (baggage).

That after the search was made, the accused was singled out, and despite the
protests made, was ordered to board the Police service vehicle, while the 2 other
male passengers just left the scene while the female passenger continued to board the
motorela who directed him to proceed to the residence of Baby Encinada to verify whether
the person picked up by the police authorities was related to the latter;
 69

8.b) Josephine Nodalotestified that she is a beautician, and that she was one of the
four (4) passengers of the motorela driven by Ruben Concha, which motorela was forcibly
stopped by men who are chasing it after travelling a distance of 5 to 10 meters away from
its loading area near the PPA Gate.

All the four (4) passengers were ordered to disembarked (sic) from the motorela
whereupon they were all subjected to body search including their (baggage).

That it was the male passenger who was sitting at the rear portion of the motorela who
was picked up by the Police Authorities and despite the protests made was ordered to board
the Police service vehicle.

Upon learning from the persons who were gathered at the scene, that the one who was
picked up was the son of Mr. Encinada, the latter boarded back the motorela and directed
the driver to proceed to the residence of the Encinadas at Little Tondo to verify whether it
was really their son who was picked up by the police authorities. She made this, as Mrs.
Encinada, (the mother of the accused) is his (regular) customer;

8.c) Mr. Daniel Nonoy Lerio, Jr.testified that, being a member of the Press, he was
requested by the police authorities to witness the custodial investigation conducted upon
the person of the accused, who, during the entire proceedings of the investigation
vehemently denied having any knowledge about the marijuana leaves placed inside the
plastic bag;

8.d) Isabelita Encinadatestified that she was informed by her manicurist (Josephine
Nodalo) about the arrest x x x (of) her son, somewhere at the PPA Port Area and upon being
informed, she and her husband immediately went to the Surigao PNP Headquarters to
verify the (news) x x x;

xxx xxx x x x.

Ruling of the Trial Court

The trial court rejected appellants claim that he was merely an innocent passenger
and that his package contained mango and otap samples, not marijuana.
Emphasizing that the Surigao City Police had no ill motive against appellant, the
 70

trial court gave credence to SPO4 Bolonias story that he actually received from his
police asset the information regarding appellants arrival in Surigao City. The trial
court further emphasized that appellant was caught carrying marijuana
in flagrante delicto. Hence, the warrantless search following his lawful arrest was
valid and the marijuana obtained was admissible in evidence.

Assignment of Errors

In his Brief, appellant submits the following assignment of errors: 13

1. I.The lower court erred in finding that the accused was caught in flagranti (sic)
delicto in possession of the subject marijuana leaves and is the one responsible in
transporting the same;

2. II.The lower court gravely erred in finding that search and the arrest of the accused
without a warrant would fall under the doctrine of warrantless search as incident
to a lawful arrest

3. III.The lower court gravely erred in finding that the subject marijuana leaves is
admissible in evidence

In short, the main issues are (1) the sufficiency of the evidence showing possession
of marijuana by appellant, and (2) the validity of the search conducted on the person
and belongings of the appellant.

The Courts Ruling

The petition is meritorious.

First Issue: Illegal Possession of Prohibited Drugs

Appellant claims that the prosecution failed to prove his possession and ownership
of the plastic baby chairs. He contends that the testimonies of Bolonia and Iligan
conflicted as to the number of passengers riding the motorela. Such alleged conflict
is peripheral and irrelevant. Hence, it deserves scant consideration. Appellant adds
that such testimonies also conflicted as to the place where appellant sat inside
 71

the motorela. This claim, aside from being flimsy, is also not supported by the
transcript of stenographic notes.

In his testimony, appellant vehemently denied possession of the plastic baby

chairs, stressing that he was not holding them when the search was conducted.
However, his denial is easily rebutted by Bolonias testimony: 14

Q When you saw Roel Encinada who disembarked from

: M/V Sweet Pearl, what did you observe in his person, if
any?
A: He was carrying a (sic) baby chairs.
Q: What kind of chairs?
A: A (sic) plastic chairs.
xxx xxx xxx
Q: After you saw Roel Encinada disembarked (sic) from the
boat, what did you and your companions do?
A: We followed him behind because we posted in the
different direction(s) in the wharf.
xxx xxx xxx
Q: You said you followed Roel Encinada, what happened
next when you followed him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle
so I chased him and let him stopped (sic).
xxx xxx xxx
Q: By the way, where was (sic) this (sic) two plastic chairs
placed in the motorized tricycle?
A: He was sitting at the back of the motor at the right
portion of the seat and the chairs was (sic) placed besides
him. ([W]itness indicating that he was sitting (sic) an
imaginary seat at the back of the motor and holding an
(sic) imaginary chairs with his left arm).

Between these two contentions, the choice of the trial court prevails because this is
a matter that involves credibility of witnesses. On this subject of credibility, the
opinion of the trial court deserves great respect as it was in a better position to
observe the demeanor and deportment of the witnesses on the stand; hence, it was
15

in a superior situation to assess their testimonies.

 72

Furthermore, proof of ownership of the marijuana is not necessary in the

prosecution of illegal drug cases; it is sufficient that such drug is found in
16

appellants possession.

Second Issue: Illegal Search and Seizure

Based on the foregoing discussion, appellants conviction could have been affirmed
by this Court. However, the very evidence implicating himthe prohibited drugs
found in his possessioncannot be used against him in this case or, for that matter,
in any proceeding.

Generally, a search and seizure must be validated by a previously secured

warrant; otherwise, such search and seizure is subject to challenge. Section 2, 17

Article III of the 1987 Constitution, is apropos:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

Any evidence obtained in violation of this provision is legally inadmissible in

evidence as a fruit of the poisonous tree. This principle is covered by this
exclusionary rule:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible
for any purpose in any proceeding.

The plain import of the foregoing provision is that a search and seizure is normally
unlawful unless authorized by a validly issued search warrant or warrant of arrest.
This protection is based on the principle that, between a citizen and the police, the
magistrate stands as a mediator, nay, an authority clothed with power to issue or
refuse to issue search warrants or warrants of arrest. 18
 73

The right against warrantless searches, however, is subject to legal and judicial
exceptions, as follows: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure. In these
19

cases, the search and seizure may be made only upon probable cause as the
essential requirement. Although the term eludes exact definition, probable cause
signifies a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious mans belief that the person accused is
guilty of the offense with which he is charged; or the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s)
soughtin connection with said offense or subject to seizure and destruction by law is
in the place to be searched. 20

In this case, Bolonia received at 4:00 p.m. on May 20, 1992 an intelligence report
that appellant who was carrying marijuana would arrive the next morning aboard
the M/V Sweet Pearl. Although such report could have been the basis of probable
cause, Bolonia explained that he could not secure a warrant because the courts in
Surigao City were already closed for the day. Thus, he and the other lawmen had no
choice but to proceed the next morning to the port area. After appellant
disembarked from the ship and rode a motorela, Bolonia stopped the motor vehicle
and conducted the search. He rummaged through the two strapped plastic baby
chairs which were held by appellant and found inserted between them a package of
marijuana wrapped in a small plastic envelope.
Appellant contended before the lower court that the warrantless search of his
belongings was proscribed by the Constitution. But the trial judge rejected this
contention, opining that appellant was caught in flagrante delicto at the time of his
arrest. Hence, it concluded that the warrantless search conducted after his lawful
arrest was valid and that the marijuana was admissible in evidence.
Rule 113, Section 5, discusses the instances when a warrantless arrest may be
effected, as follows:
SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may,
without a warrant, arrest a person:
 74

1. (a)When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;

2. (b)When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it;
and

3. (c)When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.x x x xxx x x x.

In this case, appellant was not committing a crime in the presence of the Surigao
City policemen. Moreover, the lawmen did not have personal knowledge of facts
indicating that the person to be arrested had committed an offense. The search
cannot be said to be merely incidental to a lawful arrest. Raw intelligence
information is not a sufficient ground for a warrantless arrest. Bolonias testimony
shows that the search preceded the arrest: 21

Q You said you followed Roel Encinada, what happened

: next when you followed him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle
so I chased him and let him stopped (sic).
xxxxxxxxx
Q: You said you stopped the motor tricycle in which Roel
Encinada (sic) riding, what did you do?
A: At first I identified myself to the driver and to some of
the passengers.
xxx xxx xxx
Q: And after that, what happened next?
A: I requested Roel Encinada to disembark from the motor
tricycle because of that information given to us in his
possession.
Q: Possession of what?
A: Possession of marijuana, Sir.
Q: And Roel Encinada alighted from the motor vehicle?
A: Yes, Sir.
Q: After Roel Encinada alighted from the motor tricycle,
what happened next?
A: I requested to him to see his chairs that he carried.
 75

Contrary to the trial courts ruling, People vs. Tangliben is factually inapplicable to
22

the case at bar. The prosecutions evidence did not show any suspicious behavior
when the appellant disembarked from the ship or while he rode the motorela. No act
or fact demonstrating a felonious enterprise could be ascribed to appellant under
such bare circumstances.
We disagree with the trial courts justification for the search:
The arrest of the accused without warrant was lawful because there was a probable cause
or ground for his apprehension. The police had received reliable, albeit confidential
information from their informant that Roel Encinada would be bringing in marijuana from
Cebu City on board the M/V Sweet Pearl. Unfortunately there was no more time for the
police to apply for and secure a search warrant as the information was received late in the
afternoon of May 20, 1992 and the accused was expected to arrive at seven oclock the
following morning. The different courts were closed by then. Nevertheless the police felt
constrained to act on the valuable piece of information.

Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at
his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet
Pearl was not expected to dock until 7:00 a.m. the following day. Administrative
Circular No. 13 allows applications for search warrants even after court hours:
3. Raffling shall be strictly enforced, except only in case where an application for search
warrant may be filed directly with any judge in whose jurisdiction the place to be searched
is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which
case the applicant is required to certify under oath the urgency of the issuance thereof after
office hours, or during Saturdays, Sundays and legal holidays; (Emphasis supplied)

The same procedural dispatch finds validation and reiteration in Circular No. 19,
series of 1987, entitled Amended Guidelines and Procedures on Applications for
Search Warrants for Illegal Possession of Firearms and Other Serious Crimes Filed
in Metro Manila Courts and Other Courts with Multiple Salas:
This Court has received reports of delay while awaiting raffle, in acting on applications for
search warrants in the campaign against loose firearms and other serious crimes affecting
peace and order. There is a need for prompt action on such applications for search warrant.
Accordingly, these amended guidelines in the issuance of a search warrant are issued:

1.All applications for search warrants relating to violation of the Anti-subversion

Act, crimes against public order as defined in the Revised Penal Code, as amended,
illegal possession of firearms and/or ammunition and violations of the Dangerous
Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be
taken cognizance of and acted upon by the Executive Judge of the Regional Trial
 76

Court, Metropolitan Trial Court, and Municipal Trial Court under whose
jurisdiction the place to be searched is located.

2.In the absence of the Executive Judge, the Vice-Executive Judge shall take
cognizance of and personally act on the same. In the absence of the Executive Judge
or Vice-Executive Judge, the application may be taken cognizance of and acted
upon by any judge of the Court where the application is filed.

3.Applications filed after office hours, during Saturdays, Sundays and holidays,
shall likewise be taken cognizance of and acted upon by any judge of the Court
having jurisdiction of the place to be searched, but in such cases the applicant shall
certify and state the facts under oath, to the satisfaction of the judge, that its
issuance is urgent.

4.Any judge acting on such application shall immediately and without delay
personally conduct the examination of the applicant and his witnesses to prevent
the possible leakage of information. He shall observe the procedures, safeguards,
and guidelines for the issuance of search warrants provided for in this Courts
Administrative Circular No. 13, dated October 1, 1985.

In People vs. Aminnudin, the Court declared as inadmissible in evidence the

marijuana found in appellants possession

during a search without a warrant, because it had been illegally seized. The Court
firmly struck down the policemens cavalier disregard for the Bill of Rights,
explaining:
The present case presented no urgency. From the conflicting declarations of the PC
witnesses, it is clear that they had at least two days within which they could have obtained
a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9.
His name was known. The vehicle was identified. The date of its arrival was certain. And
from the information they had received, they could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort
was made to comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own authority
that a search warrant was not necessary.

Lawmen cannot be allowed to violate the very law they are expected to enforce.
Bolonias receipt of the intelligence information regarding the culprits identity, the
particular crime he allegedly committed and his exact whereabouts underscored the
need to secure a warrant for his arrest. But he failed or neglected to do so. Such
 77

failure or neglect cannot excuse him from violating a constitutional right of the
appellant.
It is significant that the Solicitor General does not share the trial judges opinion.
Taking a totally different approach to justify the search, the Republics counsel
avers that appellant voluntarily handed the chairs containing the package of
marijuana to the arresting officer and thus effectively waived his right against the
warrantless search. This, he gleaned from Bolonias testimony: 23

Q After Roel Encinada alighted from the motor tricycle,

: what happened next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, Sir.
Q: By the way, when Roel Encinada agreed to allow you to
examine the two plastic chairs that he carried, what did
you do next?
A: I examined the chairs and I noticed that something inside
in between the two chairs.
We are not convinced. While in principle we agree that consent will validate an
otherwise illegal search, we believe that appellantbased on the transcript quoted
abovedid not voluntarily consent to Bolonias search of his belongings. Appellants
silence should not be lightly taken as consent to such search. The implied24

acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional
guarantee. Furthermore, considering that the search was conducted irregularly, i.e.,
25

without a warrant, we cannot appreciate consent based merely on the presumption

of regularity of the performance of duty.
Appellants alleged acquiescence should be distinguished from the consent
appreciated in the recent case of People vs. Lacerna. In said case, the search was
26

conducted at a validly established checkpoint and was made in the regular

performance of the policemens duty. Although it became intrusive when the
policemen opened his baggage, it was validated by the consent of appellant, who
testified in open court that he allowed such search because he had nothing to hide.
In the present case, there was no checkpoint established. The policemen stopped
the motorela and forthwith subjected the passengers to a search of their persons and
baggage. In contrast to the accused in Lacerna, herein appellant testified that he
openly objected to the search by asking for a warrant.
 78

Without the illegally seized prohibited drug, the appellants conviction cannot stand.
There is simply no sufficient evidence remaining to convict him. That the search
disclosed a prohibited substance in appellants possession, and thus confirmed the
police officers initial information and suspicion, did not cure its patent illegality. An
illegal search cannot be undertaken and then an arrest effected on the strength of
the evidence yielded by the search.

We should stress that the Court is not unmindful of the difficulties of law
enforcement agencies in suppressing the illegal traffic of dangerous drugs. However,
quick solutions of crimes and apprehensions of malefactors do not justify a callous
disregard of the Bill of Rights. Law enforcers are required to follow the law and to
respect the peoples rights. Otherwise, their efforts become counterproductive. We
remind them of this recent exhortation by this Court: 27

x x x In the final analysis, we in the administration of justice would have no right to expect
ordinary people to be law-abiding if we do not insist on the full protection of their rights.
Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and
seizure as long as the law enforcers show the alleged evidence of the crime regardless of the
methods by which they were obtained. This kind of attitude condones law-breaking in the
name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system
of justice, and the eventual denigration of society. While this Court appreciates and
encourages the efforts of law enforcers to uphold the law and to preserve the peace and
security of society, we nevertheless admonish them to act with deliberate care and within
the parameters set by the Constitution and the law. Truly, the end never justifies the
means.

WHEREFORE, the appeal is hereby GRANTED. The assailed Decision is

REVERSED and SET ASIDE. Appellant is ACQUITTED. Unless convicted for any
other crime or detained for some lawful reason, Appellant Roel Encinada is
ORDERED RELEASED immediately.
 79

Nos. L-32957-8. July 25, 1984. *

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PANTALEON PACIS,

ELISEO (ELY) NAVARRO, GUILLERMO AGDEPPA, and GINES DOMINGUEZ,
defendants, GUILLERMO AGDEPPA, defendant-appellant.
 80

Evidence; The maxim falsus in uno falsus in omnibus not of universal application nor
rule of positive law.The maxim of falsus in uno falsus in omnibus, however, is not a
positive rule of law. Neither is it an inflexible one of universal application. If a part of a
witness testimony is found true, it cannot be disregarded entirely. The testimony of a
witness may be believed in part and disbelieved in part.

Same; Claim of appellant that shots came from a passing sand and gravel truck
belonging to partisans of victims rather than from upstairs in the building where the
accused were standing properly belied by trial court.If the armed partisans fired at Pacis
as claimed by the defense at the time that the truck was moving slowly on the national road
and at a time when Pacis had just gone up the stairs one to two minutes just after greeting
Franco and Basco (testimony of Pacis) then it is incredible that these armed partisan would
fire indiscriminately at Pacis from a moving vehicle when Basco and Franco their political
leaders were very close to Pacis and could be shot.

Same; Same.The defense would assume too much credulity and childish credibility to
the Court to make the Court believe that the alleged armed partisans of Negre were the
same persons who fired at and wounded his own political leaders Manuel Franco and
Macario Basco at the time these two were sitting by the stairs.

Same; Same. With regards to the first, there is no showing that these persons are
good shots or marksman; neither is there evidence that they concentrated their fire on both
so that Franco could have suffered more wounds right at the stairs and would not have been
able to run. It is apparent that the gunshots was more concentrated on Basco because of the
evidence that the accused Pantaleon Pacis had to say never mind that he is already dead go
after the vice mayor he was able to escape and kill him. To show that the three who fired
from the front were not good shots the Court can appreciate the exhibits more particularly
the pictures (previously cited) with pop marks. The pop marks on the exhibits evidently
were fired by the three men in front.
Same; Defense of alibi had nothing to support it.It should be stated, in conclusion,
that the appellants defense of alibi has nothing to support it except the doubtful testimony
of Jose Tabian and the uncorroborated time record he had allegedly filled up that day,
which certainly cannot prevail over the positive testimony of the witnesses for the
prosecution who saw him shoot Macario Basco.
Same; Appellant has not shown physical impossibility of his being at scene of killing.
Besides, there is no conclusive proof that it was physically impossible for him to be at the
Namuac school building on that fateful morning of November 15, 1967. The place is only 18
kilometers from his office at Taguiporo, and he could have left his office on his motorcycle
 81

after accomplishing the time record for arrival, go to Namuac, and be back in his office in
time for his lunch break without his absence being noted.

APPEAL from the judgment of the Court of First Instance of Cagayan.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Teofilo F. Manalo for defendant-appellant.

CONCEPCION, JR., J.:

Appeal of the accused Guillermo Agdeppa from the judgment of the Court of First
Instance of Cagayan finding himguilty of the crime of Frustrated Murder and
sentencing him and his co-accused Pantaleon Pacis and Ely Navarro, to suffer an
indeterminate penalty of from six (6) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum,
and to indemnify, jointly and solidarity, the victim, Macario Basco, in the amount of
P1,003.90 as actual damages, plus P8,000.00 for the diminution of his earning
capacity, and P8,000.00, as moral damages, without subsidiary imprisonment in
case of insolvency and to pay the costs.

The said accused, Guillermo Agdeppa, Pantaleon Pacis, Ely Navarro, and Gines
Dominguez were charged before the Court of First Instance of Cagayan with the
crimes of Murder and Frustrated Murder, docketed as Crim. Case Nos. 288-S and
289-S, respectively, committed as follows:
1. Crim. Case No. 288-S:

That on or about November 15, 1967, in the municipality of Sanchez Mira, province of
Cagayan and within the jurisdiction of this Honorable Court, the said accused Pantaleon
Pacis, Ely Navarro, Guillermo Agdeppa and Gines Dominguez, together with three other
John Does who are still at large and unidentified, conspiring together and helping one
another, armed with guns, with intent to kill, with treachery and with evident
premeditation and taking advantage of superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault and shot one Manuel Franco who was then
totally unarmed, inflicting upon him several gunshot wounds which caused his
instantaneous death.

2. Crim. Case No. 289-S:

 82

That on or about November 15, 1967, in the municipality of Sanchez Mira, province
of Cagayan, and within the jurisdiction of this Honorable Court, the said accused
Pantaleon Pacis, Ely Navarro, Guillermo Agdeppa and Gines Dominguez, together
with three other John Does who are still at large and unidentified, conspiring
together and helping one another, armed with guns, with intent to kill, with evident
premeditation, with treachery and taking advantage of superior strength, did then
and there wilfully, unlawfully and feloniously attack, assault and shot one Macario
Basco, inflicting upon him several gunshot wounds; that the accused have performed
all the acts of execution, which would produce the crime of Murder as a consequence
but which, nevertheless, did not produce it by reason of causes independent of their own
will.

After hearing the evidence adduced by the parties during a joint trial, the trial court
found the accused Pantaleon Pacis and Elly Navarro guilty of the crime of Murder,
as charged in Crim. Case No. 288-S and sentenced each of them to suffer the
penalty of reclusion perpetua, to indemnify, jointly and severally, the heirs of the
deceased Manuel Franco in the amount of P1,200.00 plus P25,000.00 for the loss of
earning capacity, P12,000.00 indemnity for the death of the said Manuel Franco and
P10,000.00 as moral damages, without subsidiary imprisonment in case of
insolvency, and to pay the costs. Their co-accused Guillermo Agdeppa and Gines
Dominguez were acquitted of the charge.
Gines Dominguez was also acquitted in Crim. Case No. 289-S, a prosecution for
Frustrated Murder. Guillermo Agdeppa, however, and his co-accused Pantaleon
Pacis and Elly Navarro were found guilty of the charge and sentenced to suffer the
penalty heretofore stated.
From this judgment, the accused Pantaleon Pacis, Elly Navarro, and Guillermo
Agdeppa appealed to this Court. However, sometime later, the accused Pantaleon
Pacis and Elly Navarro withdrew their respective appeals. Under consideration is
1

the appeal of Guillermo Agdeppa from the judgment of the trial court which found
him guilty of Frustrated Murder.
The facts of the case, as summarized in the Peoples Brief, are as follows:
Pantaleon Pacis, one of the appellants herein and Atanacio Negre were contenders for the
position of Municipal Mayor in the Municipality of Sanchez Mira, province of Cagayan on
the elections of November 14, 1967. Pantaleon Pacis was the candidate of the Nacionalista
Party and he was then the incumbent mayor running for re-election (p. 1051, tsn, March 12,
 83

1970) and Atanacio Negre was the candidate of the Liberal Party (p. 13, tsn, August 5,
1969).

Manuel (Emmanuel) Franco, the deceased victim, was then the incumbent vice-
mayor having been elected as the running mate of ac cused Pantaleon Pacis in the 1963
mayoralty elections but now the campaign manager of candidate Atanacio Negre against
accused Pantaleon Pacis (p. 13, tsn, August 5, 1969). Macario Basco was one of the political
leaders of Atanacio Negre (p. 12, tsn, August 5, 1969).

In the morning of November 15, 1967, the day after election day, Manuel (Emmanuel)
Franco and Macario Basco with their companions went to Namuac Elementary School,
Sanchez Mira, Cagayan to get the election results from precincts that were located in that
school (p. 16, tsn, August 5, 1969). They were riding on a jeep and upon arrival there, they
parked the jeep in front of the stairs of the Namuac Elementary School about a meter from
the first step west end of the stairs (p. 17, tsn, August 5, 1969). Macario Basco and Manuel
(Emmanuel) Franco ascended the stairs and entered a precinct which turned out to be
precinct No. 20. As Bascos authority to get election results was only for precinct Nos. 18
and 19, he went out and Franco was left there (pp. 18-23, tsn, August 5, 1969). While Basco
was in the porch, he saw Pantaleon Pacis who asked, why are you here, to which he
(Basco) answered, the elections are over and we are entitled to get the results of the
elections, and he went down with the intention to show Mayor Pacis his (Basco) authority
to get election results (pp. 22-23, tsn, August 5, 1969) but Pacis grabbed the papers from
him and so Basco went to sit on the elevated cemented portion of the stairs (p. 24, tsn,
August 5, 1969). Later on Franco came out shouting that he already got the election results
in precinct No. 20 (p. 25, tsn, August 5, 1969). When Pacis saw Franco, Pacis asked him
why are you here, and he (Pacis) beckoned him (Ibid). Franco went downstairs to go to
Pacis. Pacis who was sitting on the hood of the jeep went down from the hood of the jeep
and met Franco on the first step of the stair of the Namuac Elementary School and grabbed
the papers from Franco. Franco went to sit at the right side of Basco (p. 26, tsn, August 5,
1969).
After looking at the papers, he had grabbed from Basco and Franco, Pacis then went
upstairs to where his co-accused Elly Navarro and Guillermo Agdeppa were, and Pacis with
Navarro looked again at the papers which the former had grabbed from Basco and Franco
(p. 33, tsn, August 5, 1969).

Basco and Franco still seated on the stairs looked down towards the direction where
they had parked their jeep and saw two men on the right side of the jeep and
another man on the left side (Ibid). When Basco looked at his back, he saw accused
 84

Pantaleon Pacis, Elly Navarro and Guillermo Agdeppa with drawn guns pointed at
him and Franco, and moments later the accused started firing (pp. 34-37, tsn, Aug.
5, 1969). Basco was hit. Then another volley of fire came from the three named-accused
and Basco was hit again. He then lie prone between the jeep and the first step of the stairs.
While in that position, there was continuous firing coming from his left and right and he
was hit again. He suffered several gunshot wounds (pp. 37-40, tsn, August 5, 1969, Exhibits
F and F-1).

After the second volley of fire, Basco heard the deceased Franco say I am already hit
Manong, (p. 37, tsn. August 5, 1969). Later on Basco heard Pantaleon Pacis in a
commanding voice, never mind that now, he (referring to Basco) is already dead. Vice-
Mayor Franco was able to escape, you go after him and kill him, (pp. 40-41, tsn, August 5,
1969) and this was addressed to Elly Navarro, Guillermo Agdeppa and the three men beside
the jeep who responded to the command by running towards the gate of the school (p. 42,
tsn, August 5, 1969).
After three or four minutes, Basco heard gunshots, east of the direction where he was
lying prone. Later on after about fifteen minutes he shouted for help and he was brought to
Northern Cagayan Provincial Hospital, and one day after, to the Veterans Memorial
Hospital at Quezon City where he was confined until December 31, 1967 (Exhibit A, pp.
51-54, tsn, August 5, 1969). He suffered six gunshot wounds described in Exhibits F and
F-1, his left arm was disabled (p. 55, tsn, August 5, 1969) and the small bone on his right
foot was fractured (p. 56, tsn, August 5, 1969).
Manuel (Emmanuel) Franco died due to gunshot wounds described in Exhibits C and
C-1 (pp. 255-260, tsn, August 26, 1969). His assailants were Pantaleon Pacis, Guillermo
Agdeppa, Elly Navarro, Gines Dominguez and three other unidentified persons (p. 203, tsn,
August 27, 1969).

The appellant, Guillermo Agdeppa, denied participation in the commission of the

crimes and interposed the defense of alibi. According to him, he was in Taguiporo,
Sanchez Mira, where he was employed in the Agricultural Extension Office, at the
time the shooting incident occurred in Namuac, Sanchez Mira, and learned of it only
upon his return to Callungan in the evening. He declared that he left his house at
Callungan at about 7:00 oclock in the morning of November 15, 1967, for his office
at Taguiporo; that he rode on a motorcycle which he borrowed from his brother, with
his daughter as passenger, whom he brought to the Divine Word High School in
time for her 7:30 a.m. class; that after dropping off his daughter at theschool, one
 85

Jose Tabian came to him and asked for a ride; that they arrived at his office at
Taguiporo at 7:40 oclock in the morning where he found Faustino Sadama and
Placido Lagran who wanted palay seedlings, waiting for him; that he stayed in his
office preparing his monthly report and left at 12:05 oclock in the afternoon to eat
his lunch and returned at 12:45 p.m., and finally went home at past 5:00 oclock in
the afternoon. To support his claim, he presented in evidence the time record he
2

had accomplished, and the testimony of Jose Tabian who allegedly rode with him on
3

his motorcycle from the Divine Word High School up to his office at Taguiporo that
morning of November 15, 1967.

The trial court, however, rejected the defense saying that the evidence for the
prosecution is more worthy of credence, more natural in the light of human conduct
and behavior, more credible, than that for the defense. The trial court specially cited
the testimony of Macario Basco which, to its mind, is very natural, credible and
from a witness who told nothing but the truth.
Counsel for the appellant now contends that the trial court erred in convicting
the appellant on the testimonies of the witnesses for the prosecution which the
lower court itself considered to be incredible and unworthy of belief. Counsel argues
that all the witnesses for the prosecution implicated Gines Dominguez in the
shooting of Basco and Franco but the trial court gave no credence to their
testimonies and acquitted Gines Domingez; however, the trial court gave credence to
the testimonies of the same witnesses in convicting the appellant for the shooting of
Basco. Counsel cites the maxim of falsus in uno falsus in omnibus.
The maxim of falsus in uno falsus in omnibus, however, is not a positive rule of
law. Neither is it an inflexible one of universal application. If a part of a witness
testimony is found true, it cannot be disregarded entirely. The testimony of a
witness may be believed in part and disbelieved in part.

Counsel for the appellant also claims that the trial courterred in convicting the
accused on the highly improbable, contradictory, and incredible tale of the witnesses
for the prosecution, since all the bullet pock marks on the cement wall show
conclusively that the shooting came from the street where the gravel and sand truck
was, and not from the top of the stairs where Pacis, Navarro, and Agdeppa were
standing; and that the said witnesses failed to notify the authorities or anyone until
after the lapse of several months.
 86

The trial court, however, discounted the defense theory that the shots came from
the gravel and sand truck. The trial court said:
From these photographs, with Macario Basco and Manuel Franco sitting on the elevated
cemented portion facing a little to the southeast, back of them would be just behind the
railing of the porch (p. 75 of Criminal Case No. 288-S; pp. 230 and 231 of the petition to
bail; pp. 160-165 of Criminal Case No. 289-S) where Pantaleon Pacis, Eliseo Navarro and
Guillermo Agdeppa were when they started to fire their guns. This is borne by the evidence.
To follow the defense theory that the firing came from the sand and gravel truck that
was passing by would be absurb and downright preposterous for the following reasons:

1.The defense claim that those aboard the truck were armed partisans of Negre whose
campaign manager Franco and political leader Basco were sitting by the stairs clearly
visible from the truck a distance of forty meters.

2.If the armed partisans fired at Pacis as claimed by the defense at the time that the
truck was moving slowly on the national road and at a time when Pacis had just gone up
the stairs one to two minutes just after greeting Franco and Basco (testimony of Pacis) then
it is incredible that these armed partisan would fire indiscriminately at Pacis from a
moving vehicle when Basco and Franco their political leaders were very close to Pacis and
could be shot.

3.The defense would assume too much credulity and childish credibility to the Court to
make the Court believe that the alleged armed partisans of Negre were the same persons
who fired at and wounded his own political leaders Manuel Franco and Macario Basco at
the time these two were sitting by the stairs.

4.The testimony of Macario Basco is to the Court very natural, credible and from a
witness who only told nothing but truth. In spite of thorough and provoking cross
examination Basco wascalm and very natural. He gave answers directly, never evasively, a
sure and unmistaken sign that he was faithfully relating to the Court the actual events and
factual circumstances. The defense failed to show cause or motive on the part of Basco why
he should so testify against Pacis with whom he had cordial relations and who was born
and a native of Namuac, Sanchez Mira, Cagayan, the birth place of Paciswhere his father
and other relatives still reside nor against Eliseo Navarro and Guillermo Agdeppa.

