EVIDENCE : HEARSAY EVIDENCE |1 THIRD DIVISION [G.R. No. 153911.

December 10, 2004] MELANIO MALLARI y LIBERATO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION PANGANIBAN, J.: To warrant conviction based on circumstantial evidence, the totality of the circumstances must eliminate beyond reasonable doubt the possibility of innocence; otherwise, the accused must be acquitted. The Case Before us is a Petition for Review[1] on Certiorari under Rule 45 in relation to Rule 125 of the Rules of Court, seeking to reverse, set aside, nullify and/or modify the December 18, 2001 De cision[2] of the Court of Appeals (CA) in CA-GR CR No. 18051. The dispositive portion of that Decision states: WHEREFORE, foregoing premises considered, the decision appealed from is MODIFIED. Accusedappellants Melanio Mallari and Zaldy Bontia, as well as Leonardo Bontia are found guilty of Attempted Murder punishable under Article 248 in relation to Article 6 of the Revised Penal Code for which they areSENTENCED to four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. The award with respect to damages and costs stand.[3] In its May 14, 2002 Resolution,[4] the CA denied petitioners Motion for Reconsideration of the assailed Decision. The Facts Version of the Prosecution The factual background of the case, as related by the Court of Appeals[5] based on prosecution evidence, is as follows: The records show that private complainant Erlinda Boyose was a teacher at the Bustamante High School, Davao City from 1977 up to 1989. At the start, she had a good working relationship with the school principal, appellant Melanio Mallari. However, their relationship turned sour when she began to question appellant Mallari on alleged unaccounted school funds. On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at the Guidance Office, a man approached her and asked if he can still enroll his nephew. As enrollment was already closed, she advised the man to see Mallari, who is the school principal. Thereafter, Boyose went to her classroom. About twenty minutes later, the man approached her again. Meeting him by the door, she asked the man if he was able to talk to Mallari. The man answered that the principal was not in his office. So, she advised the man to just return the following day. In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She observed that the man who talked to her in the morning was also in the same jeepney. She then inquired from him if he was able to talk to the principal regarding the enrollment of his nephew but the man just ignored her. While they were near Km. 13, Panacan, Davao City, the said man drew and pointed a gun at Boyoses temple. Boyose heard two successive clicking sounds of the gun but it did not fire. She heard the man

EVIDENCE : HEARSAY EVIDENCE |2 utter in the Cebuano dialect, Unsa man ni, dili man ni moboto, meaning Whats this, this will not fire. She then grabbed the gun and grappled for its possession. But she failed. Eventually, she was able to get out of the jeepney and ran away but the man followed her and shot her repeatedly. Boyose was hit in the lower mouth and at her back. She shouted for help. A man helped her and brought her to the San Pedro Hospital where she was treated and confined. Policeman Remo Pagal of the Sasa Police Station was one of those who went to the crime scene on June 29, 1989 to investigate. But nothing came out of it. He was only able to get the description of the gunman the following day when he interviewed the victim at the hospital. The police investigators were able to get the lead when a certain Andy Magdadaro went to the Sasa Police Station and told Policeman Pagal that he knew something about the shooting of Erlinda Boyose. He told the said police investigator that he was asked by one Edwin Amparado to kill Boyose but the plan was not carried out. He pointed to accused-appellant Zaldy Bontia as the man who hired Amparado to look for a triggerman. Thus, Edwin Amparado was picked up by the police. While in the police station where he was brought, he told the police investigators that in one occasion, he went to the house of appellant Mallari and the latter asked him to kill Boyose who used to be his neighbor at Doa Pilar Village but the same did not push thru. He later offered this job to Andy Magdadaro who was his neighbor in Agdao. They talked about the plan to kill Boyose and Magdadaro was only waiting for his go-signal. At the police station, he executed an affidavit regarding the offer of Mallari to kill Boyose. On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen from the Sasa Police Station arrested appellant Zaldy Bontia near the house of accused-appellant Mallari. Zaldy allegedly admitted participation in the incident and implicated his brother Leonardo Bontia as the gunman. The police lost no time in going to Asuncion, Davao del Norte to arrest Leonardo Bontia. Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of August 2, 1989. Later that day, a police line-up was conducted and Boyose identified accused Leonardo Bontia as the gunman. She likewise identified accused-appellant Zaldy Bontia to be the constant companion and protg of accused-appellant Mallari. When the custodial investigation was about to start, the Bontia brothers were apprised by police investigators Anastacio Naive of their rights under the Constitution. When asked by Naive if they had a lawyer to assist them, they told him that they had none. Naive then stopped the investigation and called the PAO office for assistance. At around 5:00 p.m. on that day, Atty. Jonathan Jocum,**** a PAO lawyer arrived. Pfc. Naive then asked the Bontia brothers if they wanted to be represented by Atty. Jocum and they said they are agreeable. During the custodial investigation, Leonardo Bontia admitted to be the gunman. He pointed to appellant Mallari as the one who hired him to kill Boyose. On the [other] hand, Zaldy Bontia admitted to have been hired by Mallari to look for a gunman to kill Erlinda Boyose and that he was the one who recommended to Mallari his brother Leonardo Bontia to do the job for a fee. Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged by Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated Murder, in an Information alleging That on or about June 29, 1989, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-mentioned accused Melanio Mallari, directly interested in the death of Erlinda P. Boyose, conspiring, confederating and helping one another, accused Melanio Mallari induced his co-accused Leonardo Bontia and Zaldy Bontia, the latter convincing his brother Leonardo Bontia of

EVIDENCE : HEARSAY EVIDENCE |3 the plan to kill said Erlinda P. Boyose by giving price and/or offering a reward to kill said Erlinda P. Boyose and which price and/or offer was accepted by said Leonardo Bontia and Zaldy Bontia; that in pursuance of said conspiracy said accused Leonardo Bontia, with treachery and evident premeditation, willfully, unlawfully and feloniously assaulted, and shot with a caliber 22 Magnum homemade revolver and hit said Erlinda Boyose, thereby inflicting upon her the following, to wit: AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT WOUND WITH DISPLACEMENT OF TEETH ON MANDIBLE; FOREIGN BODY, G-4-5 LEVEL which injuries would ordinarily cause the death of the said Erlinda Boyose, thus performing all the acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of their will, that is the timely shout and cry for help of Erlinda Boyose that as a result of which immediate assistance was had from a member of a coast guard and by the timely and able medical assistance rendered to the said Erlinda Boyose which prevented her death.[6] During their arraignment,[7] all the accused pleaded not guilty. Thereafter, herein Petitioner Mallari moved for a separate trial, which was granted by the trial court in its Order dated September 18, 1990. In his separate trial, Mallari did not present evidence to establish his innocence or to refute the prosecutions evidence against him. Instead, he moved for dismissal by way of demurrer to evidence which, however, the trial court denied in its Order dated July 2, 1992. Thereafter, although given ample time and granted numerous postponements over about a year, petitioner failed to present any witness in his favor. Even in its Memorandum, the defense did not present its version of facts.

Ruling of the Trial Court

After evaluating the evidence on record, the RTC concluded that there was conspiracy among the three accused, although Leonardo Bontia was alone when he shot Erlinda Boyose. It held herein Petitioner Mallari liable as principal by inducement, Leonardo Bontia as principal by direct participation, and Zaldy Bontia as principal by indispensable cooperation, based on the following circumstances supposedly establishing their complicity: 1. Accused Mallari has an axe to grind against victim Boyose therefore, has an interest of silencing her because of her persistent inquiries regarding the use or misuse of school funds under the custody of Mallari as principal of Bustamante Barangay High School. This is the motive for the shooting of Erlinda Boyose. 2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg and a man Friday of the latter who exercised moral ascendancy considering that he promised Zaldy a steady government job and have been extending cash advances in the form of allowances to tide him over till such time that he can receive a regular salary from the government. 3. Leonardo Bontia is the older brother of Zaldy who at that time the job was offered to him by Mallari to kill Boyose was in dire need of money having eight (8) children and wife to support. 4. Leonardo Bontia when confronted by the victim at the police station readily admitted he shot Erlinda Boyose because of the money he hopes to receive from Mallari afterwards. 5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so Leonardo can hide.

EVIDENCE : HEARSAY EVIDENCE |4 6. That Zaldy Bontia likewise confessed of his participation of the crime after being confronted by the victim at the police station. 7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial statement regarding their complicity to the crime. 8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly came from Leonardo Bontia because it contained narration of events anent the crime and full of explicit details which only the author of the shooting has personal knowledge of and asking for forgiveness.[8] Thus, the RTC disposed as follows: WHEREFORE, the prosecution having established the guilt of accused Melanio Mallari as principal by inducement, Leonardo Bontia as principal by direct participation and Zaldy Bontia as principal by indispensable cooperation beyond reasonable doubt, the court finds the aforesaid three accused guilty of the crime of frustrated murder as charged in the information. They are hereby sentenced to suffer the indeterminate penalty of 4 years 2 months and 20 days of prision correccional as the minimum to 11 years 6 months and 21 days of prision mayor as the maximum and to solidarily indemnify the victim Erlinda Boyose in the amount of P15,000.00 representing loss of income, P8,000.00 representing hospital and medical expenses, P20,000.00 as attorneys fees and P50,000.00 as moral damages and to pay the cost.[9] Ruling of the Court of Appeals On appeal, the CA essentially upheld the findings and conclusions of the trial court, except as to the stage of the crime committed. The appellate court was convinced that petitioner was the one who had induced the Bontia brothers to kill Boyose, despite the absence of direct evidence showing his participation in the crime charged. It ratiocinated that the accused could be convicted on the basis of circumstantial evidence. There was more than one circumstance, the facts from which the inferences were derived had been proven, and the combination of all the circumstances was such as to produce a conviction beyond reasonable doubt. It further held that, in the separately held trial of petitioner, there was no need for the prosecution to offer the evidence adduced during the trial of the Bontia brother[s,] considering that only one criminal Complaint had been filed against all the accused. Moreover, the issue could not be raised for the first time on appeal. Hence, as stated earlier, the CA modified the trial courts disposition and convicted the accusedappellants of attempted murder. This Petition[10] was filed only by the alleged mastermind, Melanio Mallari.

Issues In his Memorandum, petitioner submits the following issues for the Courts consideration: I. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution [are in] accord with the circumstantial evidence rule and the controlling jurisprudence thereon;

EVIDENCE : HEARSAY EVIDENCE |5 II. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution, upholding the trial courts admission of an irrelevant, immaterial and improper evidence (coming from Edwin Amparado) which was among the basis for conviction was in accordance with law and jurisprudence; III. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution, correctly sustained the trial courts consideration of an evidence given in a separately conducted trial (not as against the petitioner) which was among the basis for conviction; and IV. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA Resolution, which failed to tackle all the issues raised on appeal was consistent with due process.[11] In brief, the issues raised before this Court will be discussed seriatim as follows: (1) whether the trial and the appellate courts erred in taking cognizance of evidence given in the separate trial of petitioners co-accused; (2) whether there was sufficient circumstantial evidence to establish petitioners guilt beyond reasonable doubt; and (3) whether the Court of Appeals failed to accord due process to petitioner.

This Courts Ruling The Petition is meritorious. The prosecution failed to adduce the quantum of evidence needed for a criminal conviction.

First Issue: Evidence Proffered in Separate Trial Petitioner alleges that the trial and the appellate courts convicted him on the basis mainly of evidence adduced at the separately held trial of his co-accused. He submits that absent such evidence, there would have been no sufficient proof to establish his guilt beyond reasonable doubt. In its Memorandum, the Office of the Solicitor General (OSG) simplistically contends that in the trial against petitioner, there was no need to offer anew the evidence separately proffered against the Bontias, because the case [filed against them] involved only one case number. [12]Respondent fails to cite jurisprudence in support of such logic or to give even a semblance of a sound rationale therefor. As a rule, a court should not take judicial notice of evidence presented in other proceedings, even if these have been brought before it or have been heard by and are actually pending before it. This rule is especially true in criminal cases, in which the accused have the constitutional right to confront and crossexamine the witnesses presented against them.[13] Moreover, when a separate trial is granted, the testimony of the accused imputing the crime to the co-accused is not admissible against the latter, who has had no opportunity to cross-examine the witnesses.[14] Parenthetically, the object of conducting a separate trial would be rendered naught if evidence proffered at the trial of one of the accused would be considered likewise adduced in the distinct trial of the other accused. What then would be the rationale for requesting and being granted separate trial? While the grant of separate trials for persons jointly accused of an offense is discretionary upon the court,

EVIDENCE : HEARSAY EVIDENCE |6 the motions therefor are usually found meritorious when antagonism is apparent in the respective defenses of the accused.[15] In the case before us, petitioners co-accused -- Zaldy and Leonardo Bontia -- executed, prior to trial, their respective extrajudicial confessions admitting their complicity in the crime charged and implicating petitioner as the mastermind. On the other hand, in denying their accusations, petitioner stood his ground and refused to execute a statement. Precisely, their antagonistic defenses must have impelled him to seek, and the trial court to grant him, a separate trial. Records show, however, that most of the prosecution witnesses presented during the trial of the Bontias were likewise presented during the separate trial of petitioner. Testifying against him on December 20, 1990, was Pfc. Danilo Carvajal. The latter said that, as police investigator of the Sasa Patrol Station, he had conducted an investigation of the shooting incident involving Erlinda Boyose, leading to the arrest of Zaldy and Leonardo Bontia and Melanio Mallari. He had allegedly taken the supposed extrajudicial confession of Leonardo Bontia who, after being apprised of his constitutional rights, voluntarily executed his Sworn Statement in the presence of an inquest lawyer of the Public Attorneys Office (PAO).[16] On the same day, Atty. Jonathan Jocom testified that he was the PAO lawyer who had assisted the Bontias while each of them was under custodial investigation on August 2, 1989; that prior to their investigation, he had apprised them of their constitutional rights to counsel and not to be compelled to make any statement against their interests; and that despite his repeated warnings about the negative consequences of their statements, they nevertheless voluntarily executed and signed their statements confessing to the crime.[17] On April 19, 1991, Pfc. Anastacio Naive testified that he had also investigated the shooting incident; interviewed the victim (Erlinda Boyose) and the witness (Edwin Amparado) who was an alleged friend of petitioner; and that he had reduced the statement of Zaldy Bontia into writing after informing the latter of his constitutional rights in the presence of Atty. Jocom. Zaldy named Melanio Mallari as the mastermind who had asked him to look for a triggerman who would eliminate Boyose.[18] The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were admitted by herein petitioner, according to the stipulation of his counsel.[19] Ysulat was the Sasa Patrol Stations exhibit custodian, to whom the gun that had allegedly been used in the shooting incident was turned over. Padilla was the desk officer who had recorded the Complaint regarding the incident on June 29, 1989, the appearance of Erlinda Boyose, her identification of Zaldy and Leonardo Bontia from a police lineup, and the appearance of Petitioner Mallari at the patrol station on August 2, 1989. Erlinda stated[20] that she was a classroom teacher and guidance counselor of Bustamante High School, where petitioner was the principal from 1983 to 1989; and that initially, they had a good working relationship, which turned sour when she began inquiring about school funds that had remained unaccounted for. On March 22, 1989, she personally handed over to him a letter[21] she had written, reminding him of, among other things, some basic needs of the school that had remained unmet, such as blackboards, chairs and comfort rooms for the students; and his failure, as the school administrator in the past five years, to account for fees collected from students. She then admonished him in that letter for his moral indiscretions in office;[22] recommended that he conduct dialogues/discussions with teachers, students and their parents, to disclose financial reports so as to avoid suspicions of fund misuse; and, finally, apologized for having to bring up all these matters, but expressed hope that it would all be for the improvement of the school administration. Boyose further testified that after reading the letter, Mallari told her sarcastically that he had been to so many schools, but that it was only she who had written to him in such a manner; he warned her that she made a mistake in writing this [letter]. Boyose also attested to the incidents of that fateful day, June 29, 1989, which culminated in the attempt on her life by Leonardo Bontia. He had asked her earlier that day in school about how to enroll

EVIDENCE : HEARSAY EVIDENCE |7 his nephew at the Bustamante High School. Because of the gunshot injuries that she sustained, she had to undergo hospitalization for which she incurred expenses. While the instant case was pending trial, Leonardo Bontia supposedly wrote her a letter [23] asking for forgiveness for the crime [he] had done against [her,] saying that he was in dire need of money at the time. Allegedly, he had to go to Mallari, hoping to be able to ask for some, but th e latter instead dared [him] to discipline Mrs. Boyose, gave [him] food and drinks until [he] got drunk, and also promised to give him money and a job. Because the accused was drunk and, thus, out of his mind, he supposedly gave in to the prodding of Mallari. Only two other witnesses against the Bontias were not presented against Petitioner Mallari. They were (1) Pfc. Remo Pagal, who had also participated in the investigation and allegedly received an informers tip that led to their arrest; and (2) Dr. Roberto Alabado, who had treated the injuries of the victim.[24] The remaining witnesses at the separate trial of the Bontias were petitioners co-accused, Zaldy and Leonardo Bontia. It is worth noting that despite their earlier confessions -- as attested to by Witnesses Carvajal, Jocom and Naive -- the Bontia brothers, assisted by counsel, entered a plea of not guilty. Moreover, during their trial, the brothers denied committing the crime; admitted to having signed their respective statements; but alleged that these had been procured without the assistance of counsel and with the police officers use of force, intimidation and violence.[25] After reading the testimonies of Pagal, Alabado and the two Bontias and reviewing the rulings, we find that the trial and the appellate courts could not have taken those testimonies into substantial consideration, if at all, in convicting the petitioner. In fact, the testimonies of Pagal and Alabado were merely corroborative of those of the other witnesses who were presented during petitioners trial. On the other hand, the declarations of Zaldy and Leonardo Bontia in open court were, on their face, favorable to him. And the lower courts cognizance of those declarations would not have prejudiced him, as petitioner asserts. However, despite the denials by the Bontias, the lower courts still found them, including petitioner, guilty. We therefore find no basis at all for the allegation of petitioner that the trial and the appellate courts convicted him on the ground of evidence adduced at his co-accuseds separate trial, but supposedly not during his own trial.

Second Issue: Sufficiency of Circumstantial Evidence A close perusal of the testimonies of the witnesses presented against petitioner reveals the absence of direct evidence establishing his criminal participation. Nonetheless, in the absence of direct proof, a conviction may still be based on circumstantial evidence. But to warrant such conviction, the following requisites must concur: (1) there is more than one circumstance, (2) the facts from which the inferences are derived are proven, and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[26] Corollary to the constitutional precept that the accused is presumed innocent until the contrary is proved, a conviction based on circumstantial evidence must exclude each and every hypothesis consistent with innocence.[27] Hence, if the totality of the circumstances eliminates beyond reasonable doubt the possibility of innocence, conviction is proper; otherwise, the accused must be acquitted.[28] With the above jurisprudential premises in mind, we examined the circumstances on the basis of which petitioner had been found guilty beyond reasonable doubt and, consequently, convicted. According to the CA, the following circumstances were sufficient to establish the criminal culpability of the three accused (Zaldy and Leonardo Bontia, as well as Petitioner Mallari):

EVIDENCE : HEARSAY EVIDENCE |8 x x x. First, appellant Mallari had an axe to grind against the victim because of her persistent inquiries regarding the use or misuse of school funds under the custody of Mallari as principal of Bustamante Barangay High School. This fact shows the motive of Mallari in silencing her. Second, Zaldy Bontia, the person who looked for a killer, is beholden to Melanio Mallari, considering that the latter had promised him a steady government job and had been giving cash advances in the form of allowance to tide him over till such time that he could receive a regular salary from the government. Third, Leonardo Bontia is the older brother of Zaldy. When the job to kill Boyose was offered by Mallari to Leonardo Bontia, the latter immediately acceded considering that he was in dire need of money having eight (8) children and a wife to support. Thus, when confronted by the victim at the police station, he readily admitted that he shot Erlinda Boyose because of the consideration he hoped to receive from Mallari afterwards. Fourth, the money in the amount of P900.00 which Zaldy Bontia gave to his brother Leonardo so that he can hide came from Mallari. Fifth, the confession made by Zaldy Bontia concerning his participation to the crime after he was confronted by the victim at the police station. Sixth, both Leonardo and Zaldy Bontia voluntarily executed extra-judicial statements regarding their involvement in the crime. In their respective extra-judicial confession, they pointed to Mallari as the person who induced them to kill Boyose. Finally, the letter of Leonardo Bontia marked as Exhibit I, addressed to the victim asking for forgiveness, contained narration of events with full of explicit details regarding the commission of the crime. [29] In its Memorandum,[30] the OSG substantially repeats the above circumstances in support of the conviction of petitioner. The first circumstance -- that Mallari had an axe to grind against the victim because of her persistent inquiries regarding the use or misuse of school funds -- appears to be a conclusion based merely on the impression of the victim herself. Other than the one letter[31] she wrote to petitioner, only her self-serving statement supported her allegation that she had questioned persistently (several times) his supposed administrative malpractices as school principal. Be that as it may, a reading of that letter, which was indeed replete with denigrating statements against him, probably served as a motive for a reprisal from him, if its contents were not treated as constructive criticism. To the extent that it tends to establish motive, this circumstance may be taken into consideration in the overall assessment of the evidence against him. The second to the fourth circumstances[32] are not directly established by the evidence against petitioner. None of the prosecution witnesses testified thereon. A scrutiny of the records of the case reveals that those circumstances were derived from the Written Statements[33]that had been made by petitioners co-accused and presented when Prosecution Witnesses Carvajal and Naive testified. These witnesses were the police investigators who had reduced into writing the statements of Leonardo and Zaldy Bontia at the time of the arrest of the latter two. Section 36 of Rule 130 of the Rules of Court provides that witnesses can testify only with regard to facts of which they have personal knowledge; otherwise, their testimonies would be inadmissible for being hearsay.[34] In the present case, neither of the said witnesses had personal knowledge of the second to the fourth circumstances considered by the appellate court, or of the rest of the statements made by the declarants in their respective Written Statements. The witnesses merely attested to the voluntariness and due execution of the Bontias respective extrajudicial confessions. Thus, insofar as the substance of those confessions is concerned, the testimonies of the police witnesses are mere hearsay.[35] The fifth and the sixth circumstances refer to the aforementioned Written Statements of petitioners co-accused who did not, however, testify against him. Well-settled is the rule that extrajudicial declarations are inadmissible in evidence against the declarants co-accused.[36] The admission by the court of such declarations violates the incriminated persons right to due process. This principle holds if, as in the case before us, the declarants fail to take the witness stand and thereby deny the accusedpetitioner the fundamental right to confront and cross-examine them face-to-face, in order to test their truthfulness and credibility.

EVIDENCE : HEARSAY EVIDENCE |9 True, there are exceptions to this rule, such as when the confession is used as circumstantial evidence to show the probability of the participation of the co-accused in the crime, or when the confession is corroborated by other pieces of evidence.[37] In such instances, the significance of the confession comes to the fore, but only in relation to the other circumstantial evidence establishing the guilt of the person incriminated. In the instant case, the merits of the fifth and the sixth circumstances mentioned by the appellate court depend, therefore, on the strength of the other circumstantial evidence against petitioner. But, as discussed so far, just the first circumstance, establishing petitioners motive, may be given due weight. Only one more remains to be considered, as the three other circumstances have been discounted as hearsay. This last circumstance cited by the appellate court pertains to a supposed letter of Leonardo Bontia addressed to the victim, containing explicit details regarding the commission of the crime and asking for forgiveness. The latter was presented as part of the testimony of the victim, Erlinda Boyose. However, Leonardo was not presented in court to identify it. No other witness testified as to its genuineness or as to the fact that it had personally and voluntarily been written by him. Incidentally, Boyose received it through the mail, and no one ever attested that it had in fact been written and sent by the same Leonardo Bontia, petitioners co-accused.[38] As we have said earlier, witnesses can testify only with regard to facts of which they have personal knowledge. Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of the witness, but on the knowledge of some other person not on the witness stand. Consequently, hearsay evidence -- whether objected to or not -- has no probative value unless the proponent can show that the evidence falls within any of the exceptions to the hearsay rule, as provided in the Rules of Court.[39] Clearly, none of the exceptions apply to the present case. Thus, an unverified and unidentified private document cannot be accorded probative value. It is precluded because the party against whom it is presented is deprived of the right and opportunity to cross-examine the person to whom the statements or writings are attributed. Its executor or author should be presented as a witness to provide the other party to the litigation the opportunity to question its contents. Being mere hearsay evidence, failure to present the author of the letter renders its contents suspect and of no probative value.[40] There is another circumstance, not mentioned by the appellate court but advanced by the Office of the Solicitor General: that Prosecution Witness Edwin Amparado declared that he had been contacted by petitioner to kill Boyose. Let us first recall the testimony of that witness, as related by the trial court: On December 11, 1990, Edwin Amparado testified that he personally knows accused Mallari because he studied at F. Bangoy Barangay High School where Melanio Mallari was the principal from 1983 to 1984, that he also knows Zaldy Bontia, that the last time he saw Zaldy Bontia was in February 1989 in the house of Melanio Mallari located at Juan Luna, corner Chavez Streets, that he went to the house of Melanio Mallari to pledge his electric fan, that Melanio Mallari asked him to kill Mrs. Boyose who used to be his neighbor at Doa Pilar Village but nothing came out of it, that later he heard over the radio that Mrs. Boyose was shot, that he knows Andy Magdadaro who was his neighbor in Agdao, that they talked about the plan to kill Mrs. Boyose, that Andy Magdadaro was only waiting for his go-signal, that he executed an affidavit regarding the offer of Melanio Mallari to kill Mrs. Boyose. He said on crossexamination that he did not feel disgusted when Mallari asked him to kill Mrs. Boyose, that he thought of killing Mrs. Boyose and relayed the offer to Andy Magdadaro the same job, that he is close to Mr. Mallari, that the job of killing Mrs. Boyose was the only illegal job offered to him by Melanio Mallari, that during that time he needed money because his wife was pregnant, that he relayed the offer to Andy Magdadaro because he is a rebel returnee.[41] It appears that the prosecution presented Amparado merely to show that petitioner had criminal intent against the victim. The testimony of the witness, however, concerned petitioners alleged proposal to him (not to the Bontias) to kill Boyose -- an act that, by his own admission, did not materialize. Even if

E V I D E N C E : H E A R S A Y E V I D E N C E | 10 indeed petitioner made such a proposal, it did not necessarily mean that it was also made to the Bontias, absent any strong supporting evidence. The witness does not in fact appear privy to any conspiracy between petitioner and the Bontias. Thus, insofar as the actual attempt on the life of Boyose is concerned, Amparados testimony is clearly irrelevant or of no probative weight. It does not tend to establish, to any reasonable degree, the probability of a fact in issue[42] -- whether petitioner had induced or conspired with the Bontias to kill Boyose. Hence, the testimony is worthless in establishing the guilt of petitioner of the crime charged against him. In the final analysis, other than the victims letter to petitioner tending to establish his ill motive, there is hardly any evidence to corroborate his co-accuseds extrajudicial confessions (later recanted) or to establish the probability of his actual participation (by inducement) in the commission of the crime. Considering that the strength of the prosecution evidence against him falls short of the required quantum of proof beyond reasonable doubt, his constitutional right to be presumed innocent must prevail. The Court has repeatedly held that when the circumstances shown to exist yield at least two inferences -- one of which is consistent with the presumption of innocence and the other with the finding of guilt -- the Court must acquit the accused, because the evidence does not then fulfill the test of moral certainty or suffice to support a judgment of conviction.[43] Consistent with the above principles, and in view of the dearth of evidence to prove his guilt beyond reasonable doubt, petitioner must be acquitted.

Third Issue: Due Process Petitioner also claims that he was denied due process by the Court of Appeals, because it allegedly failed to tackle all the issues raised in his appeal brief. While it is no longer necessary to resolve this issue in view of our disposition of the second one, it is enough to say that petitioner has neglected to substantiate this allegation in his Petition. He did not, in fact, even care to point out -- much less discuss -- what issues the appellate court had failed to resolve. In any event, a wrong disposition by the court is not tantamount to denial of due process.

WHEREFORE, the assailed Decision insofar as it pertains to Petitioner is REVERSED and SET ASIDE. On reasonable doubt, Petitioner Melanio Mallari y Liberato is ACQUITTED. The director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten days from notice. No costs.

SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 11 [G.R. Nos. 146710-15. March 2, 2001] JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. [G.R. No. 146738. March 2, 2001] JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent. DECISION PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million Filipinos voted for the petitioner believing he would rescue them from lifes adversity. Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.[1] The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled I Accuse. He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.[2] The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern.[3] Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.[4] Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the supreme self -sacrifice of resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services[6] and later asked for petitioners resignation.[7] However, petitioner strenuously held on to his office and refused to resign.

E V I D E N C E : H E A R S A Y E V I D E N C E | 12 The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.[8] On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry.[9] On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.[10] The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment [11]signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentabella.[12] On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13] The political temperature rose despite the cold December. On December 7, the impeachment trial started.[14] the battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature Jose Velarde on documents involving a P500 million investment agreement with their bank on February 4, 2000.[15] After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.[16] Then came the fateful day of January 16, when by a vote of 11-10[17] the senator-judges ruled against the opening of the second envelop which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name Jose Velarde. The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.[19] Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.[20] January 18 saw the high velocity intensification of the call for petitioners resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the peoples solidarity in demanding petitioners resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.[21]

E V I D E N C E : H E A R S A Y E V I D E N C E | 13 On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.[22] In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that on behalf of your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government.[23] A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement.[24] Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.[25]Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelop.[26] There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacaangs Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.[27]Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace. [29] He issued the following press statement:[30] 20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA

E V I D E N C E : H E A R S A Y E V I D E N C E | 14 It also appears that on the same day, January 20, 2001, he signed the following letter:[31] Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20.[32] Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.[33] On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice-President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that maybe filed by a proper party. Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.[34] Recognition of respondent Arroyos government by foreign governments swiftly followed. On January 23, in a reception or vin d honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.[35] US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.[36] On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.[37] The House then passed Resolution No. 175 expressing the full support of the House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines.[38] It also approved Resolution No. 176 expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nations goals under the Constitution. [39] On January 26, the respondent signed into law the Solid Waste Management Act.[40] A few days later, she also signed into law the Political Advertising Ban and Fair Election Practices Act.[41] On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.[42] the next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmea voted yes with reservations, citing as reason therefore the pending challenge on the legitimacy of respondent Arroyos presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved Senator Guingonas nomination in Resolution No. 178.[45] Senator Guingona took his oath as Vice President two (2) days later.[46]

E V I D E N C E : H E A R S A Y E V I D E N C E | 15 On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated for the record that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post.[48] Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49] In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the Es or very poor class.[50] After his fall from the pedestal of power, the petitioners legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for government Employees, etc; (3) OMB Case No. 0-001755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from conducting any further proceedings in Case Nos. OMB 0 -00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted. Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution. Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents to comment thereon within a non-extendible period expiring on 12 February 2001. On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents comments on or before 8:00 a.m. of February 15. On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused themselves on motion of petitioners counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have compromised themselves by indicating that they have thrown their

E V I D E N C E : H E A R S A Y E V I D E N C E | 16 weight on one side but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for Gag Order on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: (1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic.[53] The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I

Whether or not the cases at bar involve a political question

Private respondents[54] raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the legitimacy of the Arroyo administration. They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has

E V I D E N C E : H E A R S A Y E V I D E N C E | 17 been recognized by foreign governments. They submit that these realities on ground constitute the political thicket which the Court cannot enter. We reject private respondents submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills constitutional law. [55] In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr,[56] viz: x x x Prominent on the surface on any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretions; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political questions presence. The doctrine of which we treat is one of political questions, not of political cases. In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.[57] Our leading case is Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure. To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of thiscourt not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.[59] Heretofore, the judiciary has focused on the thou shalt nots of the Constitution directed against the exercise of its jurisdiction.[60] With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x. Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution[63] declared that the Aquino government was installed through a direct exercise of the power of the Filipino people in defiance of the provisions of the 1973 Constitution, as amended. It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. [64] In her oath, she

E V I D E N C E : H E A R S A Y E V I D E N C E | 18 categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among the reforms sine quibus non.[65] The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively. These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances. The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.[66] Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The indispensability of the peoples freedom of speech and of assembly to democracy is now self evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus.[69] In this sense, freedom of speech and of assembly provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society.[70] In Hague v. Committee for Industrial Organization,[71] this function of free speech and assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of the American Bar Association which emphasized that the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all.[72] In the relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly stressed that "... it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers. Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,[74] and section 8[75]of Article VII, and the allocation of governmental powers under section

E V I D E N C E : H E A R S A Y E V I D E N C E | 19 11[76] of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,[77] the doctrine has been laid down that it is emphatically the province and duty of the judicial department to say what the law is . . . Thus, respondents invocation of the doctrine of political is but a foray in the dark. II

Whether or not the petitioner resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as president. The issue brings under the microscope of the meaning of section 8, Article VII of the Constitution which provides: Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then acts as President until President or Vice President shall have been elected and qualified. x x x. The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Republic. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. [78] The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioners alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioners powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and Former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the peoples call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment

E V I D E N C E : H E A R S A Y E V I D E N C E | 20 tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito Estrada, the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79] The Angara Diary reveals that in morning of January 19, petitioners loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)[80] An hour later or at 2:30, p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFPs withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of dignified exit or resignation.[81] Petitioner did nor disagree but listened intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would allowed to go abroad with enough funds to support him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. [84] At 10:00 p.m., petitioner revealed to Secretary Angara, Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace.[85] This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets cooperate to ensure a) peaceful and orderly transfer of power.[86] There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioners resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.[87] Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday.

E V I D E N C E : H E A R S A Y E V I D E N C E | 21 The President says. Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go.[88] Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: Oppositions deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled Negotiating Points. It reads: 1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning today, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice president to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police effective immediately. 4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the security of the president and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: 1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. 2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guaranteed freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities Vice President (Macapagal).

E V I D E N C E : H E A R S A Y E V I D E N C E | 22 3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. 4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the Transition Period), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function under Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in Annex A heretofore attached to this agreement.[89] The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement which was premised on the resignation of the petitioner was further refined. It was then signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara Diary narrates the fateful events, viz:[90] x x x 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. xxx The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. 3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority Vice President.

E V I D E N C E : H E A R S A Y E V I D E N C E | 23 4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities. 5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex B heretofore attached to this agreement. xxx 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United Opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait? What about the agreement)? I asked. Reyes answered: Wala na, sir (Its over, sir). I asked him: Di yung transition period, moot and academic na? And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that part). Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provision on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The president is too stunned for words. Final meal 12 noon Gloria takes her oath as President of the Republic of the Philippines. 12:20 p.m. The PSG distributes firearms to some people inside the compound. The President is having his final meal at the Presidential Residence with the few friends and Cabinet members who have gathered.

E V I D E N C E : H E A R S A Y E V I D E N C E | 24 By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys personal possessions as they can. During lunch, Ronie Puno mentions that the President needs to release a final statement before leaving Malacaang. The statement reads: At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as president, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shrik from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY! It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the oathtaking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioners reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioners valedictory, his final act of farewell. His presidency is now in the past tense. It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to his inability to govern. In support of this thesis, the letter dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: Sir

E V I D E N C E : H E A R S A Y E V I D E N C E | 25 By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting President. (Sgd.) Joseph Ejercito Estrada To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time being. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly showing his resignation from the presidency, then the resignation must prevail as a later act. If, however, it was prepared after the press release, still, it commands scant legal significance. Petitioners resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his repudiation by the people. There is another reason why this Court cannot give any legal significance to petitioners letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law . He relies on section 12 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire.[92] During the period of amendments, the following provision was inserted as section 15: Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official from office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency.[93] The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the Presidents immunity should extend even after his tenure. Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or

E V I D E N C E : H E A R S A Y E V I D E N C E | 26 administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right.[94] A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioners contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III

Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of Article VII.[95] This contention is the centerpiece of petitioners stance that he is a President on leaveand respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

E V I D E N C E : H E A R S A Y E V I D E N C E | 27 Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within fortyeight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the VicePresident shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now the operative facts: (1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; (2) Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; (3) Despite receipt of the letter, the House of Representative passed on January 24, 2001 House Resolution No. 175;[96] On the same date, the House of the Representatives passed House Resolution No. 176[97]which states: RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATIONS GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof;

E V I D E N C E : H E A R S A Y E V I D E N C E | 28 WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrendering its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nations goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General On February 7, 2001, the House of the Representatives passed House Resolution No. 178[98] which states: RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines - qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it

E V I D E N C E : H E A R S A Y E V I D E N C E | 29 Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General (4) Also, despite receipt of petitioners letter claiming inability, some twelve (12) members of the Senate signed the following: RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolute cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome the nations challenges.[99] On February 7, the Senate also passed Senate Resolution No. 82[100] which states: RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Phillippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence, and courage; who has served the Filipino people with dedicated responsibility and patriotism;

E V I D E N C E : H E A R S A Y E V I D E N C E | 30 WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice. Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101] which states: RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been terminated. Resolved, further, That the Journals of the Impeachment Court of Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the second envelope be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate President. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate (5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a vacancy in the Senate and calling on the COMELEC to fill upsuch vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate garnering the

E V I D E N C E : H E A R S A Y E V I D E N C E | 31 thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr. (6) Both houses of respondent Arroyo as President. Congress started sending bills to be signed into law by

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without anysupport from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioners claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as President of the Philippines. Following Taada v. Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue in regard to which full discretionary authority has been delegated to the Legislative x x x branch of the government. Or to use the language in Baker vs. Carr,[103] there is a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it. Clearly, the Court cannot pass upon petitioners claim of inability to discharge the powers and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court. IV

Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioners contentions, a revisit of our legal history on executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members

E V I D E N C E : H E A R S A Y E V I D E N C E | 32 of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an act of the GovernorGeneral illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more that it can a member of the Philippine Commission or the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercise discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to protection in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, he acts, not as Governor-General but as a private individual, and, as such, must answer for the consequences of his act. Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz: x x x. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.[105] Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity And All The Kings Men: The Law Of Privilege As A Defense To Actions For Damages, [106] petitioners learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only from civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome).

E V I D E N C E : H E A R S A Y E V I D E N C E | 33 The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism the king can do no wrong.[107] The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitutionwas crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas,viz:[108] Mr. Suarez. Thank you. The last question is with reference to the committees omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the Presidentin-exile in Hawaii is now facing litigations almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I thank the Commissioner for the clarification. We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the Impeachment Court is Functus Officio.[109] Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:[110] x x x Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped?

E V I D E N C E : H E A R S A Y E V I D E N C E | 34 Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts. This is in accord with our ruling in In re: Saturnino Bermudez[111]that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance in the case of Lecaroz vs. Sandiganbayan[112] and related cases[113]are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the allege mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.[114] Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,[115] US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixons associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washingtons Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted coconspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. In the 1982 case of Nixon v. Fitzgerald,[116] the US Supreme Court further held that the immunity of the President from civil damages covers only official acts. Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the US Presidents immunity from suits for money damages arising out of their official acts is inapp licable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.[118] It declared as a state policy that (t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption."[119] It ordained that (p)ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.[120] It set the rule that (t)he right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of the Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. [123] The Office of the Ombudsman was also given fiscal autonomy.[124]These constitutional policies will be devalued if we sustain petitioners claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency.

E V I D E N C E : H E A R S A Y E V I D E N C E | 35 V

Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.[125] The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. [126] The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.[127] InPeople vs. Teehankee, Jr.,[128] later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid down the doctrine that: We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we now rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. x x x xxx x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable if change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.

E V I D E N C E : H E A R S A Y E V I D E N C E | 36 We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.[130] and its companion cases. viz.: Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. Inn the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held: x x x (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that the time this Nations organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that societys criminal process satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.

E V I D E N C E : H E A R S A Y E V I D E N C E | 37 Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof. [131] He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioners submission, the respondent Ombudsman has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs.[132] News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner[133]and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigating prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.[134] They can be reversed but they can not be compelled to change their recommendations nor can they be compelled to prosecute cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the finding of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI.

Epilogue

A word of caution to the hooting throng. The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the

E V I D E N C E : H E A R S A Y E V I D E N C E | 38 majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the most fundamental of all freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls the impatient vehemence of the majority. Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to mans progress from the cave to civilization. Let us not throw away that key just to pander to some peoples prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 39 FIRST DIVISION [G.R. No. 128073. March 27, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE MAMALIAS Y FIEL, accused-appellant. DECISION PUNO, J.: Accused RENE MAMALIAS Y FIEL was convicted of murder and frustrated murder by the Regional Trial Court of Manila (Branch 33). He seeks his acquittal on the ground that the trial court convicted him purely on the basis of hearsay evidence but he escaped pending decision of his appeal. The threshold issue is whether we should acquit the accused who is no longer in the custody of the law. We acquit to prevent failure of justice. The records show that on January 31, 1993, accused Rene Mamalias and a John Doe were charged with the crimes of murder and frustrated murder, for the death of Francisco de Vera y Del Valle, and the gunshot wound inflicted on Alexander Bunag.[1] The crimes were allegedly committed as follows: Criminal Case No. 93-115102 "That on or about August 9, 1992, in the City of Manila, Philippines, the said accused, conspiring and confederating with one whose true name, real identity and present whereabout (sic) are still unknown, and helping each other, with intent to kill, and by means of treachery and with evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one FRANCISCO DE VERA Y DEL VALLE, by then and there shooting the latter on the head thrice with an unknown caliber gun, thereby inflicting upon the said FRANCISCO DE VERA Y DEL VALLE gunshot wounds which were the direct and immediate cause of his death thereafter. CONTRARY TO LAW." Criminal Case No. 93-115103 "That on or about August 9, 1992, in the City of Manila, Philippines, the said accused, conspiring and confederating with one whose true name, real identity and present whereabout (sic) are still unknown, and helping each other, did then and there wilfully, unlawfully and feloniously, with intent to kill, and with treachery and evident premeditation, attack, assault and use personal violence upon one ALEXANDER BUNAG Y FIGUEROA, by then and there shooting the latter with unknown caliber gun on his face hitting his cheek, thereby inflicting upon the said Alexander Bunag Y Figueroa gunshot wound which was necessarily fatal and mortal, thus performing all the acts of execution which should have produced the crime of murder, as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical assistance rendered to the said ALEXANDER BUNAG Y FIGUEROA which save(d) his life. CONTRARY TO LAW." Accused pleaded not guilty.[2] His co-accused remained at large. Trial ensued.

E V I D E N C E : H E A R S A Y E V I D E N C E | 40 The prosecution presented only two (2) witnesses, namely police investigator SPO3 Manuel Liberato of the Western Police District Command and Dr. Remigio Rivera of the Mary Johnston Hospital. SPO3 LlBERATO testified that the accused was arrested on January 4, 1993. A few days later, a relative of the murder victim Francisco De Vera brought to the police headquarters Epifanio Raymundo, an alleged eyewitness to the shooting incident. The sworn statement of Raymundo was taken by SPO3 Liberato. In his worn statement, Raymundo claimed that at about 5:00 a.m., on August 9, 1992, he saw De Vera standing in front of house no.1001 in Ilaya Street near Padre Capitan Street, Tondo, Manila. Two (2) unidentified men approached De Vera and, without any provocation, shot him in the head. Alexander Bunag, a fruit vendor, was caught in the line of fire and got hit on the cheek by a stray bullet that killed De Vera.[3] The assailants fled after shooting De Vera three (3) times. SPO3 Liberato also prepared the Booking Sheet and Arrest Report and the Progress Report of the case at bar. In his Progress Report,[4] dated January 7, 1993, SPO3 Liberato stated: "This pertains to the cases of Murder and Frustrated Murder wherein the victims were FRANCISCO DE VERA y DEL VALLE, 48 years old, married, jeepney barker, native of and last resided at Blk. 13, Lot 3, Phase 3-C, Kalayaan Village, Kaloocan City (Deceased) (sic), and ALEXANDER BUNAG y FIGUEROA, 20 years old, single, residing at No. 246 Padre Rada Street, Tondo, Manila (Injured and treated at Mary Johnston Hospital). The suspects are two unidentified malepersons (sic). The incident happened at about 5:00 a.m., August 9, 1992 in front of house no. 1001 Ilaya Street near corner Capitan Street, Tondo, Manila. Incessant follow-up and discreet inquiries were made for the early resolution of his case and the possible apprehension of the suspects. On January 4, 1993, RENE MAMALIAS Y FIEL, 33 years old, married, jobless, native of Osamiz City and residing at 1267 Hagonoy Street, Tondo, Manila, JONATHAN DEQUITO Y VINLUAN, 27 years old, married, jobless, native of Pikit North Cotabato and presently residing at no. 2515 Radium Street, San Andres Bukid, Manila, and RODOLFO FEROL Y TUSING, 30 years old, married, jobless, native of Palapag, Samar and presently residing at no. 2929 Park Avenue Street, Pasay City (ALL UNDER ARREST) all members of the dreaded Robin Padilla gang and suspects in the series of Hold-up, Bank Robberies, Murder and other offenses were apprehended and brought in to this office, after a series of stake outs and raids, by elements of this office. Witness in herein case, Epifanio Raymundo y Peralta, came to this office and positively pointed to and identified RENE MAMALIAS y FIEL, as one of the two men who fatally shot and killed Francisco De Vera y Del Valle and seriously injuring Alexander Bunag y Figueroa. When investigated after apprising him of his constitutional rights as person under custodial investigation, Rene Mamalias y Fiel verbally admitted that he only acted as look-out at the time and only gave support to one alias LANDONG WARAY whom he alleged to be the gun wielder. He further stated that he was given P2,400.00 for the job and that it was one alias BOBBY URAK, a muslim, who ordered the killing of the herein named victims. In view of the foregoing, Rene Mamalias was booked for Murder an Frustrated Murder and the same will be referred to the inquest prosecutor for proper disposition and action." DR. REMEGIO RIVERA, a resident physician at Mary Johnston Hospital in Tondo, Manila, testified that on August 9, 1992, he treated the gunshot wounds of Alexander Bunag. Bunag sustained gunshot wound at the right cheek, measuring about 1 cm., and possibly a penetrating wound in the cranial area, measuring about 5 cms. However, he did not determine the extent of Bunag's possible head injury as

E V I D E N C E : H E A R S A Y E V I D E N C E | 41 Bunag refused to undergo a skull x-ray. Thus, he just cleansed Bunag's wounds and gave him antitetanus medications. Bunag was released that same day. The prosecution tried to present Alexander Bunag, the heirs of Francisco De Vera and Epifanio Raymundo as additional witnesses but the authorities could not locate them.[5] For lack of other material witnesses, the prosecution rested its case. The defense presented only one witness, accused Rene Mamalias. Accused claimed that on the date and time of the shooting incident, he was in his house in Masinop, Wagas Street, Tondo, Manila. He fetched water and was unaware of any unusual incident. He denied any knowledge of the crimes imputed against him. On January 4, 1993, while he was counting the proceeds of his sales for watches and eyeglasses, he was arrested without warrant by the police and brought to the Western Police District. He was also not assisted by counsel during his custodial investigation. On May 15, 1995, the trial court rendered its judgment, finding accused guilty as charged.[6] The trial court held: "x x x. Finally, this court on September 27, 1993, ordered the Superintendent of the Western Police District, Col. Romeo Odi, to effect the arrest of the witnesses mentioned in these cases but again to no avail. The Court can only surmise that the other witnesses went into hiding for fear of their lives. The question before this Court is, whether the non-appearance of these witnesses is fatal to the cause of the prosecution? The Court finds the evidence adduced for the prosecution supportive of the allegations of the information in both offense for murder and for the crime of frustrated murder. Accused did not deny the fact of his apprehension. Accused did not also deny the confrontation between him and the witness for the prosecution Epifanio Raymundo at the police headquarters wherein Epifanio Raymundo pointed to him as the person who shot Francisco De Vera y Del Valle on August 9, 1992. He also did not dispute the claim of the police investigator Manuel Liberato that during his investigation for the death of Francisco De Vera y Del Valle and for the injury sustained by Alexander Bunag he admitted verbally having shot De Vera and that he was paid P2,400.00 by one Landong Waray. His bare denial did not overcome the presumption of guilt established by the evidence adduced by the prosecution. xxx xxx xxx

WHEREFORE, for all the foregoing, the Court finds the accused Rene Mamalias y Fiel guilty beyond reasonable doubt of the crime of murder defined and punished under Article 248 of the Revised Penal Code for the death of Francisco Del Valle (sic) and is hereby sentence to suffer the penalty of RECLUSION PERPETUA and to indemnify the heirs of said Francisco De Vera y Del Valle the amount of P2,400.00. For the injuries inflicted on Alexander Bunag, the accused Rene Mamalias y Fiel is found guilty beyond reasonable doubt of the crime of frustrated murder defined and punished under Article 248 in relation to Article 6 of the Revised Penal Code and because of Article 48, such penalty is absorbed by the more serious crime of murder. In the latter case, no pronouncement as to civil liability. SO ORDERED."

E V I D E N C E : H E A R S A Y E V I D E N C E | 42 Hence, the appeal.[7] Accused-appellant contends that: "THE TRIAL COURT DECISION WAS BASED ON ALLEGATIONS OF FACTS NOT TESTIFIED TO BY THE WITNESSES IN THE COURT AND THEREFORE HEARSAY." In a Resolution dated August 25, 1997, we inquired from the Director of the Bureau of Corrections whether the accused-appellant is confined in the New Bilibid Prisons or some other institutions under said Bureau.[8] In a 1st Indorsement, dated October 7, 1997, the Bureau of Corrections notified this Court that it has no record of confinement of the accused-appellant.[9] Hence, on October 22, 1997, we issued another resolution, ordering the Regional Trial Court of Manila, Branch 33, to inform the Court of the whereabouts of the accused-appellant within ten (10) days from notice of our resolution. On September 13, 1999, we issued another resolution with the following directives: "(1) Cliford S. Equila, Clerk of Court, Manila RTC, Branch 33, to inform the Court whether the Order of Commitment dated August 2, 1995 issued by then Judge Rodolfo G. Palattao has been satisfied; (2) the Jail Warden of Manila City Jail to confirm whether or not accused-appellant has been committed to the New Bilibid Prison and to show proof of such commitment; (3) the Director of the Bureau of Corrections to inform the Court whether accused-appellant is confined at the New Bilibid Prison or other national penal institution; and (4) the Public Attorneys Office, counsel for accused-appellant, to inform the Court of accusedappellants whereabouts, all within a non-extendible period of ten (10) days from notice." On September 24, 1999, we received a communication from the Regional Trial Court of Manila, Branch 33, informing this Court that "the Order of Commitment dated August 2, 1995 issued by then Judge Rodolfo G. Palattao has long been satisfied. It was delivered by a certain M.O. Labata of the Manila Sheriffs Office and was received at the Manila City Jail by SJ 04 EA Elanda on August 11, 1995 x x x." It thus appears that the accused-appellant is no longer in the custody of the law and cannot be located. In a Manifestation and Motion,[10] the solicitor General recommended the acquittal of the accusedappellant as his conviction was based on hearsay evidence. The first issue is the jurisdiction of this Court to determine the guilt or innocence of the accused-appellant in view of the fact that his whereabouts is now unknown. Section 8, Rule 124 of the 1985 Rules on Criminal Procedure provides: "Sec. 8. Dismissal of appeal for abandonment or failure to prosecute.- The appellate court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this rule, except in case the appellant is represented by a counsel de oficio. The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or flees to a foreign country during the pendency of the appeal." The general rule is that "a party appealing who flees the jurisdiction, pending the appeal, is in contempt of the authority of the court and of the law and places himself in a position to speculate on the chances for a reversal, meanwhile keeping out of the reach of justice and preparing to render the judgment nugatory or not, at his option. Such conduct is intolerable and does not invite leniency on the part of the appellate

E V I D E N C E : H E A R S A Y E V I D E N C E | 43 court."[11]Moreover, the escapee loses his standing in court and unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek relief from the court. [12] Be that as it may, the escape of an accused-appellant during the pendency of his appeal will not necessarily prevent this Court from exercising its jurisdiction in exceptional cases. Thus, in People vs. Araneta,[13] we held: "Since the accused-appellant has jumped bail, we shall determine whether the Court should proceed to exercise jurisdiction over his appeal. Section 8, Rule 124 of the 1985 Rules on Criminal Procedure provides: Sec. 8. Dismissal of appeal for abandonment or failure to prosecute.- The appellate court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this rule, except in case the appellant is represented by a counsel de oficio. The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or flees to foreign country during the pendency of the appeal. Under the second paragraph, the Court has the discretion to dismiss the appeal in case the appellant escapes from custody or jumps bail. We hold that dismissal of accused-appellants appeal at this stage will result in injustice. In Criminal Case No. 34642, the Decision of the trial court finding him guilty of homicide and sentencing him to a minimum of prison mayor to a maximum of reclusion temporal will become final. The findings of the Court of Appeals that he should instead be convicted for murder and meted the penalty of reclusion perpetua can no longer be acted upon by this Court. And in Criminal Case No. 34643, accused-appellant will be acquitted from the charge of frustrated homicide as found by the Court of Appeals. In fine, accused-appellant will be benefited by his act of jumping bail. To avoid this mockery of justice, we resolve to continue exercising jurisdiction over Criminal Case No. 34642. The acquittal of accused-appellant in criminal Case No. 34643, however, can no longer be reviewed in view of the rule on double jeopardy." Similarly instructive is the case of People vs. Francisco,[14] where the accused-appellant was convicted of murder and meted the penalty of reclusion perpetua. He escaped from confinement during the pendency of his appeal. Nevertheless, we reviewed his sentence and eventually acquitted him of the crime charged. We held: "During the pendency of the appeal, the appellant escaped from prison or confinement. The appeal, therefore, could have been dismissed under Section 8, Rule 124 of the Rules of Court. In view, however, of the comment of the Solicitor General as counsel for the appellee, the People of the Philippines, that since the appellant had already filed his brief, the proceedings may continue despite the reported escape of appellant from prison, as well as his manifestation in lieu of appellees brief, recommending the acquittal of the appellant on the ground that his culpability of the crime charged has not been shown beyond legal and moral certainty and finding such recommendation to be meritorious, We have taken the burden of deciding the case on the merits in order to avoid a miscarriage of justice." In the case at bar, we hold that this Court should retain its jurisdiction to pass upon the guilt or innocence of the accused-appellant to prevent a miscarriage of justice. The ultimate task of this Court is to render justice and rules of procedure should be interpreted to serve this objective. No obeisance should be

E V I D E N C E : H E A R S A Y E V I D E N C E | 44 rendered to any technical rule when its result will be to frustrate the rendition of a just decision. Again, we reiterate our fealty to the rule of justice and not to the role of technicalities. The second issue is whether the guilt of the accused-appellant was established beyond reasonable doubt. The Constitution[15] mandates that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. This presumption of innocence is anchored on the basic principles of justice. It cannot be overcome by suspicion or conjecture, i.e., a probability that the accused committed the crime or that he had the opportunity to do so. To overcome the presumption of innocence, proof beyond reasonable doubt of every fact essential to constitute the offense with which the accused is charged must be clearly established by the prosecution. [16] In the case at bar, the trial court merely relied on hearsay evidence, particularly on the testimony of SPO3 Liberato and the sworn statement of Epifanio Raymundo who did not testify in the trial court. The records clearly show that prosecution witness SPO3 Liberato has no personal knowledge of the facts surrounding the shooting incident. The Progress Report and the Booking and Arrest Report he prepared were based on information related to him by Epifanio Raymundo almost five (5) months after the crimes were committed. In fact, contrary to the factual finding of the trial court that SPO3 Liberato went to the locus criminis shortly after the shooting incident, the records show that it was PO3 Edgardo E. Ko who was dispatched by the WPD Command to investigate the case. For unknown reason, PO3 Ko was not called to the witness stand. The records also show that SPO3 Liberato was not even a member of the team of policemen that apprehend the accused-appellant on January 4, 1993. He testified that the accused-appellant was turned over to him only on January 6, 1993, and he did not know how the accused-appellant was apprehended. He was also not aware whether a warrant of arrest had been issued against the accused-appellant.[17] Clearly, his knowledge of the circumstances surrounding the shooting incident was limited to the matters relayed to him by his co-policemen and the alleged eyewitness, hence, hearsay. In the same vein, the sworn statement of Epifanio Raymundo is merely hearsay evidence as he did not personally appear in court to affirm its content. Its probative value, if any, is little. We have held that in criminal cases, the admission of hearsay evidence would be a violation of the constitutional provision that the accused shall enjoy the right to confront the witnesses testifying against him and to cross-examine them.[18] A conviction based alone on proof that violates the constitutional right of an accused is a nullity and the court that rendered it acted without jurisdiction in its rendition. Such a judgment cannot be given any effect whatsoever especially on the liberty of an individual. Apparently, the trial court was swayed to convict the accused-appellant because he was suspected by the police as a member of the dreaded "Robin Padilla gang", that was allegedly involved in a series of bank robberies, murders and other offenses in Manila. Be that as it may, suspicion is never synonymous to proof and notoriety without more is not evidence and cannot convict. We emphasize that the great goal of our criminal law and procedure is not to send people to the gaol but to do justice.[19] The prosecution's job is to prove that the accused is guilty beyond reasonable doubt. Conviction must be based on the strength of the prosecution and not on the weakness of the defense-the obligation is upon the shoulders of the prosecution to prove the guilt of the accused, not on the accused to prove his innocence. Thus, when the evidence for the prosecution is not enough to sustain a conviction, it must be rejected and the accused absolved and released at once.[20] IN VIEW WHEREOF, the impugned decision of the Regional Trial Court of the City of Manila (Branch 33), in Criminal Case Nos. 93-115102-03, is REVERSED and SET ASIDE, and appellant RENE MAMALIAS Y FIEL is hereby ACQUITTED of the crimes charged due to reasonable doubt. Costs de oficio. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 45 [G.R. No. 117401. October 1, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO QUIDATO, JR., accusedappellant. DECISION ROMERO, J.: Before us is an appeal from the judgment of the Regional Trial Court of Davao, Branch 4, dated March 2, 1994, finding accused-appellant Bernardo Quidato, Jr. guilty of the crime of parricide. On January 17, 1989, accused-appellant was charged with the crime of parricide before the Regional Trial Court of Davao. The information reads as follows: The undersigned accuses BERNARDO QUIDATO, JR. of the crime of Parricide under Article 246 of the Revised Penal Code, committed as follows: That on or about September 17, 1988, in the Municipality of Kaputian, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping with Reynaldo Malita and Eddie Malita, who are charged for (sic) Murder in a separate information, did then and there wilfully, unlawfully and criminally, with the use of a bolo and an iron bar, assault, hack and stab his father, Bernardo Quidato, Sr., on the different parts of his body, thereby inflicting upon him wounds which caused his death, and further causing actual, moral and compensatory damage to the heirs of the victim. Contrary to law.[1] Accused-appellants case was tried jointly with the murder case filed against his co-accused, Reynaldo Malita and Eddie Malita who, however, withdrew their not guilty plea during the trial and were accordingly sentenced. Thus, only accused-appellants case was tried on the merits. The prosecution, in offering its version of the facts, presented as its witnesses accused-appellants brother Leo Quidato, appellants wife Gina Quidato, as well as Patrolman Lucrecio Mara. Likewise, the prosecution offered in evidence affidavits containing the extra-judicial confessions of Eddie Malita and Reynaldo Malita. The two brothers were, however, not presented by the prosecution on the witness stand. Instead, it presented Atty. Jonathan Jocom to prove that the two were assisted by counsel when they made their confessions. Similarly, the prosecution presented MTC Judge George Omelio who attested to the due and voluntary execution of the sworn statements by the Malita brothers. Based on the foregoing pieces of evidence, the prosecutions version of the facts is as follows: Bernardo Quidato, Sr. was the father of accused-appellant Bernardo Quidato, Jr. and Leo Quidato. Being a widower, Bernardo lived alone in his house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen hectares of coconut land in the area. On September 16, 1988, Bernardo, accompanied by his son, herein accused-appellant, and two hired hands, Reynaldo Malita and Eddie Malita, went to Davao City to sell 41 sacks of copra. After selling the copra, Bernardo paid the Malita brothers for their labor, who thereafter left. Bernardo and accused-appellant went back to Sitio Libod that same day.[2] According to Gina Quidato, on the evening of the next day, September 17, 1988, accused-appellant and the Malita brothers were drinking tuba at their house. She overheard the trio planning to go to her father-in-laws house to get money from the latter. She had no idea, however, as to what later transpired because she had fallen asleep before 10:00 p.m.[3] Accused-appellant objected to Gina Quidatos testimony on the ground that the same was prohibited by the marital disqualification rule found in Section 22 of Rule 130 of the Rules of Court.[4] The judge, acknowledging the applicability of the so-called rule, allowed said testimony only against accused-appellants co-accused, Reynaldo and Eddie.

E V I D E N C E : H E A R S A Y E V I D E N C E | 46 As adverted to earlier, the Malita brothers confessed to their participation in the crime, executing affidavits detailing how Bernardo was killed. Their version shows that Eddie had been living with accused-appellant for the past four years. At around 6:00 p.m. of September 17, 1988, accusedappellant asked Reynaldo to come to the formers house to discuss an important matter. Upon Reynaldos arrival at accused-appellants house, he saw that his brother Eddie was already there. They started drinking beer. The Malita brothers alleged that it was at this juncture that accused-appellant proposed that they rob and kill his father. They went to Bernardos house only at 10:00 p.m., after the rain had stopped. Reynaldo brought along a bolo. Upon reaching the house, accused-appellant knocked on the door, asking his father to let them in. When Bernardo opened the door, Eddie rushed in and knocked the old man down. Reynaldo then hacked Bernardo on the nape and neck. Accused-appellant and Eddie ransacked Bernardos aparador looking for money but they found none; so, the three of them left. The body of Bernardo was discovered the next day by accused-appellants son, who had gone there to call his Lolo for breakfast. The cause of death, as stated in Bernardos death certificate was hypovolemic shock secondary to fatal hacking wound on the posterior neck area.[5] On September 27, 1988, Leo Quidato confronted his brother regarding the incident and learned that Reynaldo and Eddie Malita were the ones responsible for Bernardos death. The two were promptly arrested by the police. Aside from arresting the latter two, however, the police also arrested accusedappellant. On September 29, 1988, the Malita brothers were interrogated by Patrolman Lucrecio Mara at the Kaputian Police Station. When Mara apprised them of their constitutional rights, including their right to counsel, they signified their intent to confess even in the absence of counsel. Aware that the same would be useless if given in the absence of counsel, Mara took down the testimony of the two but refrained from requiring the latter to sign their affidavits. Instead, he escorted the Malita brothers to Davao City and presented them, along with their unsigned affidavits, to a CLAO (now PAO) lawyer, Jonathan Jocom.[6] Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie, again advising the two of their constitutional rights. The CLAO lawyer explained the contents of the affidavits, in Visayan, to the Malita brothers, who affirmed the veracity and voluntary execution of the same. Only then did Reynaldo and Eddie affix their signatures on the affidavits.[7] In his defense, accused-appellant denied the allegations of the Malita brothers. He claimed that the Malita brothers were not at his house on the evening of September 17, 1988. They, however, passed by his house at around 10:00 p.m. and asked him to come with them to his fathers house, threatening him with harm if he refused. Out of fear, he led the way to Bernardos house and even knocked on the latters door until Bernardo opened the same. In the ensuing commotion, he scampered away, but in his confusion, reached his house only at around 11:00 p.m., although the same was only about one hundred fifty meters away from Bernardos house. He did not call for help. Eddie arrived a while later. Accusedappellant claimed not to have seen the actual killing, having run away earlier. He, however, admitted finding a bolo, encrusted with blood, at his house. He turned the same over to his brother, who, in turn, surrendered the same to the police. Accused-appellant did not feel uneasy having Eddie around even if he knew of the latters participation in the crime.[8] After due trial, the court a quo rendered the following judgment: WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the accused, Bernardo Quidato, Jr., guilty beyond reasonable doubt as a co-principal in the offense of Parricide which falls under Article 246 (of the Revised Penal Code), for the death of his father, Bernardo Quidato, Sr., and accordingly, is hereby sentenced by this court to suffer the penalty of RECLUSION PERPETUA, with all the accessory penalties provided by law and to indemnify the other heirs of Bernardo Quidato, Sr., the amount of P50,000.00, in accordance with current case doctrines of the Supreme Court, and to pay the costs. SO ORDERED.[9]

E V I D E N C E : H E A R S A Y E V I D E N C E | 47 From the aforesaid judgment of conviction, appellant interposed the present appeal, assigning the following errors: 1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSIONS OF REYNALDO MALITA (EXH. C) AND EDDIE MALITA (EXH. D) IN CLEAR VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT TO CONFRONT WITNESSES. 2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF CONSPIRACY IN THE CASE AT BAR. 3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE RAISED BY THE ACCUSED AND DISREGARDING (ANY) ILL-MOTIVE OF REYNALDO AND EDDIE MALITA IN KILLING THE VICTIM. Accused-appellant must be acquitted. In indicting accused-appellant, the prosecution relied heavily on the affidavits executed by Reynaldo and Eddie. The two brothers were, however, not presented on the witness stand to testify on their extrajudicial confessions. The failure to present the two gives these affidavits the character of hearsay. It is hornbook doctrine that unless the affiants themselves take the witness stand to affirm the averments in their affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.[10] The voluntary admissions of an accused made extrajudicially are not admissible in evidence against his co-accused when the latter had not been given an opportunity to hear him testify and crossexamine him.[11] The Solicitor General, in advocating the admissibility of the sworn statements of the Malita brothers, cites Section 30, Rule 130 of the Rules of Court which provides that [t]he act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the coconspirator after the conspiracy is shown by evidence other than such act or declaration. The inapplicability of this provision is clearly apparent. The confessions were made after the conspiracy had ended and after the consummation of the crime. Hence, it cannot be said that the execution of the affidavits were acts or declarations made during the conspiracys existence. Likewise, the manner by which the affidavits were obtained by the police render the same inadmissible in evidence even if they were voluntarily given. The settled rule is that an uncounseled extrajudicial confession without a valid waiver of the right to counsel that is, in writing and in the presence of counsel is inadmissible in evidence.[12] It is undisputed that the Malita brothers gave their statements to Patrolman Mara in the absence of counsel, although they signed the same in the presence of counsel the next day. As ruled in People vs. Compil:[13] [T]he belated arrival of a CLAO (now PAO) lawyer the following day even if prior to the actual signing of the uncounseled confession does not cure the defect (of lack of counsel) for the investigators were already able to extract incriminatory statements from accused-appellantThus, inPeople vs. De Jesus (213 SCRA 345 [1992]) we said that admissions obtained during custodial interrogations without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution. With regard to Gina Quidatos testimony, the same must also be disregarded, accused-appellant having timely objected thereto under the marital disqualification rule. As correctly observed by the court a quo, the disqualification is between husband and wife, the law not precluding the wife from testifying when it involves other parties or accused.[14] Hence, Gina Quidato could testify in the murder case against Reynaldo and Eddie, which was jointly tried with accused-appellants case. This testimony cannot, however, be used against accused-appellant directly or through the guise of taking judicial notice of the proceedings in the murder case without violating the marital disqualification rule. What cannot be done directly cannot be done indirectly is a rule familiar even to law students.

E V I D E N C E : H E A R S A Y E V I D E N C E | 48 Given the inadmissibility in evidence of Gina Quidatos testimony, as well as of Reynaldo and Eddies extrajudicial confessions, nothing remains on record with which to justify a judgment unfavorable to accused-appellant. Admittedly, accused-appellants defense, to put it mildly, is dubious. His alleged acquiescence to the demand of the Malita brothers to accompany them to his fathers house on the strength of the latters verbal threats, his incredulous escape from the clutches of the two, his inexplicable failure to return home immediately, his failure to seek assistance from the authorities, the fact that Eddie stayed with him immediately after the incident, and the nine-day lacuna between the killing and his pointing to the Malita brothers as the culprits, all suggest a complicity more than that of an unwilling participant. Yet, suspicion, no matter how strong, should not sway judgment, it being an accepted axiom that the prosecution cannot rely on the weakness of the defense to gain a conviction, but must establish beyond reasonable doubt every circumstance essential to the guilt of the accused. [15] This the prosecution has failed to demonstrate. WHEREFORE, the appeal is hereby GRANTED and the decision of the Regional Trial Court of Davao City in Criminal Case No. 89-9 dated March 2, 1994, is REVERSED and SET ASIDE. Accusedappellant Bernardo Quidato, Jr. is hereby ACQUITTED on ground of reasonable doubt. Consequently, let the accused be immediately released from his place of confinement unless there is reason to detain him further for any other legal or valid cause. With costs de oficio. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 49 G.R. No. L-20986 August 14, 1965

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. VICENTE N. CUSI JR., Presiding Judge, Branch I, Court of First Instance of Davao, ARCADIO PUESCA alias Big Boy, WALTER APA, JOSE GUSTILO alias Peping, FILOMENO MACALINAO, JR. aliasWhite, RICARDO DAIRO alias Carding, and MAGNO MONTANO alias Edol, respondents. DIZON, J.: In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo Dairo, and Magno Montano were charged with robbery in band with homicide, to which they pleaded not guilty. During the trial, and while Sgt. Lucio Bano of the Police Force of Digos, Davao was testifying as a prosecution witness regarding the extrajudicial confession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to to commit the offense, mentioning the name of each and everyone of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged co-conspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his co-conspirators except those who had raised the objection. The prosecuting officer's motion for reconsideration of this ruling was denied. Hence the present petition for certiorari praying that the abovementioned ruling of the respondent judge be declared erroneous and for a further order directing said respondent judge to allow witness Bano to answer the question in full. The question involved herein is purely one of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement (People vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8). In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt. Bano the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be given by Sgt. Bano would be competent and admissible evidence to show that the persons so named really conspired with Puesca. For this limited purpose, we believe that the question propounded to the witness was proper and the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as competent evidence to show that the persons named really and actually conspired with Puesca and later took part in the commission of the offense. On the other hand, the fact which the prosecuting officer intended to establish would seem to be relevant to explain why the police force of the place where the offense was committed subsequently questioned and investigated the persons allegedly named by Puesca. PREMISES CONSIDERED, the writ is granted. The writ of preliminary injunction issued heretofore is hereby set aside.

E V I D E N C E : H E A R S A Y E V I D E N C E | 50 [G.R. No. 122954. February 15, 2000] NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF APPEALS, THE DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, respondents. DECISION QUISUMBING, J.: The mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a duty of the prosecution as of the defense. Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas corpus filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of respondent appellate court. Based on the available records and the admissions of the parties, the antecedents of the present petition are as follows: Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present[1] by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States Peace Corps Volunteer Margaret Viviene Carmona. Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa City,[2] but the Jail Warden of the Manila City Jail informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be effected without the submission of the requirements, namely, the Commitment Order or Mittimus, Decision, and Information.[3] It was then discovered that the entire records of the case, including the copy of the judgment, were missing. In response to the inquiries made by counsel of petitioner, both the Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2 attested to the fact that the records of Criminal Case No. 60677 could not be found in their respective offices. Upon further inquiries, the entire records appear to have been lost or destroyed in the fire which occurred at the second and third floor of the Manila City Hall on November 3, 1986.[4] On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus[5] with the Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from confinement on the ground that his continued detention without any valid judgment is illegal and violative of his constitutional right to due process. In its Resolution dated October 10, 1994,[6] the Second Division of this Court resolved " x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial Court of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof; and (c) to REQUIRE [1] the Judge to whom this case is raffled to SET

E V I D E N C E : H E A R S A Y E V I D E N C E | 51 the case for HEARING on Thursday, October 13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter FURNISH this Court with a copy of his decision thereon; [2] the respondents to make a RETURN of the Writ on or before the close of office hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date and time of hearing to the Judge to whom this case is raffled, and [3] the Director General, Philippine National Police, through his duly authorized representative(s) to SERVE the Writ and Petition, and make a RETURN thereof as provided by law and, specifically, his duly authorized representative(s) to APPEAR PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing." The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15, 1994, after hearing, issued an Order[7]dismissing the case on the ground that the mere loss of the records of the case does not invalidate the judgment or commitment nor authorize the release of the petitioner, and that the proper remedy would be reconstitution of the records of the case which should be filed with the court which rendered the decision. Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the assailed Decision[8] affirming the decision of the trial court with the modification that "in the interest of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements (Mittimus, Decision and Information) but without prejudice to the reconstitution of the original records. The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit, [9] petitioner is now before us on certiorari, assigning the following errors of law:[10] I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE PETITIONERS CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW. COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANTS PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR HIS INCARCERATION. II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE LIBERTY IS RESTRAINED. Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of Court,[11] and that the evidence considered by the trial court and Court of Appeals in the habeas corpus proceedings did not establish the contents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of the defense" has been modified or abandoned in the subsequent case of Ordonez v. Director of Prisons, 235 SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the prisoners that the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who were not the custodians of those records." In its Comment,[12] the Office of the Solicitor General contends that the sole inquiry in this habeas corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that public respondents have more than sufficiently shown the existence of a legal ground for petitioners continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not authorized.

E V I D E N C E : H E A R S A Y E V I D E N C E | 52 Petitioners remedy, therefore, is not a petition for habeas corpus but a proceeding for the reconstitution of judicial records. The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.[13] It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to whether he is held under lawful authority.[14] Consequently, the writ may also be availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[15] Petitioners claim is anchored on the first ground considering, as he claims, that his continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to due process. Based on the records and the hearing conducted by the trial court, there is sufficient evidence on record to establish the fact of conviction of petitioner which serves as the legal basis for his detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang buhay". In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that -[16] "During the trial and on manifestation and arguments made by the accused, his learned counsel and Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable that: (A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. ... In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II) sentencing him to Life Imprisonment (Habang buhay)..." (emphasis supplied) Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal Case dated June 8, 1993,[17] petitioner himself stated that "COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable Court most respectfully move: 1. That in 1981 the accused was charge of (sic) Robbery with Homicide; 2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a promulgation handed down in 1985; (emphasis supplied) 3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused has the right to appeal the decision; 4. That whether the de oficio counsel appealed the decision is beyond the accused comprehension (sic) because the last time he saw the counsel was when the decision was promulgated. 5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but all in vain;"

E V I D E N C E : H E A R S A Y E V I D E N C E | 53 Petitioners declarations as to a relevant fact may be given in evidence against him under Section 23 of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare anything against himself, unless such declaration were true,[18] particularly with respect to such grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule 129, "[a]n admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by a showing that it was made through palpable mistake or that no such admission was made." Petitioner does not claim any mistake nor does he deny making such admissions. The records also contain a certified true copy of the Monthly Report dated January 1985[19] of then Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts therein stated. Public respondents likewise presented a certified true copy of Peoples Journal dated January 18, 1985, page 2,[20] issued by the National Library, containing a short news article that petitioner was convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However, newspaper articles amount to "hearsay evidence, twice removed"[21] and are therefore not only inadmissible but without any probative value at all whether objected to or not,[22] unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated. As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. In other words, where the return is not subject to exception, that is, where it sets forth process which on its face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process. [23] If the detention of the prisoner is by reason of lawful public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court provides: "SEC. 13. When the return evidence, and when only a plea.If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts." Public respondents having sufficiently shown good ground for the detention, petitioners release from confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that "Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment." In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was convicted by the trial court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost. Accused

E V I D E N C E : H E A R S A Y E V I D E N C E | 54 then filed a petition for the issuance of the writ of habeas corpus with the Supreme Court. The Court denied the petition, ruling thus: "The petition does not make out a case. The Director of Prisons is holding the prisoner under process issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself admits the legality of his detention. The mere loss or destruction of the record of the case does not invalidate the judgment or the commitment, or authorize the prisoners release." Note further that, in the present case, there is also no showing that petitioner duly appealed his conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment has already become final and executory. When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order, or decree is not subject to collateral attack by habeas corpus.[24] Put another way, in order that a judgment may be subject to collateral attack by habeas corpus, it must be void for lack of jurisdiction.[25] Thus, petitioners invocation of our ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered the release of the prisoner on the ground that "[i]t does not appear that the prisoner has been sentenced by any tribunal duly established by a competent authority during the enemy occupation" and not because there were no copies of the decision and information. Here, a copy of the mittimus is available. And, indeed, petitioner does not raise any jurisdictional issue. The proper remedy in this case is for either petitioner or public respondents to initiate the reconstitution of the judgment of the case under either Act No. 3110,[26] the general law governing reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court.[27] Judicial records are subject to reconstitution without exception, whether they refer to pending cases or finished cases.[28] There is no sense in limiting reconstitution to pending cases; finished cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated.[29] Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of the prosecution as of the defense."[30] Petitioners invocation of Ordoez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was premised on the loss of records priorto the filing of Informations against the prisoners, and therefore "[t]he government has failed to show that their continued detention is supported by a valid conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In this case, the records were lost afterpetitioner, by his own admission, was already convicted by the trial court of the offense charged. Further, the same incident which gave rise to the filing of the Information for Robbery with Homicide also gave rise to another case for Illegal Possession of Firearm,[31] the records of which could be of assistance in the reconstitution of the present case. WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is AFFIRMED. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 55 SECOND DIVISION THE PEOPLE OF THE PHILIPPINES, Appellee, - versus JOEMARIE CERILLA November 28, 2007 G.R. No. 177147 [Formerly G.R. No. 147313]

DECISION TINGA, J.: For automatic review is the Decision[1] of the Court of Appeals[2] dated 26 October 2006 in CAG.R. CR-HC No. 00032 which affirmed with modification the Decision[3] of the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated 15 August 2000 in Criminal Case No. 496502 finding appellant Joemarie Cerilla guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua. On 6 July 1998, an Information was filed against appellant charging him of the crime of murder committed as follows: That on or about April 24, 1998, in the Municipality of Leganes, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a firearm with deliberate intent and decided purpose to kill and by means of treachery, did then and there willfully, unlawfully and feloniously shoot Alexander Parreo with the firearm which the accused was then provided, hitting and inflicting pellet wound at the right back portion of his body which caused his death. CONTRARY TO LAW.[4] The prosecutions evidence shows that at around 6:00 pm on 24 April 1998, the victim, Alexander Parreo (Alexander), his 14-year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house of appellant. They were cordially welcomed and entertained by appellant and his wife. [5] An hour later, a blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter acknowledged.[6] On their way home, Michelle was walking ahead of Alexander with the latter closely following his daughter. Suddenly, after walking for about 100 meters from appellants house, Michelle heard an explosion. Michelle immediately turned her back and saw appellant pointing a gun at Alexander who, at that moment, was staggering towards her.[7] Sendin, who was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house of Mrs. Parreo.[8] Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly told her that it was appellant who shot him.[9] Twenty minutes later, Alexanders other daughter, Novie Mae, arrived; she was also told by Alexander at that moment that it was appellant who shot him.[10] SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the crime scene and helped carry Alexander to an ambulance. SPO3 Dequito was able to ask Alexander who shot him to which he answered Pato. Pato is an alias by which appellant is known.[11]

E V I D E N C E : H E A R S A Y E V I D E N C E | 56 Alexanders wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who shot him.[12] Alexander died the following day.[13]

Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an autopsy on the body of Alexander. The autopsy report stated the cause of death to be hemorrhage secondary to pellet wounds.[14] Testifying on his report, Dr. Doromal explained that Alexander died from a gunshot wound which penetrated the ribs and lacerated the right lobe of the liver, colon, stomach, duodenum, and right kidney. The entrance wound was located at the middle-back portion of the body. Seven (7) pellets were recovered on the muscle of the upper and middle abdominal wall.[15] The defenses evidence consists of the testimonies of appellant himself and of his wife, Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3 Wilson Allona. Appellant interposed alibi as his main defense. He claimed that Alexander, together with his daughter and Sendin, had gone to his house on 24 April 1998 at around 6:00 p.m. where they were welcomed and offered snacks.[16] They were having a conversation when a blackout occurred. Alexander then asked permission to leave. After the visitors had left, appellant ordered his stepdaughter Franlin to buy candle at the store across their house. Appellant and Madoline posted themselves at their doorway holding a flashlight to light Franlins path. Upon Franlins return to the house, appellant heard an explosion and he immediately closed the door. Later, the policemen went to his house and told him that he was a suspect in the shooting of Alexander and was then brought to the police station.[17] The following day, he was subjected to paraffin test the result of which turned out to be negative.[18] Appellants testimony was corroborated by Madoline and Franlin. PO1 Javelora declared that when he asked Alexander who shot him, the latter did not answer. [19] Likewise, PO3 Sarmiento and Allona stated that when they went to the hospital to interrogate Alexander, the latter could not give a definite answer as to who shot him.[20] On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua. The dispositive portion of the decision read:

WHEREFORE, premises considered, and in the light of the facts obtaining and the jurisprudence aforecited, judgement is hereby rendered finding the accused GUILTY beyond reasonable doubt of the crime of MURDER, hereby sentencing the said accused to the penalty ofRECLUSION PERPETUA pursuant to Sec. 6 of Republic Act No. 7659[,] amending Article 248 of the Revised Penal Code. The said accused is further condemned to indemnify the surviving heirs of the deceased, Alexander Parreo, the sum of P257,774.75 by way of actual damages; the amount of P30,000.00 by way of moral damages and the sum of P50,000.00 by way of death compensation. The accused who is detained is entitled to be credited in full with the entire period of his preventive detention. The Jail Warden, Iloilo Rehabilitation Center is ordered to remit the said accused to the National Penitentiary at the earliest opportunity. SO ORDERED.[21]

E V I D E N C E : H E A R S A Y E V I D E N C E | 57 The trial court regarded the victims dying declaration as the most telling evidence pointing to appellant as the assailant.[22] It appreciated the presence of treachery in qualifying the crime to murder because the victim was unarmed and walking on his way home when he was suddenly and unexpectedly shot from behind by appellant.[23] The trial court ruled that appellants alibi and denial could not prevail over the positive testimonies of credible witnesses.[24] Moreover, it observed that appellant was not able to prove the impossibility of his presence at the crime scene which could have proven his alibi.[25] In view of the penalty of reclusion perpetua imposed on appellant, the case was initially elevated to this Court for review. However, pursuant to our ruling in People v. Mateo,[26] the case was referred to the Court of Appeals. The appellate court affirmed the trial courts ruling but modified the award of moral damages from Thirty Thousand Pesos to Fifty Thousand Pesos.[27] Hence, the instant appeal. In a Resolution dated 16 July 2007, the Court required the parties to simultaneously submit their respective supplemental briefs if they so desired.[28] Both parties manifested that they would adopt their briefs filed before the appellate court.[29] Thereafter, the case was deemed submitted for decision. Appellant argues that the trial court erred in giving full credence to the testimony of the prosecution's eyewitness, Michelle, as well as the dying declaration of Alexander considering that the circumstances under which the crime was committed rendered the identification of the gunman impossible. This argument essentially challenges the credibility of the witnesses, including the eyewitness, whose testimonies were relied upon by the trial court in convicting appellant. Basic is the principle that the findings of fact of a trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect, if not conclusive effect. This is because the trial court has the unique opportunity to observe the demeanor of a witness and is in the best position to discern whether they are telling the truth. This rule holds true especially when the trial court's findings have been affirmed by the appellate court.[30] Appellants authorship of the crime was proven by the positive identification of an eyewitness and the victims dying declaration. The prosecution presented Michelle, who categorically identified appellant as the one who shot Alexander, viz: Q: A: Q: A: Q: A: Q: While you and your father were walking towards home, did you remember anything unusual that happened? Yes, Maam. What was that? I heard an explosion. Where were you in relation to your father when you heard that shot? I was in front of my Daddy and he was at my back. You said you heard a shot, what did you do when you heard a shot?

E V I D E N C E : H E A R S A Y E V I D E N C E | 58 A: When I heard the shot, I turned back and I saw Joemarie pointing to my Dad.

COURT: Q: A: What did he point towards your Dad? Firearm.

PROSECUTOR PADILLA: Q: A: Q: A: Q: A: xxxx Q: A: Q: If this Joemarie Cerilla is inside the Courtroom, can you identify him? Yes, Maam. Please point to him. (Witness pointing to the accused Joemarie Cerilla).[32] You said Joemarie was pointing a firearm to your father. Was it [a] long or short firearm? About 11 inches. After you saw Joemarie pointing a firearm to your father, what happened next? I saw my father staggering towards me and I saw Joemarie Cerilla ran. Where was he going? Maybe towards his house.[31]

Michelles account of how her father was shot by appellant was corroborated by the post-mortem examination which reveals that the entrance wound is located at the back of the victim.[33] In the same vein, the medico-legal expert concluded that the gunshot was fired at a close range, as evidenced by the presence of a power burn measuring four (4) centimeters in diameter surrounding the periphery of the wound [34] and penetrating his internal organs.[35] Significantly, the eyewitnesss positive identification of appellant as the perpetrator of the crime is fully supported the victims dying declaration. A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death.[36] As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.[37] It is thus admissible to provide the identity of the accused and the deceased, to show the cause of death of the deceased, and the circumstances under which the assault was made upon him. The reasons for its admissibility is necessity and trustworthiness. Necessity, because the declarants death renders

E V I D E N C E : H E A R S A Y E V I D E N C E | 59 it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. And trustworthiness, because the declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.[38] Of the doctrines that authorize the admission of special classes of hearsay, the doctrine relating to dying declarations is the most mystical in its theory and, traditionally, among the most arbitrary in its limitations. In the United States, the notion of the special likelihood of truthfulness of deathbed statements was widespread long before the recognition of a general rule against hearsay in the early 1700s. Not surprisingly, nearly as soon as we find a hearsay rule, we also find an exception for dying declarations.[39] Four requisites must concur in order that a dying declaration may be admissible, thus: first, the declaration must concern the cause and surrounding circumstances of the declarant's death. This refers not only to the facts of the assault itself, but also to matters both before and after the assault having a direct causal connection with it. Statements involving the nature of the declarants injury or the cause of death; those imparting deliberation and willfulness in the attack, indicating the reason or motive for the killing; justifying or accusing the accused; or indicating the absence of cause for the act are admissible.[40] Second, at the time the declaration was made, the declarant must be under the consciousness of an impending death. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders the dying declaration admissible. It is not necessary that the approaching death be presaged by the personal feelings of the deceased. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending.[41] Third, the declarant is competent as a witness. The rule is that where the declarant would not have been a competent witness had he survived, the proffered declarations will not be admissible. Accordingly, declarations made by a child too young to be a competent witness or by a person who was insane or incapable of understanding his own statements by reason of partial unconsciousness are not admissible in evidence.[42] Thus, in the absence of evidence showing that the declarant could not have been competent to be a witness had he survived, the presumption must be sustained that he would have been competent.[43] Fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim.[44] Anent this requisite, the same deserves no further elaboration as, in fact, the prosecution had caused its witnesses to take the stand and testify in open court on the substance of Alexanders ante mortem statement in the present criminal case for murder. The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him. Michelle recounted: Q: A: Q: A: Q: You said your father moved towards you, what happened next? I approached my father and cuddled him. What happened next? While I was cuddling my father he said, Day, it was Joemarie who shot me. How many time he said he was shot?

E V I D E N C E : H E A R S A Y E V I D E N C E | 60 A: Not once but about 10 times.[45]

Shortly thereafter, Novie Mae arrived and was told by Alexander that it was appellant who opened fire at him: Q: A: When you reached Confessor Street, what happened? I saw that my elder sister was assisting my father.

COURT: Q: A: Whats the name of your sister? Michelle.

COURT: Proceed. FISCAL: Q: A: When you saw your sister Michelle assisting your father, what [sic] happened next? And I immediately went near my father and asked him who shot him and he answered it was Joemarie Cerilla who shot him. Before you reached your father, did you observe his physical appearance of what happened to him? Yes, Maam, he was supporting with his arm and when I asked him he still made a response. You said [that] before you approached your father[,] you saw him supporting his body, what was his position at that time? He was in a position of lying with his hand on the road and my sister was assisting him.

Q: A:

Q: A:

xxx Q: A: Q: A: Were you able to observe why your father was sitting on the ground and supporting himself not to fall. Yes, Maam. Why, [sic] what did you observe? My father was supporting himself in order that blood will not [ooze] from his body and his body will not fall down.[46]

SPO3 Dequito, who responded immediately to the crime scene, corroborated the testimonies of the Alexanders children, to wit:

Q:

So, what did you do when you arrived at the crime scene?

E V I D E N C E : H E A R S A Y E V I D E N C E | 61 A: We advised the group to carry Mr. Parreo to the ambulance because the ambulance was on the way and after our mobile arrived, the ambulance arrived also [sic] so we carried Mr. Parreo to be brought to the hospital.

COURT: Q: A: Q: A: Meaning you loaded the victim into the ambulance? Yes, Your Honor. And after he was loaded, what did you do? Before the ambulance left the area, I questioned the victim who shot him and he answered Alias Pato. I am referring to Joemarie Cerilla, the accused. The accused Cerilla, Alias Pato? Yes, Your Honor.

Q: A:

PROSECUTOR: Q: A: Can you remember the exact words uttered by the victim when you asked him who shot him? He answered me that: I questioned him, Who shot you? and he answered that it was Cerilla and I further asked him The husband of Madoline and he answered Yes, Alias Pato, the husband of Madoline.[47]

Likewise, Alexanders wife, Sonia, testified: Q: A: xxx Q: A: xxx When you arrived at the hospital, where did you go first? To my husband. You said from your house when you were told by the girls that your husband was shot, what did you do? I looked for a taxi and proceeded to the hospital.

Q: A: Q: A: xxx Q: A: Q: A:

When you reached that hospital and your own mother led you to where Alexander was, in what part of the hospital did you first see him. Outside the operating room. What was the situation of your husband when you first saw him? He was leaning on his side and many nurses attending to him and saying araguy.

Between you and your husband who spoke first? My husband. What were the exact words stated by your husband? He told me that it was Joemarie who shot him.[48]

E V I D E N C E : H E A R S A Y E V I D E N C E | 62 These statements comply with all the requisites of a dying declaration. First, Alexanders declaration pertains to the identity of the person who shot him. Second, the fatal quality and extent of the injuries[49] he suffered underscore the imminence of his death as his condition was so serious that his demise occurred the following morning after a thirteen (13)-hour operation. Third, he would have been competent to testify had he survived. Fourth, his dying declaration is offered in a criminal prosecution for murder where he was the victim.

Other police officers were presented by the defense to refute the dying declaration. PO1 Javelora alleged that he happened to pass by the crime scene and saw a young girl crying. The girl led him to her father who was sitting on the roadside. He asked the victim who shot him but he did not get any reply.[50] PO3 Allona and Sarmiento arrived at the hospital and questioned Alexander as to who shot him but the latter told them, I am not sure because it was dark.[51] These statements cannot be construed as a categorical statement of the victim denying knowledge as to the identity of his assailant. It can be recalled that at the time Alexander was being questioned, he was already being readied for surgery. At that point, he was understandably no longer fit to respond to questions. Between these two seemingly conflicting testimonies, it is the positive identification made by Alexander in his dying declaration which must be sustained. Appellant insists that there was an inherent impossibility in identifying the assailant with clarity since there was a power blackout at the time of the commission of the crime and was then a moonless night. The fact that the crime was committed during a blackout does not cast doubt on Alexanders and Michelles positive identification of appellant. While the place of occurrence was dark, this did not prevent the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close range. In dismissing appellants contention, the trial court rationalized: x x x This argument deserves scant consideration. In the case of People v. Hillado, G.R. No. 122838[,] promulgated on May 24, 1999[,] citing the case of People v. Oliano, visibility at nighttime is possible not only at the exact minute and date when the moon is full as indicated in the calendar. Thus, a persons nocturnal eyesight, is not necessarily diminished just because there is no illumination from the moon, because it is a fact that our eyes can actually adjust to the darkness so that we can still see objects clearly even without sufficient lighting. In the case at bar, it would not be so hard for Michelle to identify a persons fact especially if the latter as in the present case was barely two (2) arms length away from them which is confirmed by the presence of gunpowder nitrates on the body of the victim. We stress, that the normal reaction of the person is to direct his sight towards the source of a startling [shot] or occurrence. As held in People v. Dolar, the most natural reaction of the victims in criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in which the crime is committed. Added to this is the fact that the accused Joemarie Cerilla and the victim Alexander Parreo have known each other quite well before the incident so that they became familiar with each others face and physical features. x x x [52]

E V I D E N C E : H E A R S A Y E V I D E N C E | 63 Moreover, the prosecution witnesses were not shown to be impelled by ill motive to testify falsely against appellant. Besides, Susan, Michelle and Novie Mae, being immediate relatives of the deceased, would naturally be interested in having the real culprit punished.[53] The positive identification of appellant must necessarily prevail over his alibi.[54] It was not physically impossible for appellant to have been present at the scene of the crime at the time of its commission. The distance of his house, where he supposedly was, from the locus criminis is only 120150 meters, more or less.[55] Appellant counters that there was absence of any motive on his part to kill the victim; that it was not clearly proven that he fired a gun, based on the paraffin test; and that he appeared calm and composed and showed no indication of guilt when he was invited by the police officers shortly after the commission of the crime. Time and again, we have ruled that a negative finding on paraffin test is not a conclusive proof that one has not fired a gun because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the culprit washes his hands or wears gloves. [56] The trial court correctly rejected the result of the paraffin test in light of the positive identification of appellant. The trial court held that the killing was qualified by treachery because Alexander, who was unarmed, was suddenly and unexpectedly shot from behind by appellant without any risk to the latter from any defense which the former might make. There was no opportunity given to Alexander to repel the assault or offer any defense of his person. There was not the slightest provocation on his part.[57] We agree with the findings of the trial court. The presence of treachery was evident in the execution of the crime. Appellant suddenly, and without warning, shot Alexander from his back. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, murder is punishable with reclusion perpetua to death. Because the killing of Alexander, although qualified by treachery, was not attended by any other aggravating circumstance, the proper imposable penalty is reclusion perpetua. We deem it proper to further impose exemplary damages in the amount of P25,000.00 which is recoverable in the presence of an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.[58] WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006, affirming with modification the Regional Trial Court Judgment dated 15 August 2000 finding appellant, Joemari Cerilla, guilty beyond reasonable doubt of murder, is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the heirs of Alexander Parreo P25,000.00 as exemplary damages. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 64 G.R. No. L-28482 January 30, 1971 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN BRIOSO and MARIANO TAEZA, defendants-appellants. REYES, J.B.L., J.: Appeal from a judgment of the Court of First Instance of Abra, in its Criminal Case No. 626, finding the two appellants Juan Brioso and Mariano Taeza guilty of murder, and sentencing each to suffer life imprisonment and to indemnify, jointly and severally, the heirs of Silvino Daria in the sum of P6,000.00 but without subsidiary imprisonment in case of insolvency, and to pay the costs. An information filed by the Provincial Fiscal dated 16 January 1967 charged the two accused, Juan Brioso and Mariano Taeza, with the crime of murder under Article 248 of the Revised Penal Code, committed as follows: That on or about the 23rd day of December, 1966, in the Municipality of Tayum, Province of Abra, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with firearms of different calibers, by confederating and mutually helping one another, with deliberate intent to kill and without justifiable motive, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously, assault, attack and shot one, Silvino Daria, inflicting upon him multiple gunshot wounds on the different parts of his body, which wounds caused his death thereafter. CONTRARY TO LAW, with the aggravating circumstances in the commission of the crime, to wit: (a) treachery and evident premeditation; (b) advantage was taken of superior strength; and (c) with the use of firearm. The records of the case show that on 23 December 1966, between 8 and 9 in the evening, the spouses Silvino Daria and Susana Tumalip were in their house at barrio Tiker, Tayum, Abra. The husband was making rope in the annex of their house, while the wife, four meters away, was applying candle wax to a flat iron. Silvino Daria was using a lamp where he worked. Outside, the night was bright because of the moon overhead. Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of dogs. She peeped through a crack in the wall of her house and saw appellants herein pass southward in the direction of the house of Silvino Daria that was six meters away. Brioso was carrying a long gun. Her suspicions awakened, she went downstairs and, shielded by the fence, witnessed each appellant point a gun at the bamboo wall of Daria's house. Two detonations followed, and thereafter she heard Daria moaning and his wife call for help, saying her husband had been shot. Bernal went to the house and found the victim prostrate, wounded and unable to speak. The widow, however, testified that right after being shot, she rushed to her husband's side and he told her that he was shot by Juan Brioso and Mariano Taeza. Silvino Daria expired one hour later as a result of gunshot wounds in the abdomen and leg. A few days later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits pointing to the two accused as the killers (Exhibits "B" and "C," respectively). The cause of the death of Silvino Daria was "Shock due to severe hemorrhage secondary to gunshot wounds at the abdomen and leg," as found by Dr. Isabelo B. Lucas, Municipal Health Officer of Tayum, Abra, contained in his Medico-Legal Necropsy Report, Exhibit "A".

E V I D E N C E : H E A R S A Y E V I D E N C E | 65 The motive for the killing appears to have been the disapproval by the spouses Silvino and Susana Daria of Mariano Taeza's courtship of their daughter, Angelita. Angelita was even sent to Manila for her to avoid Mariano Taeza. The courtship is admitted by Mariano Taeza. The two accused appealed the conviction and assigned the following errors as committed by the court a quo: 1. The lower court erred in relying on the uncorroborated and contradictory testimony and statement of the prosecution witness Cecilia Bernal on the physical identity of the accused; 2. The lower court erred in disregarding the affidavit (Exhibit 2) of Antonio Daria, son of the deceased, clearing the accused Mariano Taeza, which affidavit had been identified in court by the fiscal before whom the same was executed; and 3. The lower court erred in finding the accused guilty of the crime of murder. The assigned errors are discussed together, being closely inter-related. We find no discrepancy in the testimony of Cecilia Bernal on the material points. She stated that she did not see Mariano Taeza carry a gun when both the accused passed by. But this brief observation does not necessarily mean that he was not actually armed or carrying a gun on his person. The fact that he did was proved when both the said accused were seen pointing their respective gun at the victim and each subsequently fired once at him, Taeza using a short weapon (t.s.n. Millare, page 17) that could have been carried concealed in his person. The house of Cecilia Bernal was only six meters away from that of Silvino Daria's. The night was brightly illuminated by the moon. Cecilia Bernal had known both accused for a long time and it is admitted that they also know her. There could have been no difficulty in identifying the accused under the circumstances. Cecilia Bernal had no motive to impute falsely this heinous charge of murder against the above-said accused, considering that Mariano Taeza is a nephew of the deceased by a first degree cousin. Even Juan Brioso specifically said that he knew of no reason why she should testify against him. Hence, her statement that she came to court only to tell the truth should be believed. The witness also stated that she was hard of hearing and could not understand some of the questions; thus, the alleged inconsistencies in her testimony do not detract from the "positive and straightforward"1 identification of the accused as the ones who were seen at the scene of the crime and who actually shot Silvino Daria. It is noteworthy that the trial judge observed witness Bernal closely, warning her several times not to exaggerate, yet in the decision gave her full credence, being obviously satisfied of her truthfulness.lwph1.t The general rule, based on logic and experience, is that the findings of the judge who tried the case and heard the witnesses are not disturbed on appeal, unless there are substantial facts and circumstances which have been overlooked and which, if properly considered, might affect the result of the case,2 which in this case have not been shown to exist. Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the victim, who told his wife that it was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy the requirements of an ante mortem statement. Judged by the nature and extent of his wounds, Silvino Daria must have realized the seriousness of his condition, and it can be safely inferred that he made the same under the consciousness of impending death,3 considering that he died only one hour after being shot.

E V I D E N C E : H E A R S A Y E V I D E N C E | 66 The defense of both the accused is alibi. Mariano Taeza's own account was that in the evening of 23 December 1966 he was at the barrio clinic of Tiker playing the guitar with Antonio Daria (son of the deceased), Narciso Valera and Jose Cabais. While in the said place, they heard two gun explosions. Soon afterwards, Macrino Arzadon and Taurino Flores came running towards them, informing Antonio Daria that his father was already dead. Exhibit "2," the alleged affidavit of Antonio Daria, was presented in court to corroborate Mariano Taeza's testimony. But while the said affidavit was identified by the Provincial Fiscal as having been subscribed and sworn to before him, he also stated that he did not know Antonio Daria personally and that was the only time he appeared before him. Exhibit "2" does not have the seal of the Fiscal's Office. Moreover, the said exhibit was never identified by the supposed affiant and there was no opportunity for the prosecution to cross-examine him. As stated in People vs. Mariquina4, affidavits are generally not prepared by the affiants themselves but by another who uses his own language in writing the affiants' statements, which may thus be either committed or misunderstood by the one writing them. For this reason, and for the further reason that the adverse party is deprived of the opportunity to cross-examine the affiants, affidavits are generally rejected in a judicial proceeding as hearsay, unless the affiants themselves are placed on the witness stand to testify thereon. In view hereof, We find Exhibit "2" of no probative value, and that the lower court did not err when it rejected the same. In this connection, it is markworthy that the prosecuting attorney stated in open court that Antonio Daria had also executed another affidavit (Exhibit "D") in the Fiscal's office "to the effect that he went to the office of defense counsel, ...... and there affixed his thumbmark on a statement that was never read to him." Be that as it may, not one of the other persons who, Mariano Taeza claimed, were with him in the barrio clinic (Narciso Valera and Jose Cabais) was produced in court to support his alibi. Mariano Taeza's testimony, therefore, remains uncorroborated. It has been repeatedly held that in the face of direct evidence, alibi is necessarily a weak defense and becomes more so if uncorroborated. 5 It is worse if the alibi could have been corroborated by other persons mentioned by the accused but they are not presented. 6 By Mariano Taeza's own admission, he and the other accused, Juan Brioso, are close friends. It was shown that Mariano Taeza's house is only about two hundred meters from that of Silvino Daria's and that the barrio clinic is only about eighty to one hundred meters from the said victim's place. Mariano Taeza himself stated that Silvino Daria died "may be less than thirty minutes, may be five minutes" after his arrival at the victim's house with the latter's son and other persons. As held in another case 7 the defense of alibi is so weak that in order to be believed there should be a demonstration of physical impossibility for the accused to have been at the scene of the crime at the time of its commission. Mariano Taeza was so near the victim's house that it was easy for him to be there when the shooting occurred. The other accused, Juan Brioso, stated that he was in sitio Catungawan, barrio Basbasa, Tayum, on 23 December 1966. He was there upon invitation of his first cousin, Nestorio Flores, to cut and mill sugar cane. He left his house in Addamay at 8 in the morning of the said day, arriving in Catungawan before the noon meal. They cut sugar cane from 4 to 5 in the afternoon. At 6:30, after supper, he, his cousin, and the latter's son, Felix Flores, started milling the sugar cane which they had cut. The milling lasted up to 2 in the early morning of the following day. He never left the place where they were milling. He learned of the death of Silvino Daria only when he returned to Addamay because his parents informed him of the news. He admitted knowing Cecilia Bernal and that she likewise knows him. He denied being a close friend of Mariano Taeza (thereby contradicting Mariano Taeza's testimony)8; denied that he had gone to the house of Angelita Daria, and his having knowledge of the courtship of Angelita by Mariano Taeza; or that both of them used to drink and go out together. On crossexamination, however, he admitted that he went with Mariano Taeza when they attended dances. One such occasion was during the birthday of his first degree cousin in Addamay way back in 1965. Nestorio Flores was presented to corroborate the alibi of the accused. But while both exhibited wonderful memory as to what happened between sunset and midnight of 23 December 1966, they contradict each

E V I D E N C E : H E A R S A Y E V I D E N C E | 67 other as to what happened in the earlier hours or events. As already stated, Juan Brioso testified that he left his place in Addamay at 8 in the morning and arrived at his cousin's house before the noon meal of 23 December 1966; but Nestorio Flores asserted that it was 8 in the morning when Juan Brioso arrived. Brioso claimed that they cut sugar cane from 4 to 5 in the afternoon of the said day. His cousin testified that they cut sugar cane in the morning after Brioso's arrival until lunchtime. Brioso stated that they milled sugar cane for the third time in that place in 1966, the first occasion being on 29 November, and the second on 8 December. Flores denied this, saying that they did not cut sugar cane in November, 1966, although in other years they did. He further stated that it was already in December of that year that Brioso came. In fact, the same witness showed uncertainty as to the exact date, when he answered even on direct examination that "may be that was the time when he came."9 In cases of positive identification of the culprit by reliable witnesses, it has been held that the defense of alibi must be established by "full, clear and satisfactory evidence." 10 It is obvious that this witness, who is a close relative of the accused, was merely presented in court in an attempt to save Juan Brioso from punishment for the crime committed. We believe the trial court when it found that the witness has an interest in the fate of the accused Juan Brioso, and, therefore, his testimony should not be given credence. Evidence also shows that from Tiker to Catungawan is only about nine kilometers and only a two-hour walk. The place is also accessible by motor transportation, although motor vehicles are allegedly rare in the said place. As in the case of Mariano Taeza, it was not physically impossible for Juan Brioso to be at the locus criminis at the time the crime was committed. It has been clearly and sufficiently proved that the killing of Silvino Daria was qualified by treachery (alevosia)." 11The victim was quietly making rope in his own house. He was caught off-guard and defenseless when suddenly and unexpectedly the two accused fired at him. He had no chance either to evade or repel the aggression. The trial court correctly held that treachery absorbs nocturnity and abuse of superior strength. 12 But while these aggravating circumstances are always included in the qualifying circumstance of treachery, the commission of the crime in the victim's dwelling is not, 13 hence the crime is murder attended by one aggravating circumstance, which has been held to be present where the victim was shot inside his house although the triggerman was outside. 14 There being no mitigating circumstance to offset it, the apposite penalty is death. However, for lack of sufficient votes, the penalty imposable is reduced to life imprisonment. WHEREFORE, the sentence under appeal is affirmed, with the sole modification that the amount of the indemnity is increased to P12,000.00. 15

E V I D E N C E : H E A R S A Y E V I D E N C E | 68 G.R. No. L-21419 September 29, 1966

PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. NARCISO DE GRACIA and RAYMUNDO SORIMA, defendants and appellants. REYES, J.B.L., J.: This is an appeal from a decision of the Court of First Instance of Lanao del Norte, in its Criminal Case No. 598, finding accused Narciso de Gracia and Raymundo Sorima both guilty of the crime of murder as charged and sentencing each of them to suffer imprisonment of reclusion perpetua, with all the accessories of the law, to indemnify the heirs of the deceased, Ernesto Flores, in the amount of P6,000.00, and to pay the proportionate costs. On 31 May 1961, the Provincial Fiscal of Lanao del Norte filed in the above-stated court an information charging accused Alfredo Salva, Narciso de Gracia, and Raymundo Sorima with the crime of murder for the killing of one Ernesto Flores. Said information reads: That on or about the 13th day of May, 1961, in the Barrio of Tacub, Municipality of Kauswagan, Province of Lanao del Norte, Philippines, and within the jurisdiction of this Court, the said accused, conspiring and confederating together and mutually helping one another, conveniently armed with bladed weapons, did then and there willfully, unlawfully and feloniously, with intent to kill, treachery, evident premeditation and taking advantage of the darkness of the night, attacked, stab and wound therewith one Ernesto Flores, inflicting upon him one mortal wound on the abdomen, penetrating with eleven (11) perforation of the Gastro-Intestinal Tract and as a direct result thereof the said Ernesto Flores died few hours thereafter.1awphl.nt Contrary to and in violation of Article 248 of the Revised Penal Code with the qualifying circumstance ofalevosia and the following generic aggravating circumstances, to wit: (a) uninhabited place; (b) night time; (c) superior strength; and (d) evident premeditation. On 16 June 1961, accused Alfredo Salva, assisted by a counsel de oficio, was arraigned, and he entered a plea of guilty. Accordingly, the trial court separately sentenced him to suffer life imprisonment ( reclusion perpetua), to indemnify the heirs of the deceased in the amount of P6,000.00, with no subsidiary imprisonment in case of insolvency and to pay the costs. For reasons not appearing on record, the other two accused, Narciso de Gracia and Raymundo Sorima, were not simultaneously arraigned with Alfredo Salva; however, on 3 January 1963, these two accused were finally arraigned and pleaded not guilty. Hence, trial proceeded against them. At the hearing, the prosecution established that: on 13 May 1961, Paterno Silma and Esperidion Gacang, together with accused Alfredo Salva and Raymundo Sorima were working in the farm of one Pedro Lacida which is situated in the mountain of Barrio Tacub, municipality of Kauswagan Province of Lanao del Norte. That afternoon, this group of four men went down the mountain to Barrio Tacub proper where they reside, arriving at around 2 o'clock of the same day. At around 5 o'clock p.m., 13 May 1961, the same group of men met and were joined by accused Narciso de Gracia in the store of one Peling Landi in Barrio Tacub where Salva treated his companions to beer and tuba. After rounds of drinks, the five men left and proceeded to the store of Pedro Lacida where Sorima tried to secure rice on credit. Lacida's wife, however, refused. Seemingly resenting Mrs. Lacida's refusal, Sorima said that he will go on "paregla" (meaning he will kill somebody). To avoid trouble, Silma and Gac-ang repaired to Gac-ang's house, leaving the three accused at the store.

E V I D E N C E : H E A R S A Y E V I D E N C E | 69 Between the hours of nine and ten o'clock in the evening of the same day, 13 May 1961, while Silma and Gac-ang were conversing in the balcony of the latter's house, they saw Salva, Sorima, and de Gracia seated by a tree near the road a short distance away. Some time later, Ernesto Flores passed by on his way to the nearby seashore, and upon reaching the place where the accused were seated, he greeted them "Good evening". Without returning the salutation, de Gracia suddenly held Flores' left arm and Sorima the latter's right arm, Sorima ordering Salva to stab the passerby. Apparently recognizing that Flores is not their intended victim, Salva said to his companions: "He is not the one." But Sorima replied: "Never mind. You said it is `paregla.'" Salva then thrust his hunting knife, Exhibit "A", into Flores' abdomen. Flores shouted for help, causing all three accused to scamper away. Out of fear, Silma and Gac-ang went inside the latter's house and locked themselves in.1 Ernesto Flores rushed away in the direction of his father's (Santiago Flores) house, shouting for help ("tabang"). Kauswagan Vice-Mayor Nemesio Agawin, who was then reading a newspaper in his house, was attracted by these shouts. He immediately got his rifle, went down and followed Flores, finally overtaking him in the back stairs of his father's house, sitting by the stairs but supported by his two brothers, and with his intestines protruding out of his abdomen. Upon Agawin's inquiry as to what happened, Ernesto Flores spontaneously declared that Alfredo Salva stabbed him while "Naring" (de Gracia) and "Mundo" Sorima were holding his arms. Agawin ordered his own brother to get his jeep and rush Ernesto to the hospital in Iligan City, about 20 kilometers away. In the hospital, Dr. Felixberto Abellanosa treated Ernesto's wounds, but he died due to loss of blood three hours after admission in the hospital (Exhibit "B"). That very same night, Vice-Mayor Agawin reported the incident to Tacub Barrio Lieutenant Lumipao Abanto. Both officials fetched accused de Gracia and Sorima from their respective houses and brought them to the municipal building of Kauswagan for investigation, during which both accused executed their respective affidavits (Exhibits "C", "C-1", "C-2", and "D", "D-1"). They also invited Paterno Silma and Esperidion Gac-ang to go with them to the municipal hall to shed light in this stabbing incident, and the duo executed affidavits in their turn (Exhibits "2" and "3"). Alfredo Salva was not found that night, and he was not immediately apprehended. The day following, 14 May 1961, Vice-Mayor Agawin received the information from a certain policeman named Santos that a man, who might probably be the assailant of Ernesto Flores because his clothes were stained with blood, had slept the previous night in the house of Santos in Barrio Samburon of the neighboring municipality, Linamon Lanao del Norte. Agawin, together with Faustino Amodia (who first received the information from Santos) and with other companions, immediately proceeded to Santos' place, where they apprehended Alfredo Salva. Alfredo Salva admitted, upon Agawin's questioning, that he stabbed Ernesto Flores, and he even pointed to the roof of the nipa house where he hid the hunting knife, Exhibit "A", which he used in the stabbing. Accused Salva pleaded to the arresting party not to maltreat him. He also asked if de Gracia and Sorima were already arrested, to which question Amodia answered that they are already in jail. Salva was then brought to the municipal building of Kauswagan. There is no substantial conflict between the evidence of the prosecution and defense that, at around 5 o'clock in the afternoon of 13 May 1961, the five men, namely, accused Alfredo Salva, Narciso de Gracia and Raymundo Sorima, witnesses Paterno Silma and Esperidion Gac-ang, met and drank liquor in a store in Barrio Tacub. The defense tried, however, to establish that: after drinking for about an hour, accused Salva paid for the drinks and, alone, left his four companions in the store. Later, the four men, who remained, also left the store and, upon reaching the national road, accused de Gracia and Sorima separated from Silma and Gac-ang and both accused proceeded together to Lacida's store where Sorima tried to obtain rice on credit but Mrs. Lacida refused. Thereafter, they went to their respective houses and slept. The accused

E V I D E N C E : H E A R S A Y E V I D E N C E | 70 further claimed that at around 11 o'clock of the same evening, 13 May 1961, accused de Gracia and Sorima were each awakened by Vice-Mayor Nemesio Agawin who informed them that Ernesto Flores was stabbed, and were invited to come along to the municipal building of Kauswagan, to which request they readily agreed. There, they executed their respective affidavits (Exhibits "C", "C-1", "C-2", and "D", "D-1"). Accused de Gracia and Sorima denied having known where their co-accused Alfredo Salva went after leaving them in the store. They also denied having conspired, gone or participated with Salva in stabbing Ernesto Flores or having been at all in the scene of the stabbing. Accused de Gracia claimed that he was implicated in the stabbing of Ernesto Flores upon the prodding of the victim's parents who erroneously suspected him of stealing coconuts in their plantation; and that Faustino Amodia testified against him and Raymundo Sorima because Amodia's wife and Ernesto's mother are relatives. The defense also tried to show that after leaving the drinking party accused Salva alone went around Barrio Tacub and, on his way to Barrio Samburon where he intended to spend the night, he met Ernesto Flores along the seashore; that without provocation whatsoever, he was suddenly and continuously boxed by Flores; whereupon, he was forced to use his hunting knife in stabbing the latter to defend himself. After stabbing Flores, he proceeded to Barrio