PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

VALERIANO AMESTUZO y VIAS, FEDERICO AMPATIN y SABUSAB, ALBINO BAGAS y DALUHATAN and DIASCORO VIAS y ODAL, accused, ALBINO BAGAS y DALUHATAN, accused-appellant. DECISION KAPUNAN, J.: One of the cardinal rules of criminal law is that the guilt of the accused must be proven beyond reasonable doubt by the prosecution. If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. [1] In the present case, there being a doubt as to the guilt of accused-appellant, the constitutional presumption of innocence stands and he must be acquitted. This is an appeal from the decision dated November 28, 1991 of the Regional Trial Court, Branch 131, Kalookan City in Criminal Case No. 36930 finding accused-appellant Albino Bagas guilty of tAhe complex crime of robbery in band with double rape and sentencing him accordingly. At about nine-thirty in the evening of February 22, 1991, a group of eight armed men wearing masks entered the house of complainant Perlita delos Santos Lacsamana at Sacred Heart Village, Kalookan City and robbed the said premises of valuables in the total amount of P728,000.00. In the course of the robbery, two members of the gang raped Maria Fe Catanyag and Estrella Rolago, niece and employee, respectively of complainant Lacsamana. On February 27, 1991, accused-appellant Albino Bagas, Valeriano Amestuzo, Federico Ampatin, Dioscoro Vias and four other accused, whose identities are unknown and who are still at large up to the present, were charged with the complex crime of robbery in band with double rape under the following information: That on or about the 22nd day of February 1991, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, all armed with guns, with intent of gain, and by means of violence, threats and intimidation upon the person of Perlita delos Santos de Lacsamana, did then and there willfully, unlawfully and feloniously take, rob and carry away the following, to wit: Cash money in the amount of -----------P128,000.00 Jewelries worth ------------------------- 600,000.00 Total ------------------------------P728,000.00 all belonging to said complainant, to the damage and prejudice of the latter, in the aforesaid amount of P728,000.00; and on the occasion thereof, said accused conspiring together and mutually helping one another likewise by means of force and violence and with the use of their weapons, willfully, unlawfully and feloniously have sexual intercourse with Fe Catanyag y Cabaero and Estrella Rolago y Madrid both residents of said house, against their will and without their consent. Contrary to law. [2]

kitchen and the garage are found. In the first floor of the main house is the masters bedroom, and on the second floor is the guestroom (pp. 6-8, TSN, July 2, 1991). While at the masters bedroom on that particular even ing at about 9:30 p.m., Lacsamana overheard her maid, cried aray, aray, aray. She immediately went out but as soon as she opened the door of her room, two (2) men (one of them is accused Amestuzo while the other one remains unarrested) poked their guns on her. At gun point, Lacsamana, Lea, Edwin, and Belen were forcibly brought to the second floor of the main house. Thereat, Lacsamana saw four (4) other male persons ransacking her premises. The said male persons, armed with guns and knives, tied her including all her employees and members of her household with the use of torn electric fan wire and television wire. After that they were told to lie down with face against the floor but a minute later she was asked where the masters bedroom is and when she answered that it is on the ground floor, she was again forcefully brought down. On her way down, she saw, aside from the six (6) male persons who were inside her house, two (2) other male persons (later identified as accused Ampatin and Vias) outside the main house but within the compound (pp. 8-10, TSN, July 2, 1991). Once they were already inside the masters bedroom, the six (6 ) armed male persons (two (2) of them were Amestuzo and Bagas) ransacked the same and took all her monies, jewelries, shoes, jackets, colored television and imported wine. Likewise, aforesaid accused ate the foods found by them in their kitchen. (pp.10-11, 13, TSN, July 2, 1991). After ransacking the room, two (2) of the accused, one (1) of them is Amestuzo, brought Estrella Rolago inside her room and afterwhich she was in turn brought to the guest room. Thereat she heard Rolago pleading Maawa kayo, maawa kayo then after ten (10) minutes, Rolago, with bloodstain on her shorts, was brought in back to the guest room (pp. 13-14, TSN, July 2, 1991). Rolago was raped by Amestuzo (pp. 17-20, TSN, July 3, 1991). Almost simultaneously, Bagas likewise sexually assaulted and ravished Fe Catanyag (pp. 38-40, TSN, July 3, 1991; pp. 2-5, TSN, July 4, 1991). Thereafter, Bagas shouted at her to stand up and although she was experiencing pain on her private part which was bleeding at that time, she stood up, dressed up and proceeded to the servants quarter (pp. 4-5, TSN, July 4, 1991). Thereafter, Mrs, Lacsamana shouted for help. Sensing that the accused had already left, they locked the door. With the help of her employer and co-employees, more particularly Nanding, she and Rolago were brought the nearby Neopolitan Clinic and from there they proceeded to the St. Lukes Hospital where Dr. Brion treated Catanyag and Rolago (pp. 6-7, TSN, July 4, 1991; pp. 19-20, TSN, July 3, 1991). [3] On November 28, 1991, the trial court rendered judgment convicting all the accused. The dispositive portion of the trial courts decision reads as follows: WHEREFORE, this Court renders judgment CONVICTING accused VALERIANO AMESTUZO y VIAS, FEDERICO AMPATIN y SABUSAB, ALBINO BAGAS y DALUHATAN, DIOSCORO VINAS y ODAL of the complex crime of ROBBERY IN BAND WITH DOUBLE RAPE and sentences each of them to suffer imprisonment of DOUBLE RECLUSION PERPETUA and orders them to jointly and severally indemnify to complainant Perlita delos Santos de Lacsamana the amount of P800,000.00 representing the value of monies and properties taken forcibly away by the accused and to indemnify, jointly and severally, Ma. Fe Catanyag and Estrella Rolago the amount of FIFTY THOUSAND (P50,000.00) PESOS each. SO ORDERED. [4]

On arraignment, all the accused including accused-appellant Albino Bagas pleaded Not Guilty to the charge. Thereafter, trial ensued. The facts as found by the trial court and as presented in the Solicitor Generals Brief are as follows: The incident happened at the compound of Block 5, Road 32, Phase II of the Sacred Heart Village in Kalookan City (pp. 6-7, TSN, July 2, 1991). In the compound are the main house where Mrs. Perlita Lacsamana resides and another house which serves as the office and quarters for Lacsamanas employees. In between of these two houses is about three (3) meter-wide area where the dirty

From the judgment of conviction by the trial court, only herein accused-appellant Bagas appealed to this Court. His appeal is based mainly on (1) the alleged deprivation of his constitutional right to be represented by counsel during his identification, (2) the trial courts error in giving due weight to the open court identification of him which was based on a suggestive and irregular out-of-court identification, and (3) the trial courts improper rejection of his defense of alibi.

Accused-appellant maintains that from the time he was arrested until he was presented to the complainants for identification, he was deprived of the benefit of counsel. He narrates the circumstances surrounding his arrest and investigation as follows: On February 26, 1991, four days after the alleged incident, a group of policemen together with accused Federico Ampatin, who was then a suspect, went to the handicrafts factory in NIA Road, Pasay City where accused-appellant was working as a stay-in shell cutter. They were looking for a certain Mario and searched the first and second floors of the building. Failing to find said Mario, the police hit Ampatin at the back of his neck with a gun and uttered, Niloloko lang yata tayo ng taong ito and Magturo ka ng tao kahit sino. It was at this juncture that Ampatin pointed to accused-appellant Bagas as he was the first person Ampatin chanced to look upon. Thereafter, he was arrested and made to board the police vehicle together with accused Ampatin. While on board the jeep, accused Ampatin told him that he (Ampatin) committed an error in pointing him out to the police, namumukaan lang niya ako, napagkamalian lang niya ako. They were brought to the Urduja Police Station in Kalookan City and placed under detention together with the other two accused, Amestuzo and Vias. When the complainants arrived, accused-appellant was brought out, instructed to turn to the left and then to the right and he was asked to talk. Complainant Lacsamana asked him if he knew accused Amestuzo and Vias. Accused-appellant answered in the negative. The policemen told the complainants that accused-appellant was one of the suspects. This incited complainants to an emotional frenzy, kicking and hitting him. They only stopped when one of the policemen intervened. [5] Accused-appellant alleges that the trial court committed a serious error when it deprived him of his constitutional right to be represented by a lawyer during his investigation. His singular presentation to the complainants for identification without the benefit of counsel, accused-appellant avers, is a flagrant violation of the constitutional prerogative to be assisted by counsel to which he was entitled from the moment he was arrested by the police and placed on detention. He maintains that the identification was a critical stage of prosecution at which he was as much entitled to the aid of counsel as during the trial proper. The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the 1987 Constitution, or the so-called Miranda rights, may be invoked only by a person while he is under custodial investigation. [6] Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. [7] Police line-up is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. [8] This was settled in the case of People vs. Lamsing [9] and in the more recent case of People vs. Salvatierra. [10] The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the accused during identification in a police line-up because it is not part of the custodial investigation process. This is because during a police line-up, the process has not yet shifted from the investigatory to the accusatory [11] and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of the line-up. [12] Hence, herein accused-appellant could not yet invoke his right to counsel when he was presented for identification by the complainants because the same was not yet part of the

investigation process. Moreover, there was no showing that during his identification by the complainants, the police investigators sought to elicit any admission or confession from accused-appellant. In fact, records show that the police did not at all talk to accused-appellant when he was presented before the complainants. The alleged infringement of the constitutional rights of the accused while under custodial investigation is relevant and material only to cases in which an extra-judicial admission or confession extracted from the accused becomes the basis of his conviction. [13] In the present case, there is no such confession or extra-judicial admission. Accused-appellant also makes much ado about the manner in which he was presented to the complainants for identification. It is alleged that the identification was irregular as he was not placed in a police line-up and instead, made to stand before the complainants alone.
Again, the contention has no merit. As aptly pointed out by the Solicitor General, there is no law requiring a police line-up as essential to a proper identification. [14] The fact that he was brought out of the detention cell alone and was made to stand before the accused by himself and unaccompanied by any other suspects or persons does not detract from the validity of the identification process. However, we agree that complainants out-of-court identification of accused-appellant was seriously flawed as to preclude its admissibility. In resolving the admissibility and reliability of out-of-court identifications, we have applied the totality of circumstances test enunciated in the case of People vs. Teehankee [15] which lists the following factors: xxx (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification process. The out-of-court identification of herein accused-appellant by complainants in the police station appears to have been improperly suggestive. Even before complainants had the opportunity to view accused-appellant face-to-face when he was brought our of the detention cell to be presented to them for identification, the police made an announcement that he was one of the suspects in the crime and that he was the one pointed to by accused Ampatin as one of culprits. According to accused-appellant Q: When the complaining witnesses arrived at the Urduja precinct at that time you mentioned, were you immediately kicked by them? A: No, sir. Q: How long a time from the time they arrived at the Urduja precinct to the time that you were kicked by them? A: Around 10 minutes, sir. Q: And how were you identified or recognized by the complaining witnesses? A: Because upon arrival at the Urduja police station, the policemen announced that I am one of the suspects in this case and thereafter, the complainants started kicking me, sir. Q: So that the announcement of the policemen that you were one of the suspects came first then they started kicking you? A: Yes, sir. [16] It is, thus, clear that the identification was practically suggested by the police themselves when they announced to the complainants that accused-appellant was the person pointed to by Ampatin. The fact that this information came to the knowledge of the complainants prior to their identification based on their own recall of the incident detracts from the spontaneity of their subsequent identification and therefore, its objectivity.

In a similar case, People vs. Cruz, [17] accused Cruz, a suspected co-conspirator in a case of robbery with homicide, was presented to the witnesses alone and made to walk and turn around in their presence. Then the police pointed out to the accused and several others as the persons suspected by the police as the perpetrators of the robbery committed in Goso-on. The Court, in rejecting the subsequent identification made by the witnesses, reasoned that: The manner by which (witnesses) were made to identify the accused at the police station was pointedly suggestive, generated confidence where there was none, activated visual imagination, and all told, subverted their reliability as eyewitnesses. In Tuason vs. Court of Appeals, [18] an NBI agent first pointed the accused to the witnesses after which the latter identified the accused. The Court held that such identification was doubtful as the same was not spontaneous and independent as there was improper suggestion coming from the NBI agent. We ruled that a show-up or the presentation of a single suspect to a witness for purposes of identification is seriously flawed as it constitutes the most grossly suggestive identification procedure now or ever used by the police. Likewise in People vs. Meneses, [19] where the accused was presented to the lone witness as the suspect in the crime inside the police investigators office, the Court pronounced that although the

In this case, we find accused-appellants alibi sufficiently corroborated by the testimonies of his co-workers and his employer who categorically stated that they were with accusedappellant on the night of the crime. There was no evidence that these witnesses were related to accused-appellant; neither was it shown that they had any personal interest nor motive in the case. As impartial credible witnesses, their testimonies cannot be doubted absent a clear showing of undue bias or prejudice, or convincing proof of the impropriety of their motives to testify for the accused. [26] Accused-appellant vehemently argues that it was physically impossible for him to have been present at the scene of the crime or its immediate vicinity at the time of its commission. First, the crime was committed around 9:30 in the evening of February 22, 1991. Accused-appellant, as well as two other witnesses, testified that he worked in the factory until 10 p.m. that night and went to sleep after. Second, there was only one door in the factory which was the only means of entrance and exit and this door was kept locked by witness Ocasla after ten p.m. that night. Ocasla was the only person who had a key to this door. Third, the windows on the first floor of the building consisted of hollow blocks with small holes which do not allow passage. The second and third floor windows were 14 and 21 feet high, respectively. There was no possible means of exit through these windows without accused-appellant getting hurt or injured. Lastly, the crime took place in Kalookan City around 9:30 p.m. while accused-appellants place of work was in Pasay City. Assuming for the sake of argument that he was able to leave the premises after 10 p.m. that night, by the time he reaches Kalookan, the crime would have already been completed.
The Court has held that where an accused sets up alibi as a defense, the courts should not be too readily disposed to dismiss the same, for, taken in the light of all the evidence on record, it may be sufficient to reverse the outcome of the case as found by the trial court and thereby rightly set the accused free. [27] Though inherently weak as a defense, alibi in the present case has been sufficiently established by corroborative testimonies of credible witnesses and by evidence of physical impossibility of accused-appellants presence at the scene of the crime. Alibi, therefore, should have been properly appreciated in accused-apellants favor. Another significant evidence which the trial court failed to consider is the voluntary confession of accused Federico Ampatin absolving accused-appellant Bagas of the crime. Ampatins testimony was clear and categorical: Q: When you reached that house where Bagas was working what happened? A: All the persons were ordered to lie down, sir. Q: And what did they do to you? A: Immediately I was instructed to follow the policemen who went upstairs, sir. Q: Why did that policemen go upstairs? A: He was looking for Mario, sir. Q: Upon reaching the second floor, what happened there? A: They did not see any person there, sir. Q: What followed next? A: P/O Melmida pistol-whipped me, sir. Q: Where were you hit? A: On the left portion of my neck, sir. Q: Did Melmida utter any remark while hitting you? A: He told me to point to somebody else, sir, saying these words, Magturo ka ng tao kahit sino.

police officer did not literally point to the accused as in the Tuason case, the confrontation and the identification proceeding therefrom was objectionable. The Court also finds that the trial court erroneously rejected accused-appellants alibi. Accused-appellant clearly and positively testified that at the time of the crime, February 22, 1991, he was working as a shell cutter in a factory in Pasay City where he was a stay-in employee. He rendered overtime work until ten oclock in the evening that night because they had to rush work. After ten p.m., he, together with his stay-in co-workers, went to sleep. Four days later, he was arrested when accused Ampatin randomly pointed him out to the police. [20] This testimony of accused-appellant was materially corroborated by two of his coemployees who were with him on the night of the incident. Rodolfo Rosales, his coworker, testified that he worked overtime until 10 p.m. in the Pasay City factory together with accused-appellant. Upon finishing work, they went to sleep in their quarters on the second floor of the building because they were stay-in employees of the factory. [21] Another co-worker of accused-appellant, Clemente Gahelan, was similarly offered as a witness to corroborate Rosales testimony and his testimony was duly admitted by the prosecution. [22] The employer of accused-appellant Rolando Ocasla, likewise testified that on the night of the incident, accused-appellant worked overtime in his factory until 10 p.m. After 10 p.m., he personally locked the door of the premises which was the only means of ingress and engress, as he always does because it was his means of preventing any pilferage of materials. He was the only one who had keys to said door. Around five a.m. of the following day, he woke up accused-appellant and told him to drink his coffee. He also declared that there was nothing unusual about accused-appellants behavior either, before, during or after the date of the alleged crime. [23] The defense of alibi or denial assumes significance or strength when it is amply corroborated by a credible witness. [24] And to be given weight, accused must prove not only that he was somewhere else when the crime was committed but that he was so far away that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission. [25]

Q: So what did you do when you were ordered to point to anyone? A: Because at that time I cannot yet stand up he forced me to go downstairs, sir. Q: Were you able to reached (sic) the ground floor? A: Yes, sir. Q: And what happened there? A: I pointed to Albino Bagas, sir, because he was the only first person I saw there at the ground floor while his companions were on the other side because I dont want to get hurt anymore, Your Honor. Court: When you see (sic) Bagas was lying face down at the tme you pointed to him? A: Yes, your Honor. Court: You did not bother to look at his face? A: No more Your Honor because I was in a hurry to point to somebody because I was afraid that I will be hurt again, Your Honor. Court: You mean to say at the time you pointed to Albino Bagas you did not know him? A: No I dont know him, Your Honor. [28] Ampatin and accused-appellant were charged as co-conspirators in the crime of robbery with rape. As a co-accused, it would have been more consistent with human nature for Ampatin to implicate accused-appellant if indeed he was one of the gang. In fact, the Court has recognized that as is usual with human nature, a culprit, confessing a crime is likely to put the blame as far as possible on others rather than himself. [29] The fact that he testified to the innocence of a co-accused, an act which resulted in no advantage or benefit to him and which might in fact implicate him more, should have been received by the trial court as an indicum of the truth of Ampatins testimony and the innocence of herein accused-appellant. Ampatins testimony, therefore, should have been given weight by the trial court. More so, the same was substantially corroborated by another witness, Rodolfo Rosales, accused-appellants co-worker and who was present when accused-appellant was arrested. Rosales testified as follows: Q: Now, do you know when was Albino Bagas arrested in connection with this case? A: Last February 25, that was Monday, sir. Q: And where were you when he was arrested? A: I was there at that time. Q: xxx what was the reaction of Albino Bagas when he was being pointed to and arrested by the arresting officers? A: The situation goes like this, sir, the policemen arrived there and they were holding the persons of Ampatin and they were looking for a person named Mario that was what I heard, sir, and then the policemen forced us to be identified or to be seen by the guide. Ampatin at first at the ground floor but since there was nobody there by the name of Mario they proceeded to the second floor and upon looking one of the policemen shouted, Wala rito, niloloko lang tayo ng taong ito. Court: Then what happened next? Witness: And I noticed that the reaction of Federico Ampatin that he was afraid, so, because of fear he was able to point on the person of Albino Bagas but when asked he does not know the name of Albino Bagas, Your Honor. Atty. Pacis: Before going to the second floor, because according to you the arresting officers and the guide went to the second floor, was Albino Bagas at the ground floor seen by the guide and the policemen? A: We were the first group of persons seen by the policemen and Albino and I were beside each other, sir. Q: And you want to impressed (sic) upon this Honorable Court that at first at the ground floor, Albino Bagas was not identified by this Ampatin before going to the second floor?

A: The guide was not able to identify the person of Albino Bagas and that was the reason why they still made searches at the second floor, sir. Q: How was Federico Ampatin able to identify Albino Bagas when he was accompanied by the policemen went downstairs? A: I noticed from the reaction of Federico Ampatin that he was afraid after hearing the shout of the policemen, sir. The testimony of witness Rosales corroborates Ampatins declaration in court that he does not know herein accused-appellant and merely pointed to him out of fear of the police. These testimonies remain unrebutted by the prosecution as the arresting officers were not presented to refute or deny the same. The foregoing testimonies exculpating accused-appellant have sufficiently cast at least a shadow of doubt as to his guilt.

WHEREFORE, the decision of the trial court convicting accused-appellant Albino Bagas of the crime of robbery with multiple rape is hereby REVERSED and he is ACQUITTED of the crime charged. His immediate release is hereby ordered unless he is held for some other valid charges.

So ordered.