5.On the defense theory that the evidence and theory of the prosecution is incredible
because of the nature and number of wounds sustained by Macario Basco and Manuel
Franco the evidence shows that Basco suffered fourteen (14) wounds, seven bullet wounds of
entry, six wounds of exit and abrasions; and Basco suffered three gunshot wounds. The
defense assumes (a) that if Pacis, Navarro, Agdeppa and three others as claimed by Basco
 87

and Bagasol were the ones who fired at both Basco and Francothese six persons the
defense assume are all good, dead shots, marksmen but there is no evidence to that effect
could have inflicted more woundsFranco would not have been able to run away, (b) The
defense also claims that these personsthree in front and three behindwith Franco and
Basco in between could have shot each other.

With regards to the first, there is no showing that these persons are good shots or
marksman; neither is there evidence that they concentrated their fire on both so that
Franco could have suffered more wounds right at the stairs and would not have been able to
run. It is apparent that the gunshots was more concentrated on Basco because of the
evidence that the accused Pantaleon Pacis had to say never mind that he is already dead go
after the vice mayor he was able to escape and kill him. To show that the three who fired
from the front were not good shots the Court can appreciate the exhibits more particularly
the pictures (previously cited) with pop marks. The pop marks on the exhibits evidently
were fired by the three men in front.

It is not true that the witnesses for the prosecution did not notify the authorities
about the shooting incident, as claimed by the appellant. As early as November 19,
1967, Rogelio Bagasol executed a sworn statement before one Capt. Liganor and
another one before CIS agents on December 9, 1967. Macario Basco also executed
4

an affidavit on December 8, 1967. Other eyewitnesses were afraid to notify the

5

authoritiesbecause Pantaleon Pacis and his men were in power. 6

It should be stated, in conclusion, that the appellants defense of alibi has

nothing to support it except the doubtful testimony of Jose Tabian and the
uncorroborated time record he had allegedly filled up that day, which certainly
cannot prevail over the positive testimony of the witnesses for the prosecution who
saw him shoot Macario Basco. Besides, there is no conclusive proof that it was
physically impossible for him to be at the Namuac school building on that fateful
morning of November 15, 1967. The place is only 18 kilometers from his office at
Taguiporo, and he could have left his office on his motorcycle after accomplishing the
7

time record for arrival, go to Namuac, and be back in his office in time for his lunch
break without his absence being noted.
WHEREFORE, the judgment appealed from should be as it is hereby,
AFFIRMED, with the modification that the accused-appellant should be given 4/5
credit for the period of preventive imprisonment he had undergone, pursuant to
 88

Rep. Act No. 6127, approved on June 17, 1970. With proportionate costs against the
appellant in this instance.
 89

G.R. No. 86939. August 2, 1993. *

PEOPLE OF THE PHILIPPINES, vs. SANTOS DUCAY and EDGARDO DUCAY,

accused. SANTOS DUCAY, accused-appellant.

Evidence; Latin Maxims; Falsus in uno, falsus in omnibus not a mandatory rule.Nor
can we subscribe to the proposition that since the trial court did not give credit to Edwin
and Linas testimonies that they positively identified Edgardo, it should, pursuant to the
maxim falsus in uno, falsus in omnibus likewise disregard their testimonies as against the
appellant and accordingly acquit him. In People vs. Dasig, this Court stated that the maxim
is not a mandatory rule of evidence, but rather a permissible inference that the court may
or may not draw. In People vs. Pacada, we stated that the testimony of a witness can be
believed as to some facts and disbelieved as to others. And in People vs. Osias, we ruled
that: It is perfectly reasonable to believe the testimony of a witness with respect to some
facts and disbelieve it with respect to other facts. And it has been aptly said that even when
witnesses are found to have deliberately falsified in some material particulars, it is not
required that the whole of their uncorroborated testimony be rejected but such portions
thereof deemed worthy of belief may be credited. The primordial consideration is that the
witness was present at the scene of the crime and that he positively identified [the accused]
as one of the perpetrators of the crime charged xxx. Professor Wigmore gives the following
enlightening commentary: It may be said, once for all, that the maxim is in itself
worthless;first, in point of validity, because in one form it merely contains in loose fashion
a kernel of truth which no one needs to be told, and in the others it is absolutely false as a
maxim of life; and secondly, in point of utility, because it merely tells the jury what they
may do in any event, not what they must do or must not do, and therefore it is a superfluous
form of words. It is also in practice pernicious, first, because there is frequently a
misunderstanding of its proper force, and secondly, because it has become in the hands of
many counsel a mere instrument for obtaining new trials upon points wholly unimportant
in themselves.

Same; Suppression of evidence not applicable where evidence is available to both

prosecution and defense.The defense imputes suppression of evidence upon the
prosecution in not presenting Erwin Labos as its witness. It is settled that suppression of
evidence is inapplicable in a case where the evidence is at the disposal of both the
 90

prosecution and the defense. Besides, the prosecution had no cogent reason for presenting
Erwin since there is no showing that he was in the house when the incident occurred. On
the other hand, the defense needed his testimony for if, indeed, he should affirm his
supplemental statement, he may somehow enhance the theory of the defense.

Same; Res Gestae as exception to hearsay rule; Must refer to incident in question,
not to prior statement.We do not likewise agree with the appellant that Erwins
alleged statement to Edgardo Ducay: Kuya pasensiya ka na, naturo kita noon una,
hindi naman ikaw, uttered immediately after he made his supplemental
statement, is a part of the res gestae and thus an exception to the hearsay rule. The
rule on spontaneous statements as part of the res gestae is stated in Section 42, Rule
130 of the Rules of Court: statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. x x x.
There are three requisites for the admission of spontaneous statements as evidence
of the res gestae: 1) that the principal act, the res gestae, be a startling occurrence; 2)
that the statements were made before the declarant had time to contrive or devise;
and 3) that the statements must concern the occurrence in question and its
immediately attending circumstances. The rationale for the exception lies in the fact
that a statement made under the stress of an exciting event or condition tends to
ensure that the statement is spontaneous and, therefore, trustworthy; and the
likelyproximity in time between the event or condition and the statement minimizes the
possibility of a memory problem. Erwins alleged statement to Edgardo Ducay does not refer
to the incident in question but rather to his prior statement (not the supplemental
statement) implicating Edgardo Ducay. Furthermore, the alleged contemporaneous
statement was made two days after the shooting incident. In no way can it be said that
Erwin was under the stress of an exciting event or condition.

Criminal Procedure; Motion for new trial on the ground of newly discovered evidence;
Result of paraffin test not newly discovered evidence; Negative findings not conclusive that
appellant did not fire gun.In his second assigned error, the appellant faults the trial court
for denying his motion for new trial on the ground of newly discovered evidence consisting of
Chemistry Report No. 0-1630-86 of the PC Crime Laboratory Service, the result of the
paraffin test conducted on Santos Ducay on 13 October 1986 or the day after the incident in
question, which allegedly shows that both hands of the [appellant] gave NEGATIVE result
 91

to the test for gunpowder residue (nitrates). One of the grounds for a new trial mentioned
in Section 2, Rule 121 of the Rules of Court is the discovery of new and material evidence.
The requisites therefor which must concur are: (1) that the evidence was discovered after
the trial; (2) that such evidence could not have been discovered and produced at the trial
even with the exercise of reasonable diligence; and (3) that such evidence is material, not
merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, it
will probably change the judgment. In the present case, the appellant was subjected to a
paraffin test the day after the crime was committed. Certainly, he knew that the findings of
such test would be forthcoming. He should have asked for the result of the test to find out if
it is exculpatory, in which case he could have presented it during the hearing of his
application for bail or, at the latest, during the trial on the merits. In any event, the
chemistry report cannot be considered as newly discovered evidence since it was already
existing even before the trial commenced and could have been easily produced in court by
compulsory process. The appellant either did not exercise reasonable diligence for its
production or simply forgot about it. Forgotten evidence is, of course, not a ground for a new
trial. Moreover, the result of the paraffin test conducted on the appellant is not conclusive
evidence that he did not fire a gun. It is possible for a person to fire a gun and yet be
negative for the presence of nitrates, as when he wore gloves or washed his hands
afterwards. The trial court, therefore, correctly denied the motion for new trial.
Criminal Law; Complex Crimes; No complex crime of double murder and multiple
frustrated murder where victims died from several shots; Information; Multiplicity of
charges; Failure to object constitutes waiver of defect.The trial court correctly ruled that
there was no complex crime considering that the trigger of the gun used in committing the
acts complained of was pressed in several instances and not in one single act. It is settled
that when various victims expire from separate shots, such acts constitute separate and
distinct crimes. However, the trial court erred when it ruled that (i)t cannot, however,
impose the corresponding penalty for the crime committed against each victim because the
information to which the accused pleaded is only one crime of double murder and multiple
frustrated murder. The information in this case, although denominated as one for a
complex crime, clearly charges the accused with five different criminal acts. It states the
above-named accused, with intent to kill Pacita Labos, Manuel Labos, Lina Labos-Mojica,
Edwin Labos, and Ma. Cristina Labos, x x x did then and there x x x attack, assault and
shoot with a 45 caliber [pistol] and shotgun they were then provided the said Pacita Labos,
Manuel Labos, Lina Labos-Mojica, Edwin Labos and Ma. Cristina Labos, x x x. The
appellant and his co-accused did not move to quash the information on the ground of
multiplicity of charges. At no other time thereafter did they object thereto. They therefore
waived such defect and the trial court thus validly rendered judgment against them for as
many crimes as were alleged and proven.
 92

APPEAL from the judgment of the Regional Trial Court of Valenzuela, Metro
Manila, Br. 172.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Valmonte Law Office for accused-appellant.

DAVIDE, JR., J.:

Santos Ducay and Edgardo Ducay, father and son, were charged with the complex
crime of double murder and multiple frustrated murder in an Information filed on 1

16 October 1986 with the Regional Trial Court (RTC) of Valenzuela, Metro Manila,
allegedly committed as follows:
that on or about the 12th day of October, 1986, in the municipality of Valenzuela, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill Pacita Labos, Manuel Labos, Lina Labos-Mojica, Edwin Labos
and Ma. Cristina Labos, conspiring and confederating together and mutually helping one
another, did then and there wilfully, unlawfully and feloniously, with evident premeditation,
abuse of superior strength and treachery, attack, assault and shoot with a .45 caliber
[pistol] and shotgun they were then provided the said Pacita Labos, Manuel Labos, Lina
Labos-Mojica, Edwin Labos and Maria Cristina Labos, hitting them on their body, thereby
causing them serious physical injuries which directly caused the death of Pacita Labos and
Manuel Labos; thereby, also, with respect to Lina Labos-Mojica, Edwin Labos and Maria
Cristina Labos performing all the acts of execution which ordinarily would have produced
the crime of murder but which nevertheless did not produce it by reason of a cause
independent of their will, that is, the timely and able medical attendance rendered to said
Lina Labos-Mojica, Edwin Labos and Maria Cristina Labos which prevented their death.

The case was docketed as Criminal Case No. 7792-V-6 before Branch 172 of said
court. Upon arraignment, both accused entered a plea not guilty. In due course, the
2

trial on the merits proceeded.

The witnesses presented by the prosecution were Edwin Labos, Lina Labos, Sgt.
Ponciano Casile, Dr. Rodolfo Lizondra, Dr. Tahil Mindalano and Dr. Leo Arthur
Camagay. On the other hand, the witnesses presented by the defense were accused
3

Santos Ducay and Edgardo Ducay, Ruben Ampuan, Mario Abad and Cristino
Mariano.
Prosecution witness Lina Labos testified that at about 5:00 oclock in the
morning of 12 October 1986, she was sleeping in the sala at the second floor of the
 93

house together with her husband, Manuel Labos, and their six-month old daughter,
Ma. Cristina Labos, when she was awakened by the pounding of the door on
the first floor leading to the sala. Moments later, Santos Ducay and his son, Edgardo
Ducay, appeared in the sala. Santos was carrying a long firearm while Edgardo held
a caliber .45 pistol. The two started firing at Manuel, who was already standing
albeit half asleep. Then they shot her mother-in-law, Pacita Labos. Both Manuel and
Pacita were killed. The accused also shot her, Ma. Cristina, and Edwin Labos, her
brother-in-law, who was then coming out of the bedroom. She was hit in the stomach
and gall bladder while Ma. Cristina was hit in the right leg, left thigh and abdomen.
The accused then turned their backs and one of them uttered Ubos ang lahi. She
was able to identify the two accused, who are her former neighbors, because of the
fluorescent light in the sala. After the accused had left, the police came and brought
the wounded to the Jose Reyes Memorial Medical Center. 4

Edwin Labos testified that on 24 December 1985 his brother Manuel Labos and
Santos Ducay quarreled and stabbed each other; however, Santos Ducay did not file
any charges against Manuel who gave the former P200.00 for medical expenses. He 5

also corroborated the testimony of his sister-in-law. He heard the banging of the
door and several gunshots, then he went out of his room and saw his brother
Manuel already sprawled dead on the floor. He saw both accused shoot his sister-in-
law and his niece. Edgardo then fired at him, hitting him in the right thigh, while
6

Santos shot his mother. He was later treated at the Jose Reyes Memorial Medical
7

Center where he spent P13,299.53 (Exhibits Q to Q-165). They paid P13,200.00

to Popular Memorial Chapels and P9,060.00 to Holy Cross Memorial Chapel for the
interment of his mother and brother. 8

Sgt. Ponciano Casile, a police investigator of the Valenzuela Police Station, testified
that he was ordered to investigate the incident. In the course of his investigation, he
learned that the assailants were Santos Ducay and a yet unidentified man who,
upon Lina Ducays sworn statement given two days later, wasidentified as Santos
Ducays son, Edgardo. 9

Dr. Rodolfo Lizondra, Supervising Medico-Legal Officer of the National Bureau of

Investigation (NBI), testified on the postmortem examinations he conducted on the
cadavers of Pacita and Manuel Labos, the results of which are embodied in two
autopsy reports (Exhibits K and M). He determined the cause of death of Pacita
10

as hemorrhage, secondary to shotgun wounds of the chest, abdomen and left arm,
 94

and that of Manuel as hemorrhage, secondary to gunshot wounds of the head and
chest. Dr. Tahil Mindalano testified regarding the injuries sustained by Lina and
Ma. Cristina Labos and the medical assistance rendered to them, while Dr. Arthur
11

Leo Macasiano Camagay testified about the injuries sustained by Edwin

Labos. Drs. Mindalano and Camagay declared that without the medical attendance
12

given to Lina, Ma. Cristina and Edwin Labos, said persons would have died because
of the nature of the injuries sustained by them. 13

Per the Medico-Legal Certificates issued, Lina Labos sustained three gunshot
wounds on her left umbilical, left buttocks, and lateral D/3rd left thigh. The
point of exit of the last wound was at the anterior middle 3rd left thigh, thereby
penetrating the liver by 1.5 cm. thru and thru, perforating the duodenum by 1 cm.
thru and thru, perforating jejunom by 0.5 cm. lacerating the pancreas by 2 cm.
transecting muscular branch aorta (abdominal) (Exhibit A). Edwin Labos
sustained a gunshot wound at the middle 3rd anterior surface thigh, right with no
point of exit resulting in Gustilo-Anderson type III open fracture comminuted
M/3rd femur, right, (Exhibit V) and Ma. Cristina Labos sustained three gunshot
wounds located at lateral aspect D/3rd thigh right, antero-medial aspect M/3rd
thigh, left and periumbilcal right (Exhibit B).

Both accused testified that they were in their house at Area 4, Valenzuela at the
time of the incident in question. At about 6:00 oclock in the morning, they were
roused from their sleep by afriend, Martin Gabukan, who informed them that
Santos was a suspect in the shooting of the Labos family. Gabukan told Santos not
14

to worry because many people heard that [the accused] were really not the
one. Santos was arrested on 14 October 1986 in Balagtas, Bulacan while he was
15 16

looking for a lawyer, while Edgardo was taken into custody by the police while he
was attending to his father in the police headquarters. 17

Cristino Mariano, a neighbor of the Ducays, testified that at about 6:00 oclock in
the morning of 12 October 1986, Santos Ducay came and said that he (Santos) was a
suspect in the shooting incident in question. The following day, he brought Santos
18

to the Barangay Captain, Pio Angeles, who entered in the barangay blotter (Exhibit
6) Santos profession of innocence of the crime he was suspected of. On cross-
examination, Cristino stated that the distance between Area 4, where he and the
Ducays are residing, and the house of the Laboses at Area 6 (also referred to as
Area 11) is about one kilometer.19
 95

Ruben Ampuan, a neighbor of the Laboses, testified that at the time of the
incident and while he was still lying down, he heard gunshots. He stood up, opened
the window and saw two men leaving the house of the Laboses. He stated that they
were not the accused in this case. 20

Mario Abad Allegado testified that he was at the tambakan which is about thirty
meters from the scene of the crime when he heard several gunshots. As he headed
for home, he met two persons in front of the lamp post near the house of the
Eugenios heading towards Maysan Road. One of them, a tall, thin fellow, with curly
hair and mestizo features, was carrying a firearm, while the other, whose face he
did not see, was shorter. He believed that both persons were the assailants. He
21 22

declaredthat they were not the accused whom he knows very well being his former
neighbors. Upon reaching home, he heard a commotion from the house of the
23

Laboses. He went inside the Laboses house and saw the wounded family members.
He asked Edwin and Lina Labos whether they recognized their assailants and both
answered that they did not. 24

Capt. Carlos Tiquia, Chief Investigator of the Valenzuela Police Station, who was
presented as the only defense witness during the hearing for the application for bail
and whose testimony was adopted in the trial on the merits, declared that he
proceeded to the crime scene after receiving a report on the incident from the
investigator assigned to the case. When he and the investigator returned to the
office, his investigator took down the statements of the witnesses, one of whom was
Erwin Labos and whose statement was taken down at 4:00 oclock in the morning of
14 October 1986. However, he believed that Erwin was not telling the truth so that
he personally talked to him, and at 6:00 a.m., Erwin executed a supplemental
statement (Exhibit 4) in the presence of several people including his brother
Renato Labos. This time, Erwin described one of the alleged assailants as tall, with
curly hair and mestizo features. On the basis of such a description, Tiquia made a
request for a cartographic sketch to the PC Crime Laboratory. 25

On 29 April 1988, the trial court promulgated its judgment finding Santos Ducay
guilty beyond reasonable doubt of the crime charged but acquitting Edgardo Ducay
on ground of reasonable doubt. The dispositive portion of the decision reads:
26

In view of the foregoing, the Court finds guilty beyond reasonable doubt Santos Ducay of
the complex crime of double murder and multiple frustrated murder as charged.
 96

The penalty of reclusion temporal in its maximum period to death is equivalent to 17

years, 4 months and 1 day to death, the minimum being 17 years, 4 months and 1 day to 20
years, the medium being reclusion perpetua and maximum, death.

The Court could have meted the death sentence on Santos Ducay but is prevented from
doing so by the New Constitution. Santos Ducay is, therefore, hereby sentenced to suffer
imprisonment for life, reclusion perpetua which is the medium period of the penalty
provided by law, and all the accessory penalties provided by law, to indemnify the heirs of
the victim Pacita Labos in the sum of P30,000.00 and the heirs of Manuel Labos
P30,000.00; to indemnify the victims Edwin Labos in the sum of P13,299.53 as
reimbursement of medical expenses, and the sum of P4,500.00 as lost earnings for the
period from October 12, 1986 to July 1987; to indemnify Lina Labos and Ma. Cristina Labos
in the total sum of P10,000.00 as reimbursement of medical expenses; and to pay the costs
of suit.
The Court finds Edgardo Ducay not guilty of the crime charged on ground of reasonable
doubt and is hereby acquitted. The Jail Warden of Valenzuela, Metro Manila, is hereby
ordered to release Edgardo Ducay from detention unless held for any other lawful cause.
27

In convicting Santos Ducay, the trial court said:

The Court never doubts the participation of Santos Ducay not only on the basis of the
positive identification made by surviving victims, Lina and Edwin Labos, the motive Santos
Ducay had to avenge the assault done on him by Manuel Labos, but also because his
positive identification sweeps aside altogether his defensethat of alibia very weak
defense in the light of the overwhelming evidence against him.
xxx
From the evidence thus adduced the Court is convinced beyond reasonable doubt that it
was Santos Ducay who was one of the persons who conspired with another in killing the
victims, Manuel Labos, Pacita Labos, and in trying to kill Lina Labos, Maria Cristina Labos
and Edwin Labos, but was frustrated. The evidence of evident premeditation, abuse of
superior strength and treachery, were clearly shown by the prosecution when it proved
convincingly to the Court that considering the time of the attack, 5:00 at dawn, evident
premeditation is clear especially if the testimony of Edwin Labos will be considered that
months previous to this attack, Santos Ducay had a quarrel with one of the victims shot to
death. There was abuse of superior strength and treachery because the victims were asleep
at the time of the attack and were therefore unprepared and unarmed for the attack. They
had no chance whatsoever to fight back, the six months baby Ma. Cristina Labos especially.

The trial court expressed the view that two murders and three frustrated murders
were committed, or that there are as many crimes as there are victims in this case
because the trigger of the gun used in committing the acts complained of was
 97

pressed in several instances and not in one single act. However, it did not impose
the corresponding penalties therefor because the information to which the accused
pleaded is only one crime of double murder and multiple frustrated murder. 29

On 13 May 1988, Santos Ducay filed a Partial Motion For Reconsideration

And/Or New Trial. He sought the admission of the alleged result of a paraffin test
30

conducted on him on 13 October 1986, or a day after the incident, which shows that
he was found negative for powder burns. For lack of merit, the trial court denied the
motion in its Order of 24 May 1988. 31

Santos Ducay, hereinafter referred to as the Appellant, then filed on 7 June 1988
a Notice of Appeal.32

In his Brief for the Defense filed on 24 September 1992, the appellant raises
33

the following assignment of errors:

1. 1.THE TRIAL COURT ERRED IN HOLDING AS POSITIVE

PROSECUTION WITNESSES EDWIN LABOS AND LINA LABOS
IDENTIFICATION OF ACCUSED; HENCE, IT ERRED WHEN IT
REJECTED ACCUSEDS DEFENSE OF ALIBI.

2. 2.THE TRIAL COURT ERRED IN DENYING ACCUSEDS PARTIAL

MOTION FOR RECONSIDERATION AND/OR NEW TRIAL FOR THE
ADMISSION OF THE PARAFFIN EXAMINATION ON ACCUSED A DAY
AFTER THE INCIDENT FINDING HIM NEGATIVE OF POWER (sic)
BURNS.

3. 3.THE TRIAL COURT ERRED IN CONVINCTING THE ACCUSED.

In the first assigned error, the appellant attacks the credibility of prosecution
witnesses Lina and Edwin Labos and alleges that their identification of the
appellant is vague and highly dubious. To buttress this claim, he refers this Court to
his testimony thata neighbor by the name of Martin Gabukan told him that while
the victims were in the hospital, he (Martin) overheard Edwin Labos say that he did
not really see the appellant and Edgardo Ducay; that Edwin only happened to
mention the name of the appellant when he was asked by the police about their
enemies in their place. The appellant then concludes that the crime was imputed
upon him not because he was seen at the scene of the crime but because of the
motive alleged, namely, that he and Manuel Labos had an altercation on 24
 98

December 1985. As to Lina Labos, the appellant maintains that she gave her
statement only on 14 October 1986 or two days after the occurrence of the incident;
she thus had sufficient time to concoct a story and implicate the appellant and
Edgardo after she had talked with her brother-in-law, Edwin, and her father-in-law,
Jesus Labos.

The appellant further claims that since the trial court did not believe Lina and
Edwins testimonies that they positively identified Edgardo Ducay, then following
the maxim falsus et (sic) uno, falsus et (sic) omnibus, it should not have also
34

believed their testimony as regards the appellant. He also faults the trial court for
rejecting the supplementary statement (Exhibit 4) of Erwin Labos, brother of
Edwin Labos, and Erwins contemporaneous statement to Edgardo Ducay: Kuya
pasensiya ka na, naturo kita noon una, Hindi naman ikaw, allegedly absolving the
accused and pointing to a tall, mestizo and curly-haired man as one of the
assailants, which statement was allegedly confirmed by Sgt. Casile and Capt. Tiquia
and made as the basis of the cartographic sketch by the PC Crime Laboratory.
According to the appellant, these declarations of Erwin are declarations against
interest and are part of the res gestae. Finally, the appellant asserts that the
evidence for the prosecution is weak because no disinterested witness was presented
despite the fact that the incident occurred in a thickly populated area. He also
contends that the prosecution suppressed evidence by failing to present Erwin
Labos as a witness.
These claims are without merit.
A careful evaluation of the records and the evidence adducedby the prosecution
discloses that the appellant had been positively identified by Lina and Edwin Labos.
In his sworn statement (Exhibit H) executed barely four hours after the incident
and while he was still in the emergency room of the hospital, Edwin explicitly
declared that the appellant was one of the assailants. This sworn statement was
spontaneously given at the time he was hovering between life and death. He had no
opportunity then to contrive or fabricate a story. The appellant is the only one
identified therein by Edwin. Thus:
x x x
TANONG Bakit ka narito ngayon sa loob ng Dr. Jose Reyes
Hospital, Emergency Room, Manila?
SAGOT Binaril po ako.
T Sino ang bumaril sa iyo?
S Ang Kasama ni Santos Ducay po nakatira sa
 99

Area-4, Family Compound, Karuhatan, Val.

M.M..
T Kilala mo ba ang bumaril sa iyo na kasama ni
Santos?
S Kung makikita ko muli.
xxx
T Paano mo nasabi na kasama ni Santos Ducay ang
bumaril sa iyo?
S Nakita ko po si Santos Ducay na ang hawak niya
shotgun at siya ang bumaril sa kuya ko, Manuel,
nanay ko, Pacita, Ate ko, Lina at bata na si
Maria Cristina.
T Dati mo bang kilala si Santos Ducay?
S Opo.
T Paano mo siya nakilala?
S Dati po siyang (Santos) kapitbahay namin at
lumipat sa Area 4 Family Compound, Karuhatan,
Val., M.M.35

In court, Edwin unhesitatingly pointed to the appellant as one of the assailants. 36

Lina Labos also identified the appellant as one of the malefactors both in her
handwritten sworn statement, Exhibit E, executed on 14 October 1986 or two
37

days after the incident, and in her court testimony. That her statement was
38

executed twodays after the incident does not perforce affect her credibility. With the
three gunshot wounds she sustained and the thought of the death of her husband
and mother-in-law and the serious injuries of her daughter and brother-in-law, it
would be too much to expect from her that physical and emotional fortitude to
forthwith give her statement as what Edwin did. Delay or vacillation in making a
criminal accusation does not necessarily impair the credibility of a witness if such
delay is satisfactorily explained. In any case, the speculation that she could have
39

contrived her testimony after having talked with her father-in-law and brother-in-
law is wholly unsupported by evidence.

We agree with the appellee that the alleged statements made by Martin
Gabukan to the appellant, which the latter related in court, is hearsay and has
little, if any, probative value. Counsel for the appellant knew, or ought to have
known, that this was so. Yet, the defense did not present Martin as a witness.
 100

Nor can we subscribe to the proposition that since the trial court did not give
credit to Edwin and Linas testimonies that they positively identified Edgardo, it
should, pursuant to the maxim falsus in uno, falsus in omnibus, likewise disregard
their testimonies as against the appellant and accordingly acquit him. In People vs.
Dasig, this Court stated that the maxim is not a mandatory rule of evidence, but
40

rather a permissible inference that the court may or may not draw. In People vs.
Pacada, we stated that the testimony of a witness can be believed as to some facts
41

and disbelieved as to others. And in People vs. Osias, we ruled that:

42

It is perfectly reasonable to believe the testimony of a witness with respect to some facts
and disbelieve it with respect to other facts. And it has been aptly said that even when
witnesses are found to have deliberately falsified in some material particulars, it is not
required that the whole of their uncorroborated testimony be rejected but such portions
thereof deemed worthy of belief may be credited.

The primordial consideration is that the witness was present at the scene of the crime and
that he positively identified [the accused] as one of the perpetrators of the crime charged x x
x.

Professor Wigmore gives the following enlightening commentary:

It may be said, once for all, that the maxim is in itself worthlessfirst, in point of validity,
because in one form it merely contains in loose fashion a kernel of truth which no one needs
to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of
utility, because it merely tells the jury what they may do in any event, not what they must
do or must not do, and therefore it is a superfluous form of words. It is also in practice
pernicious, first, because there is frequently a misunderstanding of its proper force, and
secondly, because it has become in the hands of many counsel a mere instrument for
obtaining new trials upon points wholly unimportant in themselves. 43

The trial court did not err in rejecting the supplementary statement (Exhibit 4) of
Erwin Labos, brother of Edwin Labos, and his alleged contemporaneous statement
to Edgardo Ducay. Erwin Labos was not called by the defense as its witnesseven
as a hostile one. Whatever declaration he made to any party, either written or oral,
is thus hearsay. The prosecution seasonably objected to the admission of Exhibit
4. Besides, as noted by the prosecution, this document is not under oath while his
44

first statement implicating the appellant is duly subscribed and sworn to. The
defense should have presented Erwin as a witness if indeed it was convinced that
Exhibit 4 expresses the truth. There is no showing that this could not have been
done because Erwin was not available. His brother, Edwin, testified that Erwin was
 101

staying with his father in Escolta. This information should have been utilized by
45

the defense to have compulsory process issued to bring Erwin to court.

Instead, the defense imputes suppression of evidence upon theprosecution in not

presenting Erwin Labos as its witness. It is settled that suppression of evidence is
inapplicable in a case where the evidence is at the disposal of both the prosecution
and the defense. Besides, the prosecution had no cogent reason for presenting
46

Erwin since there is no showing that he was in the house when the incident
occurred. On the other hand, the defense needed his testimony for if, indeed, he
should affirm his supplemental statement, he may somehow enhance the theory of
the defense.

We do not likewise agree with the appellant that Erwins alleged statement to
Edgardo Ducay: Kuya pasensiya ka na, naturo kita noon una, hindi naman ikaw,
uttered immediately after he made his supplemental statement, is a part of the res
gestae and thus an exception to the hearsay rule.
The rule on spontaneous statements as part of the res gestae is stated in Section
42, Rule 130 of the Rules of Court: statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with respect
to the circumstances thereof, may be given in evidence as part of the res gestae. x x
x. There are three requisites for the admission of spontaneous statements as
evidence of the res gestae: 1) that the principal act, the res gestae, be a startling
occurrence; 2) that the statements were made before the declarant had time to
contrive or devise; and 3) that the statements must concern the occurrence in
question and its immediately attending circumstances. The rationale for the
47

exception lies in the fact that a statement made under the stress of an exciting event
or condition tends to ensure that the statement is spontaneous and, therefore,
trustworthy; and the likely proximity in time between the event or condition and the
statement minimizes the possibility of a memory problem. Erwins alleged
48

statement to Edgardo Ducay does not refer to the incident in question but rather to
his prior statement (not the supplemental statement) implicating Edgardo Ducay.
Furthermore, the alleged contemporaneous statement was made two days after
the shooting incident. In no way can it be said that Erwin was under the stress of an
exciting event or condition.
Nor do we find merit in the appellants argument that the prosecutions evidence
is weak because unlike the defense, it did not present any disinterested witness. He
 102

suggests that since the place where the incident happened is thickly populated,
there were many people who saw the gunmen and who could have pointed to the
accused if they were the ones who committed the crime considering that they were
familiar to the residents of the area. In the first place, it was not shown that at the
time the incident occurred, many people were already awake and were able to see
the gunmen. In the second place, assuming that it was so shown, the determination
of who should be utilized as witnesses by the prosecution is addressed to the sound
discretion of the prosecutor handling the case. That the prosecutor did not present
49

any disinterested witness does not lessen the strength of the prosecutions case,
which is anchored on the testimonies of Edwin and Lina Labos, who were
themselves eyewitnesses and victims of the crime.
In the ultimate analysis, the first assigned error involves the credibility of
witnesses. It is settled that when the issue is one of credibility of witnesses,
appellate courts will generally not disturb the findings of the trial court considering
that the latter is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying
during the trial unless it has plainly overlooked certain facts of substance that, if
considered, might affect the result of the case. We find no reason to depart from
50

this rule in this case.

