SECOND DIVISION [G.R. No. 82189. August 2, 1990.] PORFIRIO AUXILIO, JR., petitioner, vs.

NATIONAL LABOR RELATIONS COMMISSION, BAGUIO COUNTRY CLUB CORPORATION and LOLITA GENOVE, respondents. Benjamin C . Rillera for petitioner. Ernesto P. Pangalangan for private respondents. SYLLABUS 1. LABOR LAW; TERMINATION OF EMPLOYMENT; DUE PROCESS; COMPLIED WITH IN CASE AT BAR. No doubt petitioner was afforded due process of law. There is convincing and sufficient evidence on record to show that private respondent corporation fully complied with the notice and hearing requirements of due process. Petitioner was notified and repeatedly invited for further investigation but he "chose to ignore" the said notices by his "convenient absence" from his residence and the continued refusal by his wife to receive the notices (Memorandum of public respondent, p. 5). Private respondent cannot be faulted as petitioner had ample opportunity to be heard. Since he unjustifiably rejected the opportunity, petitioner cannot now complain that he was denied due process of law. 2. ID.; ID.; LOSS OF TRUST AND CONFIDENCE. A GROUND THEREFOR; CASE AT BAR. Petitioner's behavior rendered him unworthy of the trust and confidence demanded by his position. Considering that an employer is entitled to terminate the services of employees for just cause and that stealing and other forms of dishonesty have been held to be sufficient grounds for dismissal, as a measure of self-protection, private respondent was justified in dismissing petitioner. 3. ID.; ID.; ID.; QUANTUM OF EVIDENCE REQUIRED TO WARRANT DISMISSAL BASED ON THE SAME; CASE AT BAR. Although petitioner's guilt was not proved beyond reasonable doubt, the totality of the evidence presented is sufficient to warrant the dismissal of petitioner Porfirio Auxilio, Jr. The job of petitioner is of such nature as to require a substantial amount of trust and confidence on the part of the employer. He may thus be dismissed on the ground of loss of trust and confidence. It was established that petitioner had ready access to the cashier's office. He admitted having borrowed the nail cutter of the cashier included among the bunch of keys to the latter's drawer. The investigations and inquiries conducted were made on all the employees who had access to the cashier's drawer and not on the petitioner alone. However, his erratic reaction to the investigator's questioning narrowed down the list of suspects to him alone. We agree with the public respondent that petitioner's continued absence from his residence and unexplained disappearance despite several notices for further police investigation implied flight associated with guilt. The requirement that there be some basis or reasonable ground to believe that the employee is responsible for the misconduct is sufficiently met in the case at bar. DECISION PARAS, J p: In the herein petition for certiorari, petitioner seeks the review of the decision of public respondent National Labor Relations Commission (NLRC) dated February 12, 1988, which reversed the decision of the Labor Arbiter in NLRC Case No. RAB-1-0048-82, finding as legal and valid the employer's act of terminating the services of petitioner and dismissing the latter's complaint for illegal dismissal. The facts of the case are undisputed. Petitioner Porfirio Auxilio, Jr. was first employed by private respondent Baguio Country Club Corporation as a housemaid in 1977. He became a regular employee in 1978 and in 1981 was assigned as a front desk clerk with a

basic pay of P524.00 per month. He was in charge of hotel rooms, received guests' registration and acted as switchboard operator. On January 17, 1982 the amount of Fifteen Thousand Pesos (P15,000.00), which had been placed in the cashier's office of the Baguio Country Club, was found to be missing. The loss was brought to the attention of the management on January 18, 1982. Upon receipt of the report, the Baguio City Police Department (INP) forthwith conducted a spot investigation. Police investigation ruled out signs of forcible entry or robbery, and concluded that it was an "inside job." Accordingly, all employees of the Country Club who had access to the cashier's office, including the petitioner, were invited for questioning. All of them denied having stolen the money. They were then subjected to a Polygraph examination conducted by the NBI. Meanwhile, on January 20, 1982, petitioner was placed under preventive suspension for the usual 30-day period due to his possible involvement in the theft, pending final result of the investigation. The results of the Polygraph Examination revealed that petitioner could not fully explain his answers to vital questions relative to the missing money. He was again invited to the Police Headquarters for further investigation but he refused to attend and said that he was not feeling well when he was under the polygraph examination (Comment of Solicitor General, p. 3). In the polygraph report on the petitioner dated February 16, 1982, it was declared that petitioner offered no satisfactory explanation for the adverse result of the polygraph test conducted on him. All the other employees subjected to the same examination showed no indications of deception as they explained their side satisfactorily that they did not steal the money. Petitioner was asked to appear for investigation by the management. However, no further examination was conducted by the police or the employer because petitioner could not be found in his residence and the notices sent to him were rejected by his wife. cdll Thus, in a Memorandum dated February 20, 1982 issued by the Baguio Country Club Corporation, Porfirio Auxilio, Jr. was terminated for "loss of trust and confidence" and for "giving false statement during official investigation." Aggrieved, petitioner filed a complaint for illegal dismissal with the Labor Arbiter alleging that he was dismissed on mere suspicion that he stole the money and that he was denied an opportunity to defend himself pursuant to the provision of the Collective Bargaining Agreement between private respondent and the union of which petitioner was a member. In a decision dated October 16, 1984, Labor Arbiter Saturnino P. Orate ordered the reinstatement of petitioner, finding that there was no reasonable ground in dismissing the latter because private respondent failed to establish by preponderance of evidence the legality of the dismissal. On appeal, the NLRC, on February 12, 1988, set aside the Labor Arbiter's decision and entered another dismissing petitioner's complaint for illegal dismissal for lack of merit. Hence, this petition. Petitioner Porfirio Auxilio, Jr. claims that he was denied due process of law because the grievance procedure provided in the Collective Bargaining Agreement (CBA) was not strictly observed. He likewise maintains that with the rejection by the Labor Arbiter of the probative value of his flight, the Special Investigation Report and Polygraph Report, his dismissal from employment is not legal. LLpr A review of the records of this case shows that public respondent did not commit any grave abuse of discretion in reversing the Labor Arbiter's decision. The Grievance Machinery in the CBA states:

". . . Sec. 2. A GRIEVANCE is any controversy by the union or an employee against the CLUB or any controversy by the CLUB against the UNION or an employee concerning any ruling practice or working condition in the CLUB, or any dispute as to the interpretation of any provisions of this Agreement." (p. 38, Rollo) As correctly pointed out by the Solicitor General in his Comment, the instances enumerated where the grievance machinery may be availed of are not present in this case and that there was no overt act on the part of petitioner to bring any cause for complaint to the attention of the immediate supervisor concerned as prescribed in Step 1 on the Supervisory level. What is truly involved in the case at hand is the last action pursued by private respondent in the face of overwhelming evidence found by the police investigators on the theft of its P15,000.00 on January 17, 1982. The invocation of the grievance machinery provisions of the CBA is not in place. (Comment, p. 8). No doubt petitioner was afforded due process of law. There is convincing and sufficient evidence on record to show that private respondent corporation fully complied with the notice and hearing requirements of due process. Petitioner was notified and repeatedly invited for further investigation but he "chose to ignore" the said notices by his "convenient absence" from his residence and the continued refusal by his wife to receive the notices (Memorandum of public respondent, p. 5). Private respondent cannot be faulted as petitioner had ample opportunity to be heard. Since he unjustifiably rejected the opportunity, petitioner cannot now complain that he was denied due process of law. Petitioner also maintains that his dismissal was without basis as his complicity in the theft of the P15,000.00 was solely based on suspicions and on the polygraph test conducted on his person. prcd "Loss of confidence is a valid ground for dismissing an employee. Proof beyond reasonable doubt of the employer's misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein rendered him unworthy of the trust and confidence demanded of his position. (Nat'l Org. of Laborers and Employers vs. MRR, 21 SCRA 191; Nevans v. Court of Industrial Relations, 23 SCRA 1321; Galsim v. PNB, 29 SCRA 293; Reyes v. Zamora, 90 SCRA 92; Villadolid v. Inciong, 121 SCRA 205; San Miguel Corp. v. Deputy Minister of Labor and Employment, G.R. Nos. 61232-33, Dec. 29, 1983) The job of petitioner is of such nature as to require a substantial amount of trust and confidence on the part of the employer. He may thus be dismissed on the ground of loss of trust and confidence. It was established that petitioner had ready access to the cashier's office. He admitted having borrowed the nail cutter of the cashier included among the bunch of keys to the latter's drawer. The investigations and inquiries conducted were made on all the employees who had access to the cashier's drawer and not on the petitioner alone. However, his erratic reaction to the investigator's questioning narrowed down the list of suspects to him alone. We agree with the public respondent that petitioner's continued absence from his residence and unexplained disappearance despite several notices for further police investigation implied flight associated with guilt. The requirement that there be some basis or reasonable ground to believe that the employee is responsible for the misconduct is sufficiently met in the case at bar. Petitioner's behavior rendered him unworthy of the trust and confidence demanded by his position. Considering that an employer is entitled to terminate the services of employees for just cause and that stealing and other forms of dishonesty have been held to be sufficient grounds for dismissal, as a measure of self-protection, private respondent was justified in dismissing petitioner. Although petitioner's guilt was not proved beyond reasonable doubt, the totality of the evidence presented is sufficient to warrant the dismissal of petitioner Porfirio Auxilio, Jr. As held in the case of Filipro, Inc. vs. NLRC, 145 SCRA 123: "The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer." WHEREFORE, the decision of the National Labor Relations Commission (NLRC) is AFFIRMED. SO ORDERED.

SECOND DIVISION [G.R. No. 69934. September 26, 1988.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIANITO INTINO, defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. Jose C . Vitug for accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ABSENCE OF EVIL MOTIVE TO IMPLICATE A CLOSE RELATIVE, BOLSTERS CREDIBILITY. Witnesses Calipayan had no motive to implicate appellant who is their close relative being the son of the first cousin of Rosario Calipayan as admitted by appellant himself in his testimony. 2. ID.; ID.; DYING DECLARATION; NO PROBATIVE VALUE WHERE THE DECEASED WAS NOT IN A POSITION TO IDENTIFY HIS ASSAILANT. We do not question the credibility of witness Segundina Delda in declaring that her brother, Bienvenido Caluser, made a dying statement inside the bus that Pare Benny wounded him. While there may be such statement made since that was the belief of the deceased Bienvenido Caluser, We cannot give it probative value. As already shown earlier, Bienvenido Caluser was not in a position to identify his assailant as he was stabbed from behind and when he, already wounded, bloodied and weak from his wounds, took a look at his assailant, Bienvenido Caluser was again stabbed several times by the appellant giving him no opportunity to fully identify his attacker. Maybe because of the fact that Bienvenido Caluser and Marianito Intino had no quarrel or misunderstanding in the past the former never thought of the latter as his attacker, thus he uttered someone else's name who was their drinking guest earlier as his attacker. 3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; MANIFEST WHERE THE ATTACK WAS SUDDEN AND UNEXPECTED. There is no question that there was treachery as the attack that came from behind was so sudden and unexpected leaving the poor victim helpless to defend himself. 4. ID.; MURDER; IMPOSABLE PENALTY. With the abolition of the death penalty, the penalty now imposed by law for the crime of murder is reclusion temporal in its maximum period to reclusion perpetua. 5. ID.; INDETERMINATE SENTENCE LAW; MURDER, PENALTY. Considering the provisions of the Indeterminate Sentence Law, the maximum imposable penalty in the case at bar is the medium period of the aforementioned period (that is, the higher half of reclusion temporal maximum) and the minimum is one degree lower than the prescribed penalty now of reclusion temporal maximum to reclusion perpetua. DECISION PARAS, J p: Appellant Marianito Intino alias "Marian" was charged before the lower court with the crime of Murder in an Information quoted hereunder: "That on or about the 17th day of September, 1976, in the Municipality of Babatngon, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with the decided intent to kill and by means of treachery did, then and there willfully, unlawfully and feloniously attack, assault and wound one Bienvenido Caluser with a bolo which he purposely provided himself, thereby hitting and inflicting upon the said Bienvenido Caluser with wounds on the different parts of his body which caused his death shortly thereafter. "Contrary to Article 248 of the Revised Penal Code." (p. 1, Rollo)