G.R. No. L-27606 July 30, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMICIANO BERAME alias DOMING, defendant-appellant. . Evidence both direct and circumstantial resulted in the conviction for the crime of murder of Domiciano Berame, now appellant, for the killing of the deceased Quirico Maningo, apparently arising from the intense partisanship generated by local politics. 1 In the original information for murder filed, a certain Anastacio Montinola was likewise included, but he died soon thereafter. Appellant Berame was positively Identified by a son of the deceased, who was just a meter away at the salary of their rented house at the time of the fatal incident. In the judgment now on appeal, the trial court likewise took into consideration the flight of the appellant, his surrender coming only after a month, the statement at the hospital made by the wounded co-accused Montinola that along with him, appellant participated in the act of shooting, and the fact that a rubber shoe, found in a swampy area where assailants hid for a while, did fit the right foot of appellant. As against such proof considered conclusive of the trial court, the defense of alibi was unavailing. A careful study of the record persuades us of the correctness of such a conclusion. We affirm. According to the testimonial evidence: It was about 6:30 in the evening of April 13, 1966, that an assailant suddenly shot Quirico Maningo, then seated on a chair facing the main door of the sala of his rented house in Rizal Street, Suba District Danao City. 2 His adopted son Danilo Maningo, was seated one meter away from his right side. 3 Several successive shots were fired at Quirico Maningo. 4 He saw his father, Quirico Maningo, slump to the floor, wounded, with blood on his neck and breast 5 He looked towards the main door where the shots came from and saw the accused holding a .38 caliber revolver. 6 He was easily Identifiable, as there was a "big light" at the main door of the house. 7 Appellant was standing on a bright spot as he fired his gun several times at Quirico Maningo. 8 When the firing ceased, the witness ran towards the main door of the house and saw two persons, one of them being the accuse Berame scampering away. 9 Quirico Maningo, the victim, was rushed to the Danao City General Hospital, but he was dead on arrival. 10 The appealed decision did likewise note that later that same evening, the PC Provincial Commander of the Philippine Constabulary with a Sergeant Armando Alfoja started the investigation of the killing of Quirico Maningo. In a swampy area at the back of the hospital near the cemetery of Danao City, where it was suspected one of the alleged assailants was hiding, they saw footprints and recovered a rubber shoe. Appellant was required at the trial to put it on. It turned out that it corresponded exactly with his right foot. 11 Moreover, appellant took flight after the killing and hid himself He did not surrender until almost a month later, on May 8, 1966. 12 There was in addition the statement from one of those accused in the original information, Anastacio Montinola. As one of the suspects, he was pursued by the police authorities. When cornered, instead of surrendering, he decided to shoot it out. He was hit, it turned out, mortally. He admitted then and there that he was one of the killers of Quirico Maningo, and his companions were a certain Doming and one Erning. He made the admission anew at the Southern Islands Hospital when he was further questioned. 13

The appealed decision, both thorough and comprehensive, discussed in detail the evidence for both the prosecution and the accused. The defense of alibi was carefully considered. It was not, as found by the trial court, sufficiently persuasive. It is easily understandable why. Appellant was positively identified. What is more there were compelling tell-tale circumstances. If anything can be said to detract from the high quality of the appealed decision, it was the assertion of the possibility "that a person could be at Danao City at about 6 to 6:30 in the evening and be in Cebu City at 7 to 8 same evening. 14 That was by way of disposing of the claim of appellant that since he was in Cebu City at about that time, and Danao City is about thirty-two kilometers away from Cebu City, he could not have been responsible for the killing. Certainly, such an off hand, perhaps even possibly rash statement of the trial court, could not be a sufficient basis for his acquittal. Witnesses are not noted for exactitude and precision in mentioning the time. The hours mentioned were approximations. Moreover, as to the circumstantial evidence, only the application of the res gestae rule to the statement of Montinola was sought to be refuted. No attempt was made to explain the flight of appellant causing the delay in his surrender for about a month and a shoe discovered near the scene of the crime fitting his right foot. The thirteen pages appellant's brief had another glaring deficiency. There was not even a reference to the direct testimony Identifying; appellant as one who fired the fatal shots. That is why, as noted at the outset, there would be no justification for the reversal of the appealed decision. 1. As is usually the case in criminal offenses, there was a direct conflict in the evidence submitted by the prosecution and the defense. What is undeniable is that there was testimony coming from a competent and credible eyewitness to the offense, Danilo Maningo, the son of the deceased. He heard the shots being fired and saw who perpetrated the deed. He was only a meter away, right at the scene of the crime. He had direct and immediate knowledge. He Identified the accused. It was not difficult for him to do so as there was a "big light" at the door of the house. He was subjected to an intensive cross-examination. He stood his ground. He did not budge. His version of the incident, as a matter of fact, was reinforced. There was, in addition, testimony from one Carmencita Trinidad, who, coming from the church, heard the shots after which she saw two persons running away from the house of the deceased, one of whom was slightly taller than she, an assertion verified when it was shown that appellant's height as compared to her was precisely that. At about the same time, a certain Jorge Durano, whose house was located at the back of the hospital near the seashore and cemetery of Danao City, testified that he saw a person walking fast going towards a barrio in the north near the swampy area, his attention being called to such individual wearing rubber shoes. As against that, there was the testimony from appellant who, as noted in the decision, claimed "that at the time of the incident, at about 6:30 in the evening of April 13, 1966, he was in Cebu City in the house of Atty. Gabriel a neighbor, conversing with the latter and that was the gist of the testimonies of two other witnesses, Nene Aranas and Libbi Cudilla also his neighbors. 15 This is a case, therefore. where the trial court, after hearing and observing the witnesses testify, and weighing what was said by them, did choose to believe the prosecution rather than the defense. For such a finding to be overturned, there must be a showing that it did overlook a material fact or circumstance or did misinterpret its significant. 16 What was said in People v. Tilaon 17 comes to mind: "Finally, the rule is now firmly established to the point of becoming elementary in this jurisdiction and elsewhere that where there is an irreconcilable conflict in the testimony of

witnesses, the appellate court will not disturb the findings of the trial court when the evidence of the successful party, considered by itself, is adequate to sustain the judgment appealed from. 18 2. The appealed decision, moreover, finds impressive support from circumstances that point unerringly to appellant's guilt. They simply cannot be explained away. That could be the reason why his counsel did not even bother to do so. As noted in the decision, a rubber shoe left in a swampy area by someone leaving in a hurry the scene of the crime was just the right size. It did fit appellant's right foot. That was demonstrative evidence of the most persuasive kind. So it has been held time and time again. First there was United States. v. Tan Teng. 19 decided in 1912. Of more recent vintage is People v. Otadora, 20 promulgated in 1950. The appealed decision was likewise based on the fact of appellant having been in hiding for sometime with the evident purpose of evading arrest. He did not surrender until after the lapse of a month. That again was a circumstance that could not be ignored. There is relevance to this excerpt from the opinion of Justice Malcolm in United States v. Sarikala: 21 "Third, Sarikala left the scene of the murder immediately thereafter. Flight, when unexplained, is a circumstance from which an inference of guilt may be drawn. 'The wicked flee, even when no man pursueth but the righteous are as bold as a lion " 22 3. Then, too, there was a statement made by one of the original co-accused, Anastacio Montinola, on his being captured after the gunplay where he was wounded, it turned out, mortally. He admitted his participation in the killing of Maningo and pointed to appellant as one of his companions. While not amounting to a dying declaration, the lower court considered it as part of the res gestae, and rightly so. That was assigned as error by appellant's counsel in view of the nine hours that had elapsed from the time of the killing before its utterance. That is not enough to take it out of the operation of the principle. The teaching of a host of cases from United States v. David, 23 a 1903 decision, is to the effect that it should be given credence. As was stressed by the then Chief Justice Concepcion in People v. Ner 24 All that is required for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances" 25 As far back as 1942, in People v. Nartea 26 the marked trend of decisions, according to Justice Ozaeta, is to extend, rather than narrow, the scope of the doctrine admitting declarations as part of the res gestae. Whether specific statements are admissible as part of the res gestae is a matter within the sound discretion of the trial court, the determination of which is ordinarily conclusive upon appeal, in the absence of a clear abuse of discretion. 27 Here, again, there cannot possibly be any abuse of discretion. That much is clear. 4. The last error assigned is the alleged failure of the lower court to hold that the prosecution was unable to prove beyond reasonable doubt the guilt of appellant, and therefore he should be entitled to the constitutional presumption of innocence. 28, It requires a certain degree of temerity to make such an assertion in the face of the competent and credible evidence of record. This is

one of those cases where the culpability of appellant was shown in a manner that should remove any misgivings. The stage of moral certainty certainly was reached. The defense of alibi was indisputably devoid of merit. There was positive Identification. Then there were the circumstances that indicated conclusively his participation in the criminal act. The alibi was therefore disproved by direct and circumstantial evidence. 29 It, is not inappropriate to conclude with this observation by Justice Endencia in People v. Dagatan, 30 considering the distance involved between Cebu and Danao City: "In this particular case, appellants loosely told the court that at around eleven o'clock on the night of June 11, 1937, they were not in Carmen when the crime was being committed because they were in Cebu. They, however, failed to present credible and tangible evidence that it was physically impossible for them to be at Carmen at that time. On the contrary, they themselves furnished evidence that Carmen is only about 40 kilometers from Cebu City, with abundant means of transportation such as buses, jeepneys and trucks plying between the two places, which would at most take an hour to go from one place to the other, and according to Saturnino himself, it would only take him 40 minutes if he were to drive the car himself " 31 The trial court therefore correctly decided that appellant is guilty of the crime of murder, the offense being qualified by elevosia with the aggravating circumstance of dwelling being offset by the mitigating circumstance of voluntary surrender. The appropriate penalty then, as.imposed in the appealed decision, is reclusion perpetua. WHEREFORE, the decision of the lower court of March 8, 1967 finding the accused Domiciano Berame alias Doming guilty beyond reasonable doubt of the crime of murder and imposing the penalty of reclusion perpetua is affirmed, with the only modification that the indemnity due the heirs of the deceased should be in the amount of P12,000.00 and not P6,000.00.

G.R. No. L-30069

September 30, 1969 PHILIPPINES, plaintiff-appellee,

PEOPLE OF THE vs. ANASTACIO BULAWIN, defendant-appellant.

Q. You said in answer to the question of the Court you saw Ciriaco Jimenez shot by Anastacio Bulawin. What was the position of Ciriaco Jimenez and Anastacio Bulawin when Ciriaco Jimenez was shot? A. Ciriaco Jimenez was walking to the meeting place with his arms akimbo. Q. Will you please demonstrate? A. As demonstrated by the witness, the arms of Ciriaco Jimenez were closed behind the buttocks. Q. At your position as you demonstrated where was Anastacio Bulawin when he shot? A. Anastacio Bulawin was near the place where I was urinating. Q. What part of the body of Ciriaco Jimenez was hit by the shot? A. Ciriaco Jimenez was hit at his back. COURT Q. What part of the back was he hit? A. At the back of his buttock, two inches below the waist line. PROSECUTION Q. When Ciriaco Jimenez was hit at the back, what happened with Ciriaco Jimenez? A. Ciriaco Jimenez was able to turn his face to the back and fell to the ground. 5 But, then, on cross-examination, Autor declared: Q. Did you not see him before You heard the shot? A. I did not. Q. What was Anastacio Bulawin doing when you first saw him for the first time? A. After the shot was fired, I saw Anastacio Bulawin. Q. Do you mean to tell us that you did not see Bulawin until after you heard the shot? A. Yes, sir. Q. How far was he from you at that time? A. In my estimate, one fathom, more or less. Q. Do you mean to say that you did not see him despite the fact that he was only one fathom more or less from you before the report of the shot? A. I did not. Q. You did not see either of them before you urinated? A. No, sir. 6 The foregoing inconsistency, placed in proper focus, sets Autor's testimony on infirm grounds. Soon after the incident, people went to the place where Jimenez fell. Amongst them were Governor Ali Dimaporo, Vice-Governor Arsenio Quibranza, Mayor Apolonio Yap and many others. Witness Autor, however, testified that he communicated to nobody, although "Mr. Quibranza, Dimaporo and his leaders were still there," 7 and left for home without even extending a helping hand to the victim. Autor said that he did not mention the incident to the people in his own house. These circumstances suggest a substantial amount of improbability. Of interest is Autor's declaration that the only person to whom he ever mentioned what he saw 6 was a brother of the victim. And this he did in the morning following the incident. It would seem odd then that the brother of the victim did not inform the authorities about it. The record does not so indicate. No one appeared to have ever thought at that time of taking Autor's statements, certainly very important to this case. For, he was, as already stated, allegedly the sole eyewitness to the crime. Well it is to remember that an investigation was then being conducted by the Constabulary. Appellant and a number of witnesses were in the barracks located in the same town of Salvador. Added dubieties there are. We note in the criminal complaint filed in the municipal court on October 3, 1963 10 days after the crime by Capt. Wilfredo C. Golez, Commanding Officer of the PC, that the name of Candido Autor was not mentioned as one of the witnesses. Even in the criminal information the Provincial Fiscal filed in the Court of First Instance on October 9, 1964, the name of

The charge is murder. Defendant Anastacio Bulawin was found guilty thereof by the trial court and sentenced to an indeterminate prison term ranging from ten (10) years, eight (8) months and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, to indemnify the heirs of the deceased, Ciriaco Jimenez, in the amount of P6,000 and to pay the cost. 1 Appeal was taken to the Court of Appeals. 2 The appellate court was of the view that the crime committed by defendant was murder, qualified by treachery without any circumstance, aggravating or mitigating which would call for the imposition of reclusion perpetua. Accordingly, the case was certified to this Court upon the provisions Sections 17 and 31 of the Judiciary Act of 1948 and Section 3, Rule 50 of the Revised Rules of Court. September 23, 1963 was the barrio fiesta of Barrio Mabatao, Salvador, Lanao del Norte. A political meeting was, on the night of September 22, being held at the fair grounds of the barrio. About 12:30 o'clock in the early morning of September 23, 1963, Ciriaco Jimenez was leisurely walking towards the meeting place. Just as he was about twenty meters therefrom, he was shot. The bullet, found its mark "at the back of his buttocks, two inches below the waistline." About 6:00 o'clock p.m. on the same day, September 23, Ciriaco Jimenez died at the Aurora Provincial Hospital. The errors assigned in the brief of counsel de officio funnel down to one single proposition: Has the People discharged its heavy burden of proving the guilt of appellant beyond reasonable doubt? To this question, we addressed ourselves. For the purpose, we explored the entire record. 1. The People's case was built mainly on the testimony of three witnesses: Candido Autor, Sergeant Roberto Laurie of the Philippine Constabulary and Aniceto Dacalos. Candido Autor. He is the People's mainstay. He is supposedly the only eyewitness to the crime. Because of this, his testimony must have to be scrutinized with a sharp judicial eye. The People's proof should be beyond reasonable doubt. But as we read the transcript, that testimony appears to be sufficiently infected with grave doubts which prevent us from accepting his word without reservation. Autor said that he was a farmer, although the record shows that his occupation "is to extract tooth", for which reason he played hide-and-seek with the police. 3 According to Autor, at about 12:00 o'clock in the morning of September 23, 1963, he was passing water beside a small road about twenty meters from the place where the political meeting was being held. He claimed to be just about one fathom from and to the left of appellant Anastacio Bulawin when the latter with a pistol shot Ciriaco Jimenez. The victim at that time was about two fathoms from and with his back to his aggressor. The three formed a sort of a triangle. 4 The gist of Autor's direct examination was that he saw the actual shooting and yet, there appears to be a contradiction of this alleged fact when he was crossexamined.1awphl.nt On this point, his direct examination yields the following: Q. While you were there on this occassion, was there any unusual incident that happened? A. Yes, sir. Q. Will you please tell the Court what was that all about? A. Ciriaco Jimenez was shot. Q. How do you know that the accused Anastacio Bulawin shot Jimenez? A. Because I was there at that time. Q. Where? A. In the place. Q. How far were you from Anastacio Bulawin? A. More or less one fathom.

this witness, Candido Autor, was conspicuous in its absence. And yet, the evidence is that Autor the only eyewitness to the crime was in his home in nearby Barrio Salong as early as June, 1964. Sergeant Roberto Laurie, 73rd PC Company stationed at Salvador, Lanao del Norte. The gist of his testimony is that at about 2:00 o'clock in the morning of September 23, 1963, he was awakened by Lt. Mejia, Junior Officer of the unit, who told him that there was shooting in Mabatao during the rally and asked him to escort the victim to the hospital. He saw the victim, Ciriaco Jimenez, at the gate of the guardhouse in a three-fourths truck. With Jimenez were Governor Dimaporo, ViceGovernor Quibranza, Rufo Jimenez, Jose Villarta and some PC soldiers. He described in court the dialogue between him and the victim, Ciriaco Jimenez, as follows: Q. You stated you met Ciriaco Jimenez with these persons you have mentioned. What else did you do when you met Ciriaco Jimenez? A. When I get inside the truck I said, "What's happened?" he said, "I was shot." I further asked him, "Who shot you?" he said, "Anastacio Bulawin." I further asked him, "Why did you see Anastacio Bulawin when it was dark?" he replied that "I clearly saw him." I inquired from him as to whether he will live with the wound be sustained. He replied that "I will live. Just bring me to the hospital." 8 On cross-examination, 9 however, his attention was drawn to his affidavit dated October 3, 1963 appearing on page 7 of the record below and to a specific question and answer therein, viz: Q. On page 7 of the record of this case is an affidavit wherein the affiant is Roberto A. Laurie. Will you please look at this signature above these typewritten words [and tell us] whether that is yours or not? A. That is mine, sir. Q. This affidavit of yours was duly sworn to before Justice of the Peace Panfilo Rama of Salvador, Lanao del Norte? A. Yes, sir. Q. I am going to remind you sergeant about the statement you made in this affidavit wherein the question was asked in this wise: "Q. What question did you ask to the victim?" and your answer is this, "A. I asked him who shot him and he answered me that it was Bulawin. Then I asked another question. Why did you recognize him when in fact it is dark? Then the victim did not answer. I further asked another question, do you think you will not die of your wound you received? He did not answer any more. So Lt. Mejia ordered the driver to leave immediately for Aurora so that the victim will be given immediate treatment of his wound." Is that correct? A. The statement there is correct." 10 And here is how he attempted to reconcile the two versions: COURT Q. Therefore what you testified now before this Court is not correct because it did not tally with what you said in that affidavit? A. I have not read that affidavit because it is three years already. I even forget there is affidavit being executed. Q. Which is now the truth that the victim told you that he recognized Anastacio Bulawin as his assailant or he did not answer you at all? A. In my affidavit that is right. Q. What is right? A. I don't remember because it is placed in the affidavit.
11

Aniceto Dacalos. Thus witness claims that he was in the dancing hall when a child came running and reported to the people there that somebody was shot. With Governor Dimaporo, Vice Governor Quibranza, Mayor Yap and others, they went to the scene which was more or less twenty meters away. There, they saw Ciriaco Jimenez. Upon arrival, so his version goes, he inquired from Jimenez who shot him. The following from the transcript of Dacalos' testimony is quite revealing as to why defendant was a suspect: Q. What did he answer? A. He replied that there is no other person who would shoot me except Anastacio Bulawin because we are enemies. 12 Witness Dacalos, the record discloses, followed Roberto Laurie to the witness stand on December 9, 1965. It is interesting to note that as in the case of Laurie his version leaves traces of an effort to fortify the res gestae angle, by the following: Q. What else did you do? A. I further asked him, "Are you certain that it was really Anastacio Bulawin who shot you?" and he replied that I clearly saw him because the light reached the place where he was then. 13

This last statement would contradict the affidavit of Sgt. Laurie who asked question along similar lines. "Why did you recognize him when in fact it is dark?" And, according to the affidavit of Sgt. Laurie heretofore quoted, "the victim did not answer." This witness, Aniceto Dacalos, a neighbor and an old friend of Ciriaco Jimenez, like the alleged eyewitness Candido Autor, did not figure in the list of witnesses for the prosecution, either in the criminal complaint filed by PC Capt. Golez or in the Fiscal's indictment. His name was not amongst those who gave affidavits to back up the criminal charge. This gives the impression that Aniceto Dacalos, the neighbor of the deceased, was but an eleventh-hour witness. To take his testimony on its face value, we fear, is to rate truth so lightly. The foregoing evidence of the People leaves much to be desired. It exhibits a gap between doubtful evidence and proof beyond reasonable doubt. That gap is not bridged. The evidence does not produce in an unprejudiced mind that moral certainty so necessary to bring about conviction in a criminal case. It is in this context that we find ourselves unprepared to send appellant to jail for life, or, for that matter, for a long term of imprisonment. Because, we are not morally convinced. 2. But if more were needed, circumstances there are which cast a heavy pall of doubt on the sufficiency of the People's evidence. At about 4:00 o'clock that morning of September 23, appellant herein was placed under arrest in his own home. He was brought to the PC barracks. And yet, at about 2:00 o'clock in the afternoon of that day, he was released by Capt. Golez who told him: "We cannot detain you here because there was no complaint filed. However, you should report to this headquarters every day." 14 If really this man were pinpointed by the deceased at about 2:00 a.m. of September 23 as the author of the grave crime of murder it must be borne in mind that the affidavits were executed not on the 23rd of September but on October 3, 1963 it does not seem probable that the peace officers would release him so soon. There is then probability that the reason why he was arrested was because he was merely a suspect. But without evidence against him. And this could have sprung from the fact that as barrio captain, the deceased Ciriaco Jimenez lodged a complaint for theft of large cattle against a son of appellant by the name of Bitoy, amongst others. 15 And then, two of the defense witnesses, namely, Lamberto Maghinay and Paciencio Bacaling were, likewise, investigated by the Constabulary on that same morning of September 23, 1963. Nothing in the record suggests that the testimonies of these two witnesses were taken in writing. The record below at least does not show any