In his second assigned error, the appellant faults the trial court for denying his
motion for new trial on the ground of newly discovered evidence consisting of
Chemistry Report No. 0-1630-86 of the PC Crime Laboratory Service, the result of
the paraffin test conducted on Santos Ducay on 13 October 1986 or the day after the
incident in question, which allegedly shows that bothhands of the [appellant] gave
NEGATIVE result to the test for gunpowder residue (nitrates). 51

One of the grounds for a new trial mentioned in Section 2, Rule 121 of the Rules
of Court is the discovery of new and material evidence. The requisites therefor
which must concur are: (1) that the evidence was discovered after the trial; (2) that
such evidence could not have been discovered and produced at the trial even with
the exercise of reasonable diligence; and (3) that such evidence is material, not
merely cumulative, corroborative or impeaching, and is of such weight that, if
admitted, it will probably change the judgment. In the present case, the appellant
52

was subjected to a paraffin test the day after the crime was committed. Certainly, he
knew that the findings of such test would be forthcoming. He should have asked for
 103

the result of the test to find out if it is exculpatory, in which case he could have
presented it during the hearing of his application for bail or, at the latest, during
the trial on the merits. In any event, the chemistry report cannot be considered as
newly discovered evidence since it was already existing even before the trial
commenced and could have been easily produced in court by compulsory process.
The appellant either did not exercise reasonable diligence for its production or
simply forgot about it. Forgotten evidence is, of course, not a ground for a new
trial. Moreover, the result of the paraffin test conducted on the appellant is not
53

conclusive evidence that he did not fire a gun. It is possible for a person to fire a
54

gun and yet be negative for the presence of nitrates, as when he wore gloves or
washed his hands afterwards. The trial court, therefore, correctly denied the
55

motion for new trial.

The testimonies of the witnesses and the nature of the woundssuffered by the
victims show that there were two different firearms used by two assailants, one of
whom is the appellant. The crimes committed were not caused by a single act nor
were any of the crimes committed as a necessary means of committing the others. In
this case, there are as many crimes committed as there are victims. The trial court
correctly ruled that there was no complex crime considering that the trigger of the
gun used in committing the acts complained of was pressed in several instances and
not in one single act. It is settled that when various victims expire from separate
shots, such acts constitute separate and distinct crimes. However, the trial court
56

erred when it ruled that (i)t cannot, however, impose the corresponding penalty for
the crime committed against each victim because the information to which the
accused pleaded is only one crime of double murder and multiple frustrated
murder. The information in this case, although denominated as one for a complex
crime, clearly charges the accused with five different criminal acts. It states: the
above-named accused, with intent to kill Pacita Labos, Manuel Labos, Lina Labos-
Mojica, Edwin Labos, and Ma. Cristina Labos, x x x did then and there x x x attack,
assault and shoot with a .45 caliber [pistol] and shotgun they were then provided
the said Pacita Labos, Manuel Labos, Lina Labos-Mojica, Edwin Labos and Ma.
Cristina Labos, x x x. The appellant and his co-accused did not move to quash the
information on the ground of multiplicity of charges. At no other time thereafter did
they object thereto. They therefore waived such defect and the trial court thus
57
 104

validly rendered judgment against them for as many crimes as were alleged and
proven. 58

The crimes committed by the appellant and his companion, which were proven
beyond reasonable doubt are: (1) two counts of murder with the qualifying
circumstance of treachery since the attack on the victims was so sudden and at a
time when the victims were barely awake, thus giving them no chance whatsoever to
defend themselves; and (2) three counts of frustratedmurder. Conspiracy between
59

the assailants was duly proven. Together they came to the house of the victims,
simultaneously attacked them, and then, together again, they fled. Before fleeing,
one of them even exclaimed Ubos ang lahi. These acts sufficiently established a
common plan or design to commit the crimes charged and a concerted action to
effectively pursue it. Hence, the act of one is the act of all. 60

We do not, however, agree with the trial court that evident premeditation was
sufficiently established. Although Manuel Labos stabbed the appellant on 24
December 1985, there is paucity of evidence as to when the latter determined to kill
the former and any member of his family and as to acts manifestly indicating that
he has clung to his determination. Nevertheless, the aggravating circumstance of
61

dwelling which was proved without objection from the defense should be appreciated
against the appellant since the victims were attacked and shot inside their own
dwelling. The assailants displayed greater perversity in their deliberate invasion of
the home of the Laboses. 62

Under Article 248 of the Revised Penal Code, the crime of murder is punishable
by reclusion temporal maximum to death. The maximum of the penalty should be
imposed in view of the presence of the aggravating circumstance of dwelling which
is not offset by any mitigating circumstance. However, the imposition of the death
penalty is prohibited by the Constitution; hence, the proper imposable penalty
63

would be reclusion perpetua. The penalty for the crime of frustrated murder is the
penaltynext lower in degree than that prescribed for murder, that is, prision
64

mayor maximum to reclusion temporal medium. 65

 105

The appellant is entitled to the benefits of the Indeterminate Sentence Law in

the frustrated murder cases. Thus, he may be sentenced in each of the three
frustrated murder cases to an indeterminate penalty ranging from eight (8) years
and one (1) day of prision mayor medium as minimum to fourteen (14) years, eight
(8) months and one (1) day of reclusion temporal medium as maximum.
ACCORDINGLY, the challenged judgment of Branch 172 of the Regional Trial
Court of Valenzuela, Metro Manila in Criminal Case No. 7792-V-6 is AFFIRMED
subject to the modifications herein indicated. As modified, appellant Santos Ducay
is convicted of (a) two crimes of murder for the death of Pacita Labos and Manuel
Labos and is accordingly sentenced to reclusion perpetua for each death, with the
indemnity in each crime increased from P30,000.00 to P50,000.00 in conformance
with the current policy of this Court; and (b) three crimes of frustrated murder
committed on Lina Labos, Ma. Cristina Labos and Edwin Labos, and is hereby
sentenced in each crime to an indeterminate penalty of eight (8) years and one (1)
day of prision mayor medium as minimum to fourteen (14) years, eight (18) months
and one (1) day of reclusion temporal medium as maximum.
Costs against the appellant.
SO ORDERED.

G.R. No. 117010. April 18, 1997.*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENGR. CARLOS
GARCIA y PINEDA, PATRICIO BOTERO y VALES, LUISA MIRAPLES (at large),
accused, PATRICIO BOTERO y VALES, accused-appellant.
 106

Evidence; Witnesses; Falsus in Uno, Falsus in Omnibus; Under present

jurisprudence, this maxim of law, falsus in uno, falsus in omnibus, is hardly adhered
to by the courts.In effect, accused-appellant Botero wants this court to apply the
doctrine of falsus in uno, falsus in omnibus (false in one part, false in everything) and to
disregard the entire testimony of Esclada. Under present jurisprudence, this maxim of law
is rarely adhered to by the courts. It is possible to admit and lend credence to the testimony
of a witness whom the Court has earlier found to have willfully perjured himself. x x x
(T)he testimony of a witness may be believed in part and disbelieved in part, depending
upon the corroborative evidence and the probabilities and improbabilities of the case. In
the case at bar, we hold that the trial court did not err in giving credence to the testimony of
Esclada against appellant Botero since it was corroborated on its material points by the
testimony of other witnesses. In fact, Escladas testimony against Botero is trustworthy as
he gave it after his conscience bothered him for not telling the truth.

Criminal Law; Labor Law; Illegal Recruitment; Words and Phrases; Recruitment and
Placement, Explained.Beyond any reasonable doubt, appellant Botero engaged in
recruitment and placement activities in that he, through Ricorn, promised the
complainants employment abroad. Under the Labor Code, recruitment and placement refers
to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring
workers, and includes referrals, contract services, promising or advertising for employment,
locally or abroad whether for profit or not: Provided, that any person or entity which in any
manner, offers or promises for a fee employment to two or more persons shall be deemed
engaged in recruitment and placement.
Same; Same; Same; Elements of the Crime of Illegal Recruitment in Large Scale.All
the essential elements of the crime of illegal recruitment in large scale are present in this
case, to wit: (1) the accused engages in the recruitment and placement of workers, as
defined under Article 13 (b) or in any prohibited activities under Article 34 of the Labor
Code; (2) accused has not complied with the guidelines issued by the Secretary of Labor
and Employment, particularly with respect to the securing of a license or an authority to
recruit and deploy workers, either locally or overseas; and (3) accused commits the same
against three (3) or more persons, individually or as a group.

Same; Same; Same; Corporation Law; All persons who assume to act as a
corporation knowing it to be without authority to do so shall be liable as general
partners for all the debts, liabilities and damages incurred or arising as a result
thereof.For engaging in recruitment of workers without obtaining the necessary
license from the POEA,Botero should suffer the consequences of Ricorns illegal act for
 107

(i)f the offender is a corporation, partnership, association or entity, the penalty shall be
imposed upon the officer or officers of the corporation, partnership, association or entity
responsible for violation; x x x. The evidence shows that appellant Botero was one of the
incorporators of Ricorn. For reasons that cannot be discerned from the records, Ricorns
incorporation was not consummated. Even then, appellant cannot avoid his liabilities to the
public as an incorporator of Ricorn. He and his co-accused Garcia held themselves out to the
public as officers of Ricorn. They received money from applicants who availed of their
services. They are thus estopped from claiming that they are not liable as corporate officials
of Ricorn. Section 25 of the Corporation Code provides that (a)ll persons who assume to act
as a corporation knowing it to be without authority to do so shall be liable as general
partners for all the debts, liabilities and damages incurred or arising as a result thereof:
Provided, however, That when any such ostensible corporation is sued on any transaction
entered by it as a corporation or on any tort committed by it as such, it shall not be allowed
to use as a defense its lack of corporate personality.

Same; Same; Same; An individual is guilty of the crime of illegal recruitment in a large
scale where it was proven that he, together with his cohorts, was able to defraud six persons.
Appellant Botero is guilty of the crime of illegal recruitment in a large scale considering it
was proven that he, together with his cohorts, were able to defraud the six complainant-
witnesses in this case. Under Article 38 (b) of the Labor Code, illegal recruitment in large
scale is perpetrated if committed against three (3) or more persons individually or as a
group. And under Article 39 (a) of the same Code, accused-appellants crime is punishable
by life imprisonment and a fine of one hundred thousand pesos (P100,000.00).
Same; Same; Same; Conspiracy; There is conspiracy where each accused played a part
in the recruitment of complainants.Finally, it is fruitless for appellant to deny he
conspired with his co-accused to commit the crime at bar. The fact that all the accused were
co-conspirators in defrauding the complainants could be inferred from their acts. They
played different roles in defrauding complainants: accused Garcia was the president,
appellant Botero was the vice-president and accused-at-large Miraples was the treasurer of
Ricorn. Each one played a part in the recruitment of complainants. They were indispensable
to each other.

APPEAL from a decision of the Regional Trial Court of Pasig City, Br. 158.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Tomas J. Caspe for accused-appellant.
 108

PUNO, J.:

Before us is an appeal from the decision of the Regional Trial Court in Criminal
Case No. 93871 convicting accused-appellant Patricio Botero of illegal recruitment
in large scale and sentencing him to suffer the penalty of life imprisonment. 1

In an Information dated July 21, 1992, accused-appellant Patricio Botero

together with Carlos P. Garcia and Luisa Miraples were charged with the crime of
illegal recruitment in large scale defined by Article 38 (b) and penalized under
Article 39 (a) of the Labor Code, as amended by Presidential Decree Nos. 1920 and
2018, committed as follows:
That on or before March 2, 1992, and subsequently thereafter, in the Municipality of
Mandaluyong, Metro Manila, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and mutually
helping and aiding each other, representing themselves to have authority, license and/or
permit to contract, enlist and recruit workers for overseas employment, did then and there
willfully, unlawfully and feloniously for a fee, recruit and promise job
placement/employment abroad to the following individuals, to wit:

1.Gloria Silaras y Barbero

2.Rolando Consigna y Ogana

3.Ma. Carmen Daluaidao

4.Zosimo La Puebla, Jr.

5.Mario Espada y Melodia

6.Arnel Santilla y Villalos

7.Elsa Delubio

8.Abener Siriban y Abatuan

9.Franklin Cabingan y Casalla

10.Jose Erwin Estinoso

11.Edgardo Belen y Juanillo

12.Ariel Rivada y Pascual

 109

13.Sunny Pinco y Pascua

14.Rolando Santiago y Magno

15.Alfredo Estinoso y Estrada

16.Luisito Vargas y Quizon

without first securing the required license or authority from the Department of Labor and
Employment.
Contrary to law. (Emphasis supplied.)
2

Accused Garcia and Botero pleaded not guilty upon arraignment on January 19,
1993 and March 31, 1993, respectively. Miraples remained at large as the warrant of
arrest against her was returned unserved. A joint trial was conducted against the
two (2) accused considering that their cases involve the same parties and issues. 3

Six (6) out of the sixteen (16) complainants testified as prosecution witnesses. These
4

complainants were Edgardo Belen, Gloria Silaras, Alfredo Estinoso, Jose Erwin
Esclada, Elsa Delubio and Ariel Rivada. They testified that on various dates in
March 1992, they went to Ricorn Philippine International Shipping Lines, Inc.
(hereinafter Ricorn), an entity which recruits workers for overseas employment,
with office at Rm. 410, Jovan Building, 600 Shaw Blvd., Mandaluyong, Metro
Manila. They applied as seamen, cook, waiter, chambermaid or laundrywoman
overseas. Esclada applied to accused Botero. All the other complainants coursed
5

their application to accused Garcia who represented himself as president of

Ricorn. Complainantswere required to submit their NBI and police clearance, birth
6

certificate, passport, seamans book and Survival of Life at Sea (SOLAS). As they7

did not have the last three (3) documents, they were asked to pay five thousand
pesos (P5,000.00) as processing fee. They paid to Ricorns treasurer, Luisa
Miraples. They were issued receipts signed by Miraples. The receipts were under
8

Ricorns heading. 9

Garcia and Botero assured complainants of employment after the May 11, 1992
election. Accused Botero, as the vice-president of Ricorn, followed-up their
 110

passports, seamans book and SOLAS. He told some applicants to wait for their
papers and informed the others that their papers were in order.
After the election, complainants went back to Ricorn to check on their
applications. They discovered that Ricorn had abandoned its office at Jovan Building
for non-payment of rentals. Hoping against hope, they went back to the building
10

several times to recover their money. Their persistence was to no avail for Garcia
and Botero were nowhere to be found. They then went to the Mandaluyong Police
Station and filed their complaints. They also checked with the Securities and
11

Exchange Commission (SEC) and discovered that Ricorn was not yet incorporated.
They also found that Ricorn was not licensed by the Department of labor and
Employment (DOLE) to engage in recruitment activities. 12

Accused Garcia testified that he is an electrical engineer by profession. According to

him, the group of Teresita Celso, Patricio Botero, Alice Mayonte, Luisa Miraples and
Edna Hemolaga approached him at a baptismal party to join Ricorn. He was asked
to contribute one hundred thousand pesos (P100,000.00). He told them he would
borrow the money from his brother in the United States.
In February 1992, accused Garcia saw the group again in a small apartment in
San Juan which they utilized as their office. He met them once more at Ricorns
office at Jovan Bldg. where there were many applicants for overseas jobs. This time,
they asked him to become Ricorns president and to contribute only twenty thousand
pesos (P20,000.00). He declined the offer. Allegedly, he already knew that Ricorn
was not licensed by the Philippine Overseas Employment Agency (POEA) or
registered as a corporation with the Securities and Exchange Commission (SEC).
He denied he issued receipts to complainants in this case. 13

Accused-appellant Botero is a marine engineer by profession but was working as a

barber when the trial took place. He testified that he became acquainted with
Ricorn when he applied for overseas employment as a machinist. He dealt with
accused Garcia who claimed to be the President of Ricorn. Eventually, he gained the
trust of Garcia and became an employee of Ricorn. Three (3) times a week, he
reported for work at Jovan Building. As a former seaman, he was familiar with the
14

processing of passport, seamans book and SOLAS. His job consisted in following-up
these documents. He left Ricorn when he discovered it was not licensed by the
POEA nor was it registered with the SEC. He denied he recruited the complainants
15

and received any money from them. However, on cross-examination, he admitted

16
 111

that in February 1992, he met Garcia in TADE recruitment agency. Garcia

convinced him to become oneof the incorporators of Ricorn. He gave money to Garcia
for Ricorns registration with the SEC. They held office at Jovan Building from
March 2, 1992 to April 20, 1992. 17

After trial, accused Garcia and Botero were convicted in a decision dated April
19, 1995, to wit:
WHEREFORE, in view of the foregoing, accused CARLOS P. GARCIA and PATRICIO
BOTERO are found guilty beyond reasonable doubt of the offense of illegal recruitment on
(sic) a large scale constituting economic sabotage under Article 38(b) and punishable under
Article 39(a) of the Labor Code as amended and are sentenced to suffer the penalty of life
imprisonment and to pay a fine of P100,000.00 each. They are also ordered to indemnify and
pay jointly and severally each of the six (6) complainants the amount of P5,000.00. Both
accused are also ordered to pay the cost of suit.
SO ORDERED. 18

The case against accused Miraples was archived by the court. She has remained at
19

large.
Only accused Botero, thru counsel, filed a Notice of Appeal. In his brief, he raises
the following assignments of error, to wit: 20

THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE PRESENTED BY

THE PROSECUTION AGAINST ACCUSED-APPELLANT PATRICIO BOTERO IS
SUFFICIENT FOR CONVICTION.

II

THE LOWER COURT ERRED IN NOT HOLDING THAT IN TRUTH AND IN FACT
THE ACCUSED-APPELLANT PATRICIO BOTERO DID NOT CONSPIRE WITH CO-
ACCUSED CARLOS P. GARCIA.

III

THE LOWER COURT ERRED IN NOT HOLDING THAT ACCUSED-APPELLANT

PATRICIO BOTERO IS NOT RESPONSIBLE

FOR ILLEGAL RECRUITMENT ACTIVITIES OF CO-ACCUSED CARLOS P. GARCIA.

IV
 112

THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF

JOSE ERWIN ESCLADA WHICH IS NOT ADMISSIBLE FOR BEING INCONSISTENT,
HIGHLY IMPROBABLE AND EXAGGERATED AND IN NOT GIVING WEIGHT TO THE
ACCUSED-APPELLANT PATRICIO BOTEROS EVIDENCE.

We sustain appellants conviction.

Appellant Botero predicates his appeal on the alleged insufficiency of evidence to
support his conviction. More particularly, he assails the credibility of witness
Esclada.
Esclada initially testified that he dealt with accused Garcia when he filed his
application with Ricorn as a seaman. On cross-examination, however, he admitted it
was really accused Botero with whom he transacted, viz.:
Q But I thought you stated earlier on the third time, you
talked to a certain Edna because Carlos Garcia is not
around (sic) on the same time, it was Carlos Garcia who
instructed you to give P5,000.00.
A I have told a lie, sir. My conscience could not take it.
COURT TO THE WITNESS
Q So, what is the truth now because I will put you in jail?
A When I applied at Ricorn (Phil.) with Mr. Botero, Mr.
Garcia was not around but it was Botero who said that
my papers were alright.
In effect, accused-appellant Botero wants this court to apply the doctrine of falsus in
uno, falsus in omnibus (false in one part, false in everything) and to disregard the
entire testimony of Esclada.

Under present jurisprudence, this maxim of law is rarely adhered to by the

courts. It is possible to admit and lend credence to the testimony of a witness whom
22

the Court has earlierfound to have willfully perjured himself. x x x (T)he testimony
of a witness may be believed in part and disbelieved in part, depending upon the
corroborative evidence and the probabilities and improbabilities of the case. In the
23

case at bar, we hold that the trial court did not err in giving credence to the
testimony of Esclada against appellant Botero since it was corroborated on its
material points by the testimony of other witnesses. In fact, Escladas testimony
against Botero is trustworthy as he gave it after his conscience bothered him for not
telling the truth.
 113

We reject appellant Boteros pretense that he is also a victim rather than a

culprit in this case. He insist he was a mere applicant of Ricorn and not a
conspirator of the other accused who defrauded the complainants. He claims that
even as a Ricorn employee, he merely performed minimal activities like following-
up applicants passports, seamans book and SOLAS, and conducting simple
interviews. He denies he had a hand in the selection of workers to be employed
abroad. These submissions are at war with the evidence on record. His co-accused
24

Garcia introduced him to the complainants as the vice-president of Ricorn. He used

a table with a nameplate confirming he was the vice-president of Ricorn. He 25

procured the passports, seamans books and SOLAS for the applicants. It was from
him that the complainants inquired about the status of their applications. He also
26

admitted he gave money to accused Garcia for Ricorns incorporation.

Beyond any reasonable doubt, appellant Botero engaged in recruitment and

placement activities in that he, through Ricorn, promised the complainants
employment abroad. Under the Labor Code, recruitment and placement refers to
any act ofcanvassing, enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad whether for profit or not: Provided,
that any person or entity which in any manner, offers or promises for a fee
employment to two or more persons shall be deemed engaged in recruitment and
placement. 27

All the essential elements of the crime of illegal recruitment in large scale are
present in this case, to wit:

1. (1)the accused engages in the recruitment and placement of workers, as

defined under Article 13 (b) or in any prohibited activities under Article 34 of
the Labor Code;

2. (2)accused has not complied with the guidelines issued by the Secretary of
Labor and Employment, particularly with respect to the securing of a license
or an authority to recruit and deploy workers, either locally or overseas; and

3. (3)accused commits the same against three (3) or more persons, individually
or as a group.
28
 114

It is a fact that Ricorn had no license to recruit from DOLE. In the office of Ricorn, a
notice was posted informing job applicants that its recruitment license is still being
processed. Yet, Ricorn already entertained applicants and collected fees for
processing their travel documents. 29

For engaging in recruitment of workers without obtaining the necessary license

from the POEA, Botero should suffer the consequences of Ricorns illegal act for (i)f
the offender is a corporation, partnership, association or entity, the penalty shall be
imposed upon the officer or officers of the corporation, partnership, association or
entity responsible for violation; x x x.30 The evidence shows that appellant Botero
was one of the incorporators of Ricorn. For reasons that cannot be discerned from
the records, Ricorns incorporation was not consummated. Even then, appellant
cannot avoid his liabilities to the public as anincorporator of Ricorn. He and his co-
accused Garcia held themselves out to the public as officers of Ricorn. They received
money from applicants who availed of their services. They are thus estopped from
claiming that they are not liable as corporate officials of Ricorn. Section 25 of the
31

Corporation Code provides that (a)ll persons who assume to act as a corporation
knowing it to be without authority to do so shall be liable as general partners for all
the debts, liabilities and damages incurred or arising as a result thereof: Provided,
however, That when any such ostensible corporation is sued on any transaction
entered by it as a corporation or on any tort committed by it as such, it shall not be
allowed to use as a defense its lack of corporate personality.

Appellant Botero is guilty of the crime of illegal recruitment in a large scale

considering it was proven that he, together with his cohorts, were able to defraud
the six complainant-witnesses in this case. Under Article 38 (b) of the Labor Code,
illegal recruitment in large scale is perpetrated if committed against three (3) or
more persons individually or as a group. And under Article 39 (a) of the same Code,
accused-appellants crime is punishable by life imprisonment and a fine of one
hundred thousand pesos (P100,000.00).
Finally, it is fruitless for appellant to deny he conspired with his co-accused to
commit the crime at bar. The fact that all the accused were co-conspirators in
defrauding the complainants could be inferred from their acts. They played different
roles in defrauding complainants: accused Garcia was the president, appellant
 115

Botero was the vice-president and accused-at-large Miraples was the treasurer of
Ricorn. Each one played a part in the recruitment of complainants. They were
32

indispensable to each other.

IN VIEW WHEREOF, the decision of the Regional Trial Court convicting accused-
appellant Patricio Botero of the crimeof illegal recruitment in large scale is affirmed
in all respects. Costs against accused-appellant.

SO ORDERED.
 116

G.R. No. 104494. September 10, 1993. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.PAUL BANDIN Y

NARCISO @ ABLING, accused-appellant.

Criminal Law; Dangerous Drugs Act; Evidence; When an arrested person signs a
Booking Sheet and Arrest Report at a police station, he does not admit the commission of an
offense nor confess to any incriminating circumstance.With regard to the appellants
signature on the Booking Sheet and Arrest Report (Exh. G), the Court reiterates its ruling
in People vs. Rualo, 152 SCRA 635, that when an arrested person signs a Booking Sheet
and Arrest Report at a police station, he does not admit the commission of an offense nor
confess to any incriminating circumstance. The Booking Sheet is merely a statement of the
accuseds being booked and of the date which accompanies the fact of an arrest. It is a police
report and may be useful in charges of arbitrary detention against the police themselves. It
is not an extrajudicial statement and cannot be the basis of a judgment of conviction.

Same; Same; Same; Same; The signature of the accused-appel-lant, on the receipt is
tantamount to an uncounselled extra-judicial confession outlawed by the Bill of Rights.
With regard to the Receipt of Property Seized (Exh. F), the appellants contention that his
signature on the document is inadmissible as evidence because it was given without the
assistance of counsel, is correct. In the cases of People vs. Mauyao, 207 SCRA 732
and People vs. Turla, 167 SCRA 278, we held that the signature of the accused-appellant on
the Receipt of Property Seized is a declaration against his interest and a tacit admission of
the crime charged, for mere unexplained possession of prohibited drugs is punished by law.
The signature of the accused-appellant on the receipt is tantamount to an uncounselled
extra-judicial confession outlawed by the Bill of Rights (Sec. 12[i], Art. III, 1987
Constitution). It is, therefore, inadmissible as evidence for any admission wrung from the
accused in violation of his constitutional rights is inadmissible against him.
 117

Same; Same; Same; The clear and convincing testimonies of the apprehending officers
prevail over the appellants denials.The clear and convincing testimonies of the
apprehending officers prevail over the appellants denials, for the records do not show that
his arrest was motivated by other than the desire of the police officers to curb the vicious
drug traffic in Daraga, Albay.

Same; Same; Same; Credibility of Witnesses, Courts generally give full faith and credit
to police officers for they are presumed to have performed their duties in a regular manner .
Courts generally give full faith and credit to police officers for they are presumed to have
performed their duties in a regular manner (Rule 131, Sec. 3[m], Rules of Court). Their
testimonies may not be cast aside where there is no showing that the arrest of the accused
was a mere frame up or an extortionate undertaking of the police.
Same; Same; Same; Same; Trial courts assessment of the crea ibity of the witnesses is
entitled to great respect and the highest consideration.The trial court properly found the
accused guilty beyond reasonable doubt of the crime charged. Its assessment of the
credibility of the witnesses is entitled to great respect and the highest consideration.
Same; Same; Same; A buy-bust operation is a method employed by police authorities to
catch malefactors in the act of committing the crime of drug vending.A buy-bust operation
is a method employed by police authorities to catch malefactors in the act of committing the
crime of drug vending. It is essentially a form of entrapment, a procedure not prohibited by
the Revised Penal Code.
Same; Same; Same; A chemical analysis is not an indispensable prerequisite to the
establishment of whether a certain substance offered in evidence is a prohibited drug.The
field test conducted by Sgt. Tuzon is judicially admissible. This Court has held that a
chemical analysis is not an indispensable prerequisite to the establishment of whether a
certain substance offered in evidence is a prohibited drug. The ability to recognize these
drugs can be acquired without a knowledge of chemistry to such an extent that testimony of
a witness on the point may be entitled to great weight. Such technical knowledge is not
required, and the degree of familiarity of a witness with such drugs only affects the weight
and not the competency of his testimony.
Same; Same; Constitutional Law; Search and Seizure; The warrantless search which
was conducted following a lawful arrest was valid.The accused was caught in flagrante
dehcto for he was carrying marijuana, hence, committing a crime, at the time of his arrest.
The warrantless search which was conducted following a lawful arrest, was valid.

APPEAL from a decision of the Regional Trial Court of Albay, Br. 7.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
 118

Delfin de Vera Law Office for accused-appellant.

GRIO-AQUINO, J.:

This case involves a buy-bust operation of the Narcotics Command (NARCOM) in

Daraga, Albay.
Appellant Paul Bandin y Narciso alias Abling was charged in Branch VII of the
Regional Trial Court of Albay for violation of Section 4, Article II (drug pushing) of
Republic Act No. 6425, as amended, allegedly committed at around 3:20 p.m. on
June 24, 1991.
On November 27, 1991, the trial court rendered judgment, the dispositive part of
which provides:
WHEREFORE, the guilt of the accused having been proved beyond reasonable doubt,
accused Paul Bandin y Narciso alias Abling is hereby convicted of the offense charged, and
is sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000.00
without subsidiary imprisonment in case of insolvency, and to pay the costs. The tea bag of
marijuana (Exhibit B) and the sticks of marijuana cigarette (Exhibit C) are hereby ordered
to be destroyed, the same not subject of lawful commerce. (p. 19, Rollo.)

The accused appealed to the Court of Appeals but in view of that courts opinion
that the imposable penalty should be life imprisonment, it certified the case to this
Court as provided in Section 17(4) of the Judiciary Act, as amended by RA 5440.
In the afternoon of June 24, 1991, an informer reported to the office of the 5th
Narcotics Regional Unit, NARCOM, PNP, stationed at Camp Simeon Ola (then
Camp Bagong Ibalon) in Legazpi City that drug trafficking by a pusher named
Abling was rampant at Bagtang Terminal, Daraga, Albay.
Upon receipt of the report, the Commanding Officer of the NARCOM organized a
buy-bust operation to be led by Sgt. Felipe Tuzon, Jr., to whom marked money bills
amounting to P20.00, bearing serial numbers: QR738352 (P10.00), WA 837855
(P5.00), and ZN121085 (P5.00) were given to be used in the purchase of marijuana
cigarettes. The raiding team composed of Staff Sgt. Felipe Tuzon, Staff Sgt.
Evangelico Intia, Sgt. Galvan
and Sgt. Tugado, with the informer in tow, proceeded to the Bagtang Terminal and
strategically positioned themselves.
The informer approached the appellant, Paul Bandin alias Abling, who was
seated in a trimobile, and asked him if he had marijuana for sale. The appellant
replied that he had. The informer left and returned after a short while with Sgt.
Tuzon, who, acting as poseur-buyer, bought a tea bag of marijuana (Exh. B) from
 119

the appellant. As payment, Sgt. Tuzon gave him the marked bills amounting to
P20.00 (Exhs. E, E-1, and E-2).
Thereafter, Sgt. Tuzon Jr. gave the pre-arranged signal to his companions by
combing his hair. The latter approached the appellant and introduced themselves as
NARCOM agents. A body search was conducted on the appellant which resulted in
the recovery from him of the marked money bills and a stick of marijuana cigarette
(Exh. C).
The appellant was brought to the NARCOM office for investigation and there,
Sgt. Tuzon prepared a document known as a Receipt of Property Seized (Exh. F or
4) which was signed by the appellant (Exh.F-3 or 4-A). C1C Orlando Deria prepared
a Booking Sheet and Arrest Report (Exh. G or 5), which the appellant, unassisted by
counsel, signed (Exh.G-1 or 5-A).
Sgt. Tuzon made an initial field test of the confiscated evidence (Exh. B) by
burning a small quantity of it, as shown in the Certificate of Initial Field Test (Exh.
H or 3) which reads in part:
Field Test conducted on the above-mentioned specimen gave POSITIVE result to the test
as Marijuana, a prohibited drugs.
This certification is issued for inquest of said case pending final result of the Laboratory
Examination which will be conducted by the PNP Crime Laboratory, Region 5, Camp
Bagong Ibalon, Legazpi City. (p. 14, Exh.H. Records.)