After due trial, judgment 1 was rendered by the trial court on October 3, 1984, its dispositive portion reading as follows: "WHEREFORE, finding the accused Marianito Intino guilty beyond reasonable doubt of the crime of Murder, there being no mitigating nor aggravating circumstance, this Court hereby renders judgment sentencing the accused to suffer the penalty of reclusion perpetua, with all the accessory penalties provided for by law, and to pay the costs. "In the service of his sentence, the accused shall be entitled to the full time during which he was under preventive imprisonment. "The accused is hereby directed to pay to the heirs of the late Bienvenido Caluser, as compensation, the amount of P12,000.00, without subsidiary imprisonment in case of insolvency. "SO ORDERED." (p. 7, Decision; p. 25 Rollo) Hence, the appeal interposed by the accused with the following: ASSIGNMENTS OF ERROR I THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER, APPRECIATE OR GIVE DUE WEIGHT TO THE DYING DECLARATION OF THE DECEASED BIENVENIDO CALUSER WHEN THE EVIDENCE THEREOF IS CLEAR, SUFFICIENT, STRAIGHTFORWARD AND UNIMPEACHED, THUS RESULTING IN GRAVE INJUSTICE TO THE ACCUSED APPELLANT. II THE LOWER COURT ERRED IN FINDING THE APPELLANT GUILTY OF MURDER BEYOND REASONABLE DOUBT ON THE BASIS OF THE EVIDENCE ON RECORD. III THE LOWER COURT ERRED IN FINDING THAT TREACHERY ATTENDED THE COMMISSION OF THE CRIME. Briefly, the evidence for the prosecution tends to show that the appellant Marianito Intino is a farmer who had been hired as a coconut picker by the victim Bienvenido Caluser. On September 17, 1976 at about 3:00 o'clock in the afternoon, appellant and the victim went to the house of the latter's girl friend, Norma Calipayan, who served them tuba. While they were drinking, they invited Benny Raliente, a passerby to join them in their drinking spree. The latter accepted their invitation but after drinking about two or three glasses of tuba, he left Marianito and Bienvenido who continued with their drinking until about 6:00 o'clock p.m. Thereafter, Bienvenido Caluser joined Norma, Rosario, her mother and Luciano, her father in their supper. Marianito Intino seated himself at the porch approximately four meters away from the dining table, while Primo Calipayan, a brother of Norma was lying on a bench beside Marianito. After eating Rosario went inside the bedroom to breastfeed her one-year old child, while her husband went outside the house. Norma was left with Bienvenido at the dining table. While they were conversing, Norma saw Marianito suddenly rise from his seat, then approach Bienvenido from behind him since Bienvenido was seated with his back facing the door leading to the porch. Norma was seated on another bench at the right side of Bienvenido, sideways to the door leading to the porch so that she was able to see the action of Marianito. (Exh. E-3, p. 18, Record). After hearing Bienvenido say "I am wounded" in the vernacular, Norma stood up as Bienvenido held on to her. As Bienvenido tried to glance at his assailant, appellant again stabbed him with his bolo which prompted witness Norma to utter "Marian husto na." Then Norma's mother, Rosario, who rushed out of the room upon hearing somebody cry that he was wounded, saw Marianito who was still attacking Bienvenido, who was already wounded. Rosario pushed Marianito aside as she took the bolo from him to prevent him from further attacking Bienvenido Caluser. Marianito ran away. When Luciano Calipayan arrived,

upon seeing Bienvenido Caluser bathed in his own blood with intestines protruding from his abdomen, he immediately sought the help of Punay de San Miguel and Peping de San Miguel and their other neighbors. They placed Bienvenido Caluser on a hammock and boarded him on a baby bus enroute to the Daniel Z. Romualdez Memorial Hospital in Tacloban City, where he died about midnight of that same day. On the other hand, the evidence for the defense consists of the testimonies of witnesses Marianito Intino (appellant), Segundina C. Delda and Alejo D. Ripalda. Appellant denied that he stabbed and killed the victim. He identified the assailant as Benedicto Relente 2 or "Pare Benny" (of the victim). According to the testimonies of Segundina C. Delda, sister of the victim, and Alejo D. Ripalda, the victim made a dying declaration to Segundina while inside the baby bus, (he repeated such declaration to Fernando San Miguel while inside the intensive care unit of the hospital) that his attacker was "Pare Benny" referring to Benedicto Relente of Villa Magsaysay. These two separate dying statements were allegedly heard by witness Alejo Ripalda who was then present on both instances. The appeal is meritless. After a careful perusal of the evidence on record, We entertain no doubt that appellant was positively identified by the prosecution's witnesses Norma and Rosario Calipayan both in their sworn statements given before NBI agents Reynaldo C. Manzanero on January 21, 1977 and March 14, 1977, respectively and in their oral testimonies in open court. Witness Norma Calipayan in her sworn statement admitted that she did not see appellant stab Bienvenido Caluser the first time even is she was there with Bienvenido although she saw appellant approach the victim from behind, not knowing that Marianito harbored any bad intention towards the victim. Norma and Rosario Calipayan also declared that they do not know of any ill-feelings or bad blood between the victim and the appellant except during that instance when the victim told the appellant jokingly that he would box appellant because he was from Pagsulhugan. When Rosario heard such conversation she cut in by asking Bienvenido what this talk was all about. The latter simply answered that he was only joking. The discrepancies in their testimonies (cited by appellant) are not serious enough to cast real doubt on their credibility. Witnesses Calipayan had no motive to implicate appellant who is their close relative being the son of the first cousin of Rosario Calipayan as admitted by appellant himself in his testimony (tsn-Anota, May 14, 1982, p. 12). There is no witness aside from the appellant who can testify that "Pare Benny" or Benedicto Relente mentioned in the dying statement of the victim, actually stabbed the victim. But as against appellant Marianito Intino, both Norma Calipayan and her mother Rosario positively saw appellant stab the victim after the first blow and all the attending circumstances point to him as the one who killed the deceased. It is true that appellant pointed to Benny Relente as the one who allegedly stabbed the victim, as shown in his testimony in court, to wit: "Q. A. Q. A. Q. A. Q. A. Q. A. Q. Will you tell the court the sitting position of the persons drinking? Bienvenido Caluser and Benny were facing each other and Rosario was behind Luciano Calipayan, sir. How do you know that? Because I could see them from the porch. What was illuminating them? A kerosene lamp sir. Now while these persons were drinking at around 8.00 o'clock what happened? Bienvenido Caluser was stabbed by a person called Benny. What did Benny do to Caluser? Benny held the shoulder of Bienvenido Caluser and then stabbed him sir. Was Bienvenido Calusar hit?

A. Q. A. xxx Q. A. Q. A.

Yes, sir. Where? He was hit in the abdomen. xxx xxx

What did Benny use in stabbing Bienvenido Caluser? A bolo, sir. Where did he get this bolo used in stabbing Caluser? He got it from the wall, sir, behind him." (tsn-Anota, May 14, 1982, p. 4).

However, from the above testimony, the logical conclusion is that the assailant Benny was facing the victim as he delivered the stabbing blow in the abdomen of the victim, as the witness would want the court to believe. However, this is belied by the medical certificate.(Exh. "A" or Exh. "E-7," p. 10, Records) issued by the attending physician, Dr. Sherlito T. Siao and confirmed by Dr. Alden Tabao who testified on this in court that the fatal wound (that is, the one inflicted in the abdomen) was described as: "Operative Findings: Wound stab, thru and thru wound of entrance right posterior lumbar, wound of exit epigastric, penetrating perforating Kidney Right #1, Liver #1, Transverse Colon #2, Misocolon, Severe hemorrhage." (see also Exh. "B." A sketch of a human body showing the entrance and exit of the fatal wounds of the victim, p. 142, Records) The testimony of Norma Calipayan that the assailant approached the victim from behind is strengthened by the victim's medical certificate which was never disputed by the parties and Exh. E-3 (p. 18, Records) which is a sketch demonstrating the seating arrangement or the positions of those persons present in the house of the Calipayans that fateful night. Furthermore, We have also considered the fact that appellant was nowhere to be found immediately after the incident while Benny Relente never left the place to escape being investigated in connection with the death of Bienvenido Caluser. Likewise, the National Bureau of Investigation thru NBI agent Reynaldo C. Manzanero in coordination with the PC investigating arm, conducted polygraph tests (lie-detector tests) on the suspect Benny or Benedicto Relente who denied authorship of the killing and on Rosario Calipayan who firmly asserted having actually seen respondent Marianito Intino deliver hacking blows on Bienvenido Caluser which caused his death. Both successfully hurdled the NBI polygraph tests. We do not question the credibility of witness Segundina Delda in declaring that her brother, Bienvenido Caluser, made a dying statement inside the bus that Pare Benny wounded him. While there may be such statement made since that was the belief of the deceased Bienvenido Caluser, We cannot give it probative value. As already shown earlier, Bienvenido Caluser was not in a position to identify his assailant as he was stabbed from behind and when he, already wounded, bloodied and weak from his wounds, took a look at his assailant, Bienvenido Caluser was again stabbed several times by the appellant giving him no opportunity to fully identify his attacker. Maybe because of the fact that Bienvenido Caluser and Marianito Intino had no quarrel or misunderstanding in the past the former never thought of the latter as his attacker, thus he uttered someone else's name who was their drinking guest earlier as his attacker. We now come to the issue of treachery raised by appellant. There is no question that there was treachery as the attack that came from behind was so sudden and unexpected leaving the poor victim helpless to defend himself. With the abolition of the death penalty, the penalty now imposed by law for the crime of murder is reclusion temporal in its maximum period to reclusion perpetua.

Considering the provisions of the Indeterminate Sentence Law, the maximum imposable penalty in the case at bar is the medium period of the aforementioned period (that is, the higher half of reclusion temporal maximum) and the minimum is one degree lower than the prescribed penalty now 3 of reclusion temporal maximum to reclusion perpetua. WHEREFORE, the accused is hereby sentenced to suffer imprisonment from 12 years of prision mayor, as minimum to 18 years and 9 months of reclusion temporal as maximum; to suffer the accessory penalties and to pay an indemnity of P30,000.00 to heirs of the victim, and costs. In all other respects, the judgment appealed from is AFFIRMED. SO ORDERED. Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ ., concur. Footnotes 1. 2. Penned by Judge Filomeno D. Arteche, Jr. Raliente and Relente are used interchangeably in the records.

3. With the abolition of the death penalty, the penalty for murder is now reclusion temporal maximum to reclusion perpetua (with 3 periods lower half of reclusion temporal maximum, higher half of reclusion temporal maximum, and reclusion perpetua.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

FIRST DIVISION [G.R. Nos. 116196-97. June 23, 1999.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO, defendant-appellant. The Solicitor General for plaintiff-appellee. Romulo B. Macalintal for accused-appellant. SYNOPSIS Adoviso was found guilty beyond reasonable doubt for two counts of murder for feloniously shooting Agunos and Vasquez several times with the use of a firearm in the latter's "camalig" on the night of February 18, 1990. Eyewitnesses said they were able to identify Adoviso from the light emanating from the gas lamp inside the "camalig" at the time. Appellant was correctly adjudged guilty of two counts of murder qualified by treachery because the victims at the time were totally unaware of an impending assault. Appellant was properly identified by the eyewitnesses because of the two gas lamps sufficiently illuminating the place at the time of the crime. Further, the bamboo slats in the "camalig" could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four meters apart. Hence, appellant's alibi crumbled in the face of his positive identification as one of the perpetrators of the crimes. ITAaHc SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; IDENTIFICATION OF ACCUSED; PROPER ILLUMINATION FOR THE SAME; UPHELD. Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. In this case, not one (1) but two (2) gas lamps illuminated the place the one placed inside the camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. CTHaSD 2. ID.; ID.; ID.; ID.; ID.; UPHELD. The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain their identities, and the manner in which the crime is committed. A relative will naturally be interested in identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s). It must remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten (10) years while Elmer had been acquainted with him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks. Familiarity with appellant's face and appearance minimized if not erased the possibility that they could have been mistaken as to his identity. 3. ID.; ID.; ID.; ID.; NOT AFFECTED BY FAILURE TO IMMEDIATELY IDENTIFY ACCUSED. Appellant also considers as a "positive sign," Bonifacio's failure to immediately identify him as the perpetrator of the crime to the police. The delay in reporting his participation to the police was however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness. The general or common rule is that witnesses react to a crime in different ways. There is no standard form of human behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a crime must react. 4. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF ACCUSED. Appellant's alibi crumbles in the face of his positive identification as one of the perpetrators of the crimes. For an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the time of its commission. Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong where he claimed to be when the incident happened. 5. ID.; ID.; POLYGRAPH; NOT CONCLUSIVE EVIDENCE. A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinee's conscious attempt to deceive the questioner. The theory behind a polygraph or lie detector test is that a person who lies deliberately will have a rising blood pressure and a subconscious block in breathing, which will be recorded on the graph. However, American courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. The rule is no different in this jurisdiction. Thus, in People v. Daniel, stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him. 6. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; APPRECIATED. Appellant was therefore correctly adjudged guilty of two counts of murder. Treachery qualified the killings to murder. There is

treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. In other words, there is treachery when the attack on an unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning. The victims in this case were totally unaware of an impending assault Rufino was sleeping and Emeterio was going down the stairs when they were shot. AICHaS DECISION KAPUNAN, J p: Pablo Adoviso appeals from the Joint Judgment 1 of the Regional Trial Court of Camarines Sur 2 declaring him guilty beyond reasonable doubt for two counts of Murder. Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was originally charged with four unidentified persons who have, however, remained at large. The information 3 charging appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079 alleges: That on or about the 18th day of February 1990 at about 8:00 o'clock [sic] in the evening at Sitio Tan-agan, Barangay Casugad, Municipality of Bula, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with assorted long firearms, conspiring, confederating and mutually helping one another, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot one Rufino Agunos several times with said firearms hitting the latter on the different parts of his body which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Rufino Agunos. That the crime complained of against the accused is not service connected. ACTS CONTRARY TO LAW. Except for the name of the victim, the information in Criminal Case No. P-2080 with respect to the killing of Emeterio Vasquez, contains the same allegations. 4 Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P-2080, the prosecution presented their version of the events that transpired on the evening of February 18, 1990, as follows: The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested rice. The spouses preferred to live there because it was cooler. The living area of the camalig had walls of bamboo called salsag. This area was elevated from the ground. Three steps led down to an awning (suyab) walled with bamboo slats. These slats were placed horizontally approximately four to six inches apart. A portion of the awning was used as a kitchen but another portion had a papag where the Vasquez grandson, Rufino Agunos, son of their daughter Virginia, would sleep whenever he tended the irrigation pump. The spouses' son Bonifacio occupied the other house eight (8) meters from the camalig with his own son Elmer. At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his wife was about to retire for the night. Their grandson Rufino had already gone to sleep in the papag. Anastacia had just finished spreading the sleeping mat when she heard three or four gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, "Why should you not be hit when in fact there are guns in front of you." Anastacia saw the "protruding edge of the gun" on the wall near the stairs where Emeterio went down. A lamp near the stairs where Emeterio drank coffee illuminated the camalig but Anastacia failed to recognize the persons who fired their guns at her husband.