The value of Laurie's testimony is, indeed, impaired. First, because he did not hesitate in Court to overshoot his mark. One wonders whether he did so to make a weak case look good. Then, it does not strike us as natural that given that opportunity, Sgt. Laurie, or any other constabulary officer for that matter, did not put that statement of the deceased Ciriaco Jimenez into writing, the better to preserve its worth as evidence. Written words speak a uniform language. Oral recollection, in turn, could suffer from the treachery of memory or from coloring. The deceased's statement, it should be remembered, at least forms part of the res gestae.

such written statements. And these two witnesses with another by the name of Melecio Lomolho supported the alibi offered as a defense by appellant. The foregoing facts are significant because, as aforesaid, the affidavits of the People's witnesses were only taken on October 3, 1963, even as the peace officers had prompt knowledge of the crime and allegedly learned of facts which linked appellant to the crime as early as about two hours after the perpetration thereof. And, as aforesaid, the criminal complaint was lodged in the municipal court only on that day, October 3.
3. There is a dearth of autoptic or demonstrative evidence which would positively connect appellant with the crime. Nothing in the record shows that the officers even made any effort to locate the alleged pistol used by appellant. Nor is there evidence that appellant has had one. In the morning of September 23, 1963, Sgt. Aniceto Dacalos, in the presence of Sgt. Sarbida, pointed at appellant as the owner of a big hat which was apparently left at the scene of the crime. Appellant denied this. Even that hat was not exhibited in court. Or, its whereabouts accounted for. And, Autor testified that he (Autor) who knew appellant very well saw appellant at the scene of the crime, recognized him because the light was bright and the distance between the two was only about one fathom, asked him "What is that?", whereupon appellant "ran away." 16 If all these were true, it does not seem probable that appellant would make himself a sitting duck, go to and stay in his home in Barrio Salong, about one kilometer from the scene of the crime. And there to be arrested at about 4:00 o'clock in the morning by Sgt. Sarbida and a provincial policeman by the name of Madid. What did he run for? 4. We are not unmindful of the fact that appellant left his barrio on the 29th of September, 1963, that is, five days after Ciriaco Jimenez was shot, and went to live with his parents and sisters in Lopez Jaena, Misamis Occidental. 17 But he did so because he was warned daily by his neighbors that there were Maranaos hired by the brothers of the deceased Ciriaco Jimenez to liquidate him. If he really intended to hide from the authorities, he would have done so at the first opportunity. It would seem to us that his flight was induced by his instinct of self-preservation. 5. The defense is alibi. The version given is that at about 6:00 o'clock in the afternoon of September 22 after the cock-fighting was over, appellant conducted a game of "hantak" in the cockpit of Dalama, which was about five kilometers from the scene of the crime. That game of "hantak" lasted till about 3:00 o'clock the following morning of September 23. After which, appellant went over to the house of Lamberto Maghinay where they took a drink for a few minutes. Then, appellant went home where he was arrested as aforesaid. His testimony in this respect was corroborated by Lamberto Maghinay, Paciencio Bacaling and Melecio Lomolho. It is to be recalled at this point that witnesses Maghinay and Bacaling were investigated at the Constabulary headquarters on that morning of September 23, 1963. Of course, alibi is known to be the weakest of all defenses. It is easy to concoct, difficult to disprove. 18 Nonetheless, where the evidence for the prosecution is weak and betrays lack of concreteness on the question of whether or not defendant is the author of the crime charged, alibi as a defense assumes importance. Not very long ago, this Court, speaking through Mr. Justice J.B.L. Reyes, in People vs. Fraga , L-12005, August 31, 1960, pointed out that "[t]he rule that alibi must be satisfactorily proven was never intended to change the burden of proof in criminal cases; otherwise, we will see the absurdity of an accused being put in a more difficult position here the prosecution's evidence is vague and weak than where it is strong." 19 In the end, we have but to bear in mind that, by Constitution and law, a defendant in a criminal case is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. 20 We cannot downgrade this precept by accepting less than what it exacts. Else, the protection afforded may be more in sound than in substance. The People's evidence does not measure up to this standard in this, a grave crime of murder. For the reason that guilt has not been established beyond reasonable doubt, we vote to reverse the judgment under review, to acquit defendant-appellant Anastacio Bulawin of the crime charged, and to set him at liberty. Costs de officio. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Capistrano and Barredo, JJ., concur. Castro and Teehankee, JJ., took no part. Reyes, J.B.L., J., is on leave. Footnotes
1

Criminal Case 1042, Court of First Instance of Lanao del Norte, entitled "The People of the Philippines, Plaintiff, versus Anastacio Bulawin, Accused."
2

CA-G.R. No. 06902-Cr. Tr., January 24, 1966, p. 14.

See: Exhibit X, Record below, p. 129. 5 Tr., December 9, 1965, pp. 4-6; emphasis supplied.
6

Id., pp. 9, 10-11; emphasis supplied. Id., p. 13. Tr. December 9, 1965, p. 18. Id., p. 19; emphasis supplied.

10

This is also the gist of the statement given by Jose Villarta also on October 3, 1963 who was not called to the stand: Q. What are the questions asked by Sgt. Laurie to Ciriaco Jimenez? A. He asked Ciriaco Jimenez, who shot you? Ciriaco Jimenez answered "Bulawin". Then Sgt. Laurie asked another question. Why did you recognize him when in fact it is dark? Ciriaco Jimenez did not answer. Then Sgt. Laurie further asked another question, Do you think you will not die of your wound you received? Ciriaco Jimenez did not answer anymore." Record below, p. 4.

G.R. No. L-32146 November 23, 1981 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUIS DELMENDO y BAL-OT and FLORENTINO DELMENDO IPAC defendants-appellants. This is a case where the accused, Luis Delmendo y Balot and Florentino Delmendo y Bal-ot having volunteered to donate their blood to save the life of one, Alfredo Buccat, who had been earlier shot in his house in the evening of February 26, 1969 and in fact, the accused Luis Delmendo did donate 250 cc. of his blood, were later charged with the murder of said Alfredo Buccat upon the affidavits of the widow, Magdalena Buccat, and her son, Elpidio Buccat, who were both present at the commission of the crime, which affidavits were given to the police authorities on March 14, 1969 or 16 days after the shooting of Alfredo Buccat. The information against the two accused-appellants charges That on or about the 26th day of February, 1969, at about 7:30 in the evening, in barrio Agtipal Municipality of Bacnotan, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused namely, LUIS DELMENDO and FLORENTINO DELMENDO, conspiring together and mutually aiding one another, with intent to kill and with treachery and evident premeditation and did then and there willfully unlawfully and feloniously shoot one ALFREDO BUCCAT, inflicting upon said offended party, Alfredo Buccat, the following wounds: Gunshot wound entering left anterior chest at lst interspace, mid-clavicular line, going thru and shattering manubrium sterni going thru right internal mammary vessels, thru right upper lobe of right lung including its deep vessels, out thru right axilla and thru posterior aspect of right upper arm. which caused the death of the said Alfredo Buccat. That the following aggravating circumstances were attendant in the commission of the offense: 1. That the crime was committed in the nighttime. 2. That the crime is committed in the dwelling place of the offended party. CONTRARY TO Article 248 of the Revised Penal Code. The accused-appellants pleaded not guilty, hence, the case proceeded to trial. Upon completion thereof, the trial court convicted the two accused in its decision promulgated May 4, 1970, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered finding the accused LUIS DELMENDO and FLORENTINO DELMENDO guilty beyond reasonable doubt of the crime of Murder as charged qualified by treachery. The court considers the mitigating circumstance of drunkenness in favor of the accused to offset the aggravating circumstance of dwelling, and hereby sentences each one of them to suffer LIFE IMPRISONMENT, to indemnify the heirs of the deceased in the amount of P12,000.00 plus moral damages of P5,000.00 and exemplary damages of P3,000.00 without subsidiary imprisonment in case of insolvency, plus the accessory penalties provided for by law, and to pay the costs. The two accused appealed the decision of conviction but the records were erroneously transmitted to the Court of Appeals. On June 17, 1970, the same were forwarded to this Court. In assailing the decision under review, the accused-appellants submit the following assignment of errors: 1. The trial court erred in finding that "at a distance of about nine meters Luis fired at the deceased. " (p. 20, Decision.) 2. The trial court erred in concluding that "the identity of Luis as the gun wielder was corroborated by the findings of Col. Minardo Finones, Chief of the P.C. Central Laboratory showing that Luis Delmendo was positive for powder burns." (p. 21, Decision.)

3. The trial court erred in holding that "with the positive identification of both accused, the defense of alibi interposed by the accused, inherently weak as it is, ail the more becomes even weaker and is not worthy of credit." (p. 22, Decision.) 4. The trial court erred in finding that "Florentino Delmendo conspired with Luis Delmendo to commit the offense. " (p. 23, Decision.) 5. The trial court erred in convicting defendants-appellants of the crime of murder qualified by treachery, in sentencing each one of them to suffer life imprisonment, to indemnify the heirs of the deceased in the amount of P12,000.00 plus moral damages of P5,000.00 and exemplary damages of P3,000.00 instead of acquitting them upon the ground of reasonable doubt. (p. 25, Decision.) (Brief for Defendants-Appellants, pp. 1-3). The crucial issue in the case at bar is the Identities of the assailants who shot the victim, Alfredo Buccat, in his house in Barrio Agtipal Municipality of Bacnotan, La Union in the evening of February 26, 1969. The wife of the deceased and his son, Magdalena Buccat and Elpidio Buccat, respectively, point to the two defendant-appellants as the malefactors. Both accused, however, stoutly denied the accusation against them. The version of the prosecution may be narrated in the following recital, quoting the People's Brief, pp. 2-4, to wit: At about 10:00 o'clock in the morning of February 26,1969, the appellant Florentino Delmendo arrived at the house of the spouses Alfredo and Magdalena Buccat in Barrio Agtipal Bacnotan, La Union, while it was being repaired (pp. 90, 91, 104, 161, t.s.n.). After helping in the work and drinking basi that was served by Magdalena to the workers, at about 12:00 o'clock noon, Florentino left only to return at about 1:00 o'clock in the afternoon of the same day (pp. 105, 106, t.s.n.). Not long after Florentino arrived, he had a quarrel with his brother Federico and they almost boloed each other had not the proverbial cooler heads intervened to pacify them (pp. 106, 107, 108, 109, t.s.n.). After they had been pacified, Magdalena advised Federico to go home to avoid further trouble (pp. 107, 108, 109, t.s.n.). Soon thereafter Florentino left, sore at her for sending his brother home, otherwise he would have killed him (pp. 106, 108, t.s.n.). Later on he returned with his co-appellant Luis Delmendo (p. 106, t.s.n.). Upon seeing the two appellants, Alfredo, who was in the yard talking with Cipriano Delarna and Eniong Oredena, told his son Elpidio not to bring out basi anymore because the 'drunks are here again referring to the appellants (pp. 83, 91, 92, 110, 148, 158, 169, 170, t.s.n.), whereupon Cipriano and Eniong left while father and son ascended their house for supper (pp. 82, 83, 148, 149, t.s.n.). While Alfredo and his family were having supper, the appellants went up to the house (pp. 83, 94, 152, t.s.n.). Luis sat on the window sin east of the dining table where the Buccats were eating, his feet dangling out of the window, while Florentino stood beside him (pp. 83, 93, 152, 166, t.s.n.). A while thereafter, Florentino vomitted, causing the spouses to complain of the appellants' bad manners, especially at a time that they were eating (pp. 84, 85, 152, 153, 157, t.s.n.). Luis stood up and whispered something to Florentino (pp. 84, 85, 153, 168, t.s.n.). Afterwards they left eastward following the pathway to their houses (pp. 85, 95, t.s.n.). Later on the appellants returned as the Buccat family had just finished supper and while in the yard at a distance of about nine meters, appellant Luis fired several times at Alfredo from behind (pp. 75, 76, 78, 81, 95, 117, 118, 154, 155, 170, 173, 174, t.s.n.). Alfredo slumped and fell down to the floor (pp. 97, 119, t.s.n.). Magdalena and her son Elpidio ran to the kitchen and screamed for help as they saw the appellants fleeing northward (pp. 81, 96, 119, 156, 174, t.s.n.). The stricken victim was rushed to the Lorma Hospital in San Fernando, La Union (p. 86, t.s.n.), where he was attended to by Dr. Rufino Macagba Jr., director of the hospital (pp. 40, 41, t.s.n.), but expired at about 11:20 o'clock in the evening due to severe loss of blood caused by the gunshot wound sustained on the chest (pp. 40, 41, 42, 43, 44, 45, t.s.n.; Exhs. "F" and "G "). " The principal witnesses for the prosecution are Magdalena Buccat, the widow, and Elpidio Buccat, son of the victim. The testimony of the widow, lifted from the decision of the trial court, is as follows: MAGDALENA BUCCAT, widow of the deceased, testified that in the evening of February 26, 1969, she was at home and that right after supper with her deceased husband and their two children Elpidio and

Gloria, and an aunt of her husband, they tarried awhile on the table where they ate. That was on the cemented ground floor of their two-storey house. While thus lingering after supper at seven o'clock that evening she saw the accused Luis Delmendo with Florentino Delmendo at their yard. Then she saw Luis fire at her husband who, upon being hit, collapsed to the floor from the chair where he was seated. Immediately she ran for help towards the kitchen door where she again saw accused Luis and Florentino running towards the north. She did not know who finally brought her husband to the Lorma Hospital at San Fernando, La Union, but when she followed to the hospital at 10 o'clock that evening her husband was already dead. On cross-examination, she disclosed that that same night a policeman by the name of Espejo came to investigate. She admitted that she did not tell anyone who the assailant of her husband was except to her son Elpidio who likewise saw the assailant. But she said it was probable that she told policeman Espejo that night. She also admitted that she advised her son Elpidio not to ten anyone as yet who the assailant was because, according to her, she was still afraid 'they might come back for asked the distance between the assailant to her husband when shot, she disclosed that the assailant was about six meters (nine meters by actual measurement). That she recognized Luis fire at that distance as he was illuminated by the kerosene lamp near the window and that it was a clear night with the moon shining at one o'clock high. The material testimony of the son Elpidio is likewise recited in the trial court's decision, and We quote: ELPIDIO BUCCAT, 19, son of the victim, testified that ... . After the Buccat family had finished their supper, the victim rested for a while on the same chair by the dining table but had changed his original sitting position such that his back was turned against the dining table. Witness on the other hand remained seated by the table facing west in his original position now tinkering with the picture frame. He was reaching for the picture frame when he saw both accused suddenly appear at the western window of the dining room. He saw Luis Delmendo aim and fire at his father. At this precise moment, Florentino was about one meter behind Luis Delmendo After the gun fired, witness ran to the kitchen and out of the house to report the shooting to a neighbor, Herminio Marquez. Witness Elpidio Buccat did not reveal the Identities of the assailants of his father that same night except to his mother who advised him not to reveal their Identities yet to anybody for fear of reprisal. Corporal Modesto Espejo of the Bacnotan Police Force was the first police authority who, upon learning of the incident about 8:00 o'clock that evening, proceeded immediately to the scene at Barrio Agtipal with Patrolman Partible and two enlisted PC men assigned to Bacnotan. We also quote hereunder Cpl. Espejo's testimony as cited in the decision: Upon their arrival, the deceased was no longer there. He learned he was brought to the Lorma Hospital at San Fernando by men from barrio Agtipal. He interrogated the widow and their son and one Tinoy Delmendo (He was not sure of the surname), but did not reduce them in writing because he turned over the investigation to Sgt. Camilo Marquez. He gathered by his routine police investigation that same evening that the deceased was shot in his house at barrio Agtipal. He recovered six empty shells west of the house on the ground under the window, and a slug inside the house embedded in a window frame east of the house. Later he made a verbal report to the chief of police to whom he also turned over the six empty shells (Exh. D) and one slug (Exh. E). At the municipal building a guard informed him that the suspects were also at the hospital. He transmitted the information to Pat. Marquez who was then at the hospital. The evidence for the prosecution further show that the accused Luis Delmendo and Florentino Delmendo were subjected to paraffin tests at the Provincial Constabulary Headquarters in San Fernando, La Union where they were taken by Sgt. Camilo Marquez of the Police Force at the time said accused Luis Delmendo and Florentino Delmendo were at the Lorma Hospital in San Fernando, La Union where the two had gone to volunteer with other barriomates to donate blood to the wounded

Alfredo Buccat. Paraffin casts of both hands of Luis Delmendo, Florentino Delmendo and Fernando Ganiola were taken by staff Sgt. Godoy on 27 February 1969, 0830H. The chemistry report No. C-9169 marked Exhibit "B"contained the following findings: "1. Luis Delmendo Both hands gave POSITIVE result to the test for the presence of gunpowder residue (Nitrates); and Fernando Ganiola and Florentino Delmendo NEGATIVE to the test for the presence of gunpowder residue (Nitrates)." The trial court further summarized the testimony of Sgt. Camilo Marquez, who took over the investigation of the case from Cpl. Modesto Espejo. Sgt. Marquez admitted that the deceased Alfredo Buccat was his second cousin and, therefore, a close relative of the aggrieved family. According to the decision, p. 5; Records, p. 169. He tried to talk to the widow and son but they could not give him some enlightenment as they had not then recovered their composure and were hysterical Others he interviewed refused to talk 'probably because they did not have knowledge of the crime.' Thereafter, however, he tried to find clues, and on March 17, 1969, he obtained a written statement of one Cipriano Delarna It is a fact that it was only on March 14, 1969 or after 16 days from the day of the shooting incident that the widow, Magdalena and her son, Elpidio, both went to the office of the Chief of Police of Bacnotan La Union and there and then they gave their written statements about the shooting, Identifying the accused, Luis Delmendo and Florentino Delmendo as the assailants who shot Alfredo Buccat. Their affidavits were subscribed and sworn to before Municipal Atty. and Special Counsel Eufemio R. Molina on March 19, 1969. We come now to defense. The version of the defense as maintained in their Brief, pp. 10-11, is that "Between 4:30 and 5:00 o'clock in the afternoon, on Feb. 26, 1969, Florentino was caned by Luis to repair the latter's bicycle. They then proceeded to the house of Pedro Valmonte to borrow his tools. After repairing the bicycle for more than one hour, both proceeded to the store of Magdalena Buccat, widow of the deceased Alfredo Buccat, where they drank gin and coca-cola. While thus drinking, Florentino Almodovar came along, and Luis invited him to drink with them. The three drank in the store for about 30 minutes. After drinking, all three proceeded east towards the house of barrio captain Revelino Balen to fix the schedule of workers in a road construction project in the barrio, but upon passing the house of a certain Antonio Corpuz, Florentino Almodovar stayed behind, while Florentino and Luis went on their way to the house of said barrio captain. After having stayed in the house of ' the barrio captain for about 30 minutes, he accompanied Luis to his house for the purpose of borrowing rice. From the house of Luis, Florentino went home. (pp. 282-303, TSN, March 4, 1970)." Testifying for the defense, Revelino Balen, the barrio captain of Agtipal Bacnotan, La Union, declared that between the hours of 7:00 and 8:00 in the evening of February 26, 1969 he was working in his flue-curing barn in Agtipal when he heard gun reports from a northerly direction. He proceeded northward to investigate the cause of the gunfire when he met children who were running southward and reporting, "Tata Pidong was shot." He then proceeded to the house of Alfredo Buccat the victim, and found his bleeding body inside the kitchen. There were many people near the crime scene. He called for a tricycle to bring the victim to the hospital. On the way to the Lorma Hospital he asked the victim who shot him, but the latter answered " I do not know." He saw both accused at the hospital but did not know their purpose in going there. Pedro Valmonte, barrio councilman of Agtipal also testified for the defense, saying that between 7:00 and 8:00 p.m. on the date of the incident, he heard gun reports and when he heard the sound of a horn giving the alarm, he proceeded to the house of the victim which was rumored to be the source of the gun reports. He came upon the victim loaded into a tricycle for the purpose of rushing him to a hospital. He also stated that he inquired from Magdalena Buccat and her son Elpidio Buccat if they knew the assailants and they replied in the negative. He asked Magdalena where the assailant was at the time he fired at the victim and Magdalena pointed to the southeastern part of her house saying, "That is the place where the flash of light came from." Valmonte also declared that he searched for evidence particularly empty shells to help authorities solve the crime but he could not find any at the place pointed to by the widow. He, however, found six empty shells about a meter below the window west of the house and he covered them with a wash basin to avoid them being touched by anyone. This witness further testified that he campaigned for blood donors willing to give their blood for the victim, and two caretela loads of people responded to the request for blood, he accompanying them up to the national road where they were later on transported to the Lorma Hospital where the victim