On June 25, 1991, Sgt. Tuzon, Jr. forwarded to the PNP Crime Laboratory one (1)
small transparent cellophane bag containing suspected marijuana dried leaves
(Exh. B) and one stick of suspected marijuana cigarette (Exh. C), as indicated in
his letter request (Exh. A).

The Chemistry Report No. D-157-91 (Exh. D or 1) of the forensic chemist shows that
the qualitative examination that was conducted on the specimens gave POSITIVE
results to thetests for MARIJUANA, and the conclusion was that the
abovementioned specimens are MARIJUANA (prohibited drug).

In his appeal of the trial courts decision to this Court, the appellant alleges that
the trial court erred:

1. 1.in admitting in evidence Exhibit F (Receipt of Property Seized) and Exhibit

G (Booking Sheet and Arrest Report), the same having been signed by the
accused without the assistance of counsel;
 120

2. 2.in admitting in evidence the tea bag of marijuana, the marijuana stick and
the marked money despite the fact that they were obtained through an
illegal search;

3. 3.in giving credence to the testimony of the forensic chemist; and

4. 4.in finding the accused guilty beyond reasonable doubt of the offense
charged, imposing upon him the penalty of life imprisonment and ordering
him to pay a fine of twenty thousand pesos and the costs.

With regard to the appellants signature on the Booking Sheet and Arrest Report
(Exh. G), the Court reiterates its ruling in People vs. Rualo, 152 SCRA 635, that
when an arrested person signs a Booking Sheet and Arrest Report at a police
station, he does not admit the commission of an offense nor confess to any
incriminating circumstance. The Booking Sheet is merely a statement of the
accuseds being booked and of the date which accompanies the fact of an arrest. It is
a police report and may be useful in charges of arbitrary detention against the
police themselves. It is not an extra-judicial statement and cannot be the basis of a
judgment of conviction.
With regard to the Receipt of Property Seized (Exh. F), the appellants contention
that his signature on the document is inadmissible as evidence because it was given
without the assistance of counsel, is correct.

In the cases of People vs. Mauyao, 207 SCRA 732 and People vs. Turla, 167 SCRA
278, we held that the signature of the accused-appellant on the Receipt of Property
Seized is a declaration against his interest and a tacit admission of the crime
charged, for mere unexplained possession of prohibited drugs is punished by law.
The signature of the accused-appellant on the receipt is tantamount to an
uncounselled extra-judicial confession outlawed by the Bill of Rights (Sec. 12[i], Art.
III, 1987 Constitution). It is, therefore, inadmissible as evidence for anyadmission
wrung from the accused in violation of his constitutional rights is inadmissible
against him.

Nevertheless, despite the exclusion of the Receipt of Property Seized, the guilt of
the appellant has been established beyond reasonable doubt by other evidence in the
record.
 121

The clear and convincing testimonies of the apprehending officers prevail over the
appellants denials, for the records do not show that his arrest was motivated by
other than the desire of the police officers to curb the vicious drug traffic in Daraga,
Albay.
Courts generally give full faith and credit to police officers for they are presumed
to have performed their duties in a regular manner (Rule 131, Sec. 3[m], Rules of
Court). Their testimonies may not be cast aside where there is no showing that the
arrest of the accused was a mere frame up or an extortionate undertaking of the
police.
A buy-bust operation is a method employed by police authorities to catch
malefactors in the act of committing the crime of drug vending. It is essentially a
form of entrapment, a procedure not prohibited by the Revised Penal Code (People
vs. Marcos, 165 SCRA 154; People vs. Ramos, Jr., 203 SCRA 237).
The accused was caught in flagrante delicto for he was carrying marijuana,
hence, committing a crime, at the time of his arrest. The warrantless search which
was conducted following a lawful arrest, was valid (People vs. Tangliben, 184 SCRA
220).
The lower court did not err in giving credence to the findings of the forensic
chemist. The tea bag of marijuana and the marijuana stick were examined by the
forensic chemist a little more than a week after it was submitted by Sgt. Tuzon for
examination. Appellant contends that the delay in the laboratory examination left
the specimens open to possible tampering by police officials or a possible mix-up
with other tea bags of marijuana waiting to be tested by the forensic chemist.
It is also contended that the testimony of the forensic chemist should be
considered incompetent because the complaint was filed before the tests were made
and, therefore, said tests were outside the scope of the complaint.

These contentions are untenable. An initial field testing was made by Sgt. Tuzon on
the confiscated tea bag and marijuana stick. Having determined the specimens to be
marijuana, theNARCOM properly filed an information against the appellant even
before the specimens had been tested by the forensic chemist.

The field test conducted by Sgt. Tuzon is judicially admissible. This Court has
held that a chemical analysis is not an indispensable prerequisite to the
establishment of whether a certain substance offered in evidence is a prohibited
drug. The ability to recognize these drugs can be acquired without a knowledge of
 122

chemistry to such an extent that testimony of a witness on the point may be entitled
to great weight. Such technical knowledge is not required, and the degree of
familiarity of a witness with such drugs only affects the weight and not the
competency of his testimony (U.S. vs. Sy Liongco, 33 Phil. 53; People vs.
Enrique, 204 SCRA 674; People vs. Dekingko, 189 SCRA 512).
Sgt. Tuzon has been a member of the NARCOM for sixteen (16) years. He had
taken part in numerous buy-bust operations during the time he was with the said
command (pp. 27-28, tsn, August 12, 1991). We see no reason to question his
familiarity with prohibited drugs based on his wide experience in the field.
The contention that the specimens were possibly tampered or mixed up with
other samples while in the crime laboratory is remote. Mere conjecture is not proof.
The trial court properly found the accused guilty beyond reasonable doubt of the
crime charged. Its assessment of the credibility of the witnesses is entitled to great
respect and the highest consideration (People vs. Tangliben, 184 SCRA 220; People
vs. Marcos, 185 SCRA 154).
WHEREFORE, the decision of the trial court is hereby AFFIRMED in toto, with
costs against the appellant.
SO ORDERED.

G.R. No. 84525. April 6, 1992. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ARTURO MAUYAO y

LORENZO, accused-appellant.

Criminal Law; Criminal Procedure; Evidence; Witnesses.Minor inconsistencies and

contradictions in the declaration of witnesses do not destroy their credibility, but even
enhance their truthfulness as they erase any suspicion of a rehearsed testimony.
 123

Same; Same; Same; Same.Inconsistencies in the testimony of prosecution witnesses

with respect to minor details and collateral matters do not affect either their substance of
their declaration, their veracity or the weight of their testimony.

Same; Same; Same; Same.Supreme Court will not disturb the findings of the Trial
Court except in case of an evident abuse thereof. This Court, in a long line of decisions, has
repeatedly held that the findings of fact of a trial judge who has seen the witnesses testify
and who has observed their demeanor and conduct while on the witness stand are not
disturbed on appeal, unless certain facts of substance and value have been overlooked
which, if considered, may affect the outcome of the case.

Same; Same; Same; Same.The matter of presentation of prosecution witnesses is not

for the accused-appellant or, except in a limited sense, for the Trial Court to dictate.
Discretion belongs to the city or provincial prosecutor as to how the prosecution should
present its case.
Same; Same; Same; Same.Testimony of an informant in a drug case is not essential
for conviction to lie.
Criminal Law; Evidence; Confession.Any admission wrung from the accused in
violation of his constitutional rights is inadmissible in evidence against him.
Same; Same.Accused-appellants denials simply cannot prevail over the detailed and
unshaken testimonies of the apprehending officers who caught him red-handed selling
marijuana and who have not been shown to have had any ulterior motive to testify falsely
against accused-appellant.

APPEAL from the decision of the Regional Trial Court of Manila, Br. 45. Matias, J.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Bonifacio D. Tanega for accused-appellant.

MELENCIO-HERRERA, J.:

For pushing five (5) tea bags of marijuana, Arturo Mauyao, then 41, was sentenced
to a life in prison and to pay a fine of P20,000.00. Once more, he reasserts his
innocence, this time, before this Court.
Interestingly, on 19 August 1991, the accused-appellant filed a Motion to
Withdraw Appeal only to retract it in a letter dated 11 January 1992. The Court
allowed the withdrawal on 19 February 1992.
 124

The prosecution evidence narrates that a team of police operatives from the
Narcotics Unit of the Western Police District conducted a surveillance after the
Office received several phone calls from residents of Leyte del Sur (Street) that a
suspect by the name of Arthur is (was) actually engaged in the illegal sale of
marijuana cigarettes at the street of Leyte del Sur (TSN, October 14, 1987, 29-31).
A buy-bust operation was then conceived. Thus, on 20 April 1987, at about 6:00
oclock in the evening, after relating with an informant who admitted having acted
as a runner (or a person who approaches would-be buyers) for the accused-
appellant Arturo Mauyao (ibid), P/Sgt. Jimmy Carbonell formed a raiding team
composed of himself as team leader, and four (4) others as members, among them,
Pat. Rizal Papa and Pat. Ramon Alferos (TSN, September 23, 1987, 7). Pat. Alferos
would be the poseurbuyer and thus, was handed two (2) ten-peso bills, both
initialled by Pat. Papa (ibid., 7-8). P/Sgt. Carbonell would be the arresting officer,
while the others would act as back-up security (TSN, October 14, 1987, 31-32).
The apprehending party then boarded a civilian Ford Fiera (ibid., 10) and
proceeded to Leyte del Sur Street, stopping a few meters away from where the
suspect was expected (ibid., 11). Pat. Alferos walked with the informant towards the
residence of the accused-appellant. P/Sgt. Carbonell, who was then in short pants
and slippers, positioned himself on the other side of the street across the residence
of the accused-appellant, pretending to buy fish balls from a fish ball stand. He was,
more or less, four (4) meters away from where the transaction was to take place. The
others likewise took their respective positions (ibid., 12; 31-33).
Upon seeing the accused-appellant, who was just standing outside his house at
923 Leyte del Sur Street, the informant introduced Pat. Alferos. Pat. Alferos was
described to the accused-appellant as a drug addict. Pat. Alferos then told the
accused-appellant that he wanted to buy five (5) tea bags. Pat. Alferos gave him
the two (2) marked ten peso bills. The accused-appellant, in turn, handed over to
Pat. Alferos five (5) tea bags and two (2) sticks of marijuana cigarettes as free
(TSN, September 23, 1987, 9; TSN, October 14, 1987, 16).
At this point, Pat. Alferos introduced himself as a police officer and arrested the
accused-appellant. Meanwhile, after witnessing the exchange, P/Sgt. Carbonell, who
was across the street, immediately ran towards the suspect, (accused-appellant)
and assisted the poseur-buyer to arrest the suspect (TSN, October 14, 1987, 34-35).
The other team members, upon seeing P/Sgt. Carbonell, also closed in on the
accused-appellant.
 125

The accused-appellant then voluntarily surrendered the redclutch bag tucked to his
waist which turned out to contain ten (10) more tea bags of marijuana leaves and
four (4) more sticks of marijuana cigarettes (ibid., 16-17). The two (2) marked ten
pesos bills and some other bills were likewise recovered from him (ibid., 36). The
place where the transaction took place was well-lighted by a street light (ibid., 27).
There was no search and seizure warrant for the subject operation (ibid., 21).

The accused-appellant was taken to the Narcotics Control Investigation Section

of the Western Police District and turned over to Police Investigator Martin R.
Orolfo who also received from P/Sgt. Carbonell one (1) red clutch bag containing ten
(10) tea bags of marijuana leaves and four (4) sticks of marijuana cigarettes, five (5)
tea bags of marijuana leaves, two (2) sticks of marijuana cigarettes, two (2) marked
ten-peso-bills and some other bills amounting to thirty (P30.00) pesos. The accused-
appellant was then made to sign the Receipt of Property Seized to admit that the
above-mentioned items were indeed seized from him (Exh. H; Exh.H-4; TSN, August
5, 1987, 11).
Afterwards, the accused-appellant, in the presence of his wife, P/Sgt. Carbonell,
the Police Investigator, and the Chief of the Narcotics Section allegedly admitted
that he sold five (5) tea bags of marijuana and owned a red clutch bag containing
ten (10) tea bags of marijuana (TSN, October 14, 1987, 40). The admission, however,
was made without the presence of counsel (ibid., 41).
He was also made to sign Exhibit E, where the two (2) marked ten-peso-bills were
attached, to acknowledge that the marked bills were taken and confiscated from the
possession/control of one Arturo Mauyao x x x during a buy bust narcotics
operation (Exh. E, Exh. E-3, TSN, August 5, 1987, 8-9), and the Booking Sheet and
Arrest Report to affirm that he had, indeed, sold and delivered five (5) tea bags of
marijuana leaves and two (2) sticks of marijuana cigarettes to a police poseur-buyer
(Exh. I, Exh.I-1; August 5, 1987, 13).

On 21 April 1987, the tea bags of marijuana leaves and the marijuana cigarettes
seized from the accused-appellant were transmitted to the National Bureau of
Investigation (NBI) for proper examination (ibid., 42). Upon receipt of the specimens
submitted and the accompanying letter-request for examination, NBI Forensic
Chemist Felicisima Francisco conductedmicroscopic, chemical and chromatographic
 126

examinations. All three (3) tests revealed that the seized articles were positive for
marijuana (TSN, July 24, 1987, 4-6).

For his part, the accused-appellant denied having sold marijuana. He had his
own version of the incident. He alleged extortion. He averred that on 20 April 1987,
at about 6:00 oclock in the evening, he was invited to drink at the house of Tina, a
neighbor who just got married. Present were Tinas brother-soldier, Ernesto
Estrada, Manuel Guadialla and others. Then, a power failure occurred. The
accused-appellant was requested by Tinas husband to buy wine, cigarettes,
pulutan, katol, and candles. Tinas husband gave P50.00; Ernesto another
P50.00 and Manuel also P50.00, for a total of P150.00. The accused-appellant was
not able to buy the above-mentioned items because as he stepped out of Tinas place,
he saw a Ford Fiera whose passengers, led by a certain Lt. Carbonell, went down
and held him for verification only. After he was ordered to board the Ford Fiera,
his P150.00 was taken. He was told that it would be returned once they reached the
precinct. However, upon reaching Precinct 5, he was locked-up and was asked to
produce a substantial amount of money in exchange for his release. He was shown a
red clutch bag full of marijuana leaves and was told that if he had money, the clutch
bag would not be his, however, if he did not, he would own the clutch bag. He was
threatened and ordered to write his name on the clutch bag. At around 2:00 oclock
the following morning, when P/Sgt. Carbonell and the rest of the group were no
longer around, Pat. Orolfo took him out of his cell and subjected him to an
investigation which lasted until 4:00 in the morning. Pat. Orolfo demanded
P4,000.00 for his release, but when he replied that he could only afford P2,000.00,
Pat. Orolfo said: Hindi raw pwede at marami sila (TSN, January 11, 1988, 3-26;
TSN, January 25, 1988, 2-16; TSN, March 4, 1988, 3-188; TSN, April 11, 1988, 2-4).
Four other witnesses corroborated the accused-appellants version regarding the
wedding party. One Ernesto M. Estrada averred that he did not believe that
accused-appellant had sold marijuana in the evening of April 20. Not one defense
witness, however, testified that accused-appellant was not a drug-pusher nor did the
latter deny that the informant was his former runner.
After evaluating the contradicting versions, the Trial Court, rejected the accused-
appellants assertions, convicted him, and sentenced him to life imprisonment and
to pay a fine of P20,000.00.
1

Reaffirming his plea of innocence, the accused-appellant now, before us, faults
the Trial Court in giving credence to the testimonies of the prosecution witnesses
 127

despite irreconcilable inconsistencies and improbabilities; in admitting the evidence

of the prosecution despite manifest violation of his constitutional rights; and in
convicting him despite the failure of the prosecution to prove his guilt beyond
reasonable doubt (Appellants Brief, 5-6, Rollo, 185-186).
After a careful and thorough review of the evidence on record, we hold that the
Trial Court did not err in giving credence to the testimonies of the prosecution
witnesses. Accordingly, we affirm the conviction rendered by the Court a quo.
While there may be some inconsistencies in the testimonies of P/Sgt. Carbonell
and Pat. Alferos, at best, these refer to insignificant details and trivial matters. The
irreconcilable inconsistencies and improbabilities painstakingly pointed out in
accused-appellants brief are: that P/Sgt. Carbonell testified that it was Capt.
Cablayan who received the telephone call from the informer, while Pat. Alferos said
that it was P/Sgt. Carbonell himself; that P/Sgt. Carbonell stated that the informer
came to their headquarters, whereas Pat. Alferos maintained that they met the
informer near where the pusher was selling his wares; that P/Sgt. Carbonell said
that the buy-bust team stopped at thirty (30) meters away from where the pusher
was, while Pat. Alferos admitted that the team alighted from the Ford Fiera at two
hundred (200) meters away from the residence of the accused-appellant.
Whether it was Capt. Cablayan or P/Sgt. Carbonell who received the call of the
informer, or whether the informer went to the headquarters or was merely met at
an agreed place, or whether the buy-bust team stopped at 200 or 30 meters away
from where the accused-appellant was expected, is de minimis. The irrefutable fact
is that the accused-appellant was caught in flagrante delicto as a result of the buy-
bust operation. The inconsistencies asserted to by the accused-appellant are too
minor to affect the credibility of the prosecution witnesses who are all law enforcers
presumed to have regularly performed their duties in the absence of convincing
proof to the contrary (Sec. 5[m], Rule 131, Revised Rules of Court; People v. Yap and
Mendoza, G.R. Nos. 87088-87089, May 9, 1990, 185 SCRA 222; People v.
Mariano, G.R. No. 86656, October 31, 1990, 191 SCRA 136). P/Sgt. Carbonell and
Pat. Alferos, both members of the Special Reaction Unit of the Narcotics Section, a
unit formed precisely to operate against drug dealers, could have had no other
motive, other than to accomplish their mission, which is to enforce the laws,
particularly the Dangerous Drugs Acts.
We have ruled, time and again, that minor inconsistencies and contradictions in
the declaration of witnesses do not destroy their credibility, but even enhance their
truthfulness as they erase any suspicion of a rehearsed testimony. As a matter of
 128

fact, it attests to the human minds imperfection. Well-settled is the rule that
inconsistencies in the testimony of prosecution witnesses with respect to minor
details and collateral matters do not affect either the substance of their declaration,
their veracity or the weight of their testimony (People v. Payumo, G.R. No. 81751,
July 2, 1990, 187 SCRA 64, and a host of cases mentioned therein).
Indeed, when the issue raised by the accused-appellant concerns the credibility of
witnesses, this Court will not disturb the findings of the Trial Court except in case
of an evident abuse thereof. This Court, in a long line of decisions, has repeatedly
held that the findings of fact of a trial judge who has seen the witnesses testify and
who has observed their demeanor and conduct while on the witness stand are not
disturbed on appeal, unless certain facts of substance and value have been
overlooked which, if considered, may affect the outcome of the case (People v. De
Mesa, G.R. No. 87216, July 28, 1990, 188 SCRA 48; People v. Sagun, Jr., G.R. No.
86816, May 14, 1990, 185 SCRA 405; People v. Cruz, No. L-71462, June 30,
1987, 151 SCRA 609, and other cases listed therein). We perceive no
misapprehension of facts by the Trial Court in this case.
The accused-appellant even questions the non-presentation of the informant. On
this point, this Court has ruled that the matter of presentation of prosecution
witnesses is not for the accused-appellant or, except in a limited sense, for the Trial
Court to dictate. Discretion belongs to the city or provincial prosecutor as to how the
prosecution should present its case (People v. Sariol, G.R. No. 83809, June 22,
1989, 174 SCRA 237). Besides, the testimony of an informant in a drug case is not
essential for conviction to lie. The failure of the prosecution to present the testimony
of the informant is not fatal. The non-presentation of the informant as witness does
not weaken the prosecutions evidence, as his testimony would be merely
corroborative and cumulative (People v. Cerelegia, No. L-72353, January 30,
1987, 147 SCRA 538). What is crucial in this case is that the accused-appellant was
caught red-handed, in the act of trafficking the prohibited plant.
The accused-appellant then argues that even if assuming for arguments sake
that he was truly engaged in the illicit trade, he would not have sold right in front of
his doorstep, in full view of his inquisitive neighbors and passers-by, nor would he
have sold to Pat. Alferos, a total stranger, and for a measly sum of P20.00,
considering the gravity of the offense and the penalty of life imprisonment imposed
by law.
This posture has been discredited in the recent case of People v. Hilario (G.R. No.
94037, May 6, 1991), where this Court ruled:
 129

Small level drug-pushing may be committed at any place and at any time. It is completed
clandestinely and swiftly after the offer to buy is accepted and the exchange made. The fact
that the parties are in a public place and in the presence of other people does not
necessarily discourage drug pushers from plying their trade as these may even serve to
camouflage their illicit operations. Hence, the Court has sustained convictions of drug-
pushers caught selling illegal drugs at a basketball court (People v. Paco, G.R. No. 76893, 27
February 1989, 170 SCRA 681), in billiard halls (People v. Rubio, G.R. No. 66875, 19 June
1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, 12 January 1987, 147 SCRA
252), in front of a store (People v. Khan, G.R. No. 71863, 23 May 1988, 161 SCRA 406),
along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, 22 November 1985, 140 SCRA
259), and in front of a house (People v. Policarpio, G.R. No. 29844, 23 February 1988, 158
SCRA 85; all cited in People v. Paco, supra).

Accused-appellants charge of extortion by police officers has not been proven. The
Court has noted that this is the usual defense in the prosecution of drug cases. But
if, indeed, there was extortion, accused-appellant should have come forward with
the proper charges against the culprits.
We, however, agree with the accused-appellant that his signatures on the Receipt
of Property Seized (Exh. H-4); on Exhibit E, acknowledging the confiscation of the
marked bills from him (Exh. E-3); and on the Booking Sheet and Arrest Report
(Exh. I-1) are inadmissible in evidence. His conformance to these documents are
declarations against interest and tacit admissions of the crime charged, since
merely unexplained possession of prohibited drugs is punished by law (People v.
Turla, No. L-70270, November 11, 1988, 167 SCRA 278). They have been obtained in
violation of his right as a person under custodial investigation for the commission of
an offense, there being nothing in the records to show that he was assisted by
counsel (People v. De la Pea, G.R. No. 92534, July 9, 1991; People v. Yutuc, G.R.
No. 82590, July 26, 1990, 188 SCRA 1).
We have consistently ruled that any admission wrung from the accused in
violation of his constitutional rights is inadmissible in evidence against him. Once 2

again, we stress this ruling.

It bears emphasis, however, that the accused appellants conformity to the

questioned documents has not been a factor at all in his conviction. For even if these
documents were disregarded, still the accused-appellants guilt has been adequately
established by other evidence of record. The Trial Courtsverdict was based on the
evidence of the prosecution not on his signatures on the questioned documents.
 130

Accused-appellants denials simply can not prevail over the detailed and unshaken
testimonies of the apprehending officers who caught him red-handed selling
marijuana and who have not been shown to have had any ulterior motive to testify
falsely against accused-appellant.

Weighing the prosecution evidence as against the denials by the accused-

appellant including his allegation of extortion by the police officers, we find that his
guilt, for drug-pushing, has, indeed, been established beyond reasonable doubt.
WHEREFORE, the decision appealed from is AFFIRMED in toto. Costs against
accused-appellant Arturo Mauyao y Lorenzo.
SO ORDERED.

No. L-70270. November 11, 1988. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO TURLA Y BATI,

defendant-appellant.

Constitutional Law; Bill of Rights; Rights of Accused; ExtraJudicial Confessions; The

receipt for custody is inadmissible in evidence, the same having been signed by accused
without the assistance of counsel and without having been informed of his right to remain
silent and to counsel.The Court agrees with counsel for the accused-appellant that the
Receipt for Custody (Exh. B) is inadmissible in evidence, as it was signed by the accused
during custodial investigation without the assistance of counsel of his choice and without
having been first informed of his constitutional right to silence and to counsel. The said
Receipt is a declaration against interest and a tacit admission of the crime charged, since
mere unexplained possession of prohibited drugs is punished by law. The Receipt is in the
same category as extra-judicial confessions outlawed by the Constitution.

Remedial Law; Evidence; Witnesses, Credibility of; The issue of credibility of witnesses is
peculiarly within the province of the trial judge.It is claimed for the defense that the
testimonies of the prosecution witnesses are contradictory and conflicting so that they do
 131

not deserve credence. It would appear, however, that the contradictory and conflicting
statements pointed out by counsel for the accused-appellant refer to minor details which
cannot destroy the credibility of witnesses. Again, the issue posed is one of credibility of
witnesses which, as this Court has often said, is a matter that is peculiarly within the
province of the trial judge, who had first-hand opportunity to watch and observe the
demeanor and behavior of witnesses both for the prosecution and the defense, at the
time of their testimony. We find no cogent reason to disturb the findings of the trial
judge.APPEAL from the judgment of the Regional Trial Court of Pampanga, Br.
41.

The facts are stated in the opinion of the court.

The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for defendant-appellant.

PADILLA, J.:

In Criminal Case No. 2945 of the Regional Trial Court of Pampanga, Branch 41,
San Fernando, Pampanga, Danilo Turla y Bati was charged with Violation of Rep.
Act. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972,
allegedly committed as follows:
"That on or about the 24th day of September 1984, in the Municipality of San Fernando,
Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused DANILO TURLA y BATI, knowing fully well that Marijuana is a
prohibited drug, did then and there wilfully, unlawfully and feloniously have in his
possession, control and custody dried marijuana flowering tops with leaves with an
appropriate weight of one (1) kilogram and to transport the same to San Fernando,
Pampanga, without authority to do so." 1

After hearing the evidence adduced by the parties, the trial court found the accused
2

guilty, as charged, and sentenced him to suffer the penalty of reclusion perpetua,
and to pay a fine ofP20,000.00 and costs. From this judgment, the accused has
3

appealed to this Court.

The proofs adduced on behalf of the prosecution establish the following facts:
"The evidence shows that on September 23,1984 at around 3:00 o'clock in the afternoon,
Sgt. Venusto Jamisolamin of the 3rd Narcotics Regional Unit, Camp Olivas, San Fernando,
 132

Pampanga received information from an informer that at dawn the following day a drug
pusher was going to steal a car at the vicinity of 3rd Street, Balibago, Angeles City.
"On the same date, Sgt. Ruben Bazar, also of the 3rd Regional Narcotics Unit, with the
aid of an informer, met the herein accused at the Hongkong Restaurant in Angeles City. In
that meeting, Sgt. Bazar, who pretended to be a civilian, proposed to buy from the accused a
kilo of marijuana for P1 ,000.00. It was then agreed that the accused would deliver the
marijuana on the following day between 5:00 and 6:00 o'clock in the morning at the
Pampanguea Restaurant in San Fernando, Pampanga.

"Acting on the information supplied by his informant, Sgt. Jamisolamin together

with Sgts. Daniel M. Guillermo and one Sgt. Nava, left Camp Olivas at around 3:45
in the morning of September 24, 1984 for the purpose of arresting the would be
thief. On reaching 3rd Street, Balibago, Angeles City, at around 4:10 in the
morning, the three PC sergeants, together with Sgt. Jamisolamin's informer, who
was already waiting for them, positioned themselves inconspicuously near the place
where the Toyota car was parked. After waiting for about fifteen minutes, a man
appeared, proceeded to the car, opened its left door and drove the car away. Sgt.
Jamisolamin recognized the man as the same man he had previously arrested for
violation of the Dangerous Drugs Act. That man was Danilo Turla, alias Danny
Bangus. The PC sergeants attempted to pursue the accused but lost sight of him
when their car developed engine trouble. Having failed to apprehend the accused,
the PC soldiers, together with the informer, decided to return to San Fernando,
Pampanga to assist Sgt. Bazar in arresting a drug pusher whom the latter would
meet at the Pampanguea Restaurant. Upon reaching Barangay Dolores, San
Fernando, Pampanga, the informer noticed the red Toyota Corona, which they had
earlier pursued, parked at a Shell gasoline station. The PC soldiers, after their
attention was called to such fact, immediately drove to the gasoline station to effect an
arrest. There, the soldiers confronted the accused as to the ownership of the car and asked
him to show his driver's license and the car's registration papers. The accused could not
show neither of the documents asked but explained to the soldiers that the car belonged to
his sister. The PC soldiers then directed the accused to open the back compartment of the
car. At first, the accused hesitated but finally opened it. Inside the trunk, the PC soldiers
found a sack. Upon further inspection, the sack yielded a plastic bag containing dried
marijuana leaves weighing at about one kilo (Exhibit E-1). When asked as to the ownership
 133

of the marijuana leaves, the accused declared that he does not know anything of the
articles.

"Thereupon, the PC soldiers brought the accused and the car to Camp Olivas. A receipt
of the custody of the car, marijuana leaves and other articles found inside the car and/or
taken from the accused was prepared by Sgts. Guillermo and Jamisolamin consisting of two
pages (Exhibits B and B-1) duly signed and subscribed by them and also by the accused
(Exh. B-4). Likewise, a Booking Sheet and Arrest Report was prepared by Sgt. Jamisolamin
(Exh. A) which was signed by him (Exh. A-2) and by the accused (Exh.A-1). In addition
thereto, Sgts. Guillermo and Jamisolamin executed a joint affidavit in connection with the
incident (Exhs. C, C-1).
"Later, upon follow-up of the case, it was learned the red Toyota car belong to and was
stolen from an American serviceman. It was also found out that the key used by the accused
on said car was a master key and not the real key. Although the car was subsequently
returned to its real owner, the accused was nevertheless charged for carnapping.
'The laboratory examination later conducted on the aforesaid leaves revealed that the
same was positively marijuana (Exh. F)." 4

The accusedappellant denied having agreed to sell marijuana leaves to Sgt. Bazar.
He also denied that marijuana leaves were found in the trunk compartment of the
car. His version is as follows:
"The accused testified that he knows a person by the name of Sgt. Amizolamin as the latter
hired him as a civilian informer in 1982. He again met Sgt. Amizolamin in August 1984 at
the Sahara Beer Garden located in Angeles city and the latter requested him to work as a
civilian informer but refused because he expects to profitmore as a fish dealer. When he
refused, Sgt. Amizolamin was slightly mad. On September 24, 1984 at around 4:00 to 5:00
o'clock in the morning after coming from Angeles City, he saw Sgt. Amizolamin while he
was buying gasoline at the Shell Gasoline Station at San Fernando. Before he left Angeles
City, he went to Sahara Beer Garden at around 10:00 to 11:00 o'clock in the evening and
stayed in said Beer Garden until 3:30 o'clock in the morning. While he was in said Beer
Garden, a certain person by the name of Jojo Alimurung approached him and offered to sell
a Toyota Car for P1 0,000.00 pesos. After inspecting the car parked outside the Beer house,
he paid Jojo Alimurung the amount of P10,000.00 without any receipt issued and in the
presence of a certain Winnie. They further agreed to meet the following day, September
24,1984, to prepare the pertinent papers. Thereafter, he went towards the road going to St.
Jude Village, San Fernando, Pampanga but later changed his mind. Instead, he went to the
Ifugao Muramu to look for his girlfriend but the latter was not there. He returned to St.
Jude Village but the car ran out of gasoline at the Shell Gasoline Station. While the car was
being filled with gasoline at around 4:00 to 5:00 o'clock in the morning of September 24,
1984, a Ford Fiera stopped near the car and three persons in uniform alighted from the
 134

Ford Fiera. Then two of them approached him and told him that they have a warrant of
arrest issued against him. Thereafter they forced him to ride in their Ford Fiera and
brought him to Camp Olivas, San Fernando, Pampanga. In Camp Olivas, he noticed Sgt.
Venusto Amizolamin. Likewise he saw Pat. Philip Paz and Pat. Carlito Carino and
requested said Policemen to talk with the persons who arrested him. Finally, on September
26, 1984 he was able to talk with the arresting officers and the latter told him that he will
be released if he will give P5,000.00 but he refused. He was then called to give his
statement but he also refused. The arresting officers then prepared one but he refused to
sign so he was brought to the kitchen and blindfolded. In the kitchen, they held his hands
and forced him to lie down on the cement floor. Then he felt something wet placed on his
face and water was entering his nostril causing him to hardly breath. When he could no
longer endure the suffering, he was constrained to sign the statement prepared including
the receipt for custody marked as Exh. A, B, B-1 respectively. He further testified that he
does knot know Sgt. Bazar nor agreed to deliver to him one (1) kilogram of marijuana. He
likewise denied the testimonies of Sgts. Jamizolamin and Guillermo that the latter have
found one kilogram of marijuana at the back compartment of the car (TSN, pp. 2-26, Jan.
9,1985. TSN, pp. 2-11 Jan. 10, 1985)."5

The trial judge gave no weight to the testimony of the accused as it appeared to him
to be unnatural and lacking in candor and plausibility; and it could not overcome
the evidence presented by the prosecution.
It is now contended on behalf of the accused-appellant that the evidence of the
prosecution is not sufficient to support a finding that he is guilty of the crime
charged, since he was not caught in the act of selling marijuana, and his ownership
or possession of the marijuana leaves, said to have been found inside the trunk
compartment of the car, has not been duly proved. Counsel for the appellant points
out that the only incriminating evidence against him is the Receipt for Custody
(Exh. B) which contains a list of things, a sack of marijuana leaves included, found
inside the car driven by the appellant when he was apprehended by PC soldiers and
which bears the signature of the appellant. But, this receipt, according to counsel
for the accused-appellant is inadmissible in evidence as the signature of the accused
therein was obtained by means of force and intimidation during custodial
investigation without the assistance of counsel.
The Court agrees with counsel for the accused-appellant that the Receipt for
Custody (Exh. B) is inadmissible in evidence, as it was signed by the accused during
custodial investigation without the assistance of counsel of his choice and without
having been first informed of his constitutional right to silence and to counsel. The
said Receipt is a declaration against interest and a tacit admission of the crime
 135

charged, since mere unexplained possession of prohibited drugs is punished by law.