The Vasquez' son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking when he noticed that Rufino had fallen asleep, the latter's back against the bamboo wall. Bonifacio left Rufino snoring in the papag and went to the other house. Only a minute had passed after he had gone up when Bonifacio heard the gunshots. He and his 16year-old son Elmer immediately went down the front yard to investigate. Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the outside. Looking through the bamboo slats of the camalig wall, Bonifacio recognized one of the assailants, with a large built and long hair, as appellant Pablo Adoviso because of the gas lamp that was lighted inside the camalig. Of Rufino's assailants, only appellant was not wearing a mask. Appellant was holding a long firearm wrapped inside a sack with its muzzle protruding and directed where Rufino was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio shout "Pino," (referring to his grandson Rufino) and saw his father go down the stairs carrying a gas lamp. Appellant fired again, hitting Emeterio at the stomach. For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons aiming their firearms at the camalig. Except for appellant, each of these persons had a cover over their faces. Three (3) of them were positioned in a ditch near the camalig while two (2) others were near its door. Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on the papag. Although his back was hit, Rufino was able to crawl under the papag. Elmer's grandfather was also hit on the stomach but he managed to go up the camalig. When appellant and his companion by the camalig door saw Elmer, they fired at him then, with the three others at the ditch, escaped to the banana plantation. Elmer, on the other hand, fled towards the coconut plantation. Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found Rufino at the foot of a coconut tree near the river, lying on his side with his body curled. Rufino told Elmer that he had been hit and, when Elmer failed to locate his wound, Rufino took Elmer's hand and put it on his back. Elmer then moved Rufino "sidewise." Upon returning to the camalig, Elmer carried his grandfather and bandaged his stomach with diapers. In the meantime, Bonifacio went to the municipal building of Bula to fetch the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him. The police brought Emeterio and Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both Emeterio and Rufino died early the next morning. The certification 5 dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician of the Bicol Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the inguinal area, the sacral area, the thigh and the abdomen. The wounds at the inguinal area and the thigh bore contusion collars. The same physician certified that Emeterio Vasquez, 88 years of age, sustained seven (7) gunshot wounds at the paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right forearm, anteromedial aspect of the right forearm, anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4) of these gunshot wounds had contusion collars at the paraumbilical area, the hypogastrium, the right forearm and the left arm. 6 Appellant Adoviso interposed alibi and denial as his defense. Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay Palsong, Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio Burabod, Palsong, about a kilometer away from the CAFGU headquarters. He, together with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the store of Honoria Tragante until around 11:00 p.m. LLjur

Honoria Tragante and Francisco Bislombre corroborated appellant's alibi. Antero Esteron likewise testified that from 7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking spree at the Tragante store. He distinctly remembered that date because it was the fiesta of Balatan. To support his denial, appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez identified a police certification 7 prepared by Pfc. Ramon N. Canabe to the effect that the shooting incident was perpetrated "by unidentified armed men." Lopez said that he (Lopez) was one of those who brought the victims to the hospital who were then still conscious. The victims told him that they did not know who shot them or why they were shot. SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days after the incident, Bonifacio Vasquez revealed to him that he (Bonifacio) "vividly saw the incident and recognized" appellant as one of the perpetrators of the crime and that the killings had some something to do with land dispute between Bonifacio's parents and the Galicia family. The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the National Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In Polygraph Report No. 900175, 8 Lucena opined that appellant's "polygrams revealed that there were no specific reactions indicative of deception to pertinent questions relevant" to the investigation of the crimes. In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not identify appellant as one of the culprits because he was afraid of appellant who was a member of the CAFGU. Nevertheless, Bonifacio did mention to the police that he recognized appellant as one of the perpetrators of the crime although he told them that he did not recognize appellant's four (4) companions. He did not mention to Lopez and Canabe appellant's identity because he was "confused" about what had happened in their house. On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond reasonable doubt for two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P-2080 as follows: WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered: In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to pay the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T. Agunos and their four (4) children the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency; In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION PERPETUA and to pay the legal heirs of the late EMETERIO VASQUEZ, consisting of Anastacia Vasquez and Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency with all the accessory penalties provided therefore in both cases and to pay the costs in both instances. SO ORDERED. 9 Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an "incredible" story because it is "highly improbable" that they could have "distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes." 10 According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's grandfather was "a small can about two (2) inches tall and the wick is smaller than a cigarette" and

the lamp inside the camalig "was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and not sidewise." 11 Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. 12 Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. 13 Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. 14 In this case, not one (1) but two (2) gas lamps illuminated the place the one placed inside the camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellant's contention therefore that one particular gas lamp could not have lighted the place because it was placed inside a can is puerile. Besides, Elmer was not describing either of the gas lamps during the incident. The defense counsel at the trial and appellant's counsel misunderstood the testimonies of Elmer and his grandmother on that matter. Thus, Elmer testified: ATTY. CORTES: Q Is it not that the lamp you said placed along the door, which is already marked as lamp, is that not this lamp was placed inside a kerosene can as testified to by your grandmother so that the cat could not cause it to fall? A It was placed just on the floor not inside the can." 15 (Emphasis supplied.)

For her part, Anastacia testified as follows: ATTY. CORTES: xxx Q A Q A Q A Q A xxx xxx.

Because you were already about to retire, the doors and windows were already closed, is that correct? Yes, sir. That you also shut down or closed the light, is that correct? No, sir, we even placed the kerosene lamp inside a can. You said, you placed the lamp inside a can so that the light is going up, is that correct? Yes, sir. So, the light was not illuminating sidewise because it was inside a can? When we left, I got the kerosene lamp and brought it with me.

ATTY. CORTES: I think, the witness did not get the question right, Your Honor. COURT: cdll Repeat the question. ATTY. CORTES: Q A My question Madam Witness is, when you were about to retire? The lamp was placed on the floor where my husband was drinking coffee.

COURT: Q Who are the persons you are referring to as having left when you placed the light inside the can?

A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio and Rufino to the hospital. 16 (emphasis supplied). Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only after the incident when Anastacia left with her son and the police to bring the victims to the hospital. The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain their identities, and the manner in which the crime is committed. 17 A relative will naturally be interested in identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s). 18 It must be remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten (10) years 19 while Elmer had been acquainted with him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks. 20 Familiarity with appellant's face and appearance minimized if not erased the possibility that they could have been mistaken as to his identity. Appellant's allegation that it was "improbable" for him to have committed the crimes without a mask, unlike the other participants, deserves scant consideration. It is not contrary to human experience for a person to commit a crime before the very eyes of people who are familiar to them. Indeed, some may even take pride in their identification as the perpetrator of a criminal act. Appellant also considers as a "positive sign," Bonifacio's failure to immediately identify him as the perpetrator of the crime to the police. 21 The delay in reporting his participation to the police was however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness. 22 The general or common rule is that witnesses react to a crime in different ways. 23 There is no standard form of human behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a crime must react. 24 There is no merit in appellant's contention that Bonifacio had a motive in implicating him. According to appellant, Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who had earlier won in a land dispute with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio inasmuch as two credible witnesses had positively identified appellant as one of the participants in the killing of Emeterio Vasquez and Rufino Agunos. Appellant's alibi thus crumbles in the face of his positive identification as one of the perpetrators of the crimes. 25 For an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the time of its commission. 26 Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong where he claimed to be when the incident happened. Both places are within the Municipality of Bula. Appellant admitted that the distance between the two sitios could be negotiated in three hours even without any means of transportation. 27 On the other hand, his alleged companion in Sitio Palsong, Antero Esteron, testified that the distance could be traveled in thirty-five (35) minutes by "trimobile" or private vehicle. 28 Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and who were his companions at the time the crimes were committed. We quote the observation of the trial court on this point:

On the premise that the trial court rendered the judgment of conviction on the basis of "mere conjectures and speculations," 29 appellant argues that the negative result of the polygraph test should be given weight to tilt the scales of justice in his favor. A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinee's conscious attempt to deceive the questioner. 30 The theory behind a polygraph or lie detector test is that a person who lies deliberately will have a rising blood pressure and a subconscious block in breathing, which will be recorded on the graph. 31 However, American courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. 32 The rule is no different in this jurisdiction. Thus, in People v. Daniel, 33 stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him. Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the killings to murder. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. 34 In other words, there is treachery when the attack on an unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning. 35 The victims in this case were totally unaware of an impending assault Rufino was sleeping and Emeterio was going down the stairs when they were shot. WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED. llcd SO ORDERED. Davide, Jr., C.J., Melo, Pardo and Ynares-Santiago, JJ., concur.

EN BANC [G.R. No. 39110. November 28, 1933.] ANTONIA L. DE JESUS, ET AL., plaintiffs-appellants, vs. CESAR SYQUIA, defendant-appellant. Jose Sotelo, for plaintiffs-appellants. Vicente J. Francisco, for defendant-appellant. SYLLABUS 1. PARENT AND CHILD; NATURAL CHILD; ACKNOWLEDGMENT OF PATERNITY. The acknowledgment of paternity required in No. 1 of article 135 of the Civil Code is satisfied by the production of more than one document of indubitable authenticity, containing, all together, the admission of the father recognizing a particular child as of his paternity, the admission of one writing being supplement by those of another. DECISION STREET, J p: This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in her own right and by her mother, Pilar Marque, as next friend and representative of Ismael and Pacita Loanco, infants, children of the first-named plaintiff, for the purpose of recovering from the defendant, Cesar Syquia, the sum of thirty thousand

pesos as damages resulting to the first-named plaintiff from breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita as natural children begotten by him with Antonia, and to pay for the maintenance of the three the amount of five hundred pesos per month, together with costs. Upon hearing the cause, after answer of the defendant, the trial court entered a decree requiring the defendant to recognize Ismael Loanco as his natural child and to pay maintenance for him at the rate of fifty pesos per month, with costs, dismissing the action in other respects. From this judgment both parties appealed, the plaintiffs from so much of the decision as denied part of the relief sought by them, and the defendant from that feature of the decision which required him to recognize Ismael Loanco and to pay for his maintenance. At the time with which we are here concerned, the defendant, Cesar Syquia was of the age of twenty-three years, and an unmarried scion of a prominent family in Manila, being possessed of a considerable property in his own right. His brother-in-law, Vicente Mendoza is the owner of a barber shop in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of June Antonia Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in this barber shop. Syquia was not long in making her acquaintance and amorous relations resulted, as a consequence of which Antonia was gotten with child and a baby boy was born on June 17, 1931. The defendant was a constant visitor at the home of Antonia in the early months of her pregnancy, and in February, 1931, he wrote and placed in her hands a note directed to the padre who was expected to christen the baby. This note was as follows: "Saturday, 1.30 p. m. "February 14, 1931 "REV. FATHER, "The baby due in June is mine and I should like for my name to be given to it. "CESAR SYQUIA" The occasion for writing this note was that the defendant was on the eve of his departure on a trip to China and Japan; and while he was abroad on this visit he wrote several letters to Antonia showing a paternal interest in the situation that had developed with her, and cautioning her to keep in good condition in order that "junior" (meaning the baby to be, "Syquia, jr.") might be strong, and promising to return to them soon. The baby arrived at the time expected, and all necessary anticipatory preparations were made by the defendant. To this end he employed his friend Dr. Crescenciano Talavera to attend at the birth, and made arrangements for the hospitalization of the mother in Saint Joseph's Hospital of the City of Manila, where she was cared for during confinement. When Antonia was able to leave the hospital, Syquia took her, with her mother and the baby, to a house at No. 551 Camarines Street, Manila, where they lived together for about a year in regular family style, all household expenses, including gas and electric light, being defrayed by Syquia. In course of time, however, the defendant's ardor abated and, when Antonia began to show signs of a second pregnancy, the defendant decamped, and he is now married to another woman. A point that should here be noted is that when the time came for christening the child, the defendant, who had charge of the arrangements for this ceremony, caused the name Ismael Loanco to be given to him, instead of Cesar Syquia, jr., as was at first planned. The first question that is presented in the case is whether the note to the padre, quoted above, in connection with the letters written by the defendant to the mother during pregnancy, proves an acknowledgment of paternity, within the meaning of subsection 1 of article 135 of the Civil Code. Upon this point we have no hesitancy in holding that the acknowledgment thus show is sufficient. It is a universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and capable of being dealt with as a living person. The fact that it is as yet unborn is no impediment to the acquisition of rights. The problem here presented of the recognition of an unborn child is really not different from that presented in the ordinary case of the recognition of a child already born