was taken. He also said that both accused, Luis Delmendo and Florentino Delmendo were among those who volunteered to donate their blood to the victim. As to the fact of the blood donation given by the accused Luis Delmendo the records disclosed that in truth and in fact, said accused donated 250 cc. of his blood type "B" to the victim Alfredo Buccat, on February 26, 1969 as shown in the certificate issued by Nora Safra, medical technologist of the Lorma Hospital. (Exh. " 1 "). The trial court in convicting the two accused, reached such conclusion on the following rationale: That Luis Delmendo fired the gun that killed the deceased; that Florentino Delmendo was near and in company with Luis; and that both of them were positively Identified by the witnesses Magdalena Buccat and Elpidio Buccat the court has no valid reason to doubt. At a distance of about nine meters at night one can easily be Identified by the light of a kerosene lamp (such as that used by the family of the deceased) especially if the party is well-known to the Identifier. Both the accused and the witnesses are barriomates and are well known to each other. Furthermore, the Identity of Luis as the gun wielder was corroborated by the findings of Col. Minardo Finones chief of the P.C. Central Laboratory showing that Luis Delmendo was positive for powder burns. The testimonies of Magdalena and Elpidio, even if they are the widow and son, respectively, of the deceased corroborate each other in an respects. They have been shown not to be perjured and no motive or reason was ever faintly suggested why they will perjure their testimonies. Indeed, the accused himself admitted that before the incident, they were in the best of terms with the deceased. Aside from these, the testimony of Magdalena and Elpidio of the shooting as well as the place where Luis fired from was further substantiated by the testimony of police Corporal Modesto Espejo who testified that he recovered six empty shells thereat plus a slug embedded on the frame of the eastern window of the ground floor of the victim's house. (Decision, pp. 21-22; Records, pp. 185-186). Assailing the above decision, the main thrust of the defense is that the testimonies of the widow, Magdalena, and her son, Elpidio, relative to the Identity of the malefactors cannot be believed and relied upon because there are compelling reasons why their declarations cannot be given full faith and credence. And these are: (1) The three kerosene lamps were all inside the house as testified to by Mrs. Buccat. It must have been dark outside considering that it was already between 7:00 and 8:00 o'clock in the evening, hence, it was quite difficult for her to recognize persons outside of her house at the time of the incident; (2) While she testified that she saw one of the malefactors aim his gun to her husband, she did not even warn her husband of the danger to his life; she did not shout a warning at all. This is an unnatural behavior of a wife witnessing the danger to her husband. Had she really seen the accused Luis Delmendo aim his gun at the deceased husband of Mrs. Buccat, the latter would have certainly shouted a warning to him as a natural and instinctive reaction; (3) Her testimony on crossexamination that despite the time of the night (between 7:00 to 8:00 o' clock) she was even able to recognize the color of the shirts of the appellants, i.e., Luis was wearing light brown shirt while Florentino was wearing a reddish shirt (p. 136, TSN, October 16, 1969), are exaggerations in an attempt to appear credible, only to unmask her incredibility. It is unbelievable to recognize with accuracy the color of a shirt at that time of the night especially when the color of the shirt is dark. It is next to impossible since any colored object on a dark night without the aid of artificial light would appear to be black to the naked eye. And since the alleged assailants were some nine meters away from the victim (p. 7, Decision) and therefore even further away from Mrs. Buccat, an accurate Identification cannot be relied upon; (4) When Mrs. Buccat was investigated by the police immediately after the shooting, she did not mention the names of the assailants of her husband to the police investigator, her reason being. "I did not then mention because I was then crying." (p. 139, TSN, Oct. 16, 1969). The defense argues that her reason for not divulging the assailants of her husband on the night she was investigated is flimsy for even if she was crying, it was easy for her to mention the names of the assailants, but she did not. It would have been more natural for her to mention the names of the assailants in the course of her investigation even if not asked or prodded to do so. It was only on March 14, 1969, or more than two weeks after the incident, that she divulged the names of her husband's assailants allegedly because it was only then that she "had composed" herself. Thus, she testified: CROSS-EXAMINATION BY ATTORNEY GUALBERTO:

Q The first time you ever gave your statement about who killed your husband was March 14, 1969, which is found on your statement on page 34 of the record of the case? A Yes, your Honor. Q That was the only time when you divulged the identities of the alleged assailant of your husband to peace officers? A Yes, sir. Q That was also the only time when you mentioned about the incident surrounding the circumstances surrounding the incident? A Yes, Your Honor. (p. 141, TSN, October 16, 1969) Required to explain the rather unreasonable delay in divulging the Identities of the assailants of her husband, Mrs. Buccat testifying on redirect examination declared: RE-DIRECT EXAMINATION BY ATTORNEY CACANINDIN: Q Why did it take you until March 14, to go to the police officers and give your written statement? A At the time of the week few days after the incident, I had not yet composed myself. On March 14, when I had composed myself, I went to the authorities to give my statement. (p. 142, TSN, October 16, 1969.) According to the defense, the other alleged eyewitness to the incident, Elpidio Buccat, son of the deceased Alfredo Buccat, must also suffer the same fate. His testimony cannot be given faith and credence for like her mother, his declarations cannot be believed. While he allegedly witnessed the whole incident, he refrained from divulging to the authorities the identities of his father's assailants allegedly because he was advised by her mother not to do so for fear of their lives. Thus, he declared: CROSS-EXAMINATION BY ATTORNEY CARIASO Q When you saw them (appellants), did you not go to the police authority and tell the authorities to arrest them as they are the assailants of your father? A Not yet, sir. Q Why? A I was advised by my mother not to make a report to the authorities yet for fear of our lives. Q When were you advised by your mother? A The following day, Sir, after the incident. (pp. 181-182, TSN, October 23, 1969.) The defense considers the foregoing testimony as valueless for two reasons: First, because on the night of the incident immediately after his father was shot, the police investigators were already in their house conducting an on the spot investigation. So he could have informed them of the identities of his father's assailants right then and there, since there was yet no instructions from his mother not to divulge the names of the malefactors, if it is true that it was the following day of the incident that his mother advised Mm not to give the authorities the identities of the assailants. Second, because his testimony on this point is in direct contradiction with his mother's testimony to the effect that immediately after the body of her husband was brought to the hospital, she told Elpidio of the identity of the assailants at the same time telling him "not to talk as yet about the matter, " to wit:

CROSS-EXAMINATION BY ATTY. CARIASO Q Aside from Espejo, did you ever tell any other person especially members of your household about the Identity of the assailants of your husband? A None, sir. COURT: You did not tell anybody, or you do not remember having told anybody? A It was to Elpidio, my son, whom I told, sir, that "You will not talk as yet about the matter". Q When did you tell Elpidio?

A When the body of my husband was already brought to the hospital (p. 99, TSN, October 15, 1969. ) The testimony of Elpidio that his mother told him not to reveal the Identity of the assailants to the police authorities is a lie because the body of the deceased was brought to the hospital on the same night of the incident. And since the testimony is false, the defense argues that his whole testimony should be disregarded under the principle of falsus in uno falsus omnibus , false in one, false in all under "the cardinal rule which has served in all ages, and has been applied to all conditions of men, that a witness wilfully falsifying the truth in one particular, when upon oath, ought never to be believed upon the strength of his own testimony, whatever he may assert." (U.S. vs. Osgood 27 Fed. Case No. 15971-a, p. 364). The defense maintains that the trial court erred in concluding that "the Identity of Luis as the gun wielder was corroborated by the findings of Col. Minardo Finones Chief of the P.C. Central Laboratory, showing that Luis Delmendo was positive for powder burns." (p. 21, Decision). It is contended that the findings of the laboratory that both hands of Luis Delmendo were positive for powder bums is not conclusive that he fired the gun in the light of the passion of Col. Finones that there is such a thing as "false negative," that is if he did not fire a gun but found positive for nitrates (p. 10, TSN, Sept. 23, 1969); that it is possible that a person who did not fire a gun could be found positive for powder burns; that "even a mere handling, for one occasion, of fertilizer could produce nitrates on one's hand" (pp. 11-12, TSN, Sept. 23, 1969). In short, Col. Finones admitted that (1) one who works in a laboratory and handles nitrates will have nitrates in his hands (p. 7, TSN, Sept. 23, 1969); (2) even smoking could produce nitrates (p. 11, Id.); (3) even urinating also produces nitrates (p. 11, Id); and (4) handling of fertilizer also produces nitrates. (p. 13, Id.). The defense further contends that although Col. Finones testified that nitrates from gun powder is fine and thin whereas other nitrates give fighter color and bigger smell, he admitted that this is not conclusive (p. 12, TSN, Sept. 23, 1969). This means that although thin and fine nitrates were found in the hands of Luis Delmendo such fact is not conclusive that he fired a gun. It is not disputed that accused Luis Delmendo was at the time of the incident an employee of the Filipinos Magnetite Corporation, FILMAG for short, working under Engineer Daniel P. Cafuir Chemical Engineer, in the Assay Department of said firm (pp. 330-331, TSN, March 5, 1970). Luis was then a laboratory technician in said firm, assisting the firm's chemist in "the analysis of elements, iron concentrate and copper ores that he used to handle chemicals and although he was equipped with gloves to prevent him from contamination, he had been working without gloves, reason for which the firm used to reprimand him. (p. 332, TSN, Id.). Engineer Cafuir likewise declared that: "The chemicals most often used in the laboratory are acid solvents like hydrocloric acid, sulphuric acid, nitrate acid, perphloric acid, nitric acid, potassium dichromate, chemicals which pertain to other analysis of different elements ammonium nitrate, potasium iodine, sodium thiasulphate " (pp. 336-337, TSN, March 5, 1970). In convicting the two accused for the murder of the victim in this case, the conviction must be based on evidence that is clear, positive and strong creating a moral certainty as to the guilt of the accused. The charge against them must be proved beyond reasonable doubt. Since the two alleged eyewitnesses to the commission of the crime are the widow and son of the victim, their testimonies pointing to the accused as the perpetrators must be subjected to a rigid test which should demonstrate beyond cavil their truthfulness, honesty and rectitude as actual eyewitnesses to the perpetration of the criminal act. There must never be any shadow of doubt, any cloud of suspicion or deception to conceal the facts and disguise the truth. The first, if not the basic foundation upon which the prosecution builds its case against the accused is proof beyond reasonable doubt that it is the said accused who committed the crime charged. In other words, the Identity of the accused is the first duty of the prosecution. As earlier indicated, the widow, Magdalena, and her son, Elpidio, both point the accusing finger to the two accused as the assailants. Yet, the evidence clearly show that it took them 16 days after the commission of the crime to lay the blame upon both accused for the first time when on March 14, 1969, these alleged eyewitnesses went to the police department in the townhall to make their written statements and accuse the two defendants, although police investigators (one of them the police sergeant who was their close relative) had gone to the house of the victim and the witnesses to conduct an on-the spot investigation that very night when the shooting occurred on February 26, 1969. The credibility of their testimonies are, therefore, seriously attacked.

What is the rule in criminal law jurisprudence in similar or analogous cases where there is delay or failure to identify the accused at the earliest opportunity? In the following cases, the Supreme Court has uniformly held that such an identification is an afterthought designed to implicate the accused and cannot be the basis of conviction. Thus In People vs. Baquiran 20 SCRA 451, 456-458, the Supreme Court said: The widow's behavior after the incident was even more puzzling and leads us to the conclusion that she did not at all recognize her husband's assassin and that her subsequent Identification of the appellant was an afterthought born of a prejudiced mind. She related that when she reported the murder to the PC detachment at Tumauini around one o'clock in the morning of April 30, 1959, she told Sgt. Venturina that it was Fulgencio Baquiran who shot her husband. But Sgt. Venturina denied this and testified that she refused and would not talk about the matter. Mateo Forto who, she admitted, was present when she made the report to Sgt. Venturina, confirmed the sergeant's testimony and added that she said that she was not able to recognize any of the killers. Forto also disclosed that on the way to Tumauini, he questioned Juanita as to the identity of her husband's assailants and that the widow replied that she was not able to recognize them because they had the brim of their caps tilted downwards. Bernardo Gumatay, chief of police of Tumauini, testified similarly. When he investigated the widow at the scene of the crime, the latter revealed that she could not recognize the malefactors because it was dark. Upon his return to Tumauini Gumatay entered the result of the evening's investigation in the police blotter under date of April 30, 1959 (Exh. 3). Dr. Laman, who overheard the conversation between Gumatay and the widow, corroborates the former's testimony. These witnesses have not been shown by the prosecution to have any inordinate interest in the acquittal of the accused. No one is a relative of barrio-mate of the appellant. They are disinterested persons and the record does not indicate any reason for us to disbelieve their testimonies or to suspect their motives. The natural reaction of one who witnesses a crime and recognizes the offender is to reveal it to the authorities at the earliest opportunity. Juanita Marilao did report the crime to the Constabulary but she did not reveal the identity of the assailant although it was inquired into three times or more. it taxes credulity that Juanita made no effort to expose the appellant then. Her silence casts serious doubt on her subsequent identification of the appellant, Had she really recognized the appellant, as the prosecution contended, she would have immediately and spontaneously revealed his Identity upon reporting the crime as would be expected according to the natural course of things. The argument that she was still in a state of shock after the incident and that she was afraid of reprisal from the assailants who were still at large is not supported by the evidence on record. The fact that she was able to seek out Ocampo and Forto to help her go to Tumauini on the night of the murder does not show a confused and disorganized mind. If she were afraid of reprisal, wouldn't it be more in consonance with common experience for her to have revealed the identity of the accused that he might safely be put behind bars? As it were, the accused was not ordered arrested until May 3, 1959 after Sgt. Venturina filed a complaint the day before. This is in itself significant for it lends support to the declarations of Celedonia and Fulgencio that the identification of the latter as the alleged assailant took place on May 1, 1959 and not on April 30 as asserted by both Juanita and Venturina. As previously mentioned, Juanita testified that she identified the accused as the murderer of her husband during the first hours of the morning of April 30, 1959 when she reported her husband's death to the PC detachment at Tumauini. This was denied and contradicted by Sgt. Venturina who asserted that the identification was made during the confrontation between the widow and the appellant in the morning of April 30 around nine or ten o'clock in the morning. Celedonia, who was investigated together with her mother as Venturina himself admitted, testified that the investigation took place on May 1, 1959 and that the accused was not present at all. This corroborates Baquiran's statements to the same effect. For more than twenty-four hours then no word was received from the widow as to the identity of her husband's killers. This despite the fact that after her husband's burial on April 30, she decided to spend the rest of the day and night in Tamauini. If Sgt. Venturina filed the complaint only on May 2, 1959, it could have been due to the fact that the widow made her Identification only the day before, May 1, 1959. But then, she had had more than ample time for reflection and what was merely a suspicion deepened into a conviction. She admitted on cross-examination that she was not able to identify her husband's killer although she suspected somebody. Thus: Q You want to make this Honorable Court understand that the Chief of Police, together with his two policemen, Domingo and Taguba, went to that place where your husband was shot and killed without interrogating or making investigation regarding the assailant? A He asked me, sir. Q And there you told him that you were not able to identify the person who shot and killed your husband, although you suspected somebody?

A Yes, sir. (t.s.n. 71). She repeated her suspicions later to Chief of Police Gumatay after the burial of her husband, mentioning the name of Baquiran as the suspect. Needless to say, suspicion is no Identification. And the fact that she merely had suspicions is an indication that at the time her husband was shot, she was not able to make a positive Identification of the assailant. In People vs. Bulawin 29 SCRA 710, 714-715, 719-720, where the witness did not mention the incident to the people in his own house and where an investigation was then being conducted by the Constabulary the Supreme Court said Soon after the incident, people went to the place where Jimenez felt Amongst them were Governor Ali Dimaporo, Vice-Governor Arsenio Quibranza, Mayor Apolonio Yap and many others. Witness Autor however, testified that he communicated to nobody, although "Mr. Quibranza, Dimaporo and his leaders were still there," and left for home without even extending a helping hand to the victim Autor said that he did not mention the incident to the people in his own house. These circumstances suggest a substantial amount of improbability. Of interest is Autor's declaration that the only person to whom he ever mentioned what he saw was a brother of the victim. And this, he did in the morning following the incident. It would seem odd then that the brother of the victim did not inform the authorities about it. The record does not so indicate. No one appeared to have ever thought at that time of taking Autor's statements, certainly very important to this case. For, he was, as already stated, allegedly the sole eyewitness to the crime. Well it is to remember that an investigation was then being conducted by the Constabulary. Appellant and a number of witnesses were in the barracks located in the same town of Salvador. (pp. 714-715) 3. There is a dearth of autoptic or demonstrative evidence which would positively connect appellant with the crime. Nothing in the record shows that the officers even made any effort to locate the alleged pistol used by appellant. Nor is there evidence that appellant has had one. In the morning of September 23, 1963, Sgt. Aniceto Dacalos, in the presence of Sgt. Sarbida pointed at appellant as the owner of a big hat which was apparently left at the scene of the crime. Appellant denied this. Even that hat was not exhibited in court. Or, its whereabouts accounted for. (p. 720) In People vs. Cunanan 19 SCRA 769, where the witness revealed the Identity of the accused seven days after the shooting of the victim and his reason was that every member of the family of the deceased was very angry and he was afraid to reveal the Identity of the culprit sooner as "something also untoward would even happen," and "(t)he situation might be aggravated," (p. 775) the Supreme Court, thru Justice Sanchez, held: 7. The natural reaction of one who witnesses a crime is to reveal it to the authorities unless, of course, he is the author thereof. It defies credulity that not one or two but five such witnesses made no effort to expose Cunanan if they really knew that he was the author thereof This stultified silence casts grave doubts as to their veracity. In the end, we have here a specific case where evidence of Identification is thoroughly unreliable. Reason: No valid explanation was given why the People's witnesses did not report the odentity of appellant Nicolas Cunanan to the authorities during a long period of time. In People vs. Roxas, 73 SCRA 583, where the two witnesses gave their statements after the wake, or a delay of five days from the shooting of the deceased because their deceased uncle was a bachelor, without any family to attend to his burial, the Supreme Court, speaking thru Justice Antonio, ruled: Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of the witness, if such delay is satisfactorily explained. (p. 590) In People vs. Aquino, 93 SCRA 772, where the witnesses reported 12 days after the shooting, it was therein held with Justice Abad Santos as ponente that: If, indeed, these witnesses had recognized and Identified the assailants, they would have reported the shooting and revealed the Identity of the culprits, to the police authorities, at the earliest possible

opportunity, as could ordinarily be expected of witnesses to a fatal shooting. But, not one of them did so. The shooting was reported to the police by a certain Sulpicio Umiten, a public school teacher in Kabacan. When the police authorities arrived at the scene, Pacifico and Romulo claimed that they were among those questioned by the police. Yet none of them, singled out and named the accused. They attempted to explain their inability to disclose the identity of assailants, by claiming that they were afraid because it was already getting dark, which explanation is too crude to be convincing. Romulo added a lame excuse, that questions asked of him did not extend to the identity of the culprits. Pacifico and Romulo testified that two days after the shooting they were investigated, and that they separately executed sworn statements wherein they named the accused. But surprisingly, their alleged sworn statements are both dated November 16, 1970, or twelve days after the shooting. On the main, all that the prosecution had proved was the fact of death of Benigno Pascua, but it failed to prove by outright, convincing and conclusive evidence that such death was caused by the accused. The evidence for the prosecution does not even show that attempts were made to recover the Garand rifle allegedly used in the shooting, or that any of the accused was in possession of a rifle at the time of the shooting. It does not even appear that formal and thorough investigation was made of the accused, more particularly of Pedro Casimina who appears to have been hastily included in the murder charge. Reviewing and putting altogether what happened immediately before, during and after the shooting incident, We find many facts and circumstances that are not very clear nor do they logically and naturally arise from an assumption that Magdalena and Elpidio actually saw and Identified the accused Luis and Florentino Delmendo shoot the deceased Alfredo Buccat at the time and place charged. First, when the police went to the scene of the crime in the evening of February 26, 1969 in the very house of the victim to investigate the shooting, Magdalena Buccat did not identify the two accused as the persons who shot her husband. Her testimony on this point is vague and uncertain, if not vacillating, as shown in the transcript of the stenographic notes during the trial on October 15, 1969, excerpts of which follow: Q Did you ever tell anyone that night that you recognized the person who shot your husband? A None, sir. Q When was the first time that you ever told anybody that you recognized the assailants of your husband? A Maybe it was to Itong Espejo whom I told, sir. Q And you told Espejo on that same night of the incident? A Yes, sir. Q Did you not say a while ago that you never told anyone the identity of the assailants of your husband that night? A I cannot remember if I told that to Itong Espejo, but maybe, I told it, sir, because he talked to me that night. Q But did you not state a while ago that you do not even remember whether he investigated you that time? ATTY. CACANINDIN: There is a lot of difference between investigation and talking. Q Aside from Espejo, did you ever tell any other person especially members of your household about the identity of the assailants of your husband? A None, sir.