The Receipt is in the same category as extrajudicial confessions outlawed by the
Constitution.
However, the claim of insufficiency of evidence to support a conviction is not
tenable. As the trial court correctly found, "even if the documents, more particularly
the Booking and Arrest Report and the Receipt for Custody, are disregarded, there
is more than enough evidence to sustain a judgment of conviction. As already
stated, the testimonies of the prosecution witnesses proved beyond reasonable doubt
the guilt of the accused in the offense charged.
PC Sgt. Venusto Jamisolamin, detailed with the Third Narcotics Regional Unit
stationed at Camp Olivas, San Fernando, Pampanga, declared that when they
apprehended the accused in the morning of 24 September 1984, they found a big
plastic bag containing marijuana leaves in the trunk compartment of the car the
accused was driving. His testimony reads, as follows:
"Q After you arrested the accused at the Shell gasoline
. station at Dolores, San Fernando, Pampanga, what else
did you do?
A. I let the suspect open the back compartment of the car,
sir.
Q. Were you actually the one who asked him to open the
back compartment of the car?
A. Yes, sir.
Q. Did the accused open the back compartment of the car?
A. Yes, sir.
Q. Was he easily able to open it?
A. Yes, sir.
Q. After the back compartment of the car was opened, what
did you find inside the compartment of the car?
A. We found one big plastic bag containing marijuana
leaves, sir.
Q. Why do you say that the things you found on the big
plastic bag is marijuana?
A. Because I am very familiar with marijuana, sir."
7

This statement is corroborated by PC Sgt. Daniel Guillermo, also of the Narcotics

Unit, who was with PC Sgt. Jamisolamin when they apprehended the accused in the
early morning of 24 September 1984. 8

It is claimed for the defense that the testimonies of the prosecution witnesses are
contradictory and conflicting so that they do not deserve credence. It would appear,
 136

however, that the contradictory and conflicting statements pointed out by counsel
for the accused-appellant refer to minor details which cannot destroy the credibility
of witnesses. Again, the issueposed is one of credibility of witnesses which, as this
Court has often said, is a matter that is peculiarly within the province of the trial
judge, who had first-hand opportunity to watch and observe the demeanor and
behavior of witnesses both for the prosecution and the defense, at the time of their
testimony. We find no cogent reason to disturb the findings of the trial judge.

WHEREFORE, the judgment appealed from should be, as it is hereby,

AFFIRMED. With costs against the accused-appellant, Danilo Turla y Bati.
SO ORDERED.

G.R. No. 134974. December 8, 2000 *

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO ARAPOK y

CUTAMORA, accused-appellant.
 137

Criminal Law; Robbery with Homicide; Elements Of; In robbery with homicide what is
essential is that there be a direct relation, an intimate connection between robbery and the
killing whether the latter be prior or subsequent to the former or whether both crime be
committed at the same time.In cases of robbery with homicide as defined in Art. 294(1) of
the Revised Penal Code, the principal purpose of the accused must be shown to be to
commit robbery, the homicide being committed either by reason or on occasion of the
robbery. The elements of robbery with homicide are: (1) the taking of personal properly is
committed with violence or intimidation against persons; (2) the property taken belongs to
another, (3) the taking is done with animo lucrandi; and (4) by reason of the robbery or on
the occasion thereof, homicide (used in its generic sense) is committed. In robbery with
homicide, what is essential is that there be a direct relation, an intimate connection
between robbery and the killing, whether the latter be prior or subsequent to the former or
whether both crime be committed at thesametime.

Same; Same; Evidence; Conspiracy; Conspiracy may be deduced from the acts of the
suspects before, during and after the commission of the crime which are indicative of a joint
purpose, concerted action and concurrence of sentiments.Conspiracy exists when two or
more persons come to an agreement concerning the commission of a felony and decide to
commit it. Conspiracy may be deduced from the acts of the suspects before, during, and
after the commission of the crime which are indicative of a joint purpose, concerted action,
and concurrence of sentiments. In the instant case, the conspiracy to commit the crime of
robbery was shown by the coordinated acts of the five persons.

Same; Same; Same; Same; The rule is settled that whenever homicide has been
committed as a consequence or on the occasion of robbery, all those who took part as
principals in the robbery will also be held guilty as principals of the special complex crime of
robbery with homicide although they did not actually take part in the homicide.Accused-
appellant contends that he cannot be held liable for the death of PO2 Calcitas, considering
that he was not pinpointed to as the one who shot the former and there was no proof
adduced by the prosecution to establish that the escaping robbers conspired to kill him. The
rule is settled that whenever homicide has been committed as a consequence or on the
occasion of robbery, all those who took part as principals in the robbery will also be held
guilty as principals of the special complex crime of robbery with homicide although they did
not actually take part in the homicide. Indeed, when a homicide takes place by reason or on
the occasion of the robbery, all those who took part in the robbery shall be guilty of the
 138

special complex crime of robbery with homicide whether or not they actually participated in
the killing, unless there is proof that they had endeavored to prevent the killing.

Same; Same; Same; The identity of the accused is the first duty of the prosecution.In
seeking the conviction of an accused in a criminal case, the first, if not the basic foundation
upon which the prosecution builds its case against the former is proof beyond reasonable
doubt that it is the said accused who committed the crime charged. In other words, the
identity of the accused is the first duty of the prosecution.
Same; Same; Same; Inadmissibility or unreliability of an out-of-court identification
should not necessarily foreclose the admissibility of an independent in-court identification.
In cases such as the instant one, where the identification made by the principal eyewitness
Claudelia Mesiona was uncertain, a little extra effort on the part of the prosecution to
acquire appropriate corroborating evidence goes far towards achieving the proper ends of
justice. Whatever flaw attended the out-of-court identification of accused-appellant could
have easily been cured by a subsequent positive identification in court by Editho Mesiona
himself. Stated in another way, inadmissibility or unreliability of an out-of-court
identification should not necessarily foreclose the admissibility of an independent in-court
identification.

APPEAL from a decision of the Regional Trial Court of Quezon City, Br. 103.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Public Attorneys Office for accused-appellant.

GONZAGA-REYES, J.:

This is an appeal from the decision rendered on July 29, 1998 by the Regional Trial
1

Court, Branch CIII of Quezon City in Criminal Case No. Q-976-68841, finding
accused-appellant Danilo Arapok y Cutamora guilty of robbery with homicide.
Accused-appellant was charged with violation of P.D No. 1866 and Robbery with
Homicide in separate informations which alleged as follows:
In Criminal Case No. Q-96-68840 for violation of P.D. No. 1866
That on or about the 29th day of November 1996 in Quezon City, Philippines, the said
accused without any authority of law, did then and there willfully, unlawfully and
knowingly have in his/her possession and under his/her custody and control (1) .38 caliber
revolver paltik, marked S&W with two (2) spent shells and four (4) live ammunitions of the
same caliber without first having secured the necessary license/permit issued by the
properauthorities.
CONTRARY TO LAW. 2
 139

In Criminal Case No. Q-96-68841 for Robbery with Homicide

That on or about the 29th of November, 1996, in Quezon City, Philippines, the above-
named accused, conspiring and confederating with four (4) other persons whose true names
and whereabouts have not as yet been ascertained and mutually helping one another,
armed with firearms with intent to gain and by means of force, violence against and
intimidation of persons, to wit: by entering the residence of one CLAUDELIA MESIONA Y
JAVIER located at No. 044 Gold Street, Barangay Commonwealth, this City and once inside
by poking their firearms at the persons inside the said house and announcing that it was a
holdup did then and there willfully, unlawfully and feloniously take, steal and carry away
the following:

One (1) VHS Video Cassette P7,000.00

Player ..........................
One (1) Lenon Instamatic 900.00
Camera .............................
One (1) Small dark blue 50.00
ladiesbag ............................
One (1) 120.00
LadiesWallet ................................................
One (1) Small blue ladies bag
(Park Home 75.00
Cosmos) .................................................
One (1) Seiko wrist 1,600.00
watch ............................................
One (1) 2,500.00
goldring .........................................................
One (1) gold 15,000.00
bracelet ..................................................
in the total amount of P27,245.00, Philippine Currency, belonging to said CLOUDELIA
MESIONA Y JAVIER against her will, to the damage and prejudice of the latter in the said
amount of P27,245.00, Philippine Currency.
That on the occasion of the said offense of robbery for the purpose of enabling the said
accused to take, steal, and carry away the aforesaid personal properties and in pursuance of
their conspiracy the said accused with intent to kill and taking advantage of their superior
strengths, did then and there treacherously attack, assault and use personal violence upon
PO2 ROMEO D. CALCITAS, one of the policemen from the PNP Criminal Investigation
Group CID, NCRIO, Camp Crame, Quezon City who responded at the scene by then and
there shooting the latter several times with a firearm, thereby inflicting upon said PO2
ROMEO D. CALCITAS mortal gunshot wounds which were the direct and immediately
cause of his death thereafter.
CONTRARY TO LAW. 3
 140

On arraignment, accused-appellant pleaded not guilty to both charges. Joint trial of

thecases ensued thus.
The prosecution presented five witnesses, namely: Senior Police Inspector Darlito
Dar, SPO1 Nathaniel Mallare, PO3 Nicanor Faustino, Senior Inspector Danilo
Macerin and private complainant Claudelia Mesiona.

Senior Police Inspector Darlito Dar of the Criminal Investigation Division (CID) of
the Philippine National Police (PNP) testified that on November 29, 1996, he was a
member of the team dispatched to conduct surveillance on the activities of the
Akyat Bahay gang in Fairview, Quezon City. The team received information that
there were five male persons rushing out of a house and when approached opened
fire. His team tried to go to the place where there was gunfire but were unable to,
for fear of being hit. When the gunfire stopped, they approached the group and
discovered oneof the suspects killed. The four other suspects fled from the scene.
One of their companions was also shot and pronounced dead on arrival at the
hospital. He learned that one of the suspects was alive and was in a hospital in
Banawe. They requested that the suspect be transferred to the Camp Crame
hospital. On cross-examination, he testified that he did not see Danilo Arapok
ransacking the house of the victim nor during the gunfight. The first time he saw
the accused was in the hospital on December 2, 1996. He added further that he did
not recover guns, bullets or any of the items mentioned as stolen in the information
from the accused. 4

SPO1 Nathaniel Mallare testified that he and other police officers were dispatched
to conduct surveillance along Barangay Commonwealth in Quezon City. A few
minutes after they arrived they saw five persons coming out of a house located on
Gold Street corner Martan Street, carrying firearms, a plastic bag and a blanket
folded over something. They introduced themselves as policemen, at which point, the
persons fired at them. During the shootout, the accused was hit but was able to run.
One of his companions, PO2 Romeo Calistas was also hit. The suspects were
running and the police officers gave chase. During the running gunfight, they were
not able to apprehend the suspects as they attended to their wounded companion. In
the early morning of November 30, 1996, somebody from Galas Station called to
 141

inform them that a certain person with a gunshot wound who had himself admitted
at the National Orthopedic Hospital might have something to do with the robbery
the day before. His companions verified the matter and found Danilo Arapok there.
He was sure that it was Danilo Arapok in the National Orthopedic Hospital because
the husband (Editho Mesiona) of the owner of the house (Claudelia Mesiona)
personally pointed to him as one of the robbers in his presence. On cross-
examination, he testified that the incident happened at around 9:45 in the evening;
that there was no Meralco post in the immediate vicinity, but the night was clear.
They were at a distance of about four meters from the five persons when they
introduced themselves as policemen. During the gunfight, two of these persons were
killed on the spot and guns were recoveredfrom them. He went to the hospital on
December 3, 1996, and recovered none of the items mentioned in the two
informations from the accused. He did not actually see accused and his companions
ransack the house of the victim but saw them when they were coming out of the
house. The bodies of the two suspects were located 200 meters away from the house
of the victim. They recovered all the items mentioned in the information beside the
two fallen suspects. Their chief turned over all of the items to the chief investigator
of the CPD. He does not know if they were turned over to the owner.
5 6

PO3 Nicanor Faustino testified that he came to know the accused when he saw him
at the National Orthopedic Hospital; that he was dispatched to conduct surveillance
in Barangay Commonwealth in Quezon City, that he spotted five men rushing out of
a house along Martan Street corner Gold Street carrying a blanket with something
inside. When they saw them, they said, Sandali, sandali. We are police officers.
Soon after, a firefight commenced. He doesnt know who started the firefight as he
just heard gunshots. When asked if he could identify these men again, he pointed to
a person seating inside the court room who identified himself earlier as Danilo
Arapok. He said he was about 200 meters away from the accused when he saw him
that evening. As a result of the gunfight, two of the suspects were killed and one of
his companions, Romeo Calcitas was also killed, while the others were injured. He
came to know that one of the injured suspects was in a hospital in Banawe when a
police officer from another police station called to say that there was a person with a
 142

gunshot wound who checked in by the name of Renaldo Reyes. On cross-

examination, he testified that when they arrived at the corner of Martan and Gold
Streets, police officer Calcitas was already wounded because he was part of the
blocking force who met the suspects. He further testified that it was on November
30, 1996, that the police station received a call regarding a man with a gunshot
wound in the National Orthopedic Hospital. They transferred the accused to the
Camp Crame hospitalon December3. 7

Senior Inspector Danilo Macerin testified that nine operatives including himself
were dispatched to Barangay Commonwealth to conduct surveillance. The
operatives went to different places in the barangay. At 9:45 p.m., while cruising
along Fabian street, they heard gunshots approximately 30 to 40 meters away. They
alighted as they were alarmed. When they got down they saw three male persons
running towards their direction, and one was carrying a plastic bag. He could not
identify the one carrying the supot. They identified themselves as police officers
and immediately one of them fired at him. He retaliated and also fired. There was a
running gunfight, but they stopped chasing and attended to Calcitas who was
wounded. During the firefight he noticed that they wounded two of the suspects.
They were able to apprehend all but one of the wounded suspects right then and
there. Subsequently, they received a call from a police station about a male person
with a gunshot wound confined at the National Orthopedic Hospital. Upon
verification, it was found out that the person with a gunshot wound was registered
as Reynaldo Reyes. On cross-examination, he testified that he was not actually
present when the house of Claudelia Mesiona was robbed; that he saw Arapok in
the hospital in Banawe in December but did not recover any of the stolen items from
him. He didnt know that Danilo Arapok was at the scene of the crime.8

Private complainant Claudelia Mesiona testified that on November 29, 1996, she
was at home watching television when three unidentified men entered her house
located in Commonwealth, Manggahan, Quezon City at around 9:45 p.m. They were
carrying firearms and announced a hold-up. She was then with her husband,
daughter, son, niece and househelp. They were told that they will not get hurt if
they would bring out the money. Three persons went upstairs to the second floor.
When she went downstairs she saw two more persons standing by the door with the
other poking a gun at her husband. They were asked to lie down on their stomachs,
 143

thereafter, they were asked to go inside the comfort room without looking up. While
inside the comfort room, she heard gunfire as the hold-uppers went out of the house.
On cross-examination, she testified that she was on the second floor when the men
entered their house and that her husband was on the ground floor. When they were
led downstairs, she saw her husband lying down face flat on the floor. After the
incident they did not go back to the house anymore. And they have since moved to
their store inQuiapo. 9

On the other hand, the defense presented two witnesses, namely: the accused
himself, Danilo Arapok and his sister Rosanna Arapok.
Danilo Arapok testified that he is a newspaper vendor; that on the whole day of
November 29, 1996, he was in his house at Mapagbigay, V. Luna, Barangay
Piahan, Diliman, Quezon City. He sells newspapers in Quezon City Hall. At
around 4 a.m. of November 30, 1996, he went out of his house to get his newspaper
paninda from Cubao. Right after he stepped out of his house, he saw several
people chasing each other and there was an exchange of gunfire. He did not know
these people who were inside vehicles chasing each other. He was hit by a stray
bullet ten meters from his house. He was advised by his ate to go to the National
Orthopedic Hospital in Banawe. He arrived in the hospital at past 5 am. and treated
thereat. After two days, he was informed by the policemen that he was one of the
suspects in a robbery. He couldnt name the police officers as they were wearing
civilian clothes. He was then brought to Camp Crame. At the Crame hospital, a man
and a woman arrived. A policeman asked them to point to him as one of the robbers
and they did. He stayed in the Crame hospital for one month. After one month, he
was transferred to a detention center. On cross-examination, he testified that he
was shot about 10 meters away from his house; that he was not at the corner of Gold
and Martan streets; and that he saw Claudelia Mesiona for the first time in court.
Rosanna Arapok, sister of the accused testified that she was at home in the
afternoon and evening of November 29, 1996, at 41 Mapagbigay Street, V. Luna.
Diliman, Quezon City. Her brother was with her at home. Her brother went out of
the house in the morning of November 30, 1996 to get his paninda at past 4 am..
When he left, she heard gunshots. Then she heard somebody shout: Ate, ate
tulungan mo ako. She immediately brought him to the hospital where on the way,
Danilo relayed to her that he was hit by a stray bullet by several persons who were
exchanging gunfire outside. The incident was no longer reported to the police
 144

authorities as they knew that the police authorities would come anyway. Policemen
went to the hospital and told her brother that he was a suspect in a robbery and
that they were going to bring him to Camp Crame. On cross-examination, she
testified that on November 29, 1996, she arrived home from the office at 5 p.m. The
next day she did not go to work so she could accompany her brother to the hospital.
She was asleep between 12 midnight of November 30, 1996, up to 4 a.m. of the next
day. She said that Danilo woke her up before he got his paninda in the morning.
Her brother left the house at 4 am. She does not know the private complainant in
the case and she does not know of any reason why the former would
identifyherbrother as theone who entered the house. 11

In sum, the testimony of the prosecution witnesses established that the residence
of Cloudelia Mesiona at 44 Gold Street, Barangay Commonwealth, Quezon City, was
entered into by several armed men at 9:45 p.m. on November 29, 1996 and took
away several personal belongings therein with force and intimidation. As the several
armed men went out of the house, they encountered a group of policemen and a
running gunfight took place which attracted other police teams to the scene. As a
result thereof, two of the suspects lay mortally wounded, while one of the
responding officers, Romeo O. Calcitas, was hit fatally. For his part, accused-
appellant sought to establish that he was wounded in the arm in another exchange
of gunfire near their house at Mapagbigay Street, Barangay Pinahan, Quezon City.
According to him, he was hit accidentally by the persons exchanginggunfire.
On July 29, 1998, the trial court rendered its decision, acquitting accused-appellant
of the charge of illegal possession of firearms for insufficiency of evidence. However,
it convicted him of the crime of Robbery with Homicide after finding the testimonies
of the prosecution witnesses to be credible and rejecting accused-appellants denial
and alibi. The dispositivepartof thesaid decision reads:

1. 1.In Q-96-68840 for violation of P.D. 1866 (Illegal Possession of Firearms), accused
Danilo Arapok y Cutamora is ACQUITTED on insufficiency of evidence, and

2. 2.In Q-96-68841, the accused DANILO ARAPOK y CUTAMORA is hereby found,

beyond reasonable doubt, GUILTY as co-principal in the crime of Robbery with
Homicide in violation of the Revised Penal Code and he is hereby sentenced to
suffer the penalty of Reclusion Perpetua. There being a confrontational firefight,
treachery and abuse of superior strength are discounted.

On the civil aspect, the accused Danilo Arapok is hereby ordered to return the articles
stolen from offended victim Cloudelia Mesiona y Javier, less the items returned by the
 145

police to her, if any, otherwise to pay their price, namely VHS player (P7,000.00), Lenon
Camera (P900.00), dark blue bag (P50.00), wallet (P120.00), small blue bag (P75.00), seiko
watch (P1,600.00), a gold ring (P2,500.00) anda gold bracelet (P15,000.00).
On the civil award for the death of police officer Romeo D. Calcitas, accused DANILO
ARAPOK Y CUTAMORA is hereby ordered to pay the heirs of said police officer the sum of
P75,000.00 as indemnification damages. Costs against the accused
SO ORDERED. 12

Accused-appellant imputes the following errors to the court a quo: (1) in convicting
the accused-appellant of the crime of robbery with homicide notwithstanding that
the evidence adduced by the prosecution appears to only establish the crime of
robbery; and (2) in not acquitting the accused-appellant considering that he was not
clearly positively identified and absent anyproofof conspiracy. 13

Firstly, we do not agree with accused-appellant that the killing of PO2 Calcitas is in
no way connected with the robbery and shouldbe considered as a separate crime
considering that the same occurred after the crime of robbery had already been
consummated. The five suspects were coming out of the house and were carrying the
stolen goods. The policemen identified themselves, at which point, the five suspects
immediately opened fire. In the course of the gunfight, two of the suspects were
killed and one police officer. Evidently, the suspects engaged the policemen in a
gunfight either to defend possession of their loot, or to escape after the commission
of the robbery, or both. It cannot be denied that the killing of PO3 Calcitas took
place as a necessary consequence of the commission of therobbery.

In cases of robbery with homicide as defined in Art. 294(1) of the Revised Penal
Code, the principal purpose of the accused must be shown to be to commit robbery,
14

the homicide being committed either by reason or on occasion of the robbery The
elements of robbery with homicide are: (1) the taking of personal property is
committed with violence or intimidation against persons; (2) the property taken
belongs to another; (3) the taking is done with animo lucrandi; and (4) by reason of
the robbery or on the occasion thereof, homicide (used in its generic sense) is
committed. In robbery with homicide, what is essential is that there be a direct
15

relation, an intimate connection between robbery and the killing, whether the latter
be prior or subsequent to the former or whether both crime be committed at the
same time. 16
 146

There is no question that the original and principal intention of the five armed men
was to rob the Mesionas, as is evident from the testimony of Claudelia Mesiona that
as soon as the five men entered their house somebody shouted Hold-up! As the
robberyresulted in the killing of PO3 Romeo Calcitas, as charged in the information,
the offense committed by the malefactors is indubitably the specialcomplex crime of
robberywithhomicide.

Secondly, accused-appellant disputes the conviction on conspiracy. Conspiracy

exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. Conspiracy may be deduced from the acts of the
17

suspects before, during, and after the commission of the crime which are indicative
of a joint purpose, concerted action, and concurrence of sentiments. In the instant
18

case, the conspiracy to commit the crime of robbery was shown by the coordinated
acts of the five persons. From the time they gained entry into the Mesiona residence
they announced it was a hold-up and demanded money; two of the men stood guard
at the ground floor; the other three went upstairs and proceeded to ransack the
house; they then left the house together carrying the loot. With the foregoing
circumstances, there can be no other conclusion than that the successful
perpetration of the crime was done through the concerted efforts of the five armed
men seen rushing out of the house.

Thirdly, accused-appellant contends that he cannot be held liable for the death of
PO2 Calcitas, considering that he was not pinpointed to as the one who shot the
former and there was no proof adduced by the prosecution to establish that the
escaping robbers conspired to kill him. The rule is settled that whenever homicide
has been committed as a consequence or on the occasion of robbery, all those who
took part as principals in the robbery will also be held guilty as principals of the
special complex crime of robbery with homicide although they did not actually take
part in the homicide. Indeed, when a homicide takes place by reason or on the
19

occasion of the robbery, all those who took part in the robbery shall be guilty of the
special complex crime of robbery with homicide whether or not they actually
participated in the killing,unless there is proof that, they had endeavored to prevent
the killing. 20
 147

We now come to the main thrust of the defense in the instant appeal that the
testimonies of private complainant Claudelia Mesiona and SPO3 Nathaniel Mallare,
relative to the identity of accused-appellant as one of the malefactors cannot be
given full faith and credence. Accused-appellant contends that the prosecution failed
to clearly and positively identify accused-appellant as one of the culprits on account
of the following circumstances. (1) Claudelia Mesiona previously singled out a
certain Florencio Francisco as one of the robbers before retracting her identification
of him, and resolving to point an accusing finger at the accused-appellant on the
prodding of the fiscal; and (2) SPO2 Nathaniel Mallare who claims to have seen the
accused-appellant come out of the house of the Mesiona residence along with the
four other suspects could not have positively made out the features of accused-
appellant during that fateful evening since, by his own admission, his group of
police officers immediately engaged the suspects in an exchange of gunfire and PO3
Nicanor Faustino who was with him at the time never testified in open court that he
actually saw the accused-appellant togetherwith theother suspects at that time.
In seeking the conviction of an accused in a criminal case, the first, if not the
basic foundation upon which the prosecution builds its case against the former is
proof beyond reasonable doubt that it is the said accused who committed the crime
charged. In other words, the identity of the accused is the first duty of the
21

prosecution. 22

Of the five prosecution witnesses, Senior Police Inspectors Darlito Dar and Danilo
Macerin admitted that they did not see or recognize accused-appellant as one of the
suspects during that fateful night. It is doubtful that PO3 Nicanor Faustino who
claims to have seen accused-appellant at a distance of 200 meters at around 9:45 in
the evening without any Meralco post in the immediate vicinity, clearly saw the face
of accused-appellant. As to him, the impossibility of identification could not be ruled
out because of the time and of the place, and the fact that it was their first
encounter. A further review of the testimony of SPO1 Nathaniel Mallare discloses
that while he claims to have seen accused-appellant coming out of the house at 9:45
in the evening at a distance of about 4 meters when his group introduced
themselves as policemen, he nevertheless testified that he was sure it was Danilo
Arapok in the National Orthopedic Hospital because when he got there, the
husband of the owner of the house personally pointed to him as one of the robbers.
The unreliability of the identification made by SPO2 Mallare of herein accused-
 148

appellant is underscored by his own account, that his group of police officers
immediately engaged the suspects in an exchange of fire; and that at that time, PO3
Nicanor Faustino who was with him never testified in open court that he actually
saw the accused-appellant together with the other suspects.

Thus, on the issue of identification, the trial court did not rely on the testimonies
of the police officers including that of SPO2 Nathaniel Mallare but on the testimony
of Claudelia Mesiona and a photograph showing the husband of Claudelia Mesiona
pointing to accused-appellant as one of the malefactors. The trial court explained
thus:
The court believes that said accused has been properly identified by no less than Claudelia
Mesiona who had the opportunity to do so as she and her family were asked to go
downstairs and were herded inside the comfort room. She pointed out that she saw the
accused guarding her husband.
Moreover, the accused admitted that as per a hospital photograph taken of him while in
bed at a Camp Crame hospital (Exh. B), he was pointed to as one of the robbers by a man,
no less than Editho Mesiona, husband of Claudelia Mesiona, who did so in the presence of
S/Insp. Danilo Macerinand SPO1 Nathaniel Mallare. 23

However, a careful scrutiny of the testimony of Claudelia Mesiona reveals that

her in-court identification of accused-appellant as one of the malefactors is vague
and uncertain, asfollows:
FIS. MACEREN:
If you see these three people again, will you be able to
identify the same?
WITNESS:
It was like this, these three persons who went up the
stairs on the second floor, I dont know at first there
were two persons down stairs, these persons asked us
dumapa and thereafter when we went down that
was the time I saw two persons standing by the door
and the other is poking the gun to my husband sir.
FIS. MACEREN:
There were two persons downstairs?
WITNESS:
Yes, sir.
FIS. MACEREN:
 149

These two persons downstairs they were also armed?