and bearing a specific name. Only the means and resources of identification are different. Even a bequest to a living child requires oral evidence to connect the particular individual intended with the name used. It is contended, however, in the present case that the words of description used in the writings before us are not legally sufficient to identify the child now suing as Ismael Loanco. This contention is not, in our opinion, well founded. The words of recognition contained in the note to the padre are not capable of two constructions. They refer to a baby then conceived which was expected to be born in June and which would thereafter be presented for christening. The baby came, and though it was in the end given the name of Ismael Loanco instead of Cesar Syquia, jr., its identity as the child which the defendant intended to acknowledge is clear. Any doubt that might arise on this point is removed by the letters Exhibits F, G, H, and J. In these letters the defendant makes repeated reference to junior as the baby which Antonia, to whom the letters were addressed, was then carrying in her womb, and the writer urged Antonia to eat with good appetite in order that junior might be vigorous. In the last letter (Exhibit J) written only a few days before the birth of the child, the defendant urged her to take good care of herself and of junior also. It seems to us that the only legal question that can here arise as to the sufficiency of the acknowledgment is whether the acknowledgment contemplated in subsection 1 of article 135 of the Civil Code must be made in a single document or may be made in more than one document, of indubitable authenticity, written by the recognizing father. Upon this point we are of the opinion that the recognition can be made out by putting together the admissions of more than one document, supplementing the admission made in one letter by an admission or admissions made in another. In the case before us the admission of paternity is contained in the note to the padre and the other letters suffice to connect that admission with the child then being carried by Antonia L. de Jesus. There is no requirement in the law that the writing shall be addressed to one, or any particular individual. It is merely required that the writing shall be indubitable. The second question that presents itself in this case is whether the trial court erred in holding that Ismael Loanco had been in the uninterrupted possession of the status of a natural child, justified by the conduct of the father himself, and that as a consequence, the defendant in this case should be compelled to acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Code. The facts already stated are sufficient, in our opinion, to justify the conclusion of the trial court on this point, and we may add here that our conclusion upon the first branch of the case that the defendant had acknowledged this child in the writings above referred to must be taken in connection with the facts found by the court upon the second point. It is undeniable that from the birth of this child the defendant supplied a home for it and the mother, in which they lived together with the defendant. This situation continued for about a year, and until Antonia became enceinte a second time, when the idea entered the defendant's head of abandoning her. The law fixes no period during which a child must be in the continuous possession of the status of a natural child; and the period in this case was long enough to evince the father's resolution to concede the status. The circumstance that he abandoned the mother and child shortly before this action was started is unimportant. The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of status shall continue forever, but only that it shall not be of an intermittent character while it continues. What has been said disposes of the principal feature of the defendant's appeal. With respect to the appeal of the plaintiffs, we are of the opinion that the trial court was right in refusing to give damages to the plaintiff, Antonia Loanco, for supposed breach of promise to marry. Such promise is not satisfactorily proved, and we may add that the action for breach of promise to marry has not standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. This case exhibits none of the features necessary to maintain such an action. Furthermore, there is no proof upon which a judgment could be based requiring the defendant to recognize the second baby, Pacita Loanco. Finally, we see no necessity or propriety in modifying the judgment as to the amount of the maintenance which the trial court allowed to Ismael Loanco. And in this connection we merely point out that, as conditions change, the

Court of First Instance will have jurisdiction to modify the order as to the amount of the pension as circumstances will require. The judgment appealed from is in all respects affirmed, without costs. So ordered. Malcolm, Abad Santos, Hull, Vickers and Butte, JJ., concur. Separate Opinions VILLA-REAL, J., dissenting: The majority opinion is predicated on two grounds: First, that the defendant-appellant Cesar Syquia has expressly acknowledged his paternity of the child Ismael Loanco in an indubitable writing of his; and secondly, that said child has enjoyed the uninterrupted possession of the status of a natural son of said defendant-appellant Cesar Syquia, justified by his direct acts, as required by article 135 of the Civil Code. The first conclusion is drawn from Exhibits C, F, G, H and J. Exhibit C, which is the handwriting of and signed by the defendant-appellant Cesar Syquia, reads as follows: "Sabado, 1.30 p. m. 14 febrero, 1931 "REV. PADRE: "La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la criatura. "(Fdo.) CESAR SYQUIA" Exhibits F, G, H, and J, which are letters written by the said defendant-appellant Cesar Syquia to plaintiff-appellee Antonia L. de Jesus prior to the birth of the child contain the following expressions: Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el de junior tambien no lo manches. Acuerdate muy bien Toni que es por ti y por junior volvere alli pronto. . . ." Exhibit G, Feb. 24, 1931: "Toni por favor cuida bien a junior eh? Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho. . . ." Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . . ." Article 135, number 1, provides as follows: "ART. 135. "1. The father may be compelled to acknowledge his natural child in the following cases:

When an indisputable paper written by him, expressly acknowledging his paternity, is in existence."

Manresa (Codigo Civil, Vol. 1, page 596, 4th ed.), commenting on said article, says: "Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si es posible admitir por otro medio la prueba de la paternidad natural. Entendemos que no, porque el articulo es terminante y la intencion de la ley mas terminante aun. Se establecio en la base 5.a que 'no se admitira investigacion de la paternidad sino en los casos de delito, o cuando exista escrito del padre en el que conste su voluntad indubitada de reconocer por suyo al hijo, deliberadamente expresada con ese fin, o cuando medie posesion de estado, y esto mismo es lo que se ordena en el presente articulo. "No puede, pues, prosperar la demanda para obligar al padre al reconocimiento de un hijo natural, aunque solo se limite a pedir alimentos, si no se funda en el reconocimiento expreso del padre hecho por escrito, en la posesion

constante de estado de hijo natural o en sentencia firme recaida en causa por delito de violacion, estupro o rapto. El escrito y la sentencia habran de acompaarse a la demanda, y no puede admitirse otra prueba que la conducente a justificar que el escrito es indubitadamente del padre que en el reconozca su paternidad, o la relative a los actos directos del mismo padre o de su familia, que demuestren la posesion continua de dicho estado. Para la prueba de estos dos hechos podran utilizarse todos los medios que permite la Ley de Enjuiciamiento Civil, debiendo el juez rechazar la que por cualquier otro concepto se dirija a la investigacion de la paternidad. xxx xxx xxx

"En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente que no basta hacerlo por incidencia; es indispensable que se consigne en el escrito la voluntad indubitada, clara y terminante del padre, de reconocer por suyo al hijo, deliberadamente expresada con este fin, como se ordena en la base 5.a antes citada, de las aprobadas por la Ley de 11 de mayo de 1888; de suerte que el escrito, aunque contenga otros particulares, como sucede en los testamentos, ha de tener por objeto el reconocimiento deliberado y expeso del hijo natural. No llena, pues, ese objeto la manifestacion que incidentalmente haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho menos el dar a una persona el titulo y tratamiento de hijo en cartas familiares. Sin embargo, en cada caso decidiran los tribunales, y cuando el escrito por si solo no reconozca de un modo suficientemente expresivo la paternidad, servira de base para acreditar, en union con otros datos, la posesion constante del estado del hijo a los efectos de este articulo, y con arreglo a su numero 2." Let it first be noted that the law prohibits the investigation of paternity (Borres and Barza vs. Municipality of Panay, 442 Phil., 643; Donado vs. Menendez Donado, 55 Phil., 861). The only exceptions to this rule are those established in article 135 of the Civil Code quoted above, the first of which is that the father may be compelled to acknowledge his paternity, "When an indubitable writing of his exists in which he expressly acknowledges his paternity." The writing that is required by said provision must be complete in itself and by itself, and must contain all the statements that are necessary to constitute a full and clear acknowledgment by a father of his paternity of a child, the general prohibition to investigate paternity would be violated. By the mere reading of all said letters, the one addressed to a priest and the others to the herein plaintiff-appellee, Antonia L. de Jesus, the reader cannot ascertain which is the "creature that is coming in June", which the defendantappellant, Cesar Syquia, says in the said letter addressed to the priest is his, nor who is the "junior" that he recommends to said Antonia L. de Jesus to take good care of, as there is nothing in anyone of said letters from which it may be inferred that Antonia L. de Jesus was enceinte at the time, that the "junior" was the being she was carrying in her womb, and that it was the "creature that it coming in June." To connect all these facts it was necessary to prove that Cesar Syquia had had illicit relations with Antonia L. de Jesus, that as a result of such relations the woman became pregnant, and that she gave birth to a boy in June 1931. All this certainly constitutes an investigation of the paternity of Cesar Syquia of said child outside of the documents, which is prohibited by law. Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is insufficient to constitute a "indubitable writing of Cesar Syquia, in which he expressly acknowledges his paternity of the child Ismael Loanco," as required by number 1 of article 135 of the Civil Code. As to the second ground of the decision of the majority, number 2 of article 135 of the Civil Code provides: "ART. 135. xxx The father may be compelled to acknowledge his natural child in the following cases: xxx xxx

"2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself or that of his family." The majority decision bases its conclusion on the second point on Exhibits C, F, G, H and J and the following facts, as found by the lower court in its decision:

"Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el demandado Cesar Syquia llamo a su comprovinciano Dr. Crescenciano Talavera, medico que entonces ejercia su profesion en la Ciudad de Manila, para que asistiera a aquella en su parto y a ese efecto llevo a la demandante Antonia L. de Jesus acompaado del Dr. Talavera al Hospital San Jose, de esta Ciudad, donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr. Talavera, que firmo el certificado de nacimiento Exhibit E. "Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo viviendo con este y con la demandante Antonia L. de Jesus en la case No. 551 de la Calle Camarines, Manila, entregando a dicha demandante el dinero para los gastos de casa y el pago del consumo de gas y luz electrica, habiendo firmado el contrato para el suministro del fluido electrico en dicha case." Exhibits C, F, G, H, and J, are inadmissible in evidence for the purpose of showing that Ismael Loanco has enjoyed the continuous possession of the status of a natural child, because being of prior date to the birth of said child they can not be considered as direct acts of Cesar Syquia showing possession of the status of natural child, as no human being can enjoy such possession until he be born with legal capacity for acquiring civil rights (Infante vs. Figueras, 4 Phil., 738; Granados vs. Leynes, G. R. No. 31224, promulgated September 9, 1929, not reported). It must also be stated that Cesar Syquia refused to allow his name to be given to the child Ismael when it was baptized, so that the name of its mother, Loanco, had to be given to it. The facts which were found by the court below to have been proved by the testimony of the witnesses during the trial, are not sufficient to constitute the uninterrupted possession of the status of Ismael Loanco as natural child of said Cesar Syquia, in the light of the following authorities: In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said: ". . . . ourselves to the acts proved to have been performed by Don Telesforo, we find that he visited the mother of the plaintiff; that he paid money for her support; that he paid money for the support of the plaintiff; that he told one witness that the plaintiff was his son; that the plaintiff called him 'Papa,' and that Don Telesforo answered to this designation; that when the plaintiff visited Don Telesforo he kissed his hand; that Don Telesforo wrote letter to him; that he paid his fees for instruction in school, and secured him a position in a commercial house. xxx xxx xxx

"All these facts taken together are not sufficient to show that plaintiff possessed continuously the status of a natural child. They may have a tendency to show that Don Telesforo was the father of the child, but that is not sufficient. It is not sufficient that the father recognize the child as his. By the express terms of article 135 that recognition must appear either in writing, made by the father, or it must appear in acts which show that the son has possessed continuously the status of a natural child. No recognition by the father of the child which comes short of the requirements of these two paragraphs is sufficient. It must appear that it was the intention of the father to so recognize the child as to give him that status, and that the acts performed by him were done with that intention." Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the Supreme Court of Spain says: "En la sentencia de 5 de julio de 1906 declarase que para justificar la posesion de estado de hijo natural se requiere que los actos sean de tal naturaleza que releven, a la vez que el convencimiento de la paternidad, la voluntad ostensible de tener y tratar al hijo como tal en las relaciones sociales y de la vida, y esto no accidentalmente, sino continuadamente, porque en tal supuesto los actos tienen el mismo valor que el reconocimiento expreso. "En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que estima que el hecho de que dos nodrizas criaron a otros tantos nios, sufragando el gasto el demandado, quien ademas iba a casa de la demandante, los besaba, los llamaba hijos y encargaba para los mismos el mayor cuidado; el de que subvenia a las necesidades de la madre y de los seis hijos que la nacieron, el primero de los cuales se llamaba como el padre; y el de que los porteros

de la casa donde vivio la actora sabian que el finado visitaba a esta, se lamentaba de la much familia que tenia y era tenido en el concepto publico como padre de los menores, no son suficentes para fundar la declaracion de paternidad, pues no es legal confundir actos que puedan revelar mas o menos la presuncion o convencimiento en que una persona este de su paternidad con relacion a hijos naturales, con los que demuestren su proposito de poner a estos hijos en la posesion de tal estado." It will thus be seen from the foregoing discussion and authorities that the herein defendant-appellant Cesar Syquia cannot be compelled to acknowledge the child Ismael Loanco as his natural son because there exists not an indubitable writing of his in which he expressly acknowledges his paternity of said child, and because the said child has not enjoyed the uninterrupted possession of the status of a natural child of the said defendant-appellant, justified by his own conduct or that of his family, as required by article 135 of the Civil Code. The decision appealed from should, therefore, be reversed and the complaint dismissed. Avancea, C.J. and Imperial, J., concur.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