THE COURT: You did not tell anybody, or you do not remember having told anybody? A It was to Elpidio, my son, whom I told, sir, that 'You will not talk as yet about the matter. Q When did you tell Elpidio? A When the body of my husband was already brought to the hospital. (t.s.n., pp. 98-99, October 15, 1969)

In the latter part of her cross-examination, the same witness, Magdalena Buccat, admitted that she did not tell Cpl. Modesto Espejo of the Bacnotan Police Force who was the first police investigator of the case who arrived soon after the shooting incident, who killed her husband because she was then crying, as indicated in the following excerpts of her testimony during the trial of the case on October 16, 1969, to wit: Q Madame Witness, were you not investigated immediately after the incident? A I am not sure if I was investigated. I cannot remember. Maybe I was investigated by I tong Espejo. Q You were also investigated by the PC. A No, sir. Q There were no investigator, any agency, except Itong Espejo, who came to your house. Is that right? A Maybe he came with a companion, but I am not sure if they asked questions from me. I was then crying. Q That is why you did not tell Itong who killed your husband? A I did not then mention because I was then crying. (t.s.n., pp. 138-139, October 16, 1969) We have also the testimony of Sgt. Camilo Marquez, a second cousin of the deceased Alfredo Buccat, who declared that "upon going to Agtipal from the hospital he had occasion to talk to Magdalena Arellano, widow of the deceased Alfredo Buccat, but he was not able to talk to her because she was hysterical and was continuously crying." (t.s.n., p. 55, September 23, 1969). The sergeant was also asked this question: "Q - In other words, you tried with desperate efforts from February 26, 1969 up to March 14, 1969, to talk with the widow and the children and yet was unable to make them talk?" and his answer was: "A- They were all hysterical." (t.s.n., p. 59, Sept. 23, 1969). This testimony of Sgt. Marquez must be believed in full because he is a close relative of the deceased and it is but a normal and natural reaction of the widow, shocked by the shooting of her husband, rendering her speechless or unable to talk. But when the police accompanied by P.C. soldiers and later followed by Sgt. Marquez, an of whom would provide protection and security to the aggrieved family, it became the duty of the widow to reveal the identities of the assailants, even in confidence to the sergeant as a close relative if she really knew said assailants. But the widow did not, and from this omission or failure to reveal the identities of the perpetrators, We can only conclude that in truth she was not able to identify the killers of her husband. Her reason that she was crying and was hysterical, that she was not composed and that she was afraid of their lives can no longer be justified in the light of the long delay of 16 days when she finally went to give her statement to the police. Her explanation is no longer valid to excuse the lateness of her accusation against the accused after more than two weeks had passed. Indeed, "this stultified silence casts grave doubts as to their veracity. " (People vs. Bulawin 29 SCRA 710). Second, the testimony of Elpidio, 19-year old son of the deceased, who claims to have seen the two accused shoot his father, is likewise doubtful. It is even contradictory for, according to Elpidio, the first time he told anyone about the identity of the assailants of his father was when he told his mother and that was when she asked him if he saw Florentino and Luis Delmendo shoot his father. His mother allegedly asked the question that same evening of the shooting which was February 26, 1969, after the father was already in the hospital. (t.s.n., pp. 177-178, Hearing of Oct. 23, 1969). Yet, according to Elpidio himself on cross- examination, it was on the following day after the incident that he was advised by his mother not to make a report to the authorities for fear of their lives. (t.s.n., pp. 181182, Hearing on Oct. 23, 1969). Contrary-wise, Magdalena told her son Elpidio not to talk as yet about the matter when the body of her husband was already brought to the hospital (which was in the evening of February 26, 1969). (t. t.s.n., p. 99, Hearing of Oct. 15, 1969). Following the testimony of Elpidio, he declared that after the shooting of his father, he ran out of the kitchen door and sought help in the neighboring house of Herminio Marquez, ten meters away from their own house, telling Herminio that his father had been shot. Herminio Marquez is the brother of Sgt. Camilo Marquez, the second police investigator of the incident and admittedly a second cousin of the victim, Alfredo Buccat. This Herminio, being a close neighbor, is also a close relative of the aggrieved family. Now, when Elpidio on the witness stand was asked: "Q Did Herminio Marquez ask you the Identity of the persons who shot your father when you came to him?" Elpidio's answer was: "A No, sir." Then followed this question: "Q And you did not volunteer to tell him "A No, sir." (t.s.n., p. 177, October 23,1969).

This failure of Elpidio to inform even their neighbor Herminio Marquez, who is also a second cousin of his father, being the brother of police investigator Sgt. Camilo Marquez, which would have been a very logical and natural particular to disclose in Elpidio's report or account of what had happened to his father as stated by him to Herminio as the former sought for help, must cast grave doubts as to the credibility of Elpidio's testimony that he saw and identified the two accused as the assailants of his father. Third, the lapse of 16 days during which time Magdalena and Elpidio did not go to the police to give their statements or affidavits also engenders grave doubts that the two alleged eyewitnesses actually saw the two accused in the act of shooting the victim. Claiming that they volunteered to go to the Presidencia to be investigated in connection with the incident and that they were not summoned, Magdalena explained that after the incident she had not yet composed herself and it was only on March 14, 1969 that she had composed herself. Such explanation or reason is weak, if not sham, considering that the usual mourning period had already elapsed. She may be the aggrieved widow but certainly, her grief cannot be so protracted as to be neglectful to seek immediate justice with the help of the police. That the witnesses procrastinated or delayed in going to the police authorities strongly indicates the conclusion that they did not actually see the assailants or they were not sure and positive as to their identities. Fourth, the circumstances of time and place further engender serious misgivings that the two eyewitnesses, Magdalena and Elpidio, clearly saw the faces of the assailants. The time of the shooting was between 7:00 and 8:00 o'clock in the evening of February 26, 1969. Three (3) small kerosene lamps were lighted because it was already nighttime and supper had already been partaken by the Buccat family. The two alleged eyewitnesses were inside the house, on the ground floor and without any premonition whatsoever of the coming danger. The assailants were outside the house, some nine meters away from the place where Magdalena was. She declared that she saw the assailants only through the window, the dimensions being 1 meter and 33 cms. It may be true that the moon was shining at one o'clock position and it was only a half-moon, but considering the distance and the conditions of the night, common experience show that it would be physically difficult to immediately accustom the eyes to an object, more so a person, standing outside in the premises of the yard. That Magdalena could identify the color of the assailants' shirts and that Elpidio could identify the color of their pants which must have been hidden by the lower portion of the window through which they were sighted, appears to be an exaggeration, if not imagination to lend credence to their identification. These and other details which the witnesses recalled and what each did after the shooting to prove their memory do not, however, impress Us in the face of the indisputable fact that the witnesses delayed unreasonably in accusing the two assailants to the police. The records further show the lackadaisical action of the police in apprehending and arresting the perpetrators. When Cpl. Modesto Espejo with Patrolman Partible and 2 P.C. soldiers repaired to the scene of the shooting right after the incident, no attempt was made to locate, search or recover the firearm used. Cpl. Espejo said he investigated the widow and the son (t.s.n., p. 27, Hearing of Sept. 23, 1969) although Elpidio, the son, said he was not investigated by Cpl. Espejo (t.s.n., p. 180, Hearing of Oct. 10, 1969) but Espejo did not take their statements in writing that night, or even after several days. He did not follow up his investigation because he rested. (t. t.s.n., p. 31, Sept. 23, 1969) and worse, he did not even place in the police blotter the report of his investigation as to who shot the victim. (t.s.n., p. 34, Sept. 23, 1969). And Sgt. Camilo Marquez, a second cousin of the victim who took over the investigation from Cpl. Espejo, did not interview the widow allegedly because she was crying. Yet, the police waited until March 14, 1969, 16 days after the shooting, to resume its investigation when the affidavits of the witnesses were taken, only to be subscribed and sworn to 5 days thereafter, on March 19, 1969. From this indecision and hesitancy, it can be reasonably inferred that the evidence then at hand was insufficient and doubtful to formally charge the accused. Now, to the motive. Generally, proof of motive is unnecessary to pin a crime on the accused, if the evidence of identification is convincing; however, where the proof of identification is not convincing, then proof of motive is necessary. (People vs. Cunanan, L-17599, April 24, 1967, 19 SCRA 769; People vs. Portugueza, L-22604, July 31, 1967, 20 SCRA 901; People vs. Jamero, L-19852, July 29, 1968, 24 SCRA 206, People vs. Guardo, L-23541, August 30, 1968, 24 SCRA 85 1). Motive to kill assumes pertinence only when there is doubt as to the identity of the culprit, (People vs. Sales, 44 SCRA 489; People vs. Basuel, 44 SCRA 207). Proof of motive is important in knowing the reasons for the commission of a criminal act. (People vs. Custodia 47 SCRA 289). Absence of motive is important

in determining the truth as between conflicting versions of the incident object of the accusation. (People vs. Boholst-Caballero, 61 SCRA 180; People vs. Beltran, 61 SCRA 246) In the case at bar, the lack of sufficient motive for the two accused to shoot the victim is supportive of their defense of denial in the commission of the crime. According to the prosecution evidence, the motive to kill arose from the remarks of the victim referring to the two accused as "drunks" and We quote the testimony of the widow: Q Do you know the reason why they shot your husband? A There is. Q What was that? A When the two accused were approaching our house, they were seen by my husband. Q What about when the two were arriving at your house? A My husband said, "Do not bring out basi anymore because the drunks are here again". Q He was addressing who when he said that? A To my son, Elpidio. Q And who were the drunks referred to by your husband who were arriving? A Luis and Tino, sir. Q For whom was that basi which Elpidio was trying to bring out? A My husband intended that basi for my kumpadre, Eniong Oredena and Cipriano de Larna. (pp. 81-82, Hearing of Oct. 15, 1969) In another portion of the widow's testimony stating that the accused Florentino Delmendo was sore at her, she related that Florentino and Ms brother, Federico, had a quarrel at her house about 1:00 o'clock in the afternoon of February 26, 1969 wherein she interceded and pacified them sending home Federico to stop the fight between the brothers. We quote her testimony: THE COURT: (Addressing Magdalena Buccat) After you had pacified them, what happened? A Florentino got sore because I sent his brother home. THE COURT: Why did his brother Federico leave? A Because I pleaded to him that he would go home so that their fight would not go on. THE COURT: But he did not tell anything to you that he was sore at you? I refer to Florentino. A He did not do anything, Sir, but I saw him very sore at me. (t. s. n pp. 107-108, Hearing October 15, 1969) Assuming that the deceased had referred to the accused as "drunks", assuming that Florentino was sore because Magdalena pacified the fight between the two brothers, Florentino and Federico, assuming further that Magdalena remarked about the bad manners of the two accused when Florentino vomitted, are these sufficient motives or reasons for the accused to murder the deceased, Alfredo Buccat? We do not believe so. We hold and rule that tested by the common experience and observation of mankind, the said evidence fags short, far and below that degree of probability logically and reasonably acceptable under the circumstances. For certainly, the role of Magdalena as a peacemaker between the fighting brothers, Florentino and Federico Delmendo was a good deed which normally deserves another in return, and not an act of murder of the husband who was not even present during the quarrel. Nor does the remark uttered by Alfredo Buccat referring to the two accused as "drunks" sufficiently prove the reason for the shooting, much less the comment on their bad manners. Indeed, the insufficiency of the motive, nay its improbability by normal standards, weakens the prosecution's identification of the accused. In fact, it strengthens the defense claim that the accused were not the assailants. The last point is the defense of alibi set up by the accused. Alibi is a weak defense that cannot prevail over positive identification of the accused by eyewitnesses (People vs. Estrocada 75 SCRA 295; People vs. Roncal 79 SCRA 509). Alibi assumes importance where evidence for prosecution is weak and betrays lack of concreteness on question of whether or not the accused committed the crane charged.

An accused cannot be convicted on the basis of evidence which, independently of his alibi is weak, uncorroborated, and inconclusive. The rule that alibi must be satisfactorily proven was never intended to change the burden of proof in criminal cases; otherwise, there would be the absurdity of an accused being put in a more difficult position where the prosecution's evidence is vague and weak than where it is strong. (People vs. Lim, L-46890, Nov. 29, 1977, 80 SCRA 496). The same rule is reiterated in People vs. Dilao, L- 43259, Oct. 23, 1980, 100 SCRA 358,394. Re-stated otherwise, the weakness of the defense of alibi does not relieve the prosecution of the required burden of proof. (People vs. Aquino, 93 SCRA 7'0 2; People vs. Salazar, 93 SCRA 796). And although alibi is the weakest defense that an accused can avail of, it acquires commensurate strength where no positive and proper identification has been made by the witnesses of the offender. The prosecution has the onus probandi in establishing the guilt of the accused and the weakness of the defense does not relieve it of this responsibility. (People vs. Cruz, L-24424, March 30,1970,32 SCRA 181). Applying the above jurisprudential rules to the case at bar, it is at once discernible that the alibi of the two accused is so simple in their candidness in admitting that each of them were in their respective houses which are very near to the scene of the crime at the time of the shooting of the victim. The house of the accused Luis Delmendo is about 200 meters from the house of the victim (t.s.n., p. 413, hearing on March 5, 1970) and he (the accused) was about to eat his supper when he heard the gun volleys (t.s.n., p. 394, hearing, March 5, 1970). And with respect to the other accused Florentino Delmendo his house is about 50 meters away from the house of Magdalena Buccat (t.s.n., p. 310, hearing, March 4, 1970) and said accused was in the street north of his house when he came to know for the first time that Alfredo Buccat was shot (t.s.n., p. 319, hearing, March 4, 1970). The above alibi is positively corroborated by witness Florentino Almodovar who declared that he, together with the two accused drank gin and coca-cola in the store of Magdalena Buccat that afternoon of February 26, 1969; that they walked to the house of Antonio Corpuz where Almodovar stayed behind while the two accused proceeded to the house of Barrio Captain Revelino Balen; that after 30 minutes, he saw the two accused leave the house, going northwards, after which he heard gun explosions, a successive volley of fires coming from the west. (t.s.n., pp. 259-263, March 4, 1970 hearing). While the defense of alibi frequently deserves little consideration because it is easily fabricated, it is not always false and without merit (People vs. Pulmones, 61 Phil. 680) as in the case at hand, and when coupled with the improbabilities and uncertainties of the prosecution evidence, suffice to raise reasonable doubt as to their responsibility (People vs. Bartolay, 42 SCRA 1). We have already ruled herein that the prosecution has not presented clear, positive and convincing evidence identifying the two accused as the actual assailants or perpetrators of the shooting of the victim, Alfredo Buccat. The basis of Our ruling have been laid down and explained and the inevitable end result is that We must acquit the two accused not because their defense of alibi is weak, although such defense has acquired commensurate strength due to failure of positive and proper identification of the offenders by the witnesses, but on the ground that the prosecution has failed to discharge its responsibility of proving their guilt beyond reasonable doubt. For indeed, the duty of the prosecution to prove the guilt of the accused beyond peradventure of doubt is a primary one, and until and unless such duty has been performed, the constitutional presumption of innocence to which the accused is entitled must be upheld, whether his defense of alibi is weak or strong. While the prosecution is not required to submit such a degree of proof as, excluding possibility of error, produces absolute certainty but only moral certainty is required, or that degree of proof which produces conviction in an unprejudiced mind (Rule 133, Sec. 2, Rules of Court), in the case at bar, We are confronted with inculpatory facts and circumstances which are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with their guilt. In such a situation, as held by the Supreme Court in People vs. Abana, 76 Phil. 1; People vs. Pacana 47 Phil. 48, 57; People vs. Bautista, 81 Phil. 78; People vs. Parayno, L-24804, July 5, 1968, 25 SCRA 3, the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. We have analyzed and weighed the whole proof of the case at hand, the totality of all the facts and circumstances presented before Us, and after such careful analysis, review and appraisal We find inability to let the mind rest easy upon the moral certainty of their guilt.

Thus, in People vs. Gallora L-21740, Oct. 30, 1969, 29 SCRA 780, 786, where the circumstances are in some respects similar to the present case, the Supreme Court, speaking thru Justice Makalintal said: The corroborated alibi of appellant; the fact that he did not hesitate to go with the municipal authorities to the scene of the crime; the failure of the two material witnesses for the prosecution to identify him when identification would have been most timely and in accord with natural human reaction the absence of evidence concerning motivation; and the finding of the telltale handkerchief in the possession of another person all these circumstances cannot but cast a grave doubt as to the guilt of appellant.

show characteristics of blue specks, and this is similar to gunpowder burns." (t.s.n., p. 354, March 5, 1970 Hearing) In resume, where the evidence clearly and convincingly show that (1) the material witnesses of the prosecution, the widow and son of the deceased failed to reveal and identify the assailants to the police and P.C. authorities at the earliest opportunity when they arrived to investigate the shooting soon thereafter, not even to the police sergeant, a close relative of the aggrieved family, who followed up the investigation; (2) that the son, reporting to and seeking help from an uncle living only 10 meters away from the scene of the crime, did not also disclose the assailants' identities; (3) that both material witnesses delayed unreasonably for 16 days after the shooting to go to the police department and make their sworn statement naming the two accused as the perpetrators; (4) that the circumstances of time (between 7:00 and 8:00 o'clock in the evening), of place (witnesses are under the house in the ground floor and looking through a small window out to the yard of the house located in the barrio), and of distance (9 meters away) render accurate Identification of perpetrators in a sudden and startling occurrence, difficult and unreliable; (5) the police made no effort to locate and search for the fatal weapon nor place in the police blotter the names of the suspects; (6) that the motive shown was flimsy, inoffensive and trivial, hence insufficient; and (7) both accused volunteered to donate their blood to the victim and in fact, one gave 250 cc. of his blood, type "B " to save him the guilt of the two accused has not been proven beyond reasonable doubt, thus they are entitled to acquittal of the crime charged. WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby REVERSED and SET ASIDE. The two accused are hereby ACQUITTED and they are ordered released and set free immediately, unless they are otherwise detained for some other lawful cause. SO ORDERED.