WITNESS:
Yes sir.
FIS. MACEREN:
If you see any of these persons, five persons, will you
be able to identify?
WITNESS:
Yes, sir.
FIS. MACEREN:
Will you please look around inside this courtroom if
any one of the five persons is present?
WITNESS:
Yes sir.
FIS. MACEREN:
Will you please point to us who is that person?
WITNESS:
That man sir, wearing yellow t-shirt sir.
COURT:
Will you please tap the shoulder of the man you are
pointing to?
WITNESS:
This man sir.
INTERPRETER:
Witness tap the shoulder of a man; who identified
himself as Florencio Francisco.
FIS. MACEREN:
Madam witness you pointed to somebody wearing
yellow shirt, are you sure he is a person who was
together with the group?
ATTY. SAVELLANO:
Already answered your honor.
FIS. MACEREN:
I am asking your honor if there is any other person
within the group of five inside this court room your
honor.
ATTY. SAVELLANO:
 150

The witness answered that there is only one person

among the five persons entered their house who is
inside the courtroom your honor.
COURT:
Sustained.
FIS. MACEREN:
Will you tell us of these five persons and the one whom
you saw downstairs, how long did it take a look at
him?
WITNESS:
Hindi masyadong matagal at masyadong mabilis ang
pangyayari and it is already one year ago.
FIS. MACEREN:
After you were told to lay down and the person poked
gun to your husband and son, what happened next?
WITNESS:
We were asked to go inside the comfort room at hindi
kami pinatingala sir.
FIS. MACEREN:
What happened after you were asked to go the comfort
room?
WITNESS:
I heard the hold-uppers went out, I heard several gun
fire and after five (5) minutes we went out of our
house sir.
FIS. MACEREN:
As a result of this incident what if any has been loss?
ATTY. SAVELLANO:
We object your honor, no basis yet.
FIS. MACEREN:
Where there any items taken as a result of this
robbery Ms. witness?
WITNESS:
Yes sir.
FIS. MACEREN:
What were these items Ms. witness?
 151

WITNESS:
My ring, wrist watch, VHS and there were also several
items which were taken from our room which I do not
know what are those sir.
FIS. MACEREN:
Just a while ago while you were answering what was
loss you shouted us ayun pala siya what do you
mean?
WITNESS:
Kasi siya talaga, siya po kasi talaga.
FIS. MACEREN:
To whom you are pointing to?
WITNESS:
That man sir wearing orange, siya po talaga, I am
sorry sir.
COURT.
Will you please go down and tap the shoulder of the
man you are referring to?
WITNESS:
This man sir.
INTERPRETER:
Witness tap the shoulder of a man who identified
himself as Danilo Arapok.
FIS MACEREN:
What was the participation of this person wearing
orange in this hold up?
WITNESS:
He was the one outside sir.
FIS MACEREN:
Outside where?
WITNESS:
He was the one standing by the door sir.
FIS. MACEREN:
What was he doing at the door?
WITNESS:
As if he was guarding and holding the firearm.
 152

FIS. MACEREN:
What kind of firearms sir?
WITNESS:
Debola, I do not know the kind of firearm.
FIS. MACEREN
You mentioned debola, you mentioned you do not
know particulars about firearms, when you say debola
will you please describe?
WITNESS:
The one with something round in it
FIS. MACEREN:
No further question your honor.
24

We are disconcerted by the uncertain testimony of Claudelia Mesiona. Initially, she

identified a person other than herein accused-appellant as one of the culprits.
Subsequently, she admitted that the incident happened so fast and over a year ago
that she did not really get a good look of the malefactors who stayed downstairs.
Based on the foregoing, we can not rule out mistaken identity. Verily, while it is not
shown that Claudelia Mesiona has been impelled by any ill-motive to testify against
the accused, such, circumstance, however, does not guaranty that she could not have
made an honest mistake. 25

The trial court also relied on a photograph showing Editho Mesiona pointing to
the accused as one of the perpetrators of the crime who was then lying in bed at the
Camp Crame hospital. While Macerin and Mallare testified that they were present
at the time the photograph was taken, effectively vouching for the photographs
accuracy in portraying the scene at the time it was taken, the non-presentation of
Editho Mesiona, however, further underscores the unreliability of accused-
appellants identification as one of the culprits. Editho Mesiona was not presented
in court to testify as to the events that transpired in the hospital. Apparently,
Mesiona was called by the police to proceed to the hospital to identify a lone suspect,
herein accused-appellant who lay wounded in a bed. As far as the records show,
Editho Mesiona executed an affidavit at the Camp Crame hospital on December 3,
26

1996, wherein he related that he was informed by the police that there was a person
confined in the hospital with a gunshot wound in the left arm; that
he was asked if he could take a look at him to see if he recognizes him; that he was
guided to the patient; whereupon, he identified accused-appellant as the same
person who robbed them on that fateful night.
In People vs. Timon, this Court reiterated the procedure for out-of-court
27

identification and the test to determine the admissibility of such identification thus:
 153

xxx. Out-of-court identification is conducted by the police in various ways. It is done

thru show-ups where the suspect alone is brought face to face with the witness for
identification. It is done thru mug shots where photographs are shown to the witness to
identify the suspect. It is also done thru line-ups where a witness identifies the suspect
from a group of persons lined up for the purpose. Since corruption of out-of-
court identification contaminates the integrity of in-court identification during the trial of
the case, courts have fashioned out rules to assure its fairness and its compliance with the
requirements of constitutional due process. In resolving the admissibility of and relying on
out-of-court identification of suspects, courts have adopted the totality of circumstances
test where they consider the following factors, viz: (1) the witnesss opportunity to view the
criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the
accuracy of any prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length of time between the crime
and the identification; and (6) the suggestiveness of the identification procedure.

We find that the out-of-court identification of accused-appellant, which is a show-

up, falls short of totality of circumstances test. Specifically, there was no prior
description given by the witness to the police at any time after the incident; and we
cannot discount the possibility that the police may have influenced the identification
under the circumstances by which accused-appellant was presented to him. This
Court has held in People vs. Salguero that this kind of identification, where the
28

attention of the witness is directed to a lone suspect, is suggestive. Also, in People

vs. Nino this Court described this type of out-of-court identification as being
29

pointedlysuggestive, generated confidence where there was none, activated visual

imagination, and, all told, subverted their reliability as eye-witnesses.

In cases such as the instant one, where the identification made by the principal
eyewitness Claudelia Mesiona was uncertain, a little extra effort on the part of the
prosecution to acquire appropriate corroborating evidence goes far towards
achieving the proper ends of justice. Whatever flaw attended the out-of-court
30

identification of accused-appellant could have easily been cured by a subsequent

positive identification in court by Editho Mesiona himself. Stated in another way,
inadmissibility or unreliability of an out-of-court identification should not
necessarily foreclose the admissibility of an independent in-court identification. 31

Once again we stress that the correct identification of the author of a crime
should be the primal concern of criminal prosecution in any civilized legal
 154

system. Corollary to this is the actuality of the commission of the offense with the
32

participation of the accused. All these must be proved by the State beyond
33

reasonable doubt on the strength of its evidence and without solace from the
weakness of the defense. Thus, even if the defense of the accused may be weak, the
34

same is inconsequential if, in the first place, the prosecution failed to discharge the
onus on his identity and culpability. The presumption of innocence dictates that it
35

is for the people to demonstrateguilt and notfor the accused to establish innocence. 36

Premises considered, we find the evidence for the prosecution inadequate to prove
the guilt of the accused-appellant beyond reasonable doubt.

IN VIEW OF ALL THE FOREGOING, the judgment of conviction appealed from is

hereby REVERSED and SET ASIDE and another one is entered ACQUITTING
accused-appellant DaniloArapok y Cutamora of the crime of robbery with homicide
due to reasonable doubt. His immediate release from prison is hereby ordered in the
absence of any other legal cause for his continued incarceration.

SO ORDERED.

G.R. No. 74336. April 7, 1997.

*

J. ANTONIO AGUENZA, petitioner, vs. METROPOLITAN BANK & TRUST CO.,

VITALIADO P. ARRIETA, LILIA PEREZ, PATRICIO PEREZ and THE
INTERMEDIATE APPELLATE COURT, respondents.
 155

Remedial Law; Pleadings and Practice; Rule that the allegations, statements, or
admissions contained in a pleading are conclusive as against the pleader is not an absolute
and inflexible rule and is subject to exceptions.The general rule that the allegations,
statements, or admissions contained in a pleading are conclusive as against the pleader is
not an absolute and inflexible rule and is subject to exceptions.

Same; Same; An admission in a pleading on which a party goes to trial may be

contradicted by showing that it was made by improvidence or mistake or that no such
admission was made.In other words, an admission in a pleading on which a party goes to
trial may be contradicted by showing that it was made by improvidence or mistake or that
no such admission was made, i.e., not in the sense in which the admission was made to
appear or the admission was taken out of context.

Same; Same; In the absence of such ratification or authority, such admission does not
bind the corporation.In any event, assuming arguendo that the responsive pleading did
contain the aforesaid admission of corporate liability, the same may not still be given effect
at all. As correctly found by the trial court, the alleged admission made in the answer by the
counsel for Intertrade was without any enabling act or attendant ratification of corporate
act, as would authorize or even ratify such admission. In the absence of such ratification or
authority, such admission does not bind the corporation.
Same; Same; Ratification can never be made on the part of the corporation by the same
persons who wrongfully assume the power to make the contract, but the ratification must be
by the officer as governing body having authority to make such contract.The respondent
appellate court likewise adjudged Intertrade liable because of the two letters emanating
from the office of Mr. Arrieta which the respondent court considered as indicating the
corporate liability of the corporation. These documents and admissions cannot have the
effect of a ratification of an unauthorized act. As we elucidated in the case of Vicente v.
Geraldez, ratification can never be made on the part of the corporation by the same
persons who wrongfully assume the power to make the contract, but the ratification must be
by the officer as governing body having authority to make such contract. In other words,
the unauthorized act of respondent Arrieta can only be ratified by the action of the Board of
Directors and/or petitioner Aguenza jointly with private respondent Arrieta.

PETITION for review on certiorari of a decision of the Intermediate Appellate

Court.

The facts are stated in the opinion of the Court.

Quasha, Asperilla, Ancheta, Pea & Nolasco for petitioner.
 156

Delfin A. Manuel, Jr. for private respondents Lilia and Patricio Perez.
Perez & Calima Law Offices for respondent Metrobank.

HERMOSISIMA, JR., J.:

Before us is a petition for review on certiorari seeking the reversal of the Decision of
1

the Intermediate Appellate Court(now the Court of Appeals) finding petitioner J.

2

Antonio Aguenza liable under a continuing surety agreement to pay private

respondent Metropolitan Bank & Trust Company (hereafter, Metrobank) a loan
jointly obtained by the General Manager and a bookkeeper of Intertrade, a
corporation of which petitioner is President and in whose behalf petitioner had, in
the past, obtained credit lines.

The following facts are not disputed:

On February 28, 1977, the Board of Directors of Intertrade, through a Board
Resolution, authorized and empowered petitioner and private respondent Vitaliado
Arrieta, Intertrades President and Executive Vice-President, respectively, to jointly
apply for and open credit lines with private respondent Metrobank. Pursuant to
such authority, petitioner and private respondent Arrieta executed several trust
receipts from May to June, 1977, the aggregate value of which amounted to
P562,443.46, with Intertrade as the entrustee and private respondent Metrobank as
the entruster.
On March 14, 1977, petitioner and private respondent Arrieta executed a
Continuing Suretyship Agreement whereby both bound themselves jointly and
severally with Intertrade to pay private respondent Metrobank whatever obligation
Intertrade incurs, but not exceeding the amount of P750,000.00.
In this connection, private respondent Metrobanks Debit Memo to Intertrade
dated March 22, 1978 showed full settlement of the letters of credit covered by said
trust receipts in the total amount of P562,443.46.

On March 21, 1978, private respondents Arrieta and Lilia P. Perez, a bookkeeper in
the employ of Intertrade, obtained a P500,000.00 loan from private respondent
Metrobank. Both executed a Promissory Note in favor of said bank in the amount of
P500,000.00. Under said note, private respondents Arrieta and Perez promised to
pay said amount, jointly and severally,in twenty five (25) equal installments of
 157

P20,000.00 each starting on April 20, 1979 with interest of 18.704% per annum, and
in case of default, a further 8% per annum.

Private respondents Arrieta and Perez defaulted in the payment of several

installments, thus resulting in the entire obligation becoming due and demandable.
In 1979, private respondent Metrobank instituted suit against Intertrade, Vitaliado
Arrieta, Lilia Perez and her husband, Patricio Perez, to collect not only the unpaid
principal obligation, but also interests, fees and penalties, exemplary damages, as
well as attorneys fees and costs of suit.
More than a year after private respondent Metrobank filed its original complaint,
it filed an Amended Complaint dated August 30, 1980 for the sole purpose of
impleading petitioner as liable for the loan made by private respondents Arrieta and
Perez on March 21, 1978, notwithstanding the fact that such liability is being
claimed on account of a Continuing Suretyship Agreement dated March 14, 1977
executed by petitioner and private respondent Arrieta specifically to guarantee the
credit line applied for by and granted to, Intertrade, through petitioner and private
respondent Arrieta who were specially given authority by Intertrade on February
28, 1977 to open credit lines with private respondent Metrobank. The obligations
incurred by Intertrade under such credit lines were completely paid as evidenced by
private respondent Metrobanks debit memo in the full amount of P562,443.46.
After hearing on the merits, the trial court rendered its decision absolving
petitioner from liability and dismissing private respondent Metrobanks complaint
against him, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered as follows:

1. 1)Declaring that the Promissory Note dated March 21, 1978, marked as Exhibit A, is
the responsibility only of defendant Vitaliado P. Arrieta and Lilia P. Perez, in their
personal capacity and to the exclusion of defendant Intertrade and Marketing Co.,
Inc.;

1. 2)Ordering defendants Vitaliado P. Arrieta and Lilia P. Perez to pay, jointly and
severally, the plaintiff the sum of P1,062,898.92, due as of September 15, 1982, plus
interest, fees and penalties duefrom that date pursuant to the stipulations in the
promissory note until the whole obligations shall have been paid and finally settled;

2. 3)Ordering defendants Vitaliado P. Arrieta and Lilia Perez to pay, jointly and
severally, the plaintiff the sum of P44,000.00 by way of attorneys fees and other
litigation expenses, albeit there is no award for exemplary damages;
 158

3. 4)Declaring defendant Patricio Perez, as conjugal partner of defendant Lilia Perez,

as jointly and severally liable with her for what the latter is ordered to pay per this
Decision;

4. 5)Dismissing this case insofar as defendants Intertrade and Marketing Co., Inc. and
J. Antonio Aguenza are concerned, although their respective counterclaims against
the plaintiff are also ordered dismissed.

Costs of suit shall be paid, jointly and severally, by defendant Vitaliado Arrieta and Lilia
Perez.
SO ORDERED. 3

Private respondents Arrieta and spouses Perez appealed the foregoing decision to
the respondent Court of Appeals.
On February 11, 1986, respondent appellate court promulgated the herein
assailed decision, the dispositive portion of which reads:
WHEREFORE, the appealed decision is SET ASIDE and another one entered ordering
Intertrade & Marketing Co., Inc., and J. Antonio Aguenza, jointly and severally:
1)to pay the Bank the principal of P440,000.00 plus its interest of 18.704% per annum
computed from April 15, 1979 until full payment;

2)to pay the Bank the sum equivalent to 8% of P440,000.00 as penalty, computed from
July 19, 1978 until full payment;

3)to pay the Bank the sum of P15,000.00 as attorneysfees.

The complaint is dismissed as against Lilia Perez, Patricio Perez and Vitaliado P. Arrieta
who are absolved from liability. All counter-claims are dismissed.

Costs against Intertrade and Aguenza, jointly and severally.

SO ORDERED.

In setting aside the decision of the trial court, respondent Court of Appeals
ratiocinated such reversal in this wise:
No dispute exists as to the promissory note and the suretyship agreement. The controversy
centers on whether the note was a corporate undertaking and whether the suretyship
agreement covered the obligation in the note.
As far as Intertrade is concerned, it seems clear from its answer that the loan evidenced
by the note was a corporate liability. Paragraph 1.3 of the answer admits x x x defendants
obtention of the loan from the plaintiff x x x; the affirmative defenses admit default, and
 159

invoking the defense of usury, plead adjustment of excessive interest which Intertrade
refused to make.
On the basis of this admission, it is no longer in point to discuss, as the appealed
decision does, the question of the capacity in which Arrieta and Perez signed the promissory
note, Intertrades admission of its corporate liability being admission also that the
signatories signed the note in a representative capacity. The Bank itself gave corroboration
with its insistence on Intertrades liability under the note. x x x
The stated purpose of the note is operating capital. It cannot be contended that the
words operating capital refer to the capital requirements of Perez and Arrieta. In the first
place, it was not shown that they were in business for themselves. Besides, Perez was only a
bookkeeper of Intertrade with a salary of P800.00 a month x x x Their combined resources
would not have been sufficient to justify a business loan of the notes magnitude. From these
follows the only logical conclusion: that Arrieta and the Perez spouses are not liable on the
note.
The surety agreement presents a different problem.
There is no question that Aguenza signed the agreement x x x. Its second paragraph
shows, typewritten in bold capitals, that the agreement was executed for and in
consideration of any existing indebtedness to the Bank of INTERTRADE & MARKETING
COMPANY, INC. Nowhere in its entire text is it shown that its execution was for the
benefit of Perez or Arrieta.

Aguenza feigns ignorance of the promissory note and claims his knowledge of it
came only when he received summons. This is difficult to believe. As Intertrades
first letter to the Bank x x x shows, the Board of Directors and principal stockholders
met to discuss the obligation. Aguenza was at the time president of Intertrade and acting
chairman of its board x x x.

Aguenza also argues that the suretyship was executed to enable Intertrade to avail of
letters of credit to finance importations, which had all been paid in full, and therefore the
agreement was thereby terminated. Again, the agreement shows up the fallacy of this
argument. The document is boldly denominated CONTINUING SURETYSHIP, and
paragraph VI thereof stipulates it to be a continuing one, to remain in force until written
notice shall have been received by the Bank that it has been revoked by the surety x x x. In
other words, the option to cancel, in writing, was given to the sureties; the evidence does not
show any written notice of such cancellation. x x x
And, the argument that the agreement was executed as security for letters of credit that
had already been paid is in itself confirmation that the suretyship was meant to benefit
Intertrade. The trust receipts x x x and the bills of exchange x x x are all in the name of
Intertrade.
 160

The suretyship is both retrospective and prospective in its operation. Its wording covers
all obligations of Intertrade existing as of its date as well as those that may exist thereafter.
Hence, its coverage extends to the promissory note as well. 4

Understandably, petitioner lost no time in bringing this case before us via a petition
for review on certiorari on the following grounds:
THE RESPONDENT COURT ERRED IN REVERSING AND [SETTING] ASIDE THE
FINDING OF THE TRIAL COURT THAT THE LOAN OF P500,000.00 PROCURED 21
MARCH 1978 BY RESPONDENTS VITALIADO ARRIETA AND LILIA PEREZ IS NOT A
CORPORATE LIABILITY OF RESPONDENT INTERTRADE AND THAT PETITIONER
IS NOT LIABLE THEREON UNDER THE CONTINUING SURETYSHIP AGREEMENT
DATED 4 MARCH 1977.

THE CONCLUSION OF THE RESPONDENT COURT THAT THE LOAN OF

P500,000.00, PROCURED 21 MARCH 1978 BY RESPONDENT VITALIADO
ARRIETA AND LILIA PEREZ IS A CORPORATE LIABILITY OF RESPONDENT
INTERTRADE AND CONSEQUENTLY RENDERING PETITIONER LIABLE IN HIS
PERSONAL CAPACITY AS A SURETY UNDER THE CONTINUING SURETYSHIP OF 4
MARCH 1977, IS GROSSLY ERRONEOUS AND PREMISED ON A MISAPPREHENSION
OF FACTS.

THE CONCLUSIONS AND CONSTRUCTION REACHED BY RESPONDENT COURT

FROM THE FACTS AND EVIDENCE OF RECORD, ARE INCORRECT RESULTING IN
AN ERRONEOUS DECISION GRAVELY PREJUDICIAL TO THE SUBSTANTIAL
RIGHTS OF PETITIONER. 5

The petition has merit.

The principal reason for respondent appellate courts reversal of the trial courts
absolution of petitioner is its finding that the loan made by private respondent
Arrieta and Lilia Perez were admitted by Intertrade to be its own obligation.
After a careful scrutiny of the records, however, we find and we so rule that there
is neither factual nor legal basis for such a finding by respondent Appellate Court.
First, the general rule that the allegations, statements, or admissions contained
in a pleading are conclusive as against the pleader is not an absolute and inflexible
6

rule and is subject to exceptions. Rule 129, Section 4, of the Rules of Evidence,
7

provides:
Section 4. Judicial admissions.An admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not require proof. The admission may be
 161

contradicted only by showing that it was made through palpable mistake or that no such
admission was made. (Italics supplied)

In other words, an admission in a pleading on which a party goes to trial may be

contradicted by showing that it was made by improvidence or mistake or that no
such admission wasmade, i.e., not in the sense in which the admission was made to
appear or the admission was taken out of context. 8

In the case at bench, we find that the respondent Court of Appeals committed an
error in appreciating the Answer filed by the lawyer of Intertrade as an admission
of corporate liability for the subject loan. A careful study of the responsive pleading
filed by Atty. Francisco Pangilinan, counsel for Intertrade, would reveal that there
was neither express nor implied admission of corporate liability warranting the
application of the general rule. Thus, the alleged judicial admission may be
contradicted and controverted because it was taken out of context and no admission
was made at all.
In any event, assuming arguendo that the responsive pleading did contain the
aforesaid admission of corporate liability, the same may not still be given effect at
all. As correctly found by the trial court, the alleged admission made in the answer
by the counsel for Intertrade was without any enabling act or attendant ratification
of corporate act, as would authorize or even ratify such admission. In the absence
9

of such ratification or authority, such admission does not bind the corporation.

Second, the respondent appellate court likewise adjudged Intertrade liable because
of the two letters emanating from the office of Mr. Arrieta which the respondent
court considered as indicating the corporate liability of the corporation. These
10

documents and admissions cannot have the effect of a ratification of an

unauthorized act. As we elucidated in the case of Vicente v. Geraldez, ratification
11

can never be made on the part of the corporation by the same persons who
wrongfully assume the power to make the contract, but the ratification must be by
the officer as governing body having authority to makesuch contract. In other
words, the unauthorized act of respondent Arrieta can only be ratified by the action
of the Board of Directors and/or petitioner Aguenza jointly with private respondent
Arrieta.
 162

We must emphasize that Intertrade has a distinct personality separate from its
members. The corporation transacts its business only through its officers or agents.
Whatever authority these officers or agents may have is derived from the Board of
Directors or other governing body unless conferred by the charter of the corporation.
An officers power as an agent of the corporation must be sought from the statute,
charter, the by-laws, as in a delegation of authority to such officer, or the acts of the
Board of Directors formally expressed or implied from a habit or custom of doing
business. 12

Thirdly, we note that the only document to evidence the subject transaction was
the promissory note dated March 21, 1978 signed by private respondents Arrieta
and Lilia Perez. There is no indication in said document as to what capacity the two
signatories had in affixing their signatures thereon.
It is noted that the subject transaction is a loan contract for P500,000.00 under
terms and conditions which are stringent, if not onerous. The power to borrow
money is one of those cases where even a special power of attorney is required. In 13

the instant case, there is invariably a need of an enabling act of the corporation to
be approved by its Board of Directors. As found by the trial court, the records of this
case is bereft of any evidence that Intertrade through its Board of Directors,
conferred upon Arrieta and Lilia Perez the authority to contract a loan with
Metrobank and execute the promissory note as a security therefor. Neither a board
resolution nor a stockholders resolution was presented by Metrobank to show that
Arrieta and Lilia Perez were empowered by Intertrade to execute the promissory
note.14

The respondents may argue that the actuation of Arrieta and Lilia Perez was in
accordance with the ordinary course of business usages and practices of Intertrade.
However, this contention is devoid of merit because the prevailing practice in
Intertrade was to explicitly authorize an officer to contract loans in behalf of the
corporation. This is evidenced by the fact that previous to the controversy, the
Intertrade Board of Directors, through a board resolution, jointly empowered and
authorized petitioner and respondent Arrieta to negotiate, apply for, and open credit
lines with Metrobank. The participation of these two was mandated to be joint and
15

not separate and individual.

In the case at bench, only respondent Arrieta, together with a bookkeeper of the
corporation, signed the promissory notes, without the participation and approval of
petitioner Aguenza. Moreover, the enabling corporate act on this particular
transaction has not been obtained. Neither has it been shown that any provision of
 163

the charter or any other act of the Board of Directors exists to confer power on the
Executive Vice President acting alone and without the concurrence of its President,
to execute the disputed document. 16

Thus, proceeding from the premise that the subject loan was not the
responsibility of Intertrade, it follows that the undertaking of Arrieta and the
bookkeeper was not an undertaking covered by the Continuing Suretyship
Agreement. The rule is that a contract of surety is never presumed; it must be
express and cannot extend to more than what is stipulated. It is strictly construed
17

against the creditor, every doubt being resolved against enlarging the liability of the
surety.
The present obligation incurred in subject contract of loan, as secured by the Arrieta
and Perez promissory note, is not the obligation of the corporation and petitioner
Aguenza, but the individual and personal obligation of private respondents Arrieta
and Lilia Perez.
WHEREFORE, the petition is GRANTED, and the questioned decision of the
Court of Appeals dated February 11, 1986 is REVERSED and SET ASIDE. The
18

judgment of the trial court dated February 29, 1984 is hereby REINSTATED.
No Costs.
SO ORDERED.

G.R. No. 119845. July 5, 1996. *

 164

ANTONIO M. GARCIA, petitioner, vs. COURT OF APPEALS and SECURITY

BANK & TRUST COMPANY, respondents.

Commercial Law; Trust Receipts; A trust receipt is a security agreement to which a

bank acquires a security interest in the goods.A trust receipt therefore is a security
agreement, pursuant to which a bank acquires a security interest in the goods. It secures
an indebtedness and there can be no such thing as security interest that secures no
obligation . . . . . . as elucidated in Samo vs. People [footnote deleted] a trust receipt is
considered as a security transaction intended to aid in financing importers and retail
dealers who do not have sufficient funds or resources to finance the importation or purchase
of merchandise, and who may not be able to acquire credit except through utilization, as
collateral, of the merchandise imported or purchased.

Same; Same; By virtue of the trust receipt agreement the bank theoretically acquired
ownership of the imported personal property.Thus, by virtue of the trust receipt
agreement, SBTC should proceed against the trust receipt because the bank, through said
trust receipt agreement theoretically acquired ownership of the imported personal property.

Civil Law; Contracts; Statutory Construction; Ambiguous contracts are construed

against the party who caused the ambiguity.The phrase such other obligations in the
Indemnity Agreement is vague, equivocal, and patently ambiguous. It raises doubt as to its
real meaning. It is, therefore, subject to interpretation. If the parties intended the 1982
SWAP loan to apply to and cover the 1980 EXPORT loan transaction, SBTC should have
clearly and categorically stated so in the said Indemnity Agreement. Respondent bank
failed in this regard. It is a well-stated legal principle that if there is any doubt on the terms
and conditions of the surety agreement, the doubt should be resolved in favor of the surety
(Philippine National Bank vs. Court of Appeals, 198 SCRA 767 [1991]). Ambiguous
contracts are construed against the party who caused the ambiguity.

Same; Same; It is a basic principle in law that contracts can only bind the parties who
had entered into it and it cannot favor or prejudice a third person.Finally, it should be
noted that the chattel mortgage was entered into by Dynetics and SBTC. Garcia was not a
party to the chattel mortgage nor was he aware of the contract or its provisions. It is a basic
principle in law that contracts can only bind the parties who had entered into it, and it
cannot favor or prejudice a third person (Oreano vs. Court of Appeals, 211 SCRA 40 [1992]).
Only those who are parties to contracts are liable for their breach. Parties to a contract
 165

cannot thereby impose any liability on one who, under its terms, is a stranger to the
contract. And considering that it is Dynetics which executed the chattel mortgage, the
liability for the deficiency therefor, must be adjudged against Dynetics alone.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Bengzon, Narciso, Cudala, Pecson, Bengson & Jimenez for SBTC.

MELO, J.:

This has reference to a petition for review on certiorari of the decision of the Court
of Appeals dated August 12, 1994, in CA-G.R. No. 38329 entitled, Security Bank
and Trust Co., plaintiff-appellant vs. Dynetics, Inc., defendant-appellant and
Antonio M. Garcia, defendant-appellee, modifying the trial courts judgment dated
March 9, 1992, in that said decision of the Court of Appeals held herein petitioner
Antonio M. Garcia jointly and severally liable with then defendant-appellant
Dynetics, Inc. to plaintiff-appellant Security Bank and Trust Co. for the unpaid
obligation under the Export Loan Line in the amount of P24,743,935.35 and a Swap
Loan Facility in the deficiency balance of P3,596,758.72, both of which amounts
appear to have now ballooned to P2 billion due to interests, penalties, and attorneys
fees (pp. 27-28, CA Decision; 175-176, Rollo). Dynetics, Inc. is not a petitioner herein
and accepts its liability. The only issue is whether petitioner Garcia is jointly and
severally liable with Dynetics, Inc. for such loans.

The relevant facts of the case are as follows:

On November 19, 1980, respondent Security Bank and Trust Co. (SBTC) granted
Dynetics, Inc. a short-term EXPORT loan line in the amount of P25 million
pursuant to an Advisory Letter-Agreement (Exh. A, A-1). The loan was secured by a
deed of assignment with pledge on export letters of credit and/or purchase orders
equivalent to 100% of their face value. The said credit line was subsequently
renewed on various dates and in various amounts, the last renewal having been
made on January 24, 1985 in the increased amount of P26 million evidenced by the
Renewal Credit Line Agreement (Exh. B).
 166

Pursuant to said Renewal Credit Line Agreement, Dynetics availed itself of the
export loan for the period of February to May 1985 in the total amount of
P25,074,906.16, executing and signing for said purpose 34 promissory notes of
various dates covering the aforementioned period (Exhs. C to JJ), and trust receipts
(pp. 7-8, CA Decision; pp. 155-156, Rollo).
Prior to this 1985 availment, particularly on April 20, 1982, Dynetics obtained
another credit accommodation or SWAP loan from SBTC in the amount of
$700,000.00. To secure payment thereof, petitioner Antonio Garcia, with Vicente B.
Chuidian, executed an Indemnity Agreement in favor of SBTC on April 26, 1982
(Exh. NN).

It appears that Dynetics did not avail itself of this SWAP loan. Subsequently,
however, in 1983, the SWAP loan facility was renewed in the reduced amount of
$500,000.00 and it was this loan which Dynetics availed of in 1985 and concerning
which it issued a promissory note (Exh. PP). The SWAP loan was renewed in 1984,
this time on a quarterly basis, the last quarterly renewal having been made on April
22, 1985. By this time, SBTC required Dynetics to execute a continuing suretyship
undertaking (Exh. OO, OO-1) in accordance with,and in pursuance of, which
petitioner Garcia bound himself jointly and severally with Dynetics to pay all the
latters obligations with respondent SBTC. Subsequent thereto, however, and
without the consent and knowledge of Garcia, SBTC required Dynetics to execute a
chattel mortgage over various pieces of machinery to secure the SWAP loan (Exh.
LL).

Dynetics failed to pay the SWAP loan upon its maturity on July 22, 1985,
prompting SBTC to foreclose on the chattel mortgage. The mortgaged chattels were
sold at public auction on September 15, 1985 to SBTC as highest bidder for the
amount of P6,850,861.30. This amount was applied as partial payment of the SWAP
loan, leaving a deficiency balance of P3,596,758.72.
Dynetics also defaulted in the payment of the EXPORT loan which amounted to
over P464 million, exclusive of attorneys fees and costs, as of June 30, 1989 (Exh.
KK).
In view of Dynetics failure to settle its account with SBTC relative to the
EXPORT loan and the deficiency balance of the SWAP loan, despite repeated
 167

demands, a complaint was filed in court by SBTC against Dynetics, petitioner

Garcia, and his co-surety Vicente Chuidian for recovery of a sum of money.
Dynetics, in its answer, contended that the promissory notes had no
consideration; that the names of the executive officers of SBTC were stamped on the
blank promissory notes; and that the chattel mortgage was not registered, hence it
was converted into a pledge, thus barring recovery of the deficiency balance of the
obligation after foreclosure, as the principal obligation was extinguished.
Petitioner Garcia, for his part, asserted that no prior or written demand was
made by SBTC or its counsel upon any of the defendants prior to the filing of the
case in court; that the loans had long been paid and extinguished; and that the
chattel mortgage discarded the Indemnity Agreement and the Continuing
Suretyship.
After trial, Branch 58 of the Regional Trial Court of the National Capital Judicial
Region stationed in Makati, rendered its judgment on March 9, 1992, disposing as
follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff and
against defendant Dynetics Incorporated which is hereby ordered:

1. 1)to pay plaintiff the principal sum of P24,743,935.35 as consequence of and in

connection with the promissory notes (Exhs. C to JJ), plus accrued interests
thereon, compounded quarterly effective from their respective maturity dates until
fully paid, and monthly penalty charges of five percent (5%) of the total outstanding
obligation and accrued interests due and unpaid;

2. 2)to pay plaintiff the sum of P3,596,758.72 (or its dollar equivalent of
US$187,550.97) as deficiency balance on the chattel mortgage (Exh. LL); and,

3. 3)to pay plaintiff attorneys fees equivalent to twenty percent (20%) of the
aforestated entire amounts due and outstanding, litigation expenses of
P250,000.00, plus the costs of suit.