[G.R. No. 162571. June 15, 2005.] ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents. Ciriaco A. Macapagal for petitioner. Alexander Bansil for private respondent. SYLLABUS 1. REMEDIAL LAW; ACTIONS; CAUSE OF ACTION; ELEMENTS. First of all, the trial court properly denied the petitioner's motion to dismiss because the private respondents' complaint on its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the plaintiff's primary right and the defendant's corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged. 2. ID.; PROVISIONAL REMEDIES; SUPPORT PENDENTE LITE; MAY BE INTEGRATED WITH AN ACTION TO COMPEL RECOGNITION; RATIONALE; CASE AT BAR. The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgment. But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals, we allowed the integration of an action to compel recognition with an action to claim one's inheritance: . . . In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action. Applying the foregoing principles to the case at bar, although petitioner contends that the

complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence. Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings. 3. ID.; EVIDENCE; DNA TESTING; REASONS FOR ADMISSIBILITY THEREOF. Moreover in our en banc decision in People v. Yatar, we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. We did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence: Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A person's DNA is the same in each cell and it does not change throughout a person's lifetime; the DNA in a person's blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. . . . In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungria's testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victim's vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. 4. ID.; ID.; COMPULSORY DNA TESTING NOT A VIOLATION OF THE RIGHT AGAINST SELF-INCRIMINATION; CASE AT BAR. Nor does petitioner's invocation of his right to privacy persuade us. In Ople v. Torres, where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308, we said: In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. . . . Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. Historically, it has mostly been in the areas of legality of searches and seizures, and the infringement of privacy of communication where the constitutional right to privacy has been critically at issue. Petitioner's case involves neither and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be

compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same. 5. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; WHEN MAY BE AVAILED OF. The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioner's motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law." 6. ID.; ID.; ID.; REMEDY DESIGNED FOR THE CORRECTION OF ERRORS OF JURISDICTION AND NOT ERRORS OF JUDGMENT; GRAVE ABUSE OF DISCRETION, EXPLAINED; CASE AT BAR. In Land Bank of the Philippines v. the Court of Appeals where we dismissed a special civil action for certiorari under Rule 65, we discussed at length the nature of such a petition and just what was meant by "grave abuse of discretion": Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison d'etre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision not the jurisdiction of the court to render said decision the same is beyond the province of a special civil action for certiorari. The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct. DECISION CORONA, J p: At issue in this petition for certiorari 1 is whether or not the Court of Appeals (CA) gravely erred in exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision 2 and resolution 3 upholding the resolution and order of the trial court, 4 which denied petitioner's motion to dismiss private respondents' complaint for support and directed the parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing. DACIHc Respondents Fe Angela and her son Martin Prollamante sued Martin's alleged biological father, petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch 106. 5 In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnel's insistence on abortion, Fe, decided otherwise and gave birth to their child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The baby's birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and hospital expenses but later refused Fe's repeated requests for

Martin's support despite his adequate financial capacity and even suggested to have the child committed for adoption. Arnel also denied having fathered the child. On January 19, 2001 while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fe's leg. This incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support. 6 In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had allegedly ended in 1998, long before Martin's conception. He claimed that Fe had at least one other secret lover. Arnel admitted that their relationship started in 1993 but "he never really fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she proved to be scheming and overly demanding and possessive. As a result, theirs was a stormy on-and-off affair. What started as a romantic liaison between two consenting adults eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of marrying him, that she resorted to various devious ways and means to alienate (him) from his wife and family. . . . Unable to bear the prospect of losing his wife and children, Arnel terminated the affair although he still treated her as a friend such as by referring potential customers to the car aircon repair shop" 7 where she worked. Later on Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a vacation. Upon their return in June 2000, Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the child as his because their "last intimacy was sometime in 1998." 8 Exasperated, Fe started calling Arnel's wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion became so heated that he had no "alternative but to move on but without bumping or hitting any part of her body." 9 Finally, Arnel claimed that the signature and the community tax certificate (CTC) attributed to him in the acknowledgment of Martin's birth certificate were falsified. The CTC erroneously reflected his marital status, as single when he was actually married and that his birth year was 1965 when it should have been 1964. 10 In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed willingness to consider any proposal to settle the case. 11 On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court. 12 Arnel opposed said motion by invoking his constitutional right against self-incrimination. 13 He also moved to dismiss the complaint for lack of cause of action, considering that his signature on the birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to support if not recognized by the putative father. 14 In his motion, Arnel manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 025723 and 02-7192) and a petition for cancellation of his name appearing in Martin's birth certificate (docketed as Civil Case No. Q-02-46669). He attached the certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate was forged. EaHcDS The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals affirmed the trial court. Thus, this petition. In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support without violating petitioner's constitutional right to privacy and right against self-incrimination. 15 The petition is without merit. cdjur2005

First of all, the trial court properly denied the petitioner's motion to dismiss because the private respondents' complaint on its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the plaintiff's primary right and the defendant's corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged. 16 In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the relationship long before the child's conception and birth. It is undisputed and even admitted by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining question is whether such sexual relationship produced the child, Martin. If it did, as respondents have alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin has no right to demand and petitioner has no obligation to give support. ScCEIA Preliminaries aside, we now tackle the main issues. Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the child's birth certificate which he purportedly signed as the father. He also claims that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively converted the complaint for support to a petition for recognition, which is supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and must first establish his filiation in a separate suit under Article 283 17 in relation to Article 265 18 of the Civil Code and Section 1, Rule 105 19 of the Rules of Court. The petitioner's contentions are without merit. The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals, 20 we allowed the integration of an action to compel recognition with an action to claim one's inheritance: . . . In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action. cEDaTS Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence. As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763. [1922]) wherein we said: The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a

successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. . . . The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs . . .; and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother . . . In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Emphasis supplied) HEcTAI Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings. On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving paternity. He also contends that compulsory testing violates his right to privacy and right against self-incrimination as guaranteed under the 1987 Constitution. These contentions have no merit. Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is called for. In the 1995 case of People v. Teehankee 21 where the appellant was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that "while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied)." Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court Appeals, 22 promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father." In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals: 23 A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result into deny progress. AHDaET

The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with our en banc decision in People v. Vallejo 24 where the rape and murder victim's DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile." A year later, in People v. Janson, 25 we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!" In 2004, in Tecson, et al. v. COMELEC 26 where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe Jr., we stated: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing. . . . Moreover in our en banc decision in People v. Yatar, 27 we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. We did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence: Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A person's DNA is the same in each cell and it does not change throughout a person's lifetime; the DNA in a person's blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. CaEIST xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungria's testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victim's vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. SATDEI

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victim's vagina were used to positively identify the accused Joel "Kawit" Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this as follows: The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include photographs, 28 hair, 29 and other bodily substances. 30 We have also declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery, 31 expulsion of morphine from one's mouth 32 and the tracing of one's foot to determine its identity with bloody footprints. 33 In Jimenez v. Caizares, 34 we even authorized the examination of a woman's genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per our ruling in Yatar, 35 are now similarly acceptable. cEASTa Nor does petitioner's invocation of his right to privacy persuade us. In Ople v. Torres, 36 where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308 we said: In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. . . . Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. Historically, it has mostly been in the areas of legality of searches and seizures, 37 and the infringement of privacy of communication 38 where the constitutional right to privacy has been critically at issue. Petitioner's case involves neither and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same. DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in 1985. In the decade that followed, DNA rapidly found widespread general acceptance. 39 Several cases decided by various State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence. The case of Wilson v. Lumb 40 shows that DNA testing is so commonly accepted that, in some instances, ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court, pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, upon receipt of the challenge, to order DNA tests: 41

 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity. aATCDI (b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signator's filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party. For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a party's challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the child's paternity and shall make a finding of paternity, if appropriate, in accordance with this article. Neither signator's legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If a party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the district in which the child's birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district, that provides the mother with such services. HTSAEa (c) A determination of paternity made by any other state, whether established through the parents' acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social security act. (emphasis supplied) DNA testing also appears elsewhere in the New York Family Court Act: 42 532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been

made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five, percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act. HEITAD (b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a, report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five, hundred eighteen of the civil practice law and rules if offered by any party. (c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied) In R.E. v. C.E.W., 43 a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W. previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, the time of conception, maintained an adulterous relationship. In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G., 44 the 4th Department of the New York Supreme Court's Appellate Division allowed G.G., who had been adjudicated as T.M.H.'s father by default, to have the said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the child's father. In this case,. G.G. only, requested the tests after the Department of Social Services, six years after G.G. had been adjudicated as T.M.H.'s father, sought an increase in his support obligation to her. aATHES In Greco v. Coleman, 45 the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing non-modifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent of DNA testing that such support agreements were necessary: As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement . . . (current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. Consequently, in every, contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of proof. ITSacC It is worth noting that amendments to Michigan's Paternity law have included the use of DNA testing: 46 722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit to typing or identification profiling; qualifications of person conducting typing or

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

(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal. (2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks. AHCETa xxx xxx xxx

(5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4) paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA. (6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules this section does not abrogate the right of either party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied) In Rafferty vs. Perkins, 47 the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage: The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing. In S.J.F. and J.C.F. v. R.C.W., 48 the North Dakota Supreme Court upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing. It was only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld. CacISA The case of Kohl v. Amundson, 49 decided by the Supreme Court of South Dakota, demonstrated that even default judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established nonpaternity. In this case Kohl, having excluded himself as the father of Amundson's child through DNA testing, was able to have the default judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support. The Court said "(w)hile Amundson may have a remedy against the father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to

Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages." In M.A.S v. Mississippi Dept. of Human Services, 50 another case decided by the Supreme Court of Mississippi; it was held that even if paternity was established through an earlier agreed order of filiation, child support and visitation orders could still be vacated once DNA testing established someone other than the named individual to be the biological father. The Mississippi High Court reiterated this doctrine in Williams v. Williams. 51 The foregoing considered we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioner's motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law." 52 In Land Bank of the Philippines v. the Court of Appeals 53 where we dismissed a special civil action for certiorari under Rule 65 we discussed at length the nature of such a petition and just what was meant by "grave abuse of discretion": Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. IcEaST The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison d'etre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision not the jurisdiction of the court to render said decision the same is beyond the province of a special civil action for certiorari. The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied) In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct. EPILOGUE For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity. WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals' decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto. STcHDC

Costs against petitioner. Panganiban, Sandoval-Gutierrez, Carpio-Morales and Garcia, JJ., concur. FIRST DIVISION [G.R. No. 148220. June 15, 2005.] ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents. Virgilio C. Manguera & Associates and Benito P. Fabie for petitioner. Ramon U. Ampil for respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PROOF OF PATERNITY; DNA ANALYSIS AS EVIDENCE. So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity. . . . DNA is the fundamental building block of a person's entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person's DNA profile can determine his identity. DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. 2. ID.; ID.; ID.; ID.; ADMISSIBILITY THEREOF. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court. Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence. Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as follows: The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue." aHECST 3. ID.; ID.; ID.; ID.; ID.; TRIAL COURTS CAUTIONED IN GIVING CREDENCE TO DNA ANALYSIS AS EVIDENCE. Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. 4. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; OBTAINING SAMPLES FROM ACCUSED FOR DNA TESTING NOT VIOLATIVE OF RIGHT AGAINST SELF INCRIMINATION; CASE AT BAR. Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to be a witness against himself." Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. DECISION CARPIO, J p:

The Case This is a petition for review 1 to set aside the Decision 2 dated 29 November 2000 of the Court of Appeals ("appellate court") in CA-G.R. SP No. 59766. The appellate court affirmed two Orders 3 issued by Branch 48 of the Regional Trial Court of Manila ("trial court") in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity testing, while the Order dated 8 June 2000 denied petitioner's motion for reconsideration. aTADcH The Facts On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented by his mother Armi Alba, filed before the trial court a petition for compulsory recognition, support and damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent. Petitioner also denied physical contact with respondent's mother. Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute ("UP-NSRI"), a DNA analysis laboratory. She was a former professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that the test had an accuracy rate of 99.9999% in establishing paternity. 4 Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further argued that DNA paternity testing violates his right against self-incrimination. The Ruling of the Trial Court In an Order dated 3 February 2000, the trial court granted respondent's motion to conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus: In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petition. IT IS SO ORDERED. 5 (Emphasis in the original) Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that "under the present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to obtain the requisite specimen . . ., unconstitutional." In an Order dated 8 June 2000, the trial court denied petitioner's motion for reconsideration. 6 On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 "in excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction." Petitioner further contended that there is "no appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law." Petitioner maintained his previous objections to the taking of DNA paternity testing. He submitted the following grounds to support his objection: 1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2). HASTCa

2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of the test as admitted by private respondent's "expert" witness. 3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises. 4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional. 7 The Ruling of the Court of Appeals On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial court's evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not violate his right against self-incrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the appellate court's decision reads: WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner. SO ORDERED. 8 Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001. 9 Issues Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit. 10 Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court "to embark in [sic] a new procedure . . . to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its implementation." 11 Petitioner maintains that the proposed DNA paternity testing violates his right against self-incrimination. 12 The Ruling of the Court The petition has no merit. TCcIaA Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation. An Overview of the Paternity and Filiation Suit Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, 13 support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child. 14

A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father. 15 There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations with the mother, because of either physical absence or impotency. 16 The putative father may also show that the mother had sexual relations with other men at the time of conception. A child born to a husband and wife during a valid marriage is presumed legitimate. 17 The child's legitimacy may be impugned only under the strict standards provided by law. 18 Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his biological father. 19 This kind of evidence appeals to the emotions of the trier of fact. In the present case, the trial court encountered three of the four aspects. Armi Alba, respondent's mother, put forward a prima facie case when she asserted that petitioner is respondent's biological father. Aware that her assertion is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi Alba's assertion. He denied ever having sexual relations with Armi Alba and stated that respondent is Armi Alba's child with another man. Armi Alba countered petitioner's denial by submitting pictures of respondent and petitioner side by side, to show how much they resemble each other. Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed in this jurisdiction. TEHIaD Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxx ART. 172. (1) xxx xxx

The filiation of legitimate children is established by any of the following:

The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the

dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. CcTIAH This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, 20 a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. 21 A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. 22 Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. 23 However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. 24 Standing alone, neither a certificate of baptism 25 nor family pictures 26 are sufficient to establish filiation. So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity. 27 In Co Tao v. Court of Appeals, 28 the result of the blood grouping test showed that the putative father was a "possible father" of the child. Paternity was imputed to the putative father after the possibility of paternity was proven on presentation during trial of facts and circumstances other than the results of the blood grouping test. In Jao v. Court of Appeals, 29 the child, the mother, and the putative father agreed to submit themselves to a blood grouping test. The National Bureau of Investigation ("NBI") conducted the test, which indicated that the child could not have been the possible offspring of the mother and the putative father. We held that the result of the blood grouping test was conclusive on the non-paternity of the putative father. The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as evidence to prove paternity. DNA Analysis as Evidence DNA is the fundamental building block of a person's entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person's DNA profile can determine his identity. 30 DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. 31 We quote relevant portions of the trial court's 3 February 2000 Order with approval: Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individual's blood is the very DNA

in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. TcHCDE The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individual's DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called "genes." Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci." How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion. Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the "known" print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called "allele", one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child's DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father's profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man's DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father. 32 (Emphasis in the original) cHAIES Although the term "DNA testing" was mentioned in the 1995 case of People v. Teehankee, Jr., 33 it was only in the 2001 case of Tijing v. Court of Appeals 34 that more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas corpus against respondent who abducted petitioners' youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage. However, we observed that: Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. . . . For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

Admissibility of DNA Analysis as Evidence The 2002 case of People v. Vallejo 35 discussed DNA analysis as evidence. This may be considered a 180 degree turn from the Court's wary attitude towards DNA testing in the 1997 Pe Lim case, 36 where we stated that "DNA, being a relatively new science, . . . has not yet been accorded official recognition by our courts." In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched the accused's DNA profile. We affirmed the accused's conviction of rape with homicide and sentenced him to death. We declared: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. 37 Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according "official recognition" to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis. In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar 38 and In re: The Writ of Habeas Corpus for Reynaldo de Villa. 39 In Yatar, a match existed between the DNA profile of the semen found in the victim and the DNA profile of the blood sample given by appellant in open court. The Court, following Vallejo's footsteps, affirmed the conviction of appellant because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convictpetitioner presented DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape. The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victim's child does not preclude the convict-petitioner's commission of rape. TIHDAa In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S. 40 and Daubert v. Merrell Dow Pharmaceuticals. 41 In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Frye's counsel offered an expert witness to testify on the result of a systolic blood pressure deception test 42 made on defendant. The state Supreme Court affirmed Frye's conviction and ruled that "the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." The Frye standard of general acceptance states as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. In 1989, State v. Schwartz 43 modified the Frye standard. Schwartz was charged with stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution introduced the private testing facility's results over Schwartz's objection. One of the issues brought before the state Supreme Court included the admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that: While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that admissibility of specific test results in a particular case hinges on the laboratory's compliance with appropriate standards and controls, and the availability of their testing data and results. 44

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc. 45 further modified the Frye-Schwartz standard. Daubert was a product liability case where both the trial and appellate courts denied the admissibility of an expert's testimony because it failed to meet the Frye standard of "general acceptance." The United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus: Rule 401. "Relevant evidence" is defined as that which has any "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ATCEIc Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Rule 702 of the Federal Rules of Evidence governing expert testimony provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimony's reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the theory or technique is generally accepted in the scientific community. Another product liability case, Kumho Tires Co. v. Carmichael, 46 further modified the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as follows: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines. 47 At best, American jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court. 48 Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence. 49 Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as follows: The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue." 50

Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence. EHDCAI Probative Value of DNA Analysis as Evidence Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. 51 We also repeat the trial court's explanation of DNA analysis used in paternity cases: In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child's DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father's profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man's DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father. 52 It is not enough to state that the child's DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction, 53 trial courts should require at least 99.9% as a minimum value of the Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone. 54 DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity. 55 This refutable presumption of paternity should be subjected to the Vallejo standards. IDSETA Right Against Self-Incrimination Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to be a witness against himself." Petitioner asserts that obtaining samples from him for DNA testing violates his right against selfincrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial court's 3 February 2000 Order with approval: Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only to evidence that is "communicative" in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken

from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on "testimonial compulsion." 56 The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses. 57 Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence. WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759. IaEACT SO ORDERED. Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

SECOND DIVISION [G.R. No. 177728. July 31, 2009.] JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO", represented by JENIE SAN JUAN DELA CRUZ, petitioners, vs. RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo City, respondent. DECISION CARPIO MORALES, J p: For several months in 2005, then 21-year old petitioner Jenie San Juan dela Cruz (Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of marriage. They resided in the house of Dominique's parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal. aHIDAE On September 4, 2005, Dominique died. 1 After almost two months, or on November 2, 2005, Jenie, who continued to live with Dominique's parents, gave birth to her herein co-petitioner minor child Christian dela Cruz "Aquino" at the Antipolo Doctors Hospital, Antipolo City. Jenie applied for registration of the child's birth, using Dominique's surname Aquino, with the Office of the City Civil Registrar, Antipolo City, in support of which she submitted the child's Certificate of Live Birth, 2 Affidavit to Use the Surname of the Father 3 (AUSF) which she had executed and signed, and Affidavit of Acknowledgment executed by Dominique's father Domingo Butch Aquino. 4 Both affidavits attested, inter alia, that during the lifetime of Dominique, he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned. Jenie attached to the AUSF a document entitled "AUTOBIOGRAPHY" which Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of which read: HIcTDE AQUINO, CHRISTIAN DOMINIQUE S.T. AUTOBIOGRAPHY

I'M CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS COMING OCTOBER 31, 2005. 5 I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHER'S NAME IS DOMINGO BUTCH AQUINO AND MY MOTHER'S NAME IS RAQUEL STO. TOMAS AQUINO. . . . xxx xxx xxx

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THAT'S ALL. 6 (Emphasis and underscoring supplied) By letter dated November 11, 2005, 7 the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia (respondent), denied Jenie's application for registration of the child's name in this wise: 7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of Republic Act No. 9255 ["An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose, Article 176 of Executive Order No. 209, otherwise Known as the 'Family Code of the Philippines'"]) provides that: TCADEc Rule 7. Requirements for the Child to Use the Surname of the Father 7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document. 7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of the father, provided the registration is supported by the following documents: a. b. c. 1. 2. 3. 4. 5. 6. AUSF 8 Consent of the child, if 18 years old and over at the time of the filing of the document. Any two of the following documents showing clearly the paternity between the father and the child: Employment records SSS/GSIS records Insurance Certification of membership in any organization Statement of Assets and Liability Income Tax Return (ITR)

In summary, the child cannot use the surname of his father because he was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either through the back of Municipal Form No. 102 Affidavit of Acknowledgment/Admission of Paternity or the Authority to Use the Surname of the Father). (Underscoring supplied) Jenie and the child promptly filed a complaint 9 for injunction/registration of name against respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of registration of the child's name is a violation of his right to use the

surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255, 10 which provides: Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis and underscoring supplied) They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a "private handwritten instrument" within the contemplation of the above-quoted provision of law. For failure to file a responsive pleading or answer despite service of summons, respondent was declared in default. Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law relationship with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had acknowledged his yet unborn child. 11 She offered Dominique's handwritten Autobiography (Exhibit "A") as her documentary evidence-inchief. 12 Dominique's lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenie's declarations. 13 IEHSDA By Decision 14 of April 25, 2007, the trial court dismissed the complaint "for lack of cause of action" as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines "private handwritten document" through which a father may acknowledge an illegitimate child as follows: 2.2 Private handwritten instrument an instrument executed in the handwriting of the father and duly signed by him where he expressly recognizes paternity to the child. (Underscoring supplied) The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not contain any express recognition of paternity. Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of: WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A "PRIVATE HANDWRITTEN INSTRUMENT" WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHER'S SURNAME. 15 (Underscoring supplied) Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the private handwritten instrument containing the putative father's admission of paternity must be signed by him. They add that the deceased's handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of the Administrative Order that the admission/recognition must be "duly signed" by the father is void as it "unduly expanded" the earlier-quoted provision of Article 176 of the Family Code. 16 Petitioners further contend that the trial court erred in not finding that Dominique's handwritten Autobiography contains a "clear and unmistakable" recognition of the child's paternity. 17 In its Comment, the Office of the Solicitor General (OSG) submits that respondent's position, as affirmed by the trial court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that Dominique's Autobiography "merely acknowledged Jenie's pregnancy but not [his] paternity of the child she was carrying in her womb". 18

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of his/her father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the civil register, or through an admission made in a public or private handwritten instrument. The recognition made in any of these documents is, in itself, a consummated act of acknowledgment of the child's paternity; hence, no separate action for judicial approval is necessary. 19 Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten instrument acknowledging the child's paternity must be signed by the putative father. This provision must, however, be read in conjunction with related provisions of the Family Code which require that recognition by the father must bear his signature, thus: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. caHASI xxx Art. 172. (1) xxx xxx

The filiation of legitimate children is established by any of the following:

The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. xxx xxx xxx (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not "unduly expand" the import of Article 176 as claimed by petitioners. In the present case, however, special circumstances exist to hold that Dominique's Autobiography, though unsigned by him, substantially satisfies the requirement of the law. First, Dominique died about two months prior to the child's birth. Second, the relevant matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial evidence Jenie proffered. 20 Third, Jenie's testimony is corroborated by the Affidavit of Acknowledgment of Dominique's father Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the registration of the questioned recognition of the child. These circumstances indicating Dominique's paternity of the child give life to his statements in his Autobiography that "JENIE DELA CRUZ" is "MY WIFE" as "WE FELL IN LOVE WITH EACH OTHER" and "NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER". In Herrera v. Alba, 21 the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part: Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxx ART. 172. xxx xxx

The filiation of legitimate children is established by any of the following:

(1)

The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: CcAESI SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (Emphasis and underscoring supplied.) In the case at bar, there is no dispute that the earlier quoted statements in Dominique's Autobiography have been made and written by him. Taken together with the other relevant facts extant herein that Dominique, during his lifetime, and Jenie were living together as common-law spouses for several months in 2005 at his parents' house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months after his death, Jenie gave birth to the child they sufficiently establish that the child of Jenie is Dominique's. In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence. Our laws instruct that the welfare of the child shall be the "paramount consideration" in resolving questions affecting him. 22 Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic: ACTIcS Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 23 (Underscoring supplied) It is thus "(t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children . . .". 24 Too, "(t)he State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development". 25 In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child's best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate. WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births. SO ORDERED. AECDHS Quisumbing, Chico-Nazario, Leonardo-de Castro and Peralta, * JJ., concur. SECOND DIVISION [G.R. No. L-49162. July 28, 1987.]