Indeed, the impartial and unbiased mind is not laid to rest easy upon the moral certainty of the accused being guilty in the light of the very singular fact that both accused Luis and Florentino, immediately volunteered to be blood donors to save the life of the victim. Alfredo. The very evidence of the prosecution show that both accused joined and rode with other volunteers in two caretelas to the town and then took a Thames transportation jitney to San Fernando town at the Lorma Hospital and there, Luis was tested as to the suitability of his blood type and accordingly, gave 250 cc. of his life blood, type "B" to the victim which is attested by the certification of the Medical Technician, Nora Zafra, in Exhibit "1". According to the accused Luis, he donated blood because Alfredo Buccat was his uncle, the latter being a second cousin of Luis' father, and he had no misunderstanding with his uncle. The trial court's holding that this sacrifice of blood donation made by the accused Luis Delmendo was possibly a manifestation of remorse on the part of the accused after their drunken state had subsided, is clearly a distortion for a drunken person cannot be accepted for blood transfusion or donation. Likewise, to hold that possibly the accused went with the crowd to the hospital to hide their responsibility for the crime is purely conjectural and speculative. The records do not disclose any reasonable basis, not an iota of proof for such a conclusion arrived at by the court a quo. As to the P.C. findings in Exhibit "C" that the dorsal portion of both hands of the accused Luis Delmendo was found positive for gunpowder residue (nitrates), the same is, to Our mind, satisfactorily explained by the testimony of Luis who at the time was employed with Filipinos Magnetite Corporation {FILMAG} and his work was assisting the chemists in assaying or analyzing iron concentrates and copper ore from the black sands dogged out by FILMAG, using his hands, sometimes with gloves and other times without gloves, causing yellowish discoloration on the palm, fingers, fingertips and dorsal portion of both hands. The work involved the handling and mixing of chemicals such as ammonium nitrate, potassium nitrate, sodium nitrate and other reagents The nature of Luis' work as a laboratory technician is corroborated by his immediate superior, Chemical Engineer Daniel P.Cafuir That the presence of gunpowder residue (nitrates) on both hands of the accused Luis do not conclusively prove that he had recently fired a gun is admitted by the P.C. expert, Col. Minardo Finones who testified also for the defense. The most significant testimony of Col. Finones is that there is no difference in size between gunpowder residue and one caused by constant handling of chemicals (t.s.n., p. 359, March 5, 1970 Hearing) and that the continued handling of chemicals containing nitrates, potassium nitrate, sodium nitrate and ammonium nitrate will give characteristic color of blue specks on a person handling said chemicals (t.s.n., p. 362, March 5, 1970 Hearing); and that one who fired a gun may give a negative result and also one who did not actually fire a gun is negative for paraffin test because according to him, "there is a false positive and a false negative. False negative is when he fired a gun and is negative for paraffin test; and false positive when he never fired a gun but is positive for paraffin test. Why because he has been handling some chemicals like potassium nitrate and ammonium chloride, depending on the extent of contamination. Naturally when tested with dyphenyl-amin reagents, it will

DIGEST:

CITIBANK, N.A. (Formerly First National City Bank) and INVESTORS' FINANCE CORPORATION, doing business under the name and style of FNCB Finance, petitioners, vs. MODESTA R. SABENIANO, respondent.
It bears to emphasize that the proceeds of the loans were paid to respondent in MCs, with the respondent specificallynamed as payee. MCs checks are drawn by the bank's manager upon the bank itself and regarded to be as good as the money itrepresents.79 Moreover, the MCs were crossed checks, with the words "Payee's Account Only."In general, a crossed check cannot be presented to the drawee bank for payment in cash. Instead, the check can only bedeposited with the payee's bank which, in turn, must present it for payment against the drawee bank in the course of normalbanking hours. The crossed check cannot be presented for payment, but it can only be deposited and the drawee bank may only payto another bank in the payee's or indorser's account.The crossed MCs presented by petitioner Bank were indeed deposited in several different bank accounts and cleared by theClearing Office of the Central Bank. The crossed MCs are already in the possession of Citibank, the drawee bank, which wasultimately responsible for the payment of the amount stated in the checks. Given that a check is more than just an instrument of credit used in commercial transactions for it also serves as a receipt or evidence for the drawee bank of the cancellation of the saidcheck due to payment, then, the possession by Citibank of the said MCs, duly stamped "Paid" gives rise to the presumption that thesaid MCs were already paid out to the intended payee, who was in this case, the respondent. The presumptions are disputable,meaning, they are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence. Respondent, however,was unable to present sufficient and credible evidence to dispute these presumptions.It should be recalled that out of the nine MCs presented by Citibank, respondent admitted to receiving one as proceeds of aloan (MC No. 228270), denied receiving two (MCs No. 220701 and 226467), and admitted to receiving all the rest, but not asproceeds of her loans, but as return on the principal amounts and interests from her money market placements.The mere fact that MCs No. 220701 and 226467 do not bear respondent's signature at the back does not negate depositthereof in her account. The liability for the lack of indorsement on the MCs no longer fall on petitioner Citibank, but on the bank who received the same for deposit, in this case, BPI Cubao Branch. Once again, it must be noted that the MCs were crossed, for payees account only, and the payee named in both checks was none other than respondent. The crossing of the MCs was already a warningto BPI to receive said checks for deposit only in respondent's account. It was up to BPI to verify whether it was receiving the crossedMCs in accordance with the instructions on the face thereof. If, indeed, the MCs were deposited in accounts other than respondents, then the respondent would have a cause of action against BPI.BPI further stamped its guarantee on the back of the checks to the effect that, "All prior endorsement and/or Lack of endorsement guaranteed." Thus, BPI became the indorser of the MCs, and assumed all the warranties of an indorser, specifically,that the checks were genuine and in all respects what they purported to be; that it had a good title to the checks; that all priorparties had capacity to contract; and that the checks were, at the time of their indorsement, valid and subsisting. So even if the MCsdeposited by BPI's client, whether it be by respondent herself or some other person, lacked the necessary indorsement, BPI, as thecollecting bank, is bound by its warranties as an indorser and cannot set up the defense of lack of indorsement as against petitionerCitibank, the drawee bank. Furthermore, respondent's bare and unsubstantiated denial of receipt of the MCs in question and their deposit in heraccount is rendered suspect when MC No. 220701 was actually deposited in Account No. 01230572-28 of BPI Cubao Branch, thevery same account in which MC No. 228270 (which respondent admitted to receiving as proceeds of her loan from petitionerCitibank), and MCs No. 228203, 228357, and 228400 (which respondent admitted to receiving as proceeds from her money marketplacements) were deposited. Likewise, MC No. 226467

was deposited in Account No. 0121-002-43 of BPI Cubao Branch, to whichMCs No. 226285 and 226439 (which respondent admitted to receiving as proceeds from her money market placements) weredeposited. It is an apparent contradiction for respondent to claim having received the proceeds of checks deposited in an account,and then deny receiving the proceeds of another check deposited in the very same account.Another inconsistency in respondent's denial of receipt of MC No. 226467 and her deposit of the same in her account, is herpresentation of Exhibit "HHH," a provisional receipt which was supposed to prove that respondent turned over P500,000.00 to Mr.Tan of petitioner Citibank, that the said amount was split into three money market placements, and that MC No. 226467represented the return on her investment from one of these placements. Because of her Exhibit "HHH," respondent effectivelyadmitted receipt of MC No. 226467, although for reasons other than as proceeds of a loan.Respondent presented several more pieces of evidence to substantiate her claim that she received MCs No. 226285,226439, 226467, 226057, 228357, and 228400, not as proceeds of her loans from petitioner Citibank, but as the return of theprincipal amounts and payment of interests from her money market placements with petitioners. Part of respondent's exhibits werepersonal checks drawn by respondent on her account with Feati Bank & Trust Co., which she allegedly invested in separate moneymarket placements with both petitioners, the returns from which were paid to her via MCs No. 226285 and 228400. Yet, to thisCourt, the personal checks only managed to establish respondent's issuance thereof, but there was nothing on the face of thechecks that would reveal the purpose for which they were issued and that they were actually invested in money market placementsas respondent claimed.As a last point on this matter, if respondent truly had money market placements with petitioners, then these would havebeen evidenced by PNs issued by either petitioner Citibank or petitioner FNCB Finance, acknowledging the principal amounts of theinvestments, and stating the applicable interest rates, as well as the dates of their of issuance and maturity. After respondent had someticulously reconstructed her other money market placements with petitioners and consolidated the documentary evidencethereon, she came surprisingly short of offering similar details and substantiation for these particular money market placements.

Since this Court is satisfied that respondent indeed received the proceeds of the first set of PNs, then it proceeds to analyze herevidence of payment thereof. Respondent has not yet paid the loans she had with Citibank In support of respondent's assertion that she had already paid whatever loans she may have had with petitioner Citibank,she presented as evidence Provisional Receipts No. 19471 and No. 12723 both of Citibank and signed by Mr. Tan, for the amounts of P500,744.00 and P500,000.00, respectively. While these provisional receipts did state that Mr. Tan, on behalf of petitioner Citibank, received respondent's checks as payment for her loans, they failed to specifically identify which loans were actually paid. Petitioner Citibank was able to present evidence that respondent had executed several PNs in the years 1978 and 1979 to cover the loans shesecured from the said bank. Citibank did admit that respondent was able to pay for some of these PNs, and what it identified as thefirst and second sets of PNs were only those which remained unpaid. It thus became incumbent upon respondent to prove that thechecks received by Mr. Tan were actually applied to the PNs in either the first or second set; a fact that, unfortunately, cannot be determined from the provisional receipts submitted by respondent since they only generally stated that the checks received by Mr.Tan were payment for respondent's loans.Mr. Tan, in his deposition, further explained that provisional receipts were issued when payment to the bank was made using checks, since the checks would still be subject to clearing. The purpose for the provisional receipts was merely to acknowledge the delivery of the checks to the possession of the bank, but not yet of payment. This bank practice finds legitimacy in the pronouncement of

this Court that a check, whether an MC or an ordinary check, is not legal tender and, therefore, cannot constitute valid tender of payment. (recall PAL vs CA)In the case at bar, the issuance of an official receipt by Citibank would have been dependent on whether the checks delivered by respondent were actually cleared and paid for by the drawee banks. As for PN No. 34534, respondent asserted payment thereof at two separate instances by two different means. In her formal offer of exhibits, respondent submitted a deposit slip of petitioner Citibank, dated 11 August 1978, evidencing the deposit of BPI Check No. 5785 for P150,000.00. In her Formal Offer of Documentary Exhibits, dated 7 July 1989, respondent stated that the purpose for the presentation of the said deposit slip was toprove that she already paid her loan covered by PN No. 34534.102 In her testimony before the RTC three years later, on 28November 1991, she changed her story. This time she narrated that the loan covered by PN No. 34534 was secured by her money market placement with petitioner FNCB Finance, and when she failed to pay the said PN when it became due, the security was applied to the loan, therefore, the loan was considered paid.103 Given the foregoing, respondent's assertion of payment of PN No.34534 is extremely dubious. According to Citibank, the PNs in the second set, except for PN No. 34534, were mere renewals of the unpaid PNs in thefirst set, which was why the PNs stated that they were for the purpose of liquidating existing obligations. PN No. 34534, however, which was part of the first set, was still valid and subsisting and so it was included in the second set without need for its renewal,and it still being the original PN for that particular loan, its stated purpose was for personal investment. Respondent essentially admitted executing the second set of PNs, but they were only meant to cover simulated loans. Mr. Tan supposedly convinced herthat her pending loan application with DBP would have a greater chance of being approved if they made it appear that respondent urgently needed the money because petitioner Citibank was already demanding payment for her simulated loans. Respondents defense of simulated loans to escape liability for the second set of PNs is truly a novel one. It is regrettable,however, that she was unable to substantiate the same. Yet again, respondent's version of events is totally based on her own uncorroborated testimony. The notations on the second set of PNs, that they were non-negotiable simulated notes, were admittedlymade by respondent herself and were, thus, self-serving. Equally self-serving was respondent's letter, written on 7 October 1985, ormore than six years after the execution of the second set of PNs, in which she demanded return of the simulated or fictitious PNs,together with the letters relating thereto, which Mr. Tan purportedly asked her to execute. Respondent further failed to present anyproof of her alleged loan application with the DBP, and of any circumstance or correspondence wherein the simulated or fictitiousPNs were indeed used for their supposed purpose.In contrast, Citibank, as supported by the testimonies of its officers and available documentation, consistently treated thesaid PNs as regular loans accepted, approved, and paid in the ordinary course of its business. The PNs executed by the respondentin favor of Citibank to cover her loans were duly-filled out and signed, including the disclosure statement found at the back of thesaid PNs, in adherence to the Central Bank requirement to disclose the full finance charges to a loan granted to borrowers.Lastly, the exchange of letters between Citibank and respondent, as well as the letters sent by other people working forrespondent, had consistently recognized that respondent owed petitioner Citibank money. In consideration of the foregoingdiscussion, this Court finds that the preponderance of evidence

supports the existence of the respondent's loans, in the principalsum of P1,920,000.00, as of 5 September 1979. Issue: WON the Court violated the Best Evidence Rule when it accepted photocopies and microfilm copies of the PNs, etc Ratio: This Court did not violate the best evidence rule when it considered and weighed in evidence the photocopies andmicrofilm copies of the PNs, MCs, and letters submitted by the petitioners to establish the existence of respondent's loans. The terms or contents of these documents were never the point of contention in the Petition at bar. It was respondent's position thatthe PNs in the first set (with the exception of PN No. 34534) never existed, while the PNs in the second set (again, excluding PN No.34534) were merely executed to cover simulated loan transactions. As for the MCs representing the proceeds of the loans, therespondent either denied receipt of certain MCs or admitted receipt of the other MCs but for another purpose. Respondent furtheradmitted the letters she wrote personally or through her representatives to Mr. Tan of petitioner Citibank acknowledging the loans,except that she claimed that these letters were just meant to keep up the ruse of the simulated loans. Thus, respondent questionedthe documents as to their existence or execution, or when the former is admitted, as to the purpose for which the documents wereexecuted, matters which are, undoubtedly, external to the documents, and which had nothing to do with the contents thereof.Alternatively, even if it is granted that the best evidence rule should apply to the evidence presented by petitionersregarding the existence of respondent's loans, it should be borne in mind that the rule admits of the following exceptions under Rule130, Section 5 (When the original document is unavailable).The execution or existence of the original copies of the documents was established through the testimonies of witnesses,such as Mr. Tan, before whom most of the documents were personally executed by respondent. The original PNs also went throughthe whole loan booking system of Citibank from the account officer in its Marketing Department, to the pre-processor, to thesignature verifier, back to the preprocessor, then to the processor for booking.It was only FNCB Finance who claimed that they lost the original copies of the PNs when it moved to a new office. Citibankdid not make a similar contention; instead, it explained that the original copies of the PNs were returned to the borrower uponliquidation of the loan, either through payment or roll-over. Citibank proffered the excuse that they were still looking for thedocuments in their storage or warehouse to explain the delay and difficulty in the retrieval thereof, but not their absence or loss.The original documents in this case, such as the MCs and letters, were destroyed and, thus, unavailable for presentation before theRTC only on 7 October 1987, when a fire broke out on the 7th floor of the office building of Citibank. There is no showing that thefire was intentionally set. The fire destroyed relevant documents, not just of the present case, but also of other cases, since the 7thfloor housed the Control and Investigation Division, in charge of keeping the necessary documents for cases in which petitionerCitibank was involved.

G.R. No. 170491

April 4, 2007

NATIONAL POWER CORPORATION, Petitioner, vs. HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed the Petition for Certiorari filed by the National Power Corporation seeking to set aside the Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying admission and excluding from the records plaintiffs (herein petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its submarkings. On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioners Power Barge 209 which was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages caused on petitioners power barges. Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent of Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was subsequently denied by public respondent Judge in an Order dated 20 October 1998. Bangpai Shipping Co. likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order issued on 24 January 2003. Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked portions thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc. filed their respective objections to petitioners formal offer of evidence. On 16 November 2004, public respondent judge issued the assailed order denying the admission and excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub -markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. According to the court a quo: The Court finds merit in the objections raised and the motion to strike out filed respectively by the defendants. The record shows that the plaintiff has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies offered are equivalent to the original of the document" on the basis of the Electronic Evidence (Comment to Defendant Wallem Philippines Objections and Motion to Strike). But as rightly pointed out in defendant Wallems Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows: "(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. For the purpose of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".

The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence. The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly identified by any competent witness, the loss of the principals thereof was not established by any competent proof. xxxx WHEREFORE, plaintiffs Exhibits "A", "C", "D", "E", "H" and its sub -markings, "I", "J", and its submarkings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its submarkings, "Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from the records. However, these excluded evidence should be attached to the records of this case to enable the appellate court to pass upon them should an appeal be taken from the decision on the merits to be rendered upon the termination of the trial of this case. Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the witness who brought these pictures expressly admitted that he was not present when the photos were taken and had not knowledge when the same where taken.3 Upon denial of petitioners Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its submarkings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings. On 9 November 2005, the appellate cou rt issued a Decision dismissing petitioners petition for certiorari, the pertinent portions of which elucidate: After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence which are applicable in the premises, we have come up with a finding that the petition for certiorari filed in this case is not meritorious. It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of judgment as would be equivalent to lack of jurisdiction x x x. In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed order, dated November 16, 2004, in Civil Case No. CEB-18662. Indeed, it appears that the pieces of petitioners documentary evidence which were denied admission by the respondent judge were not properly identified by any competent witness. As pointed out by the respondent Bangpai Shipping Company in its comment on the petition filed in this case which reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of and participation in the preparation and making of the pieces of documentary evidence denied admission by respondent judge x x x. In other words, there was lack of proper identification of said pieces of documentary evidence. x x x. Then another ground for denying admission of petitioners Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent judge is that said pieces of documentary evidence were merely photocopies of purported documents or papers. There is no gainsaying the fact that the respondent judge acted within the pale of his discretion when he denied admission of said documentary evidence. Section 3 of Rule 130 of the Rules of Court of the Philippines is very explicit in providing that, when the subject of inquiry are the contents of documents, no evidence shall be admissible other than the

original documents themselves, except in certain cases specifically so enumerated therein, and the petitioner has not shown that the non-presentation or non-production of its original documentary pieces of evidence falls under such exceptions. As aptly pointed out by the respondent judge in the order issued by him on November 16, 2004: "x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced said originals." So, the petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned documentary evidence. Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to the original documents that it sought to offer in evidence, based on the Rules on Electronic Evidence which were in force and effect since August 1, 2001. However, such a contention is devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB18662 which were denied admission by the respondent judge do not actually constitute as electronic evidence as defined in the Rules on Electronic Evidence. The informations therein were not received, retrieved or produced electronically. The petitioner has not adequately established that its documentary evidence were electronic evidence. it has not properly authenticated such evidence as electronic documents, assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said documentary evidence. Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of discretion in denying admission of the aforementioned documentary evidence of petitioner. But even if it be granted just for the sake of argument that the respondent judge committed an error in denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed in this case must fail. Such error would at most be only an error of law and not an error of jurisdiction. In Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case of an error of law. x x x. WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the petition filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case No. CEB-18662.4 Aggrieved by the aforequoted decision, petitioner filed the instant petition. The focal point of this entire controversy is petitioners obstinate contention that the photocopies it offered as formal evidence before the trial court are the functional equivalent of their original based on its inimitable interpretation of the Rules on Electronic Evidence. Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it presented as documentary evidence actually constitute electronic evidence based on its own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on Electronic Evidence is not limited to information that is received, recorded, retrieved or produced electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes of written expression that is produced electronically, such as photocopies, as included in the sections catch-all proviso: "any print-out or output, readable by sight or other means". We do not agree. In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following documents offered as evidence by the petitioner, to wit: 1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED" stamped thereon, together with a handwritten date;

2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioners pow er barges 207 and 209 prepared by Hopewell Mobile Power Systems Corporation and manually signed by Messrs. Rex Malaluan and Virgilio Asprer; 3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received; 4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the Jurat were handwritten, and manually signed by the Notary Public; 5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received; 6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.; 7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received, and other handwritten notations; 8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it was received by the party; 9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance agreement between petitioner and Hopewell, containing handwritten notations and every page containing three unidentified manually placed signatures; 10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C. Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it was received. The sub-markings also contain manual signatures and/or handwritten notations; 11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer and manually signed by Jaime S. Patino. The sub-markings contain manual signatures and/or handwritten notations; 12. Exhibit "O" is the same photocopied document marked as Annex C; 13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista and by the Notary Public, with other handwritten notations; 14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public, together with other handwritten notations. On the other hand, an "electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.5 It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. 6 The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents. 7 However, what differentiates an

electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a persons signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its submarkings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best evidence rule and are therefore of no probative value being incompetent pieces of evidence. Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and the withholding of the originals.8 But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law.9 The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best evidence rule.10
Moreover, as mandated under Section 2, Rule 130 of the Rules of Court: "SECTION 2. Original writing must be produced; exceptions. There can be no evidence of a writing the contents of which is the subject of inquiry, other than the original writing itself, except in the following cases: (a) When the original has been lost, destroyed, or cannot be produced in court; (b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original is a record or other document in the custody of a public officer; (d) When the original has been recorded in an existing record a certified copy of which is made evidence by law; (e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole." When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.11 The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents;12 (b) the proponent must prove by a fair preponderance of evidence as to

raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places.13 However, in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions as enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the photocopies offered by petitioner as documentary evidence. Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by the trial court for it to present the originals of the photocopies it presented yet comes before us now praying that it be allowed to present the originals of the exhibits that were denied admission or in case the same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner presented the originals of the documents to the court instead of the photocopies it obstinately offered as evidence, or at the very least laid the predicate for the admission of said photocopies, this controversy would not have unnecessarily been brought before the appellate court and finally to this Court for adjudication. Had it not been for petitioners intransigence, the merits of petitioners complaint for damages would have been decided upon by the trial court long ago. As aptly articulated by the Court of Appeals, petiti oner has only itself to blame for the respondent judges denial of admission of its aforementioned documentary evidence and consequently, the denial of its prayer to be given another opportunity to present the originals of the documents that were denied admission nor to lay the predicate for the admission of secondary evidence in case the same has been lost. WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against petitioner. SO ORDERED.

G.R. No. 109293 August 18, 1993 HOME INSURANCE CORPORATION, petitioner, vs. THE HON. COURT OF APPEALS, FORMER 7th DIVISION and MABUHAY BROKERAGE CO., INC., respondents. Filipro Phil. now known as Nestle Phil., was the consignee of two hydraulic engines shipped on April 25, 1979, by INREDECO from the United States on the M/S Oriental Satesman. The cargo arrived in Manila on May 17, 1979, on board the M/S Pacific Conveyor. It was turned over to E. Razon Arrastre, which retained custody until July 20, 1979. The cargo was later hauled by Mabuhay Brokerage Co. to its warehouse, where it stayed until July 26, 1979. On this date it was delivered to the consignee. When the skidded plywood cases were opened by the consignee, one of the engines was found to be damaged. Its fan cover was broken and misaligned and its cap deformed. The consignee refused to accept the unit. Nestle subsequently filed a claim against E. Razon, Mabuhay, the Port Authority, and its insurer, the Home Insurance Corporation, for P49,170.00. When the other companies denied liability, Home Insurance paid the claim and was issued a subrogation receipt for $6,070.00. 1 Mabuhay alone was sued by Home Insurance for the recovery of the amount it had paid to Nestle. Mabuhay again denied liability. After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint. 2 Judge Lorenzo B. Veneracion declared that the plaintiff failed to establish the legal and factual bases for its claim. The decision noted that the insurance contract between the corporation and the consignee was not presented and that the other supporting documents were all only photocopies. No explanation was given for the failure of the plaintiffs to submit the originals. The trial court also observed that the crates of the shipment did not comply with the accepted international standards, taking into consideration the length of the voyage and the transshipment of the cargo. Its conlusion was that whatever damage was sustained by the engine must have occurred while it was at sea, for which Mabuhay could not be held liable. The judgment was affirmed on appeal. 3 In addition, the respondent court held that the appellant had failed to establish a valid subrogation, which could not be presumed, 4 and to prove the amount Home had paid to Nestle. There was no evidence either of what happened to the damaged engine, which still retained value despite its defects. The Court of Appeals stressed that the petitioner could be excused from presenting the original of the insurance contract only if there was proof that this had been lost. The unrebutted claim, however, is that the original was in its possession all the time. 5 The respondent court added that even if a valid subrogation could be established, Mabuhay was nevertheless not an absolute insurer against all risks of the transport of the goods. In any case, it appeared that Mabuhay had exercised extraordinary diligence for the safe delivery of the cargo. The challenged decision, however, deleted the award of P8,000.00 for litigation expenses for lack of legal or equitable justification. In the present petition, it is argued that: (1) the subrogation receipt proves the existence of the insurance contract between Nestle and the Home Insurance and the amount paid by the latter to the former; and (2) the law or presumption of negligence operates against the carrier. The petition has no merit. Home's section against Mabuhay supposedly arose from its contract of insurance with Nestle. Having paid the consignee the damages it sustained during the shipment, Home now claims it is rightfully subrogated under such contract to the rights of the consignee. But the problem is what rights? And against whom?

The insurance contract has not been presented. It may be assumed for the sake of argument that the subrogation receipt may nevertheless be used to establish the relationship between the petitioner and the consignee and the amount paid to settle the claim. But that is all the document can do. By itself alone, the subrogation receipt is not sufficient to prove the petitioner's claim holding the respondent liable for the damage to the engine. The shipment of the cargo passed through several stages: first, from the shipper to the port of departure; second, from the port of departure to the M/S Oriental Statesman; third, from the M/S Oriental Statesman; third, from the M/S Pacific Conveyor to the port of arrival; fifth, from the port of arrival to the operator; sixth, from the arrastre operator to the hauler; and lastly, from the hauler to the consignee. In the absence of proof of stipulations to the contrary, the hauler can be liable only to any damage that occurred from the time it received the cargo until it finally delivered it to the consignee. It cannot be held responsible for handling of the cargo before it actually received it, particularly since there was no indication from the external appearance of the crates, which Mabuhay did not open, that the engined was damaged. As a mere subrogee of Nestle, Home can exercise only such rights against the parties handling the cargo as were granted to Nestle under the insurance contract. The insurance contract would have clearly indicated the scope of the coverage but there is no evidence of this. It cannot simply be supposed that the hauling was included in the coverage; it is possible that the coverage ended with the arrastre. In other words, then rights transferred to Home by Nestle still assuming there was a valid subrogation might not include the right to sue Mabuhay.
The petitioner cites Article 1735 of the Civil Code reading as follows: Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently unless they proved that they observed extraordinary diligence as required in Article 1733. This presumption is applicable only if the shipper or consignee has, to begin with, a right of action against the carrier. It has not been shown in the case at bar that Home, as the supposed subrogee of Nestle, has acquired such a right against Mabuhay.

The insurance contract might have proved that it covered the hauling portion of the shipment and was not limited to the transport of the cargo while at sea, if that were really the case. It could have shown that the agreement was not only a marine transportation insurance but covered all phases of the cargo's shipment, from the time the cargo was loaded on the vessel in the United States until it was delivered to the consignee in the Philippines. But there is no acceptable evidence of these stipulations because the original contract of insurance has not been presented. Rule 130, Section 3, of the Rules of Court is quite clear: Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court,without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. It is curious that the petitioner disregarded this rule, knowing that the best evidence of the insurance contract was its original copy, which was presumably in the possession of Home itself. Failure to present this original (or even a copy of it), for reasons the Court cannot comprehend, must prove fatal to this petition. WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so Ordered.

DIGEST Lim Tanhu vs. Ramolete 66 SCRA 425 FACTS: Private respondent Tan Put alleged that she is the widow of Tee Hoon Lim Po Chuan, who was a partner and practically the owner who has controlling interest of Glory Commercial Company and a Chinese Citizen until his death. Defendant Antonio Lim Tanhu and Alfonso Leonardo Ng Sua were partners in name but they were mere employees of Po Chuan and were naturalized Filipino Citizens. Tan Put filed complaint against spouses-petitoner Lim Tanhu and Dy Ochay including their son Tech Chuan and the other spouses-petitoner Ng Sua and Co Oyo including also their son Eng Chong Leonardo, that through fraud and machination took actual and active management of the partnership and that she alleged entitlement to share not only in the capital and profits of the partnership but also in the other assets, both real and personal, acquired by the partnership with funds of the latter during its lifetime." According to the petitioners, Ang Siok Tin is the legitimate wife, still living, and with whom Tee Hoon had four legitimate children, a twin born in 1942, and two others born in 1949 and 1965, all presently residing in Hong Kong. Tee Hoon died in 1966 and as a result of which the partnership was dissolved and what corresponded to him were all given to his legitimate wife and children. Tan Put prior of her alleged marriage with Tee Hoon on 1949, was engaged in the drugstore business; that not long after her marriage, upon the suggestion of the latter sold her drugstore for P125,000.00 which amount she gave to her husband as investment in Glory Commercial Co. sometime in 1950; that after the investment of the above-stated amount in the partnership its business flourished and it embarked in the import business and also engaged in the wholesale and retail trade of cement and GI sheets and under huge profits. Defendants interpose that Tan Put knew and was are that she was merely the common-law wife of Tee Hoon. Tan Put and Tee Hoon were childless but the former had a foster child, Antonio Nunez. ISSUE: Whether Tan Put, as she alleged being married with Tee Hoon, can claim from the company of the latters share. HELD: Under Article 55 of the Civil Code, the declaration of the c ontracting parties that they take each other as husband and wife "shall be set

forth in an instrument" signed by the parties as well as by their witnesses and the person solemnizing the marriage. Accordingly, the primary evidence of a marriage must be an authentic copy of the marriage contract. While a marriage may also be proved by other competent evidence, the absence of the contract must first be satisfactorily explained. Surely, the certification of the person who allegedly solemnized a marriage is not admissible evidence of such marriage unless proof of loss of the contract or of any other satisfactory reason for its non-production is first presented to the court. In the case at bar, the purported certification issued by a Mons. Jose M. Recoleto, Bishop, Philippine Independent Church, Cebu City, is not, therefore, competent evidence, there being absolutely no showing as to unavailability of the marriage contract and, indeed, as to the authenticity of the signature of said certifier, the jurat allegedly signed by a second assistant provincial fiscal not being authorized by law, since it is not part of the functions of his office. Besides, inasmuch as the bishop did not testify, the same is hearsay. An agreement with Tee Hoon was shown and signed by Tan Put that she received P40,000 for her subsistence when they terminated their relationship of common-law marriage and promised not to interfere with each others affairs since they are incompatible and not in the position to keep living together permanently. Hence, this document not only proves that her relation was that of a common-law wife but had also settled property interests in the payment of P40,000. IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in respondent court in its Civil Case No. 12328 subsequent to the order of dismissal of October 21, 1974 are hereby annulled and set aside, particularly the ex-parte proceedings against petitioners and the decision on December 20, 1974. Respondent court is hereby ordered to enter an order extending the effects of its order of dismissal of the action dated October 21, 1974 to herein petitioners Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo. And respondent court is hereby permanently enjoined from taking any further action in said civil case gave and except as herein indicated. Costs against private respondent.

G.R. No. L-21438

September 28, 1966 petitioner,

AIR FRANCE, vs. RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15 Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18 2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20 With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment. 3. Was Carrascoso entitled to the first class seat he claims? It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21 And, the Court of Appeals disposed of this contention thus: Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are to be honored or not.22 Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus: On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows: Q. In these tickets there are marks "O.K." From what you know, what does this OK mean? A. That the space is confirmed. Q. Confirmed for first class?

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit. On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner. The case is now before us for review on certiorari. The facts declared by the Court of Appeals as " fully supported by the evidence of record", are: Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3 1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision. Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is 5 based". This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7 A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or

A. Yes, "first class". (Transcript, p. 169) xxx xxx xxx

faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are: 3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... . 4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendant's employees. 5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after he was already seated. 6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila.32 xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation whatever. Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26 If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? 4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33 xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by

the evidence. An amendment thereof to conform to the evidence is not even required. On the question of bad faith, the Court of Appeals declared:

36

to accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38 It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment just to give way to another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39 And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus: The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued by the defendant to him.40 5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says: ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42 6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages. Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44 Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows: "First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene", and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows: "Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you? A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959) In this connection, we quote with approval what the trial Judge has said on this point: Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket. If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted

Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphl.nt Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier a case of quasi-delict. Damages are proper. 7. Petitioner draws our attention to respondent Carrascoso's testimony, thus Q You mentioned about an attendant. Who is that attendant and purser? A When we left already that was already in the trip I could not help it. So one of the flight attendants approached me and requested from me my ticket and I said, What for? and she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also said, "You are not going to note anything there because I am protesting to this transfer". Q Was she able to note it? A No, because I did not give my ticket. Q About that purser? A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my notebook." He read it and translated it to me because it was recorded in French "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene." Mr. VALTE I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor. COURT I will allow that as part of his testimony.
49

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence. 8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54 9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as it was here should not be disturbed. 10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57 On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. 49a Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae. At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter.

G.R. No. L-23924

April 29, 1968 PHILIPPINES, plaintiff-appellee,

THE PEOPLE OF THE vs. FELIPE S. TANJUTCO, defendant-appellant. Office of the Solicitor Felimon Cajator Laurea and Pison as private prosecutors. REYES, J.B.L., Actg. C.J.:

For its part, the bank kept the original of the deposit slips and a separate ledger for each account of every depositor. In this ledger were entered the deposits and withdrawal during the month, arranged according to the dates of the transactions. Said entries were taken from the original deposit slips in its possession. In the case of Mr. Santos, the deposit slips prepared by the accused indicated the account number to be credited with the amount of each deposit and the check used in withdrawing from the deposits likewise carried the account number to be debited with the amount of the check. These ledgers were prepared in duplicate, and the bank sent the duplicate to the depositor after the end of each month. In this manner, the depositor could check the duplicate deposit slips in his possession with the entries in the duplicate ledger received by him monthly to determine whether or not correct entries of the deposits and withdrawals were made. The accused, at first, proved to be loyal, faithful and trustworthy a secretary and confident as his employer wished and thought him to be. Later on, however, he was tempted to use part of the money entrusted to him. Probably, he expected to replace it before his dishonesty was discovered. However, the temptation to use more of the money entrusted to him was stronger than his will to replace the amounts he abstracted. Hence, the amount he stole grew bigger and bigger until realized that it was only a question of time when his crime would be discovered. Sometimes, he deposited a smaller amount than that he received from his employer. At times, he did not deposit anything at all, although he received money for deposit. To hide his crime, the accused used to falsify duplicate deposit slips which he showed to Mr. Santos. And when he received the monthly customer's ledger, he likewise falsified a duplicate monthly customer's ledger, entering in the falsified ledger the correct amount he received from Mr. Santos for deposit in place of the amount he actually deposited. It was this falsified ledger which the accused showed to Mr. Santos monthly. It is obvious that Mr. Santos could not detect any defalcation if he relied solely on the falsified duplicate deposit slips and falsified duplicate customer's monthly ledgers. Appellant does not dispute that a number of duplicate deposit slips and monthly bank statements, supposed to have been submitted by him to complainant Roman Santos, were found to be falsified. What he is contesting here is the lower court's finding that he, appellant, authored such falsifications, which conclusion, he claims, is not supported by the evidence. This allegation is without merit. We found established, through the testimony of prosecution witnesses, that when he deposited money for the accounts of complainant Roman Santos, accusedappellant used to prepare two deposit slips one, the original, to be submitted to the bank, and the other to be shown to Don Roman and later to be kept in his file; 1 that the accused himself picked up the monthly bank statements of Roman R. Santos,2 which he would either withhold or destroy, that he would thereafter prepare in the bank machine after office hours, other statements indicating amounts he purportedly deposited,3 although actually the deposits must have been for lesser amounts or no deposits were made at all (as later revealed by the original deposit slips and bank ledgers). It is true that not a single witness testified to having personally seen the accused in the act of falsifying the duplicate deposit slips or bank statements. But direct evidence on this point is not imperative. Considering that it was the accused-appellant who prepared the original and deposit slips; that there appeared discrepancies between the original deposit slips retained by the Prudential Bank and the duplicates thereof which were found by the auditors; that the amounts indicated in the originals were accordingly credited by the bank for the account of the depositor Roman R. Santos; that there were supposed duplicate deposit slips, duly signed by accused-appellant which contained forged initials of the bank-teller, or else not covered by any original slip at all;4 that accused-appellant admitted, not only of having manipulated the records of his employer, but also of having been able, by that means, to abstract an undetermined amount from the funds of the latter 5 no other conclusion could be drawn from the foregoing facts than that the falsified documents were the ones prepared by appellant to hide his misdeeds. Even assuming these evidences to be circumstantial, they nevertheless constitute legal evidence 6 that may support a conviction, affording as they are basis for a reasonable inference of the existence of the fact thereby sought to be proved. 7

General for

for

plaintiff-appellee. defendant-appellant.

In an information filed in the Court of First Instance of Manila (Crim. Case No. 34595) on March 5, 1956, Felipe S. Tanjutco was accused of the crime of qualified theft, allegedly committed as follows: That in, about and during the period comprised between January 7, 1953 and January, 1955, inclusive, in the City of Manila, Philippines, the said accused, being then the private secretary of Roman R. Santos, and as such is entrusted with the duty of depositing large sums of money in the bank for and in behalf of the said Roman R. Santos, with grave abuse of confidence did then and there willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away various sums of money amounting to P400,086.19, belonging to the said Roman R. Santos, to the damage and prejudice of the said owner in the aforesaid sum of P400,086.19, Philippine currency. After a protracted trial, decision was rendered on October 14, 1964, the court finding the accused guilty beyond reasonable doubt of the crime charged, and sentencing him to life imprisonment and to the accessory penalties of the law, to indemnify the estate of the deceased Roman S. Santos in the sum of P400,086.19, and to pay the costs. From this decision, the accused appealed to this Court assigning 15 errors allegedly committed by the court below, all boiling down to the question of sufficiency of evidence to support the lower court's conclusion that he had misappropriated the total sum of P400,086.19, and in sentencing him to life imprisonment. In short, the main issue here is not whether the accused had committed acts of misappropriation, but how much had misappropriated, according to the evidence on record. The abovementioned judgment of the court below was based on the findings that during the period specified in the complaint, the accused was the private secretary of the complainant Roman R. Santos, businessman, financier and, at the time, Chairman of the Board of Directors of the Prudential Bank and Trust Company (PBTC) which he had founded. As such secretary to the Board-Chairman, the accused held office in the bank premises, had free access to all offices of the bank and free use of its equipment. The relationship between the accused and his employer was so intimate and confidential that the latter used to send to the former sums of money to be deposited in his (Don Roman's) current accounts with the Prudential Bank. It was in the discharge of this duty that the accused betrayed the confidence reposed on him by his employer by retaining for his personal use part of the money entrusted to him, resulting in shortage in the accounts of the employer, which was discovered only in January, 1957. The intricate operation said to have been resorted to by the accused and enabled him to cover up his defalcations for some time, was succinctly described in the decision now on appeal, thus: Mr. Santos (Roman) maintained four accounts, all current, with the bank. They were identified as accounts Nos. 1, 2, 3, and 4. Every time Mr. Santos sent money to the accused to be deposited, the former indicated the current account number to which said amount should be deposited. The accused would then deposit the amount with the bank and obtain a duplicate of the deposit slip duly stamped by the bank. This duplicate deposit slip would later on be shown to Mr. Santos to satisfy the latter that the money entrusted to the accused was already deposited according to his instructions. After the latter shall have checked the correctness of the amount appearing in the duplicate deposit slip, he would return said duplicate to the accused for safekeeping.

Contrary to appellant's contention, there is even no necessity for all these duplicate deposit slips to be identified one by one, before they may properly be considered against the accused. These slips were not only bundled into a bunch and formally presented as Exhibit Q; they had also been consistently referred to as one of the bases of the prosecution's claim that the misappropriation amount totalled P400,086.19. As ruled by this Court in another criminal case, the absence of any record of the formal presentation of certain exhibits does not render their consideration reversible error, if repeated references thereto in the course of the trial by counsel for the accused and of the court convincingly show that the documents were part of the prosecution's evidence. 8 No error, therefore, was committed by the trial court in giving due credence and weight to the deposit slips (Exh. Q). Appellant also challenges the competence of 40 duplicate deposit slips which do not bear his signature, and urges that the amount covered there P233,744.63 should be deducted from the total amount covered by the duplicate deposit slip, coming from the files of Don Roman Santos. We have gone over these 40 documents, and found the following: One (1) deposit slip, dated July 21, 1953 for P13,283.07, Account No. 2; although unsigned by accused-appellant, this tallies with an original deposit slip retained by the Prudential Bank. The amount it covered was duly credited for the account of Roman R. Santos, as per the bank ledger, Exhibit Y-8. Two (2) duplicates dated November 19, 1953, for P2,562.00 and P2,689.00, respectively (Account No. 4), are evidently genuine; they tally with the originals. The amounts they covered were credited in favor of complainant Roman Santos (Exh. R-2b). One (1) duplicate dated September 8, 1953, for P3,762.07, for Account No. 2, tallies with the original (Exh. 6), and the amount covered thereby is duly credited for the account of complainant Santos. One (1) slip dated September 10, 1953, for P12,274.65 (Account No. 2), is supposed to be the duplicate of the original (Exh. Q-29). It is noted, however, that while in the original, the cash deposit was P1,535.20, which amount was accordingly entered in the bank ledger for the account of complainant Santos, in the purported duplicate, the cash deposit was placed only at P1,319.65. The total amount covered by this particular deposit slip (P12,274.48), is not deductible from the sum covered by all the duplicate deposit slips found in the possession of complainant Roman Santos, because it is clear that the said amount of P12,274.48 was actually received by the accused and in fact deposited by him in the bank. Nine (9) duplicates (Account No. 2), all dated June 17, 1954, for P5,523.78, P500.00, P1,000.00, P733.51, P564.25, P1,000.00, P974.57, P3,000.00, P3,058.84, respectively, tally with the originals left with the bank (Exh. 7), and the amounts thereby covered were duly credited in favor of complainant Santos (Exh. Z-10). It was noted that no signature also appear over the appellant's typewritten name even in the originals submitted to the bank. Six (6) duplicate slips (Account No. 2) for P1,724.40, P1,509.20, P1,510.30, P1,485.75, P1,487.85 and P3,851.14, all dated October 13, 1954, are genuine duplicates of the originals in the possession of the Prudential Bank. It may be mentioned that where the duplicates are duly covered with original deposit slips, the number and denominations of the cash deposits made were noted in said original slips. Both original and duplicate slips of these deposits are not signed: the amount thus covered were duly credited to the complainant Santos (Exh. Z-14). One (1) duplicate slip dated November 9, 1954, for a deposit of P1,782.00; one of the several deposits made by the accused for the account of complainant Santos on the same day. Both the original and duplicate slips have no signature over the typewritten name of appellant. Amount covered thereby duly credited in favor of complainant (Exh. Z-16). Thirteen (13) unsigned deposit slips (Account No. 2), for P1,281.00, P1,374.45, P1,323.00, P1,416.96, P1,256.64, P1,346.40, P1,330.17, P1,438.80, P1,490.00, P1,201.00, P1,122.70, P1,747.27, and P1,235.52, respectively, formed part of a group of 25 deposit slips, all dated December 23, 1954. These 13 unsigned duplicates, however, have their corresponding originals in the custody of the bank, and the amounts they covered were duly credited to the account of complainant Santos. They are apparently genuine copies of the originals (Exh. Z-16).

One (1) duplicate deposit slip dated March 12, 1954 (Account No. 3). This slip was accomplished in handwriting, on the face of which was written diagonally: "Non-negotiable PBTC Teller No. 2 (True Copy)"; the covered amount of P7,809.40 was duly credited in favor of the complainant. This is apparently a reconstructed duplicate of the original. One slip dated January 5, 1953, bearing the rubber stampmark of PBTC Teller No. 4, but without said teller's initials. No signature also appears over the typewritten name of the depositor "F. S. Tanjutco". This slip purportedly showed that a cash deposit of P2,034.15 and checks for P8,917.33 were made on that day. A checking of the bank entry for that day established that seven out of the eight checks specified in this duplicate deposit slip (PBTC Checks Nos. 12955, for P1,081.10; 12959 for P941.31; 12960 for P545.88; 12961 for P871.66; 12963 for P440.00; 12978 for P2,887.39, and 12979 for P150.00 were debited as withdrawals from the same Account No. 2 on January 5, 1954. Clearly, this supposed duplicate slip is falsified. Considering that by appellant's own admission, he was able to cover up the shortages in the funds of his employer by manipulation of records and documents (see the testimonies of witnesses Amado S. Carlos, Felix Costa and Nazario L. Cruz), 9 the inclusion of the amount covered by this slip in the computation of the sum of which appellant is accountable, is justified. The very existence of this simulated deposit slip is sufficient proof that it was intended to be shown to complainant Roman Santos and thus escape detection by the latter of appellant's defalcation of his (complainant's) funds. Two (2) deposit slips purporting to be duplicates, but without the corresponding originals, dated December 16, 1954 and December 27, 1954 for P2,780.27 and P126,692.89, respectively, did not have appellant's signature; said amounts were not also reflected in the bank ledger as actual deposits made by appellant. Nevertheless, we have to sustain the inclusion of these amounts in the computation of the money under appellant's accountability for the same reason as that given in the discussion of the preceding item. These 40 duplicate deposit slips were admitted by the Court below, not to prove falsification, but only to establish the fact that accused-appellant has received money to be deposited for the account of his employer, and determine the exact amount thus received. The relevancy of these documents to prove that fact is not affected by the absence of appellant's signature thereon. In the first place, having been passed upon and favorably considered by the trial court, the matter of relevancy of these documents ordinarily cannot be reviewed on appeal. This lies within the sound discretion of said court and deserves the respect of the appellate tribunal. 10 Secondly, most of the amounts covered by these 40 deposit slips are sufficiently backed by the original deposit slips and the bank ledgers. And, there is no showing that the figures indicated in both the original and duplicate slips are separately treated or that the amount thus covered is included twice in the summing up of the missing amounts. As regards those without corresponding originals, we have given the reason for their inclusion in the total sum for which appellant is accountable, in our discussion of those individuals items. Furthermore, it appearing that even some of the original deposit slips delivered to the bank do not bear appellant's signature, the absence alone of such signature is no indication that the 40 duplicate slips in question were not in fact prepared by him. Appellant likewise assails the admissibility of entries appearing in the ledgers of the Prudential Bank (Exhs. W, W-1 to W-4, X, X-1 to X-6, Y, Y-1 to Y-13, Z, Z-1 to Z-18, TT, TT-1 to TT-5), of the bank statements from its file (Exhs. R, R-1 to R-5), and the monthly bank statements taken from the files of complainant Roman Santos (Exhs. S, S-1 to S-3), claiming that under the prosecution's theory, 11 the best evidence to prove his guilt would be the original slips and their duplicates. There is no merit to the contention. It must be remembered that the prosecution had to prove the amount allegedly embezzled by the accused. This, the prosecution tried to do by establishing the amounts received by the accused-appellant and comparing it with those deposited in the bank; the resulting difference being treated as the amount abstracted from the funds of the complainant. Under this theory, the ledgers and bank statements naturally are not just secondary, but the primary evidence of the deposits made, while the monthly bank statements found in the files of complainant Roman Santos which were supposed to confirm the amounts he had ordered the accused-appellant to be deposited, are the best evidence of the amounts actually entrusted to the latter. Consequently, the trial court committed no error in ruling in favor of the admissibility of the above-mentioned exhibits. We also find as untenable appellant's allegation that there was no "positive, direct evidence" to show that the monthly bank statements found in the file of the complainant were the same documents delivered by him to the latter. By urging in his Fifth Assignment of Error the deduction from the total sum covered by all the duplicate deposit slips coming from the files of complainant, of the amounts

covered by the 40 unsigned deposit slips, claiming that the resulting difference is the "correct total amount covered by duplicate deposit slips for which accused can be held liable" (p. 27, appellant's brief), said accused-appellant in fact acknowledged that these duplicate deposit slips were the ones delivered by him to complainant Santos. Neither would it be accurate to say that the decision of the lower court was based solely on the alleged hearsay report of the auditing firm of Costa & Cruz (Exh. P). Said court, in its decision, stated: The auditors Costa and Cruz found that the accused manipulated only accounts Nos. 2, 3, and 4. As stated above, he at various times deposited less than what he received for deposit and at times he did not deposit anything at all but simply used the entire amount he received for deposit. To cover up for his criminal act and in order to avoid detection especially when he feared that Don Roman Santos might make a big withdrawal, the accused also resorted to transferring of funds of Don Roman from his fixed deposits to his current account. The report of the auditors (Exh. P) is clear and the evidence introduced in Court in support of their report and the testimony of Mr. Costa convinced the Court of the correctness of the figures arrived at by them. (Decision, pp. 8-9). In other words, the lower court gave due weight to the report of the auditors because it was found to be clear and duly supported by testimonial and documentary evidence (monthly bank accounts, bank statement, deposit slips the materiality and relevancy of which were already here sustained) presented during the trial, to which conclusion we fully agree.1wph1.t After going with the evidence on record, the court below concluded that the accused had defalcated out of the money delivered to him for deposit in the bank, the following amounts: I. Deficiency from:

============

Appellant maintains that the amount he misappropriated could not have exceeded P50,000.00. But this allegation is not only unsupported by any corroborative evidence, but is in itself uncertain, appellant having admitted in court that he never kept any record of the sums he abstracted from the funds of the complainant, and that the amount of P50,000.00 was only his estimate (t.s.n., p. 2114, hearing of Feb. 24, 1964). Such bare testimony indeed cannot overcome the prosecution's proof that the unaccounted amount, for which appellant is answerable, totalled P400,086.19. Finally, making capital of the acceptance by complainant of properties belonging to the accused and his relatives allegedly assigned to the former for the settlement of his obligations, accused-appellant claims that there had been novation of the relationship between him and the said complainant, resulting in the obliteration or extinction of his criminal liability. This argument is anchored on the alleged recognition by this Court of the novation theory (to extinguish criminal liability) in the case of People vs. Nery, G.R. No. L-19567, February 5, 1964. Reliance on the aforecited Nery case, in support of the contention that the acceptance by complainant of payment converted the liability of the accused-appellant into a civil obligation or else that it estopped said complainant from proceeding with the prosecution of the case, is misplaced and unwarranted. Firstly, in the Nery case, which is an action for estafa, there was contractual relationship between the parties that can be validly novated by the settlement of the obligation of the offender. Whatever was said in that case, therefore, cannot be invoked in the present case where no contractual relationship or bilateral agreement, which can be modified or altered by the parties, is involved. There is here merely a taking of the complainant's property by one who never acquired juridical possession thereof, qualified by grave abuse of confidence. Secondly, it is inaccurate to say unqualifiedly that the theory that payment can obliterate or extinguish criminal liability was upheld in the Nery case. On the contrary, it was there explicitly said: It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal liability or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs. People, 90 Phil. 58; U.S. vs. Villareal, 27 Phil. 481). Even in Civil Law the acceptance of partial payments, without further change in the original relation between the complainant and the accused, can not produce novation. For the latter to exist, there must be proof of intent to extinguish the original relationship, and such intent can not be inferred from the mere acceptance of payments on account of what is totally due. Much less can it be said that the acceptance of partial satisfaction can effect the nullification of a criminal liability that is fully matured, and already in the process of enforcement. Thus, this Court has ruled that the offended party's acceptance of a promisory note for all or part of the amount misapplied does not obliterate the criminal offense. (Camus vs Court of Appeals, 48 O.G. 3898). Assuming, therefore, that there was partial payment 12 by the accused-appellant of the amount he misappropriated, that would not have sufficed to bar the filing and prosecution of the criminal case for qualified theft against him, considering that he concedes having actually used money belonging to his employer although in an amount less than P400,086.19. Furthermore, it may be mentioned that the mother and sister of accused-appellant, before the criminal case here was filed, instituted in the Court of First Instance of Pampanga an action for annulment of the deeds of assignment of their properties (Civil Case No. 875) on the ground that they were induced to execute the same through fraud and deceit. In view of our ruling on the foregoing issue, the outcome of this annulment-case will certainly not affect the accused-appellant's liability for the crime he had committed. WHEREFORE, finding no error in the decision appealed from, the same is hereby affirmed, in all respects, with costs against the appellant.

a. Account No. 2 (Exhibit No. I) 1954 1955 P134,105.99 15,760.58 P149,866.47 b. Account No. 3 (Exhibit No. II) 1953 1954 P 14,405.05 13,114.01 P 27,519.06 c. Account No. 4 (Exhibit No. III) 1953 1954 P 23,733.87 198,725.83 P 222,59.70 P399,845.23

Total shortage of Accounts Nos. 2, 3 & 4 . . . . . .

II. Interest from FIXED DEPOSIT:

a. F/d No. 182 12/27/54 Schedule I Notation b. F/d No. 208 1/20/54 TOTAL SHORTAGES P20.96 220.00 240.96 P400,086.19

G.R. No. 86062 June 6, 1990

INTERPACIFIC TRANSIT, INC., vs. RUFO AVILES and JOSEPHINE AVILES, respondents.

petitioner,

Since no evidence of civil liability was presented, no necessity existed on the part of the private respondents to present evidence of payment of an obligation which was not shown to exist. The petitioner now asks this Court to annul that judgment as contrary to law and the facts established at the As in the courts below, it is insisting on the admissibility of its evidence to prove the civil liability of the private respondents. We agree with the petitioner. The certified photocopies of the airway bills should have been considered. In assessing this evidence, the lower courts confined themselves to the best evidence rule and the nature of the documents being presented, which they held did not come under any of the exceptions to the rule. There is no question that the photocopies were secondary evidence and as such were not admissible unless there was ample proof of the loss of the originals; and neither were the other exceptions allowed by the Rules applicable. The trouble is that in rejecting these copies under Rule 130, Section 2, the respondent court disregarded an equally important principle long observed in our trial courts and amply supported by jurisprudence. This is the rule that objection to documentary evidence must be made at the time it is formally offered. as an exhibit and not before. Objection prior to that time is premature. It is instructive at this paint to make a distinction between Identification of documentary evidence and its formal offer as an exhibit. The first is done in the course of the trial and is accompanied by the marking of the evidence an an exhibit. The second is done only when the party rests its case and not before. The mere fact that a particular document is Identified and marked as an exhibit does not mean it will be or has been offered as part of the evidence of the party. The party may decide to formally offer it if it believes this will advance its cause, and then again it may decide not to do so at all. In the latter event, the trial court is, under Rule 132, Section 35, not authorized to consider it. Objection to the documentary evidence must be made at the time it is formally offered, not earlier. The Identification of the document before it is marked as an exhibit does not constitute the formal offer of the document as evidence for the party presenting it. Objection to the Identification and marking of the document is not equivalent to objection to the document when it is formally offered in evidence. What really matters is the objection to the document at the time it is formally offered as an exhibit. In the case at bar, the photocopies of the airway bills were objected to by the private respondents as secondary evidence only when they, were being Identified for marking by the prosecution. They were nevertheless marked as exhibits upon the promise that the original airway bills would be submitted later. it is true that the originals were never produced. Yet, notwithstanding this omission, the defense did not object when the exhibits as previously marked were formally offered in evidence. And these were subsequently admitted by the trial court. 7 In People v. Teodoro, 8 a document being Identified by a prosecution witness was objected to as merely secondary, whereupon the trial judge ordered the testimony stricken out. This Court, in holding the objection to be premature, said: It must be noted that the Fiscal was only Identifying the official records of service of the defendant preparatory to introducing them as evidence. ... The time for the presentation of the records had not yet come; presentation was to be made after their Identification. For what purpose and to what end the Fiscal would introduce them as evidence was not yet stated or disclosed. ... The objection of counsel for the defendant was, therefore,

This case hinges on the proper interpretation and application of the rules on the admissibility of documentary evidence and the viability. of a civil action for damages arising from the same acts imputed to the defendant in a criminal action where he has been acquitted. In the information filed against Rufo and Josephine Aviles, the private respondents herein, it was alleged that being then sub-agents of Interpacific Transit, Inc. and as such enjoying its trust and confidence, they collected from its various clients payments for airway bills in the amount of P204,030.66 which, instead of remitting it to their principal, they unlawfully converted to their own personal use and benefit. 1 At the trial, the prosecution introduced photocopies of the airway bills supposedly received by the accused for which they had not rendered proper accounting. This was done in, the course of the direct examination of one of the prosecution witnesses. 2 The defense objected to their presentation, invoking the best evidence rule. The prosecution said it would submit the original airway bills in due time. Upon such undertaking, the trial court allowed the marking of the said documents a s Exhibits "B" to "OO." The e prosecution n did submit the original airway bills nor did it prove their loss to justify their substitution with secondary evidence. Nevertheless, when the certified photocopies of the said bills formally were offered, 3 in evidence, the defense interposed no objection. In acquitting the accused, Judge Herminio I. Benito of the Regional Trial Court of Makati rejected the agency theory of the prosecution and held that the relationship between the petitioner and Rufo Aviles was that of creditor and debtor only. "Under such relationship,' it declared, "the outstanding account, if any, of the accused in favor of ITI would be in the nature of an indebtedness, the non- payment of which does not Constitute estafa." 4 The court' also held that the certified photocopies of the airway by were not admissible under the rule that "there can be no evidence of a writing the content of which is the subject of inquiry other' than the writing itself." Loss of the originals had not been proved to justify the exception to the rule as one of the prosecution witness had testified that they were still in the ITI bodega. Neither had it been shown that the originals had been "recorded in an existing record a certified copy of which is made evidence by law." In its order denying the motion for reconsideration, the trial court declared that it "had resolved the issue of whether the accused has civil obligation to ITI on the basis of the admissibility in evidence of the xerox copies of the airway bills." 5 Right or wrong, the acquittal on the merits of the accused can no longer be the subject of an appeal under the double jeopardy rule. However, the petitioner seeks to press the civil liability of the private respondents, on the ground that the dismissal of the criminal action did not abate the civil claim for the recovery of the amount. More to the point, ITI argues that the evidence of the airways bills should not have been rejected and that it had sufficiently established the indebtedness of the private respondents to it. The Court of Appeals 6 affirmed, the decision of the trial court in toto, adding that the existing record spoken of in Section 2 (e) and (d) of Rule 130 of the Rules of Court must be in the custody, of a public officer only. It also declared that:

premature, especially as the Fiscal had not yet stated for what purpose he would introduce the said records. ... The time for objecting the evidence is when the same is offered. (Emphasis supplied). The objection of the defense to the photocopies of the airway bins while they were being Identified and marked as exhibits did not constitute the objection it should have made when the exhibits were formally offered in evidence by the prosecution. No valid and timely objection was made at that time. And it is no argument to say that the earlier objection should be considered a continuing objection under Sec. 37 of Rule 132, for that provision obviously refers to a single objection to a class of evidence (testimonial or documentary) which when first offered is considered to encompass the rest of the evidence. The presumption is, of course, that there was an offer and a seasonable objection thereto. But, to repeat, no objection was really made in the case before us because it was not made at the proper time. It would have been so simple for the defense to reiterate its former objection, this time seasonably, when the formal offer of exhibits was made. It is curious that it did not, especially so since the objections to the formal offer of exhibits was made in writing. In fact, the defense filed no objection at all not only to the photocopies but to all the other exhibits of the prosecution. The effect of such omission is obvious. The rule is that evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment. 9 This is true even if by its nature the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time. The records certainly would have been the, beet proof of such former conviction. The certificate was not the best proof. There seems to be no justification for the presentation of proof of a character. ... Under an objection upon the ground that the said certificate was not the best proof, it should have been rejected. Once admitted, however, without objection, even though not admissible under an objection, we are not inclined now to reject it. If the defendant had opportunely presented an objection to the admissibility of said certificate, no doubt the prosecution would have presented the best proof upon the questions to which said certificate relates. 10 (It) is universally accepted that when secondary or incompetent evidence is presented and accepted without any objection on the part of the other party, the latter is bound thereby and the court is obliged to grant it the probatory value it deserves. 11 We hold therefore that it was erroneous for the lower courts to reject the photocopies of the airway bills to prove the liability of the private respondents to the petitioner. While we may agree that there was really no criminal liability that could attach to them because they had no fiduciary relationship with ITI, the rejected evidence sufficiently established their indebtedness to the petitioner. Hence, we must reverse the ruling below that "on account of the inadmissibility of the prosecution's Exhibits 'B' and 'OO', coupled with the denial made by the accused, there appears to be no concrete proof of such accountability." Accoording to Rule 120, Section 2, of the Rules of Court: `In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the offended party.

With the admission of such exhibits pursuant to the ruling above made, we find that there is concrete proof of the defendant's accountability. More than this, we also disbelieve the evidence of the private respondents that the said airway bills had been paid for. The evidence consists only of check stubs corresponding to payments allegedly made by the accused to the ITI, and we find this insufficient. As it is Aviles who has alleged payment, it is for him to prove that allegation. He did not produce any receipt of such payment. He said that the cancelled payment checks had been lost and relied merely on the check stubs, which are self-serving. The prosecution correctly stressed in its motion for reconsideration that the accused could have easily secured a certification from the bank that the checks allegedly issued to ITI had been honored. No such certification was presented. In short, the private respondents failed to establish their allegation that payment for the airway bills delivered to them had been duly remitted to ITI. In Padilla v. Court of Appeals,
12

we held:

There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted. He was, in fact, exonerated of the charge. The constitutional presumption of innocence called for more vigilant efforts on the part of prosecuting attorneys and defense counsel, a keener awareness by all witnesses of the serious implications of perjury, and a more studied consideration by the judge of the entire records and of applicable statutes and precedents. To require a separate civil action simply because the accused was I acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on the part of all concerned. By the same token, we find that remand of this case to, the trial court for further hearings would be a needless waste of time and effort to the prejudice of the speedy administration of justice. Applying the above ruling, we hereby declare therefore, on the basis of the evidence submitted at the trial as reflected in the records before us, that the private respondents are liable to the petitioner in the sum of P204,030.66, representing the cost of the airway bills. WHEREFORE, the petition is GRANTED. The challenged decision of the Court of Appeals is SET ASIDE and a new one is rendered ORDERING the private respondents to. pay to the petitioner the sum of P204,030.66, with 6% interest from November 16, 1981, plus the costs of this suit. SO ORDERED.