The case against defendant Antonio M. Garcia is hereby DISMISSED, together with said
defendants counterclaim for damages. Plaintiff is however ordered to pay defendant Garcia
the amount of P100,000.00 as attorneys fees. Furthermore, the writ of preliminary
attachment dated September 8, 1989 insofar only as affecting defendant Garcias properties
is hereby quashed, dissolved and/or lifted.
(p. 11, RTC Decision; p. 193, Rollo.)

SBTC, as well as defendant Dynetics, appealed to the Court of Appeals.

 168

On August 12, 1994, the Court of Appeals rendered its now assailed decision
modifying that of the trial court by holding Garcia solidarily liable with Dynetics to
SBTC for the unpaid balance under the EXPORT loan and the deficiency balance on
the SWAP loan, together with interests, attorneys fees, litigation expenses, and
costs. Disposed thus respondent court:
WHEREFORE, foregoing premises considered, the judgment of the court a quo is hereby
MODIFIED and defendant-appellant Dynetics and defendant-appellee Antonio Garcia are
hereby ordered to pay jointly and severally unto plaintiff-appellee SBTC the following:

1)P24,743,935.35 representing the unpaid principal obligation under the promissory

notes sued upon, plus accrued interests,compounded quarterly reckoned from the
respective maturity dates of the promissory notes until fully paid, and monthly
penalty charges of 5% of the total outstanding obligation;

2)P3,596,758.72 representing deficiency balance on the chattel mortgage with legal

interest from 1 September 1989 (date of filing of complaint); and

3)attorneys fees equivalent to 20% of the amounts due and outstanding, and
litigation expenses of P100,000.00, plus costs.

The award of attorneys fees in favor of appellee Antonio Garcia is eliminated and the
writ of attachment issued by the court a quo over the shares of stock owned by appellee
Antonio Garcia in Chemphil is hereby declared to be valid and subsisting until full
satisfaction of the aforementioned amounts.
(pp. 27-28, CA Decision; pp. 175-176, Rollo.)

A motion for reconsideration was seasonably filed by Garcia, but the same was
denied by respondent court on April 7, 1995.
Hence, the instant petition filed on August 4, 1995, wherein Garcia assigns the
following alleged errors:
I

The Court of Appeals erred in holding Garcia liable as surety for the export loans granted
by SBTC to Dynetics because the suretyship he assumed was intended only for another
loan, the SWAP LOAN facility.

II

The Court of Appeals erred in holding that the chattel mortgage executed by Dynetics on
26 April 1985 to secure the promissory note it issued upon availment of the SWAP LOAN
 169

facility ($500,000.00) did not replace and extinguish the 1983 suretyship undertaking of
Garcia for the same obligation.

III

On the assumption that the SBTC claim against Garcia as surety is partly or wholly
valid, the Court of Appeals erred in awarding so exorbitant amounts of damages, that is
P1,747,359,429.30 as penalty

charges (5% monthly of total outstanding obligation or 60% per year on the export loan,
excluding those on the swap loan) and P408,652,357.42 as attorneys fees (20% of the
amounts due and outstanding) on top of P267,558,663.80 as interest earning on the
principal obligation of only P24,743,935.35 as export loan and P3,596,758.72 as SWAP
LOAN.

Involved in the case at bar are two loansan EXPORT loan and a SWAP loan
obtained by Dynetics from SBTC, with Garcia as surety in the SWAP loan. The
controversy arose when Dynetics failed to pay said loans, giving rise to the issue of
whether or not petitioner Garcia as surety is liable jointly and solidarily with
Dynetics to SBTC for the unpaid obligations of Dynetics under both the EXPORT
loan and the SWAP loan, together with the interests, penalty charges, attorneys
fees, litigation expenses, and costs, by virtue of the Indemnity Agreement (Exh. NN)
and the Continuing Suretyship (Exh.OO, OO-1). In other words, does the liability of
Garcia as surety in the SWAP loan cover or extend to the EXPORT loan?
It is the stand of Garcia that he is not liable as surety to SBTC for the EXPORT
loan because the Indemnity Agreement and Continuing Suretyship he executed
covered only the SWAP loan, which, however, were later replaced and extinguished
by the chattel mortgage executed by Dynetics in favor of SBTC.
On the other hand, SBTC contends that Garcia is liable for both the EXPORT
loan and SWAP loan transactions by virtue of the comprehensive provisions of the
Indemnity Agreement (Exh. NN) and the Continuing Suretyship (Exh. OO, OO-1)
he signed and executed jointly and severally with Dynetics in favor of SBTC.
After a painstaking study of the records before us, we find for petitioner Garcia.
We hold that he is not liable for the EXPORT loan. Stated differently, Garcias
liability as surety for the SWAP loan under the Indemnity Agreement and the
Continuing Surety, if any at all, does not extend to the EXPORT loan.
In holding Garcia liable for both the EXPORT loan and the SWAP loan, respondent
Court of Appeals relied heavily on the provisions of the Indemnity Agreement dated
April 26, 1982 executed by Garcia together with Dynetics (Exh. NN) that:
 170

. . . Antonio Garcia . . .
hereby bind(s) himself/themselves jointly and severally with the CLIENT in favor of the
BANK for the payment, upon demand and without benefit of excusion, of whatever amount
or amounts the CLIENT may be indebted to the BANK under and by virtue of aforesaid
credit accommodation(s) including the substitutions, renewals, extensions, increases,
amendments, conversions and revivals of the aforesaid credit accommodation(s), as well as
of the amount or amounts of such other obligations that the CLIENT may owe the BANK,
whether direct or indirect, principal or secondary, as appears in the accounts, books, and
records of the BANK, plus interest and expenses arising from any agreement or agreements
that may have heretofore been made or hereafter executed by and between the parties . . .
(p. 349, Rollo).

At first glance, from the words as well as of the amount or amounts of such other
obligations, . . . that the client may owe the BANK, it would appear that SBTC was
also referring to the obligation of Dynetics under the EXPORT loan. But the above
quoted phrase, to our mind, and contrary to the claim of SBTC, did not impose on
Garcia the obligation to pay the EXPORT loan in addition to the SWAP loan.
Particular attention must be paid to the statement appearing on the face of the
Indemnity Agreement (Exh. NN) evidenced by those certain loan documents dated
April 20, 1982 (Exh. 1-B, Garcia). From this statement, it is clear that the
Indemnity Agreement refers only to the loan document of April 20, 1982 which is
the SWAP loan. It did not include the EXPORT loan. Hence, petitioner cannot be
held answerable for the EXPORT loan.
The Indemnity Agreement specifically secured the $700,000.00 SWAP loan which
was not availed of. The Continuing Suretyship, on the other hand, specifically
secured the reduced $500,000.00 SWAP loan. The Indemnity Agreement
is not involved in the reduced SWAP loan. There was no reason for SBTC to require
the execution of the Continuing Suretyship if its intention were to have the earlier
Indemnity Agreement secure the SWAP loan in both the original and in the reduced
amounts. It may be added that the execution of this Continuing Suretyship for the
reduced amount of the SWAP loan confirms our conclusion that SBTCs present
and hereafter obligation clauses are not binding on Garcia, and that a particular
collateral secures only such obligation identified in the document evidencing the
security.
Other important considerations negate respondent courts finding that
petitioners liability as surety under the SWAP loan extends or covers the EXPORT
loan.
 171

Reviewing once more the record, it may be noticed that the EXPORT loan was
secured by:

1. 1.A Deed of Assignment with pledge on the export LCs and POs equivalent
to 100% of their face value, (Par. 3, Letter-Agreement, Exh. A, pp. 242-243,
Rollo), by virtue of which the right of the assignor is transferred to the
assignee, who would then be allowed to proceed against the debtor. This
assignment had the effect similar to that of a sale (Wyco Sales Corp. vs. BA
Finance Corp., 200 SCRA 637 [1991]).

2. 2.Trust Receipts (Pars. 2 & 3, Exh. B, Renewal Credit Line, p. 246, Rollo)
which is a separate and independent security transaction intended to aid in
financing importers whereby the imported goods are held as security by the
lending institution for the loan obligation.

In this regard, Justice Melencio-Herreras statements in Vintola vs. Insular Bank of

Asia and America (150 SCRA 578 [1987]), later re-echoed in Nacu vs. Court of
Appeals (231 SCRA 237 [1994]), are instructional, to wit:

. . . A letter of credit-trust receipt arrangement is endowed with its own distinctive

features and characteristics. Under that set-up a bank extends a loan covered by the
letter of credit, with the trust receipt as a security for the loan. In other words, the
transaction involves a loan feature represented by the letter of credit and a security
feature which is the covering trust receiptx x x

xxx
xxx
A trust receipt therefore is a security agreement, pursuant to which a bank acquires a
security interest in the goods. It secures an indebtedness and there can be no such thing
as security interest that secures no obligation . . .
. . . as elucidated in Samo vs. People [footnote deleted] a trust receipt is considered as a
security transaction intended to aid in financing importers and retail dealers who do not
have sufficient funds or resources to finance the importation or purchase of merchandise,
and who may not be able to acquire credit except through utilization, as collateral, of the
merchandise imported or purchased
(at pp. 583-584.)
 172

Thus, by virtue of the trust receipt agreement, SBTC should proceed against the
trust receipt because the bank, through said trust receipt agreement theoretically
acquired ownership of the imported personal property (Nacu vs. Court of Appeals,
supra).

1. 3.Thirty-four Promissory notes(Exh. C to JJ, pp. 245-346, Rollo) signed by

Dynetics Vice-President for Treasury and Finance, making the latter liable
on its due date for the amount stated.

2. 4.Hold-Out Arrangement Proviso (Par. 6, Exh. B) providing for the right of

SBTC to apply even without notice to the debtor, in payment of and all
obligations of Dynetics, whatever funds or property of Dynetics which may
be under the control or possession of SBTC on deposit or otherwise.

3. 5.Deposit Balancesto be maintained subject to hold-out, authorizing SBTC

to apply all deposit funds of Dynetics in payment of its unpaid obligations.

Prescinding from the foregoing, it is obvious that the EXPORT loan was more than
fully secured. SBTC can proceed against these securities in payment of said loan.

The EXPORT loan transaction and SWAP loan transaction are totally alien to each
other. Noteworthy is the fact that theEXPORT loan, its renewal of credit line
containing the trust receipts and hold-out provisos were extended to Dynetics and
the only participation of Garcia was to sign in his capacity as President of Dynetics.
The promissory notes were signed by the Vice-President for Treasury and Finance
Luvina Maglaya for Dynetics. On the other hand, the SWAP loan was applied for
and extended to Dynetics as principal, with Garcia as surety under the Indemnity
Agreement. While Garcia is a party in both transactions, he acted in different
capacities.

Clearly, the two loan transactions involved two sets of parties. The Indemnity
Agreement signed by Garcia is a distinct contract and can not in any way be related
to the EXPORT loan.
Even if we momentarily disregard the foregoing circumstances, and confine
ourselves to the provisions of the Indemnity Agreement, still the conclusion can not
be escaped that the same does not cover the EXPORT loan. To say otherwise would
 173

be to make the provision too comprehensive and all-encompassing as to amount to

absurdity.
The phrase such other obligations in the Indemnity Agreement is vague,
equivocal, and patently ambiguous. It raises doubt as to its real meaning. It is,
therefore, subject to interpretation. If the parties intended the 1982 SWAP loan to
apply to and cover the 1980 EXPORT loan transaction, SBTC should have clearly
and categorically stated so in the said Indemnity Agreement. Respondent bank
failed in this regard.
It is a well-stated legal principle that if there is any doubt on the terms and
conditions of the surety agreement, the doubt should be resolved in favor of the
surety (Philippine National Bank vs. Court of Appeals, 198 SCRA 767 [1991]).
Ambiguous contracts are construed against the party who caused the ambiguity (De
Leon vs. Court of Appeals, 186 SCRA 345 [1990]).

An additional point to consider is that the Indemnity Agreement is set out in a

printed contract form of SBTC. Its provisions appear to be the standard stipulations
imposed by SBTC upon all persons seeking to secure surety bonds. To thisextent,
the Indemnity Agreement is a contract of adhesion, having been prepared by
respondent SBTC. Consequently, any ambiguity is to be taken contra preferentem,
that is, construed against the party who caused the ambiguity which could have
avoided it by the exercise of a little more care (Orient Air Services and Hotel
Representatives vs. Court of Appeals, 197 SCRA 645 [1991]; Nacu vs. Court of
Appeals, 231 SCRA 237 [1994]; De Leon vs. Court of Appeals, 186 SCRA
345 [1990]; Equitable Banking Corporation vs. Intermediate Appellate Court, 161
SCRA 518 [1988]; Eastern Assurance and Surety Corp. vs. IAC, 179 SCRA
562 [1989]). To be more emphatic, any ambiguity in a contract whose terms are
susceptible of different interpretations must be read against the party who drafted
it (Orient Air Service and Hotel Representatives vs. Court of Appeals, supra; Cadalin
vs. POEAs Administrator, 238 SCRA 721 [1994]).

The foregoing pronouncements are, of course, based on Article 1377 of the Civil
Code which provides:
Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor
the party who caused the obscurity.
 174

On the matter of petitioners liability for the deficiency balance under the SWAP
LOAN, it is of course correct to say that the chattel mortgage executed between
Dynetics and SBTC was merely for additional security which did not alter, affect, or
modify the terms and conditions of the Indemnity Agreement executed between
Garcia and SBTC, even if, it must be admitted, the chattel mortgage was entered
into without the knowledge of or notice to Garcia. Hence, Garcia, contrary to his
submission, was not released as surety by virtue of execution of the aforementioned
chattel mortgage.

Nonetheless, under the prevailing facts of the case, we believe that Garcia still
cannot be held liable for the deficiency of P3,596,758.72, the reason being that
SBTC expressly and judicially waived the Indemnity Agreement (Exh. NN) and the
Continuing Surety (Exh. OO) through no less than Atty.Bello, counsel for SBTC,
during the cross-examination by petitioners lawyer of one of SBTCs witnesses,
thusly:

ATTY. GANGOSO:
But, Im not asking what the counsel is after. Im trying to
show that the Swap Agreement is not covered by a
Continuing Agreement of Mr. Garcia, because, the Swap
Loan Agreement is . . .
ATTY. BELLO:
But we are willing to admit, Your Honor.
ATTY. GANGOSO:
There was a statement, that the Continuing Agreement did
not cover the Swap Agreement.
ATTY. BELLO:
Im admitting that as far as the Swap Loan is concerned,
this was secured; the chattel mortgage only secured the
swap loan.
ATTY. GANGOSO:
Considering then, for that matter that I will stop asking
Mrs. Marquez between the relations of the Swap Loan
Agreement, and the Continuing Suretyship.
ATTY. BELLO III:
I was saying that the chattel mortgage more or less,
secures the swap loan.
(tsn., May 10, 1991, pp. 36-37)
 175

In fine, insofar as the SWAP loan was concerned, SBTC did away with the
Indemnity Agreement and the Continuing Surety, opting instead to rely solely on
the chattel mortgage. The aforequoted declarations of Atty. Bello in the course of the
trial are conclusive. Such admission is binding and no amount of contradictory
evidence can offset it.
. . . Judicial admissions verbal or written made by the parties in the pleadings or in the
course of the trial or other proceedings in the same case are conclusive, no evidence being
required to prove the same and cannot be contradicted unless shown to have been made
through palpable mistake or that no such admission was made. (Philippine American
General Insurance Co., Inc. vs. Sweet Lines, Inc., 212 SCRA 194; 204 [1992])

We cannot allow SBTC at this time to water down the admission it made in open
court, more so after the opposing party relied upon such judicial admission and
accordingly dispensed with further proof of the fact already admitted. An admission
made by a party in the course of the proceedings does not require proof. The record
here does not show any attempt on the part of SBTC to contradict such judicial
admission on the ground of palpable mistake.
Finally, it should be noted that the chattel mortgage was entered into by Dynetics
and SBTC. Garcia was not a party to the chattel mortgage nor was he aware of the
contract or its provisions. It is a basic principle in law that contracts can only bind
the parties who had entered into it, and it cannot favor or prejudice a third person
(Oreano vs. Court of Appeals, 211 SCRA 40 [1992]). Only those who are parties to
contracts are liable for their breach. Parties to a contract cannot thereby impose any
liability on one who, under its terms, is a stranger to the contract. And considering
that it is Dynetics which executed the chattel mortgage, the liability for the
deficiency therefor, must be adjudged against Dynetics alone.
With the conclusions thus reached, we find it unnecessary to discuss the issue
concerning the reasonableness of the damages awarded, the penalty charges, and
attorneys fees the Court of Appeals ordered Garcia to pay SBTC.
WHEREFORE, the decision of respondent Court of Appeals dated August 12,
1994 in its CA-G.R. CV No. 38329 is hereby REVERSED and SET ASIDE insofar as
it held petitioner Antonio M. Garcia jointly and severally liable with Dynetics, Inc.
to SBTC, and a new decision is hereby entered DISMISSING the complaint against
petitioner Antonio M. Garcia.
SO ORDERED.
 176

[No. 4123. November 16, 1907.]

LA YEBANA COMPANY, plaintiff and appellee, vs. TIMOTEO SEVILLA ET
AL., defendants and appellants.

1.PLEADING AND PRACTICE; MOTION FOR JUDGMENT.The effect of a motion by the

plaintiff for a judgment on the pleadings is to admit all the defendant's relevant
 177

allegations; in such cases judgment will not be rendered on a particular

construction of the language of the pleadings, favorable to the plaintiff, when
such judgment could not be entered on another construction to which the
language used in the pleadings is equally susceptible.
2.DEBTS AND DEBTORS; CONTRACT.Where a debt is payable in installments,
recovery can be had only for those installments due and payable when the action
was commenced, in the absence of any stipulation to the contrary. (La Compania
General de Tabacos vs. Araza, 7 Phil. Rep., 455.)

APPEAL from a judgment of the Court of First Instance of Manila.

The facts are stated in the opinion of the court.
Jose del Castillo and Tomas G. del Rosario, for appellants.
Kinney & Lawrence, for appellee.

CARSON, J.:
The complaint filed in this action alleges that on February 23, 1907, the
defendant Timoteo Sevilla was indebted to the plaintiff in the sum of P4,363.42;
that on that day the defendant admitted this indebtedness and promised to pay the
same; and that, although demand had been made for payment, neither the amount
due nor any part thereof had been paid at the time of the filing of the complaint.
The defendant Sevilla in his answer admitted the truth of the allegations of the
complaint, but alleged by way of special defense that, while it was true he had
promised to pay the debt, the plaintiff had agreed to accept payment either at the
rate of P500 weekly until the entire amount was paid or from time to time in such
sums as he, Sevilla, might be able to collect or recover from the owners of certain
stores in the Province of Bataan who had received on credit goods furnished Sevilla
on commission.
Counsel for the plaintiff thereupon prayed for judgment upon the pleadings; and the
trial court, without taking evidence as to the truth of the allegations of the
defendant, gave judgment against Sevilla and in favor of the plaintiff for the sum of
P4,362.42, with interest at the rate of 6 per cent from the date of the filing of the
complaint. In support of this judgment the trial judge holds in his opinion "that the
special defense set up by the defendant Sevilla, in so far as it consists of allegations
of facts, alleges the existence of an agreement by virtue of which Sevilla had the
right to pay his indebtedness in weekly installments of P500," and that, the
complaint having been filed on the 21st day of March, 1907, "it is evident that,
 178

admitting the truth of the allegations set up by the defense, the debt in controversy
has become due and payable."
The trial court seems to have overlooked the fact that the answer of the
defendant Sevilla alleges not only that it was agreed that the debt might be paid in
weekly installments of P500 each but that the complainant also agreed to accept
payment in such sums as Sevilla should from time to time collect or recover from the
owners of certain stores in the Province of Bataan who had received on credit goods
furnished Sevilla on commission. There is. nothing in the pleadings to show that
Sevilla collected or recovered anything from these persons between the date of the
alleged agreement and the date of the filing of the complaint; and, if it be true that
he had the alternative right to pay his indebtedness from time to time as he
collected or recovered funds from his debtors in Bataan, the only amount which was
due and payable at the time of the filing of the complaint, was such amount as
might appear to have been recovered from these debtors prior to that date.

It must be admitted that the language wherein it is alleged that the defendant had
the alternative right to pay his indebtedness in the manner and form above stated
admits of various constructions; and it may be that the agreement touching the
payment, from time to time, of such sums as Sevilla recovered from his debtors was
in effect anagreement that he would pay over all the amounts thus collected
notwithstanding that they should exceed the sum of P500 weekly, as provided in the
first part of the alleged agreement. But, however this may be, the effect of a motion
by the plaintiff for a judgment on the pleadings is to admit the truth of the
defendant's relevant allegations, and we do not think that in such cases judgment
for the plaintiff should be rendered on a particular construction of the language of
the pleadings, favorable to the plaintiff, when such judgment could not be entered
on another construction to which the language used in the pleadings is equally
susceptible. In the case at bar we think the usual and ordinary construction of the
language used in setting out the alleged agreement as to the form of payment gave
to Sevilla the alternative right either to pay at the rate of P500 weekly or to pay
from time to time all money recovered from his debtors in Bataan.

But we would be compelled to reverse the judgment upon the mere allegation of the
defense of the existence of an agreement, by virtue of which Sevilla had the right to
 179

pay his indebtedness in weekly installments of P500, without an allegation as to an

alternative mode of payment. It appears from the pleadings that the alleged
agreement as to the mode of payment of the admitted indebtedness was entered into
on the 23d day of February, 1907. The complaint was filed on the 21st day of March,
1907, so that not quite four weeks had elapsed from the date of the alleged
agreement to the date of the filing of the complaint. Where a debt is payable in
installments, recovery can be had only for those installments due and payable when
the action was commenced, in the absence of any stipulation to the contrary in the
contract. (La Compania General de Tabacos vs. Araza, 7 Phil. Rep., 455; Artadi y
Compania vs. Chu Baco,1 5 Off. Gaz., 711.) It is evident, therefore; that, since it does
not appear from the pleadings that it was expressly stipulated that upon the failure
to pay any one of the weekly installments the whole debt should thereupon become
at once due and payable,the most that could be recovered would be the sum of
P1,500, being the weekly installments of P500 for the three full weeks which had
elapsed from the date of the agreement to the date of the filing of the complaint.

The judgment appealed from should be, and is hereby, reversed without costs in
this instance to either party. So ordered.
Arellano, C. J., Torres, Johnson, and Tracey, JJ., concur.
Willard, J., concurs in the result.

Judgment reversed.
 180

G.R. Nos. 138874-75. February 03, 2004. *

PEOPLE OF THE PHILIPPINES, appellee, vs. FRANCISCO JUAN LARRAAGA

alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO
CAO alias ALLAN PAHAK; ARIEL BALANSAG; DAVIDSON VALIENTE
RUSIA alias TISOY TAGALOG; JAMES ANTHONY UY alias WANG-WANG;
and JAMES ANDREW UY alias MM, appellants.

Criminal Law; Due Process; 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.Due process of law is the primary and
 181

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.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. 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?

Same; Same; Section 14, Article III of our Constitution catalogues the essentials of due
process in a criminal prosecution.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 face to 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.

Same; Same; Right to Counsel; There is no denial of the right to counsel where a
counsel de oficio was appointed during the absence of the accuseds counsel de parte,
pursuant to the courts desire to finish the case as early as practicable under the continuous
trial system.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 accuseds counsel de parte, pursuant to the courts desire to finish the case as
early as practicable under the continuous trial system.

Same; Same; Same; An examination of the provisions of the Constitution concerning the
right to counsel shows that the preference in the choice of counsel pertains more aptly and
specifically to a person under investigation rather than an accused in a criminal prosecution .
 182

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 rather than an accused in a criminal
prosecution. 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.
Same; Same; Same; 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.
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.
Same; Same; Same; 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 accuseds right to counsel.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
accuseds right to counsel. The right of the accused to select his own counsel must be
exercised in a reasonable time and in a reasonable manner.
Same; Same; Same; The constitutional right to representation by counsel does not mean
that the accused may avoid trial by neglecting or refusing to secure assistance of counsel and
by refusing to participate in his trial; The court may deny an accuseds application to
discharge his counsel where it appears that such application is not made in good faith but is
made for purposes of delay.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
 183

have hired new lawyers at a shorter time had they wanted to. They should have been
diligent in procuring new counsel. 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. It has been held that where
the accused declined the courts 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. 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 accuseds application to discharge his counsel where it
appears that such application is not made in good faith but is made for purposes of delay.
Same; Same; Same; Attorneys; Lawyers, being officers of the court whose duty is to
assist in administering justice, 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 .
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. 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.
Same; Same; Right of Confrontation; Where the accused have several lawyers, it is 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.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 latters 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. Where several accused are being tried jointly for the same offense, the order in
which counsel for the several defendants shall cross-examine the states witnesses may be
regulated by the court 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. In People vs. Gorospe, 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.
 184

Same; Same; Right to Impartial Trial; 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.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.
Same; Same; Same; 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 .
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.

Same; Same; Same; A trial judge is not a wallflower during trialit is proper
for him to caution and admonish witnesses when necessary and he may rebuke a
witness for levity or for other improper conduct.Suffice itto state that after going over
the pertinent transcript of stenographic notes, we are convinced that Judge Ocampos
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. 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
Ocampos statements were mere honest observations. If Judge Ocampo uttered harsh
words against those defense witnesses, it was because they made a mockery of the courts
proceedings by their deliberate lies. The frequency with which they changed their answers
to Judge Ocampos 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. This is
because he is called upon to ascertain the truth of the controversy before him.

Same; Same; Same; Judicial Notice; Due process of law is not denied by the exclusion of
irrelevant, immaterial, or incompetent evidence, or testimony of an incompetent witness; 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.In the same way, we cannot
 185

fault the trial court for not allowing the defense to continue with the tedious process of
presenting additional witnesses to prove Larraagas 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 Larraaga 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. 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.

Same; Witnesses; State Witnesses; Although the trial court may have erred in
discharging an accused to become state witness, such error would not affect the
competency and the quality of the testimony of said defendant.The fact that Rusia
was convicted of third degree burglary in Minessotta does not render his testimony
inadmissible. In People vs. De Guzman, 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,
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.

Same; Same; Same; Evidence; Physical evidence is an evidence of the highest orderit
speaks more eloquently than a hundred witnesses.More importantly, what makes Rusias
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. The presence of Marijoys ravished body in a deep ravine at Tan-
awan, Carcar with tape on her mouth and handcuffs on her wrists certainly bolstered
Rusias 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
 186

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.
Same; Same; Same; Double Jeopardy; The discharge of an accused to become a state
witness has the effect of acquittal, and a recall of that discharge may place the said accused
in double jeopardy; The fact that not all the requisites for the discharge of a state witness are
present is not a ground to recall the discharge order.Rusias discharge has the effect of an
acquittal. 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 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.

Same; Same; Settled is the rule that the assessment of the credibility of witnesses
is left largely to the trial court.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 aretestifying 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.

Same; Alibi; 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.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. These requirements of time and place must be strictly met. 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.
 187

Same; Same; Witnesses; 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.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, 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.

Same; Same; Same; 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.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.
Rusias 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.

Same; Kidnapping and Serious Illegal Detention; Elements.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.
Same; Same; Special Complex Crimes; Where the victim is killed or died as a
consequence of the detention, or is raped or subjected to torture or dehumanizing acts, this
gives rise to the special complex crime of kidnapping with murder or homicide or rape.
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, citing Parulan vs. Rodas, and People vs. Mercado, we held that this
provision gives rise to a special complex crime.
Same; Same; Same; Words and Phrases; Dehumanization means deprivation of human
qualities, such as compassion.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,
 188

appellants subjected them to dehumanizing acts. Dehumanization means deprivation of

human qualities, such as compassion. 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 familys
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.

Same; Same; Same; Same; Where the law provides a single penalty for two or
more component offenses, the resulting crime is called a special complex crime.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, (2) robbery with rape, (3)
kidnapping with serious physical injuries, (4) kidnapping with murder or homicide,
and (5) rape with homicide. In a special complex crime, the prosecution must
necessarily prove each of the component offenses with the same precision that would
benecessary 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.

Same; Same; Same; Where it appears from the overwhelming evidence that there is a
direct relation, and intimate connection between the kidnapping, killing and raping of the
victim, rape cannot be considered merely as an aggravating circumstance but as a
component offense forming part of the special complex crime of kidnapping and serious
illegal detention with homicide and rape.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 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,
 189

and People vs. Mercado, 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.

Same; Same; Same; Right to be Informed; Consistent with the accuseds right to
be informed of the nature and cause of the accusation against him, 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.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, 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.

Same; Same; Conspiracy; Well settled is the rule that in conspiracy, direct proof of a
previous agreement to commit a crime is not necessaryit 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.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. Otherwise stated, it may be shown by the
 190

conduct of the accused before, during, and after the commission of the crime. Appellants
actions showed that they have the same objective to kidnap and detain the Chiong sisters.
Same; Same; Same; 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; 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.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. There must be
intentional participation in the transaction with a view to the furtherance of the common
design and purpose. 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. As shown by the evidence for the prosecution, Rowen,
Ariel and Alberto were not merely present at the scene of the crime.

Same; Same; Penalties; Mitigating Circumstances; Minority; The imposable

penalty on an accused by reason of his minority is one degree lower than the
statutory penalty.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 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. 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. 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.
 191

Same; Same; Same; We must be reminded that justice is not ours to give according to
our sentiments or emotionsat times we may show compassion and mercy but not at the
expense of the broader interest of fair play and justice.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.

APPEAL from a decision of the Regional Trial Court of Cebu City, Br. 7.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Eric S. Carin for accused J. Andrew Uy and James Anthony S. Uy.
Francisco L. Chavez for accused J. Aznar.
Ferdinand C. Baylon for accused-appellants.
Haydee B. Yorac and Zandra Marte Olasco-Coronel for accused Larraaga.

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.
 192

Before us is an appeal from the Decision dated May 5, 1999 of the Regional Trial
1

Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303-45304, finding
Rowen Adlawan alias Wesley, Josman Aznar, Ariel Balansag, Alberto Cao alias
Allan Pahak, Francisco Juan Larraaga 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 for kidnapping and illegal detention dated May
2

12, 1998 filed against appellants and Davidson Rusia alias Tisoy Tagalog, the
discharged state witness, read as follows:

1. 1)For Criminal Case No. CBU-45303: 3

x x x
That on the 16th day of July, 1997, at about 10:00 oclock 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.

1. 2)For Criminal Case CBU-45304: 4

x x x
That on the 16th day of July, 1997, at about 10:00 oclock 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.
 193

CONTRARY TO LAW.

On separate arraignments, state witness Davidson Rusia and appellants Rowen

Adlawan, Josman Aznar, Ariel Balansag, Alberto Cao, James Andrew and James
Anthony Uy pleaded not guilty. Appellant Francisco Juan Larraaga refused to
5

plead, hence, the trial court entered for him the plea of not guilty. Thereafter, trial
6

on the merits ensued.

In the main, the prosecution evidence centered on the testimony of

Rusia. Twenty-one witnesses corroborated his testimony on major points. For the
7 8

defense, appellants James Anthony Uy and Alberto Cao took the witness stand.
Appellant Francisco Juan Larraaga 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 oclock 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. Officer-in-Charge Arturo Unabia and three other policemen proceeded to
10

Tan-awan and there, they found a dead woman lying on the ground. Attached to her
left wrist was a handcuff. Her pants were torn, her orange t-shirt was raised up to
11

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. Chiongs
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
 194

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, admitted before the police having
14

participated in the abduction of the sisters. He agreed to re-enact the commission

15

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 Larraaga was Rowen Adlawan whom he met
together with brothers James Anthony and James Andrew Uy five months before
the commission of the crimes charged. He has known Josman Aznar since 1991. He
17

met Alberto Cao and Ariel Balansag only in the evening of July 16, 1997.
On 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 oclock in the afternoon. When they saw each other the next day,
18

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 Rowens 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. Rusia did not know yet that
20

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. But the sisters
21

declined. Irked by the rejection, Rowen grabbed Marijoy while Josman held
Jacqueline and forced both girls to ride in the car. Marijoy was the first one to get
22

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. Rowen asked Rusia for the packaging tape
23
 195

under the latters seat and placed it on the girls mouths. Rowen also handcuffed
them jointly. The white and red cars then proceeded to Fuente Osmea, Cebu City.

At Fuente Osmea, 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 groupimmediately 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, Larraaga, James Anthony and James
Andrew got out of the red car.

Larraaga, 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
Larraaga, 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. Then they
24

parked their vehicles near a precipice where they drank and had a pot session.
25

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 Larraaga 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,
 196

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 Josmans instruction, Rowen and Ariel led her to the cliff
and mercilessly pushed her into the ravine which was almost 150 meters deep.
27 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, Analie Konahap and Williard Redobles testified that Marijoy and
30 31 32

Jacqueline were talking to Larraaga and Josman before they were abducted.
Roland Dacillo saw Jacqueline alighting and running away from a white car and
33

that Josman went after her and grabbed her back to the car. Alfredo
Duarte testified that he was at the barbeque stand when Rowen bought barbeque;
34

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 Cao. Meanwhile, Mario
Mioza, a tricycle driver plying the route of Carcar-Mantalongon, saw Jacqueline
35

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 recounted that onJuly 17, 1997, at about 5:00 oclock in the morning, he
36

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 presented by the prosecution who gave details
38

which, when pieced together, corroborated well Rusias testimony on what

transpired at the Ayala Center all the way to Carcar.
 197

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

Larraaga, 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 oclock 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 Larraaga or saw him in Quezon City at the
time the crimes were committed. His friends, Lourdes Montalvan, Charmaine 39

Flores, Richard
40
Antonio, Jheanessa
41
Fonacier, Maharlika
42
Shulze, Sebastian
43

Seno, Francisco Jarque, Raymond Garcia, Cristina Del Gallego, Mona Lisa Del
44 45 46 47

Gallego, Paolo Celso and Paolo Manguerra testified that they were with him at
48 49 50

the R & R Bar on the night of July 16, 1997. The celebration was a despedida for
him as he was leaving thenext day for Cebu and a bienvenida for another friend.
Larraagas classmate Carmina Esguerra testified that he was in school on July
51

16, 1997 taking his mid-term examinations. His teacher Rowena Bautista, on the 52

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 Larraaga 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 fathers 50th
birthday and they were celebrating the occasion with a small party which ended at
11:30 in the evening. He only left his house the next day, July 17, 1997 at about
53

7:00 oclock in the morning to go to school. The boys mother, Marlyn Uy,
54

corroborated his testimony and declared that when she woke up at 2:00 oclock 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 oclock in the morning.
55
 198

Clotilde Soterol testified for Alberto and Ariel. She narrated that on July 16, 1997,
at around 7:00 oclock 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 Cao, 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
oclock of the same evening. He finished the work at 10:00 oclock the following
morning. At 11:00 oclock, Alberto and his wife Gina, Ariel andCatalina returned to
the shop to retrieve the vehicle. Alberto, Gina and
56 57 58
Catalina corroborated
59

Clotildes testimony.

To lend support to Josmans alibi, Michael Dizon recounted that on July 16, 1997,
at about 8:00 oclock in the evening, he and several friends were at Josmans house
in Cebu. They ate their dinner there and afterwards drank Blue Label They stayed
at Josmans house until 11:00 oclock 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 oclock 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, Larraaga and brothers James Anthony and James Andrew opposed the
61

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. On August 12, 1998,
62

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. On 63

the same date, the prosecution finished conducting Rusias direct examination. The 64

defense lawyers cross-examined him on August 13, 17, and 20, 1998. On the last 65

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 courts termination of Rusias cross-examination, the defense

lawyers moved for the inhibition of JudgeOcampo. When he informed the defense
67
 199

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, Larraaga, 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. On August 31, 1998, the trial court denied appellants
68

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 Attorneys 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. Larraaga 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 Larraaga, 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 prosecutions 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 prosecutions motion discharging Rusia as an accused and according
him the status of a state witness.
 200

On May 5, 1999, the trial court rendered the assailed Decision, the dispositive
portion of which reads:
WHEREFORE, all the accused Francisco Juan Larraaga, Josman Aznar, James Andrew
Uy, James Anthony Uy, Rowen Adlawan, Alberto Cao, 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 byway 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.

THE COURT A QUO ERRED IN DISPLAYING MANIFEST ANIMOSITY TOWARDS

THE DEFENSES WITNESSES WHICH CLEARLY SHOWED ITS PREJUDICE AND
BIAS IN DECIDING THE CASE.
 201

VI

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

TESTIFY.

VII

THE COURT A QUO ERRED IN CONSIDERING ROWEN ADLAWANTO 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 DAVIDSON 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 RUSIAS

TESTIMONY DESPITE CLEAR SHOWING THAT HIS CRIMINAL RECORDAS AN EX-
CONVICT, DRUG ADDICT AND GANGSTERAND 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 RUSIAS

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.

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
 202

THE TRIAL JUDGE VIOLATED AZNARS 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 RUSIAS
TESTIMONY WHICH FAILED TO EVINCE PROOF BEYOND REASONABLE DOUBT OF
APPELLANT AZNARS CRIMINAL LIABILITY.

In his 145-page appellants brief, Larraaga alleges that the trial court committed
the following errors:

1. 6.1THE TRIAL COURT ERRED IN IGNORING AND VIOLATING DUE

PROCESS RIGHTS OF THE ACCUSED.

2. 6.2THE TRIAL COURT ERRED IN ALLOWING THE DISCHARGE OF

ACCUSED DAVIDSON RUSIA.

3. 6.3THE TRIAL COURT ERRED IN GIVING PARTIAL CREDIBILITY TO

THE TESTIMONY OF DAVIDSON RUSIA.

4. 6.4THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONIES

OF THE OTHER WITNESSES.

5. 6.5THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE

TESTIMONIES OF OTHER WITNESSES.

6. 6.6THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION

HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE.
 203

7. 6.7THE TRIAL COURT ERRED IN DISREGARDING AND REJECTING,

EVEN AT DIRECT TESTIMONY STAGE, THE ACCUSED-APPELLANTS
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:

1. 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;

2. 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
courts 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. In 71

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. Otherwise stated, the due process clause calls for two separate
72

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
 204

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 face to 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
 205

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
 206

the absence of the accuseds counsel de parte, pursuant to the courts 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 rather than an accused in a
75

criminal prosecution. And even if we are to extend the application of the concept of
76

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
 207

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 accuseds right to counsel. The right of the
79

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. Constitutional guaranty of right to representation by
81

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. It has been
82

held that where the accused declined the courts offer to appoint counsel and elected
to defend himself, the denial of his motion made toward the end of the trial for
acontinuance so that he could obtain counsel of his own choice was not an
infringement of his constitutional rights. While the accused has the right to
83

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 accuseds 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 Larraaga, were represented there by
the same counsel de parte. Certainly, it is wrong for these lawyers to abandon
85

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, we 86

ruled:
 208

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 victims 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. They cannot walk out from a case simply because they do
87

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 Larraaga) August 13 and 17,
1998
2. Gonzales (for Larraaga) August 20, 1998
3. Gica (for Josman) August 20, 1998
4. Paylado (for James Anthony and August 20, 1998
James Andrew)
5. De la Cerna (for Rowen, Alberto August 20, 1998
and Ariel)
6. Villarmia (for Larraaga) October 1, 1998
7. Andales (for Josman) October 5 and 6, 1998
 209

Lawyers Dates of Cross-

examination
8. Carin (for James Andrew and October 5, 1998
James Anthony)
9. Debalucos (for Rowen, Cao and October 12, 1998
Balansag)
10. De Jesus (for Rowen, Alberto and October 12, 1998
Ariel)
11. Ypil (for Rowen, Alberto and October 12, 1998 89

Ariel)
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 latters
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. Where several accused are being tried
90

jointly for the same offense, the order in which counsel for the several defendants
shall cross-examine the states witnesses may be regulated by the court and one of
91

them may even be denied the right to cross-examine separately where he had
arranged with the others thatcounsel of one of them should cross-examine for
all. In People vs. Gorospe, we ruled:
92 93

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 Rusias 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 dated 94

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
 210

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, Larraagas new counsel de parte, Atty.
Villarmia, manifested that he would not cross-examine the prosecution witnesses
who testified on direct examination when Larraaga was assisted by counsel de
oficio only. The next day, the counsel de parte of Josman, and brothers James
Anthony and James Andrew adopted Atty. Villarmias 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
 211

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 impute 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, Im not saying that there is positive identification. Im 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? Iyon 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, Octo-ber, November,
December and January, magse-six months na, wala pa and you want to present so many
immaterial witnesses.
 212

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 mans 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 moralcharacter 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 Ocampos lack of predilection was his acquiescence for
Lourdes Montalvan to clarify during redirect examination why she found nothing
wrong with being alone at Larraagas 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
 213

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 nowwhat was your
purpose?
/to the witness:
Q Will you answer the question of the Court/ What was your
spurpose or intention in going in Pacos room that night
alone?
WITNESS:
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 Ocampos

remarks labeling Rebecca Senos and Catalina Paghinayans testimony as
incredible; Clotilde Soterol as a totally confused person who appears to be
97

mentally imbalanced; and Salvador Boton and Paulo Celso as liars.

98 99

Suffice it to state that after going over the pertinent transcript of stenographic
notes, we are convinced that Judge Ocampos 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. That such was his purpose is
100

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 Ocampos statements were mere honest observations. If Judge Ocampo
101

uttered harsh words against those defense witnesses, it was because they made a
mockery of the courts proceedings by their deliberate lies. The frequency with
 214

which they changed their answers to Judge Ocampos 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. This is because he is called upon to ascertain the truth of
102

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 courts exclusion of the testimonies of four (4) airlines
personnel which were intended to prove that Larraaga did not travel to Cebu from
104

Manila or from Cebu to Manila on July 16, 1997. The trial courts exclusion of the
testimonies is justified. By an alibi, Larraaga 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
Larraaga 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
Larraagas 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 Larraaga was enrolled during a
 215

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. It is not error to
105

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. In the 107

present case, there is no showing of violation of due process which justifies the
reversal or setting aside of the trial courts 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.

x x x
 216

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, Rusias 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 Rowens 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 drivers 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 Larraaga, 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 Rusias 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. In Peoplevs. De Guzman, we held that
108 109

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, we ruled:
110

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
 217

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. Such fact alone is a badge of truth of his testimony.
111

But, more importantly, what makes Rusias 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. The presence of Marijoys ravished body in a deep ravine at Tan-awan,
112

Carcar with tape on her mouth and handcuffs on her wrists certainly bolstered
Rusias 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
Jacquelines two failed attempts to escape from appellants; (2) Alfredo Duarte saw
Rowen when he bought barbeque and Tanduay at Nenes Store while the white van,
driven by Alfredo Cao, 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 Larraaga 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
Rusias narration. With such strong anchorage on the testimonies of disinterested
witnesses, how can we brush aside Rusias testimony?

Rusias discharge has the effect of an acquittal. We are not inclined to recall
113

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
 218

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 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 Defense

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.
Rusias 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. These 116

requirements of time and place must be strictly met. A thorough examination of the
117

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,
 219

Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of
Cebu City on July 16, 1997.

Not even Larraaga 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 Larraaga to be in Cebu City prior to or exactly on July 16, 1997.
Larraagas mother, Margarita Gonzales-Larraaga, testified that his son was
scheduled to take a flight from Manila to Cebu on July 17, 1997 at 7:00 oclock in the
evening, but he was able to take an earlier flight at 5:00 oclock in the afternoon.
Margarita therefore claimed thathis son was in Cebu City at around 6:00 oclock in
the evening of July 17, 1997 or the day after the commission of the crime. However,
while Larraaga 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, Larraagas 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 Larraaga approach Marijoy and Jacqueline at the West Entry of
Ayala Center. The incident reminded her of Jacquelines prior story that he was
Marijoys admirer. She (Shiela) confirmed that she knows Larraaga 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 oclock, she saw Marijoy and Jacqueline
talking to two (2) men at the West Entry of Ayala Center. She recognized them as
Larraaga 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
 220

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 Larraaga 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 Larraaga 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 Larraagas name in the Condominiums
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.
Larraagas 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 Larraaga 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 Larraaga attended her lecture on Applied Mathematics on July 16,
1997 from 8:00 oclock to 11:30 in the morning. This runs counter to Larraagas
119

affidavit stating that on the said date, he took his mid-term examinations in the
120

subject Fundamentals of Cookery from 8:00 oclock in the morning to 3:30 oclock in
the afternoon.
With respect to Larraagas friends, the contradictions in their testimonies,
painstakingly outlined by the Solicitor General in the appellees brief, reveal their
unreliability. To our mind, while it may be possible that Larraaga 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.
 221

Clotilde Soterol, in defense of Ariel and Alberto (the driver and the conductor of the
van) attempted to discredit Rusias 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 oclockin the
evening of the same date until 11:00 oclock in the morning of July 17, 1997. What
makes Soterols 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 oclock in the afternoon of
July 16, 1997 and returned it for repair only, on July 22, 1997. But in her second
121

affidavit dated October 1, 1997, she declared that Alberto left the van in her shop at
7:00 oclock in the evening of July 16, 1997 until 11:00 oclock in the morning of July
17, 1997. Surely, we cannot simply brush aside the discrepancy and accept the
122

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, we ruled that it is but natural, although morally unfair, for a
123

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. Rusias testimony was
124

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, a fingerprint expert, testified that
125

the fingerprints of the corpse matched those of Marijoy. The packaging tape and
126
 222

the handcuff found on the dead body were the same items placed on Marijoy and
Jacqueline while they were being detained. The body had the same clothes worn by
127

Marijoy on the day she was abducted. The members of the Chiong family
128

personally identified the corpse to be that of Marijoy which they eventually buried.
129

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 or 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 appellantsthe first
 223

was near the Ayala Center and the second was in Tan-awan, Carcarbut 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, citing Parulan vs. 131

Rodas, and People vs. Mercado, we held that this provision gives rise to a special
132 133

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. From our review of the evidence presented, we found the
134
 224

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 familys 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, (2) robbery
135
with
rape, (3) kidnapping with serious physical injuries, (4) kidnapping with murder or
136 137

homicide, and (5) rape with homicide. In a special complex crime, the prosecution
138 139

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
 225

the overwhelming evidence of the prosecution that there is a direct relation, and
intimateconnection between the kidnapping, killing and raping of Marijoy, rape
140

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, and People vs. Mercado interpreting Article 267, we ruled
141 142

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, Rule
143
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
 226

and community of interest. Otherwise stated, it may be shown by the conduct of

144

the accused before, during, and after the commission of the crime. Appellants
145

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. Larraaga, 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 Osmea to hire a van, and thereafter, to the safehouse of the Josman
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, Larraaga raped Marijoy, followed by Rowen, James
Anthony, Alberto, and Ariel. On other hand, Josman and James Andrew raped
Jacqueline. Upon Josmans 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. There must be intentional
146

participation in the transaction with a view to the furtherance of the common

design and purpose. Responsibility of a conspirator is not confined to the
147

accomplishment of a particular purpose of conspiracy but extends to collateral acts

and offenses incident to and growing out of the purpose intended. As shown by the
148

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 of the Revised Penal Code, the imposable penalty on James
149

Anthony, by reason of his minority, is one degree lower than the statutory penalty.
 227

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. On the other hand, the
150

penalty for simplekidnapping and serious illegal detention is reclusion perpetua to

death. One degree lower from the said penalty is reclusion temporal. There being
151

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. As regards the actual damages, it appears that the award of P200,000.00 is
153

not supported by evidence. To be entitled to actual damages, it is necessary to prove

the actual amount of loss with a reasonable degree ofcertainty, premised upon
competent proof and on the best evidence obtainable to the injured party. Thus, in
154

light of the recent case of People vs. Abrazaldo, we grant the award of P25,000.00
155
 228

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 to 156

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

LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias
WESLEY; ALBERTO CAO 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

LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias
WESLEY; ALBERTO CAO 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 the
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.
 229

(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
Excellencys pardoning power.
SO ORDERED.

G.R. No. 126006. January 29, 2004. *

LAPULAPU FOUNDATION, INC. and ELIAS Q. TAN, petitioners, vs. COURT OF

APPEALS (Seventeenth Division) and ALLIED BANKING CORP., respondents.

Evidence; Parol Evidence Rule; No other evidence to be received other than the contents
of the written agreement.The parol evidence rule likewise constrains this Court to reject
petitioner Tans claim regarding the purported unwritten agreement between him and the
 230

respondent Bank on the payment of the obligation Section 9, Rule 130 of the of the Revised
Rules of Court provides that [w]hen the terms of an agreement have been reduced to
writing, it is to be considered as containing all the terms agreed upon and there can be,
between the parties and their successors-in-interest, no evidence of such terms other than
the contents of the written agreement.

Same; Same; Parol evidence cannot serve the purpose of incorporating into the contract
additional contemporaneous conditions which are not mentioned at all in writing.
Evidence of a prior or contemporaneous verbal agreement is generally not admissible to
vary, contradict or defeat the operation of a valid contract. While parol evidence is
admissible to explain the meaning of written contracts, it cannot serve the purpose of
incorporating into the contract additional contemporaneous conditions which are not
mentioned at all in writing, unless there has been fraud or mistake. No such allegation had
been made by the petitioners in this case.
Corporation Law; Corporate Officers; Powers; If a corporation knowingly permits one of
its officers to act within the scope of an apparent authority, it holds him out to the public as
possessing the power to do those acts.It is a familiar doctrine that if a corporation
knowingly permits one of its officers, or any other agent, to act within the scope of an
apparent authority, it holds him out to the public as possessing the power to do those acts;
and thus, the corporation will, as against anyone who has in good faith dealt with it
through such agent, be estopped from denying the agents authority.

PETITION for review on certiorari of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Romeo D. Tagra for petitioners.
Eduardo F. Rosello for private respondents.

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Lapulapu
Foundation, Inc. and Elias Q. Tan seeking to reverse and set aside the
Decision dated June 26, 1996 of the Court of Appeals (CA) in CA-G.R. CV No.
1

37162 ordering the petitioners, jointly and solidarily, to pay the respondent Allied
Banking Corporation the amount of P493,566.61 plus interests and other charges.
Likewise, sought to be reversed and set aside is the appellate courts Resolution
dated August 19, 1996 denying the petitioners motion for reconsideration.
The case stemmed from the following facts:
 231

Sometime in 1977, petitioner Elias Q. Tan, then President of the co-petitioner

Lapulapu Foundation, Inc., obtained four loans from the respondent Allied Banking
Corporation covered by four promissory notes in the amounts of P100,000 each. The
details of the promissory notes are as follows:
P/N No. Date of P/N Maturity Date Amount as
of
1/23/79
BD No. Nov. 7, 1977 Feb. 5, 1978 P123,377.76
504
BD No. Nov. 28, Mar. 28, P123,411.10
621 1977 1978
BD No. Dec. 12, 1977Apr. 11, 1978 P122,322.21
716
BD No. Jan. 5, 1978 May 5, 1978 P120,455.54 2

839
As of January 23, 1979, the entire obligation amounted to P493,566.61 and despite
demands made on them by the respondent Bank, the petitioners failed to pay the
same. The respondent Bank was constrained to file with the Regional Trial Court of
Cebu City, Branch 15, a complaint seeking payment by the petitioners, jointly and
solidarily, of the sum of P493,566.61 representing their loan obligation, exclusive of
interests, penalty charges, attorneys fees and costs.
In its answer to the complaint, the petitioner Foundation denied incurring
indebtedness from the respondent Bank alleging that the loans were obtained by
petitioner Tan in his personal capacity, for his own use and benefit and on the
strength of the personal information he furnished the respondent Bank. The
petitioner Foundation maintained that it never authorized petitioner Tan to co-sign
in his capacity as its President any promissory note and that the respondent Bank
fully knew that the loans contracted were made in petitioner Tan's personal
capacity and for his own use and that the petitioner Foundation never benefited,
directly or indirectly therefrom. The petitioner Foundation then interposed a cross-
claim against petitioner Tan alleging that he, having exceeded his authority, should
be solely liable for said loans, and a counterclaim against the respondent Bank for
damages and attorneys fees.

For his part, petitioner Tan admitted that he contracted the loans from the
respondent Bank in his personal capacity. The parties, however, agreed that the
loans were to be paid from the proceeds of petitioner Tans shares of common stocks
in the Lapulapu Industries Corporation, a real estate firm. The loans were covered
 232

by promissory notes which were automatically renewable (rolled-over) every year

at an amount including unpaid interests, until such time as petitioner Tan was able
to pay the same from the proceeds of his aforesaid shares.

According to petitioner Tan, the respondent Banks employee required him to

affix two signatures on every promissory note, assuring him that the loan
documents would be filled out in accordance with their agreement. However, after
he signed and delivered the loan documents to the respondent Bank, these were
filled out in a manner not in accord with their agreement, such that the petitioner
Foundation was included as party thereto. Further, prior to its filing of the
complaint, the respondent Bank made no demand on him.
After due trial, the court a quo rendered judgment the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing evidences [sic], arguments and considerations, this
court hereby finds the preponderance of evidence in favor of the plaintiff and hereby renders
judgment as follows:

1. 1.Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc. [the
petitioners herein] to pay jointly and solidarily to the plaintiff Allied Banking
Corporation [the respondent herein] the amount of P493,566.61 as principal
obligation for the four promissory notes, including all other charges included in the
same, with interest at 14% per annum, computed from January 24, 1979, until the
same are fully paid, plus 2% service charges and 1% monthly penalty charges.

2. 2.Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc., to pay
jointly and solidarily, attorneys fees in the equivalent amount of 25% of the total
amount due from the defendants on the promissory notes, including all charges;

3. 3.Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc., to pay
jointly and solidarily litigation expenses of P1,000.00 plus costs of the suit.
3

On appeal, the CA affirmed with modification the judgment of the court a quo by
deleting the award of attorneys fees in favor of the respondent Bank for being
without basis.
The appellate court disbelieved petitioner Tans claim that the loans were his
personal loans as the promissory notes evidencing them showed upon their faces
that these were obligations of the petitioner Foundation, as contracted by petitioner
Tan himself in his official and personal character. Applying the parol evidence
 233

rule, the CA likewise rejected petitioner Tans assertion that there was an unwritten
agreement between him and the respondent Bank that he would pay the loans from
the proceeds of his shares of stocks in the Lapulapu Industries Corp.
Further, the CA found that demand had been made by the respondent Bank on
the petitioners prior to the filing of the complaint a quo. It noted that the two letters
of demand dated January 3, 1979 and January 30, 1979 asking settlement of the
4 5

obligation were sent by the respondent Bank. These were received by the petitioners
as shown by the registry return cards presented during trial in the court a quo.
6

Finally, like the court a quo, the CA applied the doctrine of piercing the veil of
corporate entity in holding the petitioners jointly and solidarily liable. The evidence
showed that petitioner Tan had represented himself as the President of the
petitioner Foundation, opened savings and current accounts in its behalf, and
signed the loan documents for and in behalf of the latter. The CA, likewise, found
that the petitioner Foundation had allowed petitioner Tan to act as though he had
the authority to contract the loans in its behalf. On the other hand, petitioner Tan
could not escape liability as he had used the petitioner Foundation for his benefit.
Aggrieved, the petitioners now come to the Court alleging that:

I.THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE

LOANS SUBJECT MATTER OF THE INSTANT PETITION ARE
ALREADY DUE AND DEMANDABLE DESPITE ABSENCE OF PRIOR
DEMAND.

1. II.THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE

PAROL EVIDENCE RULE AND THE DOCTRINE OF PIERCING THE
VEIL OF CORPORATE ENTITY AS BASIS FOR ADJUDGINGJOINT AND
SOLIDARY LIABILITY ON THE PART OF PETITIONERS ELIAS Q. TAN
AND LAPULAPU FOUNDATION, INC. 7

The petitioners assail the appellate courts finding that the loans had become due
and demandable in view of the two demand letters sent to them by the respondent
Bank. The petitioners insist that there was no prior demand as they vigorously deny
receiving those letters. According to petitioner Tan, the signatures on the registry
return cards were not his.
The petitioners denial of receipt of the demand letters was rightfully given scant
consideration by the CA as it held:
 234

Exhibits R and S are two letters of demand, respectively dated January 3, 1979 and
January 30, 1979, asking settlement of the obligations covered by the promissory notes. The
first letter was written by Ben Tio Peng Seng, Vice-President of the bank, and addressed to
Lapulapu Foundation, Inc., attention of Mr. Elias Q. Tan, President, while the second was a
final demand written by the appellees counsel, addressed to both defendants-appellants,
and giving them five (5) days from receipt within which to settle or judicial action would be
instituted against them. Both letters were duly received by the defendants, as shown by the
registry return cards, marked as Exhibits R-2 and S-1, respectively. The allegation of
Tan that he does not know who signed the said registry return receipts merits scant
consideration, for there is no showing that the addresses thereon were wrong. Hence, the
disputable presumption that a letter duly directed and mailed was received in the regular
course of mail (per par. V, Section 3, Rule 131 of the Revised Rules on Evidence) still holds.
8

There is no dispute that the promissory notes had already matured. However, the
petitioners insist that the loans had not become due and demandable as they deny
receipt of the respondent Banks demand letters. When presented the registry
return cards during the trial, petitioner Tan claimed that he did not recognize the
signatures thereon. The petitioners allegation and denial are self-serving. They
cannot prevail over the registry return cards which constitute documentary evidence
and which enjoy the presumption that, absent clear and convincing evidence to the
contrary, these were regularly issued by the postal officials in theperformance of
their official duty and that they acted in good faith. Further, as the CA correctly
9

opined, mails are presumed to have been properly delivered and received by the
addressee in the regular course of the mail. As the CA noted, there is no showing
10

that the addresses on the registry return cards were wrong. It is the petitioners
burden to overcome the presumptions by sufficient evidence, and other than their
barefaced denial, the petitioners failed to support their claim that they did not
receive the demand letters; therefore, no prior demand was made on them by the
respondent Bank.

Having established that the loans had become due and demandable, the Court
shall now resolve the issue of whether the CA correctly held the petitioners jointly
and solidarily liable therefor.
In disclaiming any liability for the loans, the petitioner Foundation maintains
that these were contracted by petitioner Tan in his personal capacity and that it did
 235

not benefit therefrom. On the other hand, while admitting that the loans were his
personal obligation, petitioner Tan avers that he had an unwritten agreement with
the respondent Bank that these loans would be renewed on a year-to-year basis and
paid from the proceeds of his shares of stock in the Lapulapu Industries Corp.
These contentions are untenable.
The Court particularly finds as incredulous petitioner Tans allegation that he
was made to sign blank loan documents and that the phrase IN MY
OFFICIAL/PERSONAL CAPACITY was superimposed by the respondent Banks
employee despite petitioner Tans protestation. The Court is hard pressed to believe
that a businessman of petitioner Tans stature could have been so careless as to
sign blank loan documents.

In contrast, as found by the CA, the promissory notes clearly showed upon their
11

faces that they are the obligation of the petitioner Foundation, as contracted by
petitioner Tan in his official and personal capacity. Moreover, the application for
12

credit accommodation, the signature cards of the two accounts in the nameof
13

petitioner Foundation, as well as New Current Account Record, all accompanying

14 15

the promissory notes, were signed by petitioner Tan for and in the name of the
petitioner Foundation. These
16
documentary evidence unequivocally and
categorically establish that the loans were solidarily contracted by the petitioner
Foundation and petitioner Tan.

As a corollary, the parol evidence rule likewise constrains this Court to reject
petitioner Tans claim regarding the purported unwritten agreement between him
and the respondent Bank on the payment of the obligation Section 9, Rule 130 of the
of the Revised Rules of Court provides that [w]hen the terms of an agreement have
been reduced to writing, it is to be considered as containing all the terms agreed
upon and there can be, between the parties and their successors-in-interest, no
evidence of such terms other than the contents of the written agreement. 17

In this case, the promissory notes are the law between the petitioners and the
respondent Bank. These promissory notes contained maturity dates as follows:
February 5, 1978, March 28, 1978, April 11, 1978 and May 5, 1978, respectively.
That thesenotes were to be paid on these dates is clear and explicit. Nowhere was it
stated therein that they would be renewed on a year-to-year basis or rolled-over
 236

annually until paid from the proceeds of petitioner Tans shares in the Lapulapu
Industries Corp. Accordingly, this purported unwritten agreement could not be
made to vary or contradict the terms and conditions in the promissory notes.

Evidence of a prior or contemporaneous verbal agreement is generally not

admissible to vary, contradict or defeat the operation of a valid contract. While 18

parol evidence is admissible to explain the meaning of written contracts, it cannot

serve the purpose of incorporating into the contract additional contemporaneous
conditions which are not mentioned at all in writing, unless there has been fraud or
mistake. No such allegation had been made by the petitioners in this case.
19

Finally, the appellate court did not err in holding the petitioners jointly and
solidarily liable as it applied the doctrine of piercing the veil of corporate entity. The
petitioner Foundation asserts that it has a personality separate and distinct from
that of its President, petitioner Tan, and that it cannot be held solidarily liable for
the loans of the latter.
The Court agrees with the CA that the petitioners cannot hide behind the
corporate veil under the following circumstances:
The evidence shows that Tan has been representing himself as the President of Lapulapu
Foundation, Inc. He opened a savings account and a current account in the names of the
corporation, and signed the application form as well as the necessary specimen signature
cards (Exhibits A, B and C) twice, for himself and for the foundation. He submitted a
notarized Secretarys Certificate (Exhibit G) from the corporation, attesting that he has
been authorized, inter alia, to sign for and in behalf of the Lapulapu Foundation any and all
checks, drafts or other orders with respect to the bank; to transact business with the Bank,
negotiate loans, agreements, obligations, promissory notes and other commercial documents;
and to initially obtain a loan for P100,000.00 from any bank (Exhibits G-1 and G-2).
Under these circumstances, the defendant corporation is liable for the transactions entered
into by Tan on its behalf.
20

Per its Secretarys Certificate, the petitioner Foundation had given its President,
petitioner Tan, ostensible and apparent authority to inter alia deal with the
respondent Bank. Accordingly, the petitioner Foundation is estopped from
questioning petitioner Tans authority to obtain the subjectloans from the
respondent Bank. It is a familiar doctrine that if a corporation knowingly permits
one of its officers, or any other agent, to act within the scope of an apparent
authority, it holds him out to the public as possessing the power to do those acts;
 237

and thus, the corporation will, as against anyone who has in good faith dealt with it
through such agent, be estopped from denying the agents authority. 21

In fine, there is no cogent reason to deviate from the CAs ruling that the
petitioners are jointly and solidarily liable for the loans contracted with the
respondent Bank.
WHEREFORE, premises considered, the petition is DENIED and the Decision
dated June 26, 1996 and Resolution dated August 19, 1996 of the Court of Appeals
in CA-G.R. CV No. 37162 are AFFIRMED in toto.
SO ORDERED.