JANICE MARIE JAO, represented by her mother and guardian ad litem, ARLENE S. SALGADO, petitioner, vs. THE HONORABLE COURT OF APPEALS and PERICO V. JAO, respondents. DECISION PADILLA, J p: Appeal by certiorari from the decision * of the Court of Appeals in CA-G.R. No. 51078-R, dated 29 August 1978, which dismissed petitioner's action for recognition and support against private respondent, and from the respondent Court's resolution, dated 11 October 1978, denying petitioner's motion for reconsideration of said decision. On 28 October 1968, petitioner Janice Marie Jao, then a minor, represented by her mother and guardian-ad-litem Arlene Salgado, filed a case for recognition and support with the Juvenile and Domestic Relations Court against private respondent Perico V. Jao. The latter denied paternity so the parties agreed to a blood grouping test which was in due course conducted by the National Bureau of Investigation (NBI) upon order of the trial court. The result of the blood grouping test, held 21 January 1969, indicated that Janice could not have been the possible offspring of Perico V. Jao and Arlene S. Salgado. 1

The trial court initially found the result of the tests legally conclusive but upon plaintiff's (herein petitioner's) second motion for reconsideration, it ordered a trial on the merits, after which, Janice was declared the child of Jao, thus entitling her to his monthly support. Jao appealed to the Court of Appeals, questioning the trial court's failure to appreciate the result of the blood grouping tests. As there was no showing whatsoever that there was any irregularity or mistake in the conduct of the tests, Jao argued that the result of the tests should have been conclusive and indisputable evidence of his nonpaternity. The Court of Appeals upheld Jao's contentions and reversed the trial court's decision. In its decision, the Court of Appeals held: "From the evidence of the contending parties, it appears undisputed that JAO was introduced to ARLENE at the Saddle and Sirloin, Bay Side Club, by Melvin Yabut. After this meeting, JAO dated and courted ARLENE. Not long thereafter, they had their first sexual intercourse and subsequently, they lived together as husband and wife . . . It further appears undisputed that in April 1968, JAO accompanied ARLENE to the Marian General Hospital for medical checkup and her confinement was with JAO's consent. JAO paid the rentals where they lived, the salaries of the maids, and other household expenses . . . The record discloses that ARLENE gave birth to JANICE on August 16, 1968, after completing 36 weeks of pregnancy, which indicates that ARLENE must have conceived JANICE on or about the first week of December, 1967. Thus, one issue to be resolved in this appeal is whether on or about that time, JAO and ARLENE had sexual intercourse and were already living with one another as husband and wife. In this connection, ARLENE contends that she first met JAO sometime in the third or fourth week of November, 1967 at the Saddle and Sirloin, Bayside Club; that after several dates, she had carnal knowledge with him at her house at 30 Longbeach, Merville, Paraaque, Rizal in the evening of November 30, 1967, and that he started to live with her at her dwelling after December 16, 1967, the date they finished their cruise to Mindoro Island. On the other hand, JAO, albeit admitting that he met ARLENE at the Saddle and Sirloin, Bayside Club, however, maintains that this was on December 14, 1967 because the day following, he and his guests: ARLENE, Melvin Yabut, Didi Crescini and Charlie Litonjua went to Mindoro by boat. He dated ARLENE four times in January, 1968. He remembered he had carnal knowledge of her for the first time on January 18, 1968, because that was a week after his birthday and it was only in May, 1968 that he started cohabiting with her at the Excelsior Apartments on Roxas Boulevard. These conflicting versions of the parties emphasize, in resolving the paternity of JANICE, the role of the blood grouping tests conducted by the NBI and which resulted in the negative finding that in a union with ARLENE, JAO could not be the father of JANICE. We cannot sustain the conclusion of the trial court that the NBI is not in a position to determine with mathematical precision the issue of parentage by blood grouping test, considering the rulings of this Court . . . where the blood grouping tests of the NBI were admitted; especially where, in the latter case, it was Dr. Lorenzo Sunico who conducted the test and it appears that in the present case, the same Dr. Sunico approved the findings and report . . . In Co Tao vs. Court of Appeals, 101 Phil. 188, the Supreme Court had given weight to the findings of the NBI in its blood grouping test. Thus, it cannot be gainsaid that the competency of the NBI to conduct blood grouping tests has been recognized as early as the 1950's. The views of the Court on blood grouping tests may be stated as follows: "Paternity Science has demonstrated that by the analysis of blood samples of the mother, the child, and the alleged father, it can be established conclusively that the man is not the father of the child. But group blood testing

cannot show that a man is the father of a particular child, but at least can show only a possibility that he is. Statutes in many states, and courts in others, have recognized the value and the limitations of such tests. Some of the decisions have recognized the conclusive presumption of non-paternity where the results of the test, made in the prescribed manner, show the impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court may scientifically, be completely accurate, and intolerable results avoided, such as have occurred where the finding is allowed to turn on oral testimony conflicting with the results of the test. "The findings of such blood tests are not admissible to prove the fact of paternity as they show only a possibility that the alleged father or any one of many others with the same blood type may have been the father of the child. But the Uniform Act recognizes that the tests may have some probative value to establish paternity where the blood type and the combination in the child is shown to be rare, in which case the judge is given discretion to let it in" (I Jones on Evidence, 5th Ed., pp. 193-194). "In one specific biological trait, viz, blood groups, scientific opinion is now in accord in accepting the fact that there is a causative relation between the trait of the progenitor and the trait of the progeny. In other words, the blood composition of a child may be some evidence as to the child's paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively i.e. to evidence that a particular man F is not the father of a particular child C." (I Wigmore on Evidence 3rd Ed., pp. 610-611). In a last ditch effort to bar the admissibility and competency of the blood test, JANICE claims that probative value was given to blood tests only in cases where they tended to establish paternity; and that there has been no case where the blood test was invoked to establish non-paternity, thereby implying that blood tests have probative value only when the result is a possible affirmative and not when in the negative. This contention is fallacious and must be rejected. To sustain her contention, in effect, would be recognizing only the possible affirmative finding but not the blood grouping test itself for if the result were negative, the test is regarded worthless. Indeed, this is illogical . . . As an admitted test, it is admissible in subsequent similar proceedings whether the result be in the negative or in the affirmative . . ." The Court of Appeals also found other facts that ran contrary to petitioner's contention that JAO's actions before and after JANICE was born were tantamount to recognition. Said the respondent appellate court: cdll "On the contrary, after JANICE was born, JAO did not recognize her as his own. In fact, he filed a petition that his name as father of JANICE in the latter's certificate of live birth be deleted, evidencing his repudiation, rather than recognition. The mere acts of JAO in cohabiting with ARLENE, the attention given to her during her pregnancy and the financial assistance extended to her cannot overcome the result of the blood grouping test. These acts of JAO cannot be evaluated as recognizing the unborn JANICE as his own as the possession of such status cannot be founded on conjectures and presumptions, especially so that, We have earlier said, JAO refused to acknowledge JANICE after the latter's birth. JAO cannot be compelled to recognize JANICE based on paragraph 2 of Article 283 in relation to Article 289 of the New Civil Code which provides: "When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter." Nor can there be compulsory recognition under paragraphs 3 or 4 of said article which states: "(3) (4) When the child was conceived during the time when the mother cohabited with the supposed father; When the child has in his favor any evidence or proof that the defendant is his father."

As aptly appreciated by the court below, JANICE could have been conceived from November 20, 1967 to December 4, 1967. Indeed, ARLENE claims that her first sexual intercourse with JAO was on November 30, 1967 while the latter avers it was one week after January 18, 1968. However, to satisfy paragraph 3 as above-quoted, JANICE must have been conceived when ARLENE and JAO started to cohabit with one another. Since ARLENE herself testified that their

cohabitation started only after December 16, 1967, then it cannot be gainsaid that JANICE was not conceived during this cohabitation. Hence, no recognition will lie. Necessarily, recognition cannot be had under paragraph 4 as JANICE has no other evidence or proof of her alleged paternity. Apart from these, there is the claim of JAO that, at the critical time of conception, ARLENE had carnal knowledge with two other men: "Oying" Fernandez and Melvin Yabut, which was not even rebutted; and considering that it was Melvin Yabut, who introduced ARLENE to JAO at the Bayside Club. Moreover, the testimony of ARLENE is not wholly reliable. When the trial court said that "the Court is further convinced of plaintiff's cause by ARLENE's manner of testifying in a most straight-forward and candid manner," the fact that ARLENE was admittedly a movie actress may have been overlooked so that not even the trial court could detect, by her acts, whether she was lying or not. "WHEREFORE, the judgment appealed from is hereby set aside and a new one entered dismissing plaintiff-appellee's complaint. Without pronouncement as to costs. SO ORDERED." The petitioner now brings before this Court the issue of admissibility and conclusiveness of the result of blood grouping tests to prove non-paternity. In this jurisdiction, the result of blood tests, among other evidence, to affirm paternity was dealt with in Co Tao v. Court of Appeals, 2 an action for declaration of filiation, support and damages. In said case, the NBI expert's report of the blood tests stated that "from their blood groups and types, the defendant Co Tao is a possible father of the child." From this statement, the defendant contended that the child must have been the child of another man. The Court noted: "For obvious reasons, the NBI expert cannot give assurance that the appellant was the father of the child; he can only give his opinion that he is a `possible father.' This possibility, coupled with the other facts and circumstances brought out during the trial, tends to definitely establish that appellant Co Tao is the father of the child Manuel." 3 Where the issue is admissibility and conclusiveness of blood grouping tests to disprove paternity, rulings have been much more definite in their conclusions. For the past three decades, the use of blood typing in cases of disputed parentage has already become an important legal procedure. There is now almost universal scientific agreement that blood grouping tests are conclusive as to non-paternity, although inconclusive as to paternity that is, the fact that the blood type of the child is a possible product of the mother and alleged father does not conclusively prove that the child is born by such parents; but, if the blood type of the child is not the possible blood type when the blood of the mother and that of the alleged father are crossmatched, then the child cannot possibly be that of the alleged father. 4 In jurisdictions like the United States, the admissibility of blood tests results to prove non-paternity has already been passed upon in several cases. In Gilpin v. Gilpin 5 the positive results of blood tests excluding paternity, in a case in which it was shown that proper safeguards were drawn around the testing procedures, were recognized as final on the question of paternity. In Cuneo v. Cuneo 6 evidence of non-paternity consisting of the result of blood grouping tests was admitted despite a finding that the alleged father had cohabited with the mother within the period of gestation. The Court said that the competent medical testimony was overwhelmingly in favor of the plaintiff, and to reject such testimony would be tantamount to rejecting scientific fact. Courts, it was stated, should apply the results of science when competently obtained in aid of situations presented, since to reject said result was to deny progress. 7 This ruling was also echoed in Clark v. Rysedorph, 8 a filiation proceeding where an uncontradicted blood grouping test evidence, excluding paternity, was held conclusive. 9 Legislation expressly recognizing the use of blood tests is also in force in several states. 10 Tolentino, 11 affirms this rule on blood tests as proof of non-paternity, thus "Medical science has shown that there are four types of blood in man which can be transmitted through heredity. Although the presence of the same type of blood in two persons does not indicate that one was begotten by the other, yet the fact that they are of different types will indicate the impossibility of one being the child of the other. Thus, when the supposed father and the alleged child are not in the same blood group, they cannot be father and

child by consanguinity. The Courts of Europe today regard a blood test exclusion as an unanswerable and indisputable proof of non-paternity." 12 Moreover, "The cohabitation between the mother and the supposed father cannot be a ground for compulsory recognition if such cohabitation could not have produced the conception of the child. This would be the case, for instance, if the cohabitation took place outside of the period of conception of the child. Likewise, if it can be proved by blood tests that the child and the supposed father belong to different blood groups, the cohabitation by itself cannot be a ground for recognition." 13 Petitioner has attempted to discredit the result of the blood grouping tests in the instant case by impugning the qualifications of the NBI personnel who performed the tests and the conduct of the tests themselves. Her allegations, in this regard, appear to be without merit. The NBI's forensic chemist who conducted the tests is also a serologist, and has had extensive practice in this area for several years. The blood tests were conducted six (6) times using two (2) scientifically recognized blood grouping systems, the MN Test and the ABO System, 14 under witness and supervision. 15 Even the allegation that Janice was too young at five months to have been a proper subject for accurate blood tests must fall, since nearly two years after the first blood test, she, represented by her mother, declined to undergo the same blood test to prove or disprove their allegations, even as Jao was willing to undergo such a test again. 16 Accordingly, the Court affirms the decision of the Court of Appeals and holds that the result of the blood grouping tests involved in the case at bar, are admissible and conclusive on the non-paternity of respondent Jao vis-a-vis petitioner Janice. No evidence has been presented showing any defect in the testing methods employed or failure to provide adequate safeguards for the proper conduct of the tests. The result of such tests is to be accepted therefore as accurately reflecting a scientific fact. prLL In view of the findings of fact made by the Court of Appeals, as heretofore quoted, which are binding on this Court, we do not find it necessary to further pass upon the issue of recognition raised by petitioner. WHEREFORE, the instant petition for review is hereby denied. Without pronouncement as to costs. SO ORDERED. Yap, Melencio-Herrera, Paras and Sarmiento, JJ., concur.

G.R. No. L-9194. April 25, 1957.] CO TAO, petitioner, vs. THE COURT OF APPEALS and LUCITA VALLEJO, for herself and as mother and natural guardian of MANUEL Co, respondents. C. F. Mata & Associates for petitioner. Felipe P. Pagkalungan for respondents. SYLLABUS 1. MORAL DAMAGES; RIGHT TO RECOVER DAMAGES IN AN ACTION FOR SUPPORT. Even if moral damages, as provided for in the new Civil Code, were not allowed at the time the right of action for support accrued in the case at bar, still the provisions of the new code may have a retroactive effect, because such provisions do not prejudice or

impair any right of the appellant vested or acquired under the old legislation (Art. 2252, New Civil Code). The appellant did not have a vested or acquired right not to be held liable or responsible for moral damages, either by statute or judicial pronouncement. 2. PLEADING AND PRACTICE; JUDGMENT; JUDGMENT RENDERED BY JUDGE DIFFERENT FROM ONE WHO HEARD THE CASE IS NOT ERRONEOUS. The fact that the Judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous. DECISION PADILLA, J p: Appeal by certiorari under Rule 46 from a judgment of the Court of Appeals which affirms that of the Court of First Instance of Manila (1) Declarando qua el nio Manuel Co, hijo natural de la demandante Lucita Vallejo, es hijo ilegitimo del demandado Co Tao habido con ella. (2) Condenando al demandado Co Tao a pagar a la demandante Lucita Vallejo;

(a) La cantidad de P320, por la manutencion de su hijo Manuel Co desde el mes de Mayo de 1951, en que se presento la demanda, hasta el Diciembre de 1953, a razon de P10 mensuales; y mensualmente la cantidad de P10 para la manutencion de dicho Manuel Co, a partir desde el mes de Enero de 1954 hasta que el mismo llegue a su mayoria de edad; (b) (c) (d) (e) La cantidad de P200, por las deudas que ella habia contraido; La cantidad de P500, como daos morales; La cantidad de P200, para honorarios da abogado; y Las costas del juicio. (civil case No. 13738.)

The first, second, third, fourth and fifth errors claimed to have been committed by the Court of Appeals involve the credibility of witnesses, and in effect dispute the findings of fact of the Court of Appeals. This Court cannot review such findings in this proceedings. The Court of Appeals found It appears that in January, 1947, plaintiff Lucita Vallejo, a young girl of 18, native of Camiling, Tarlac, entered the services, as maid and laundress, with a monthly salary of P30, of one Co Bun Kim, who resided in house No. 733, Teodora Alonzo Street, Manila. There lived also defendant Co Tao alias Jose Co, a cousin and trusted employee of Co Bun Kim in a store and Chinese pharmacy under the same house. Defendant was then receiving a monthly salary of P40 and his wife and three children were then out of the Islands. Defendant Co Tao courted Lucita Vallejo and promised to marry her. And believing that he was single, Lucita accepted him and in no time they were having carnal relations in the said house almost every day, as must be expected, she became pregnant. To avoid scandal, the defendant brought her to the house of her uncle, Candido Vallejo, Act No. 389, Prudencia street, Tondo, Manila, requesting said uncle to permit Lucita to stay in the said house until she delivered and promising to pay the rentals thereof. At 3:00 o'clock in the morning of August 13, 1943, assisted by a midwife, Felisa Galang, who was summoned by Candido Vallejo, Lucita Vallejo gave birth to a baby boy. At 3:00 o'clock, same morning Candido accompanied Felisa to the pharmacy of Co Bun Kim to inform the defendant Co Tao of the advent of his offspring. Defendant gave Felisa the sum of P20 for the delivery and asked her what would she charge if she continued rendering service as midwife for 20 days more, to which Felisa fixed the amount of P50 for the whole service. The defendant, in the last day of her service, paid Felisa, through Lucita, the balance of P30. It further appears that after the parturition, everytime he (Co Tao) went out of the store to deposit Co Bun Kim's money in the bank, the defendant asked the

driver, Jose Nabong, of Co Bun Kim, to pass by Candido's house to see Lucita and his child. On October 24, 1948, the child was baptized with the name of Manuel Co, in the Catholic church of Espiritu Santo, Rizal Avenue, Manila, acting as sponsors thereof, upon the request of defendant himself, the driver Jose Nabong and his wife (Exhibit C). After the baptism, Lucita continued living in his uncle's house where defendant continued also visiting her and his child, sleeping with her every night, having marital life with her throughout, and providing her with money and food. In October, 1949, however, the child fell sick, and upon suggestion of defendant Co Tao, Lucita and her child went to live with her parents in Camiling. Defendant's wife and children had arrived in the meanwhile, and defendant did not write or send money to the plaintiff any more. So plaintiff was forced to work, washing clothes and planting palay for others. Plaintiff became also ill and she had been borrowing money from friends, until she decided to come to Manila and see defendant Co Tao who refused to give her any help. Plaintiff engaged the services of a lawyer to file the present action. Defendant Co Tao's defense followed the usual pattern of irresponsible men of passing the buck. He claims that under the service of Co Bun Kim, there were other men such as Jose Nabong (the driver), a certain Filipino and Chua Chiam with whom the plaintiff, Lucita Vallejo, used to go out, after her working hours; and that Lucita was also visited often times by other Filipinos who used to wait for her and with whom she also went out, and such suspicious conduct of the plaintiff was even protested to by her master, Co Bun Kim. Defendant admitted, however, that she had carnal relations with Lucita for three times only and for such acts she often approached him for money; that after the lapse of months, he found that she had already received from him the sum of P1,400.00 besides some pieces of jewelries, consisting of a ring and a watch. He alleged finally that either for Lucita's frequent outings with several men, or for her carnal relations with him (defendant), she found herself in the family way and in June, 1948, she quit her work, and went to live with her uncle; that during the christening in the Espiritu Santo Church, he was not present; that plaintiff filed a complaint for rape in the City Fiscal's Office of Manila, but the same was dismissed for lack of evidence. Upon the petition of the defendant, the trial court ordered the experts of the National Bureau of Investigation (NBI) to test the blood of the defendant Co Tao and the child Manuel Co, in order to determine whether the former could be the father of the latter. On October 18, 1951, the NBI expert rendered a report of the analysis made, with the following findings: "From their blood groups and types, the defendant, Co Tao, is a possible father of the child" (Exhibit B). In upholding the cause for the plaintiff-appellee, the trial court declared that the minor Manuel Co is the illegitimate child of the defendant Co Tao, and gave much weight to the testimony of Jose K. Obando, Chemist of the NBI and awarded the damages and attorney's fees mentioned heretofore. After a careful survey of the evidence of record, We hold that the judgment appealed from should be sustained. As far as credibility of the witnesses is concerned, We find no reason at all for disturbing the findings of the trial court to the effect that the testimony of the plaintiffappellee and her witnesses deserves more credence than that of the defendant-appellant. The following disquisitions of the trial court are fully supported by the facts of record: "No solo el informe del experto de la NBI convence al Juzgado que el demandado Co Tao es el padre del nio Manuel Co, hijo de Lucita Vallejo sino ademas la misma conducta observada por dicho demandado y los actos ejecutados por el mismo antes, durante y despues del alumbramiento de Lucita, demuestran a todas luces que el mismo demandado estaba convencido que el hijo que Lucita Vallejo trajo el mundo era suyo, fruto de vida marital que habia llevado con ella. Cuando Lucita entro servicio de Co Bun Kim, ella no contaba mas que unos 18 aos de edad, y como era una campesina que nacio y crecio en la sementera, era humilde y tmida por naturaleza. A esa edad y con tal caracter, mas su estado de simple criada, Lucita era una facil presa del demandado, un hombre ducho, y se puede decir, experto en lances amorosos, pues ya tena entonces 39 aos encima, mas de doble de la edad de Lucita, sobre quien ejercia cierto grado da influencia moral, por ser el primo y empleado de confianza del amo de aquella. Este hecho, unido a la circunstancia da que la esposa e hijos del demandado se encontraban en China a la sazon,

circunstancia completamente vedada a Lucita, reavivo los planes de conquista del demandado y precipito la caida de Lucita. La solicitud con que Co Tao demostro al pedir a Candido Vallejo, a quien el llamaba entonces tio, que permitiera a Lucita trasladarse a su casa, pagando el los alquileres de la misma, por ser dicha casa mas fresca que la de Co Bun Kim; el hecho de haber el mismo Co Tao pagado los servicios de la comadrona que asistio a Lucita en el parto y atendio el cuidado de la misma y de su hijo por cierto periodo; el hecho de haber el mismo Co Tao solicitado a Jose Nabong y a su esposa para ser los padrinos de bautismo del hijo de Lucita y a quienes el llego a llamar compadres; el hecho de haber el mismo demandado estado sosteniendo y sufragando los gastos de subsistencia y alojamiento de Lucita y de su hijo durante la estancia de estos en la casa de Candido; el hecho de haber el mismo demandado instado a Lucita que tomara vacacion en Camiling cuando su hijo se cayo enfermo en dicha casa de Candido; el hecho admitido por el mismo demandado, de haber el, por las tres unicas veces en que en gozo de aquella mujer el primer de su juventud, dado a ella mas de P1,400, mas las joyas y prendas que haba regalado, a saber: una cama de P70 y una lampara de P25; todos estos hechos demuestran que el mismo demandado creia que la mujer humilde y tmida que haba caido en sus brazos en momentos de debilidad, vala algo mas que lo que vale una mujer impudica que vende su cario, su cuerpo y alma al primero que se presente. La conclusion, por tanto, del Juzgado es que cuando el demandado Co Tao se unio maritalmente con Lucita Vallejo, esta era una joven soltera y doncella, y, como fruto de aquellas relaciones, nacio un nio que fue bautizado con el nombre de Manuel Co, que es hijo ilegitimo de Co Tao, por estar este casado con otra mujer, cuando aquel fue concebido por su madre." The appellant alleges that the plaintiff had been having carnal knowledge with him for 3 times, by selling herself; that she had been outing with different men, mentioning even his compadre Jose Nabong, among them; that Manuel Co must have been another's child because the expert of the NBI was only able to say that he (appellant) is a "possible father" of the child; that he could not have been his father, because everytime he had carnal act with the plaintiff, he used a strong french umbrella; and that the plaintiff had even accused him with rape at the fiscal's office but the complaint was dismissed; - thereby concluding that the idea of rape is incompatible with the concept of love. We find these allegations to be flimsy and shallow subterfuges of an irresponsible father. For obvious reasons, the NBI expert cannot give assurance that the appellant was the father of the child; he can only give his opinion that he is a "possible father". This possibility, coupled with the other facts and circumstances brought out during the trial, tends to definitely establish that appellant Co Tao is the father of the child Manuel. While it is admitted that the complaint for rape filed by the appellee was dismissed by the Fiscal, this fact alone should not deprive the appellee of the right which she seeks to be protected in the instant case. With the attitude of the appellant who, after satiating his lustful desires and begetting a child from her, and after abandoning them completely, the appellee must have become desperate and went to a lawyer who tried to enlist the aid of the Fiscal's Office. This notwithstanding, as a whole, the story given by the plaintiff-appellee and her witnesses is deserving of credence and belief. The fact that the Judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous. The sixth error assigned raises a question of law. Petitioner contends that as the acts alleged in the complaint filed on May 2, 1951 took place in 1947 and 1948 and the new Civil Code took effect on 30 August 1950, article 2217 thereof, which provides for moral damages, should not have been applied retroactively, The Court of Appeals held . . . The right of action for support as embodied in Article 298 of the new Civil Code accrues or becomes demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date it is extra-judicially demanded. In the case at bar, therefore, the action for support accrued from the filing of the complaint, which was May 2, 1951, long after the new Civil Code was in force and effect. Even granting for the purpose of argument that the moral damages as contemplated by the new Civil Code, did not exist at the time the action accrued in this case, still We believe and so hold, that these provisions of the said Code may have a retroactive effect, because such provisions do not prejudice or impair any vested or acquired right of the

appellant in accordance with the old legislation (Art. 2252, New Civil Code). Moreover, "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not impair or prejudice any vested or acquired right, of the same origin" (Art 2253, New Civil Code). 1 Evidently, appellant did not have a vested right or acquired right not to be held liable or responsible for moral damages, either by judicial pronouncements or by provision of law. By the same token, therefore, defendant-appellant is also liable to plaintiffappellee for attorney's fees, under paragraphs (1), (2), (5), (6) and (11), Article 2208 of the New Civil Code. The damages fixed by the trial court are reasonable and conscionable. The judgment under review is affirmed, with costs against the petitioner. Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur. Footnotes 1. Ayson vs. Arambulo, G. R. Nos. L-6501 and L-6599, 31 May 1955; Velayo vs. Shell Co., of the Phil. Islands, 100 Phil., 186, 54 Off. Gaz., 68.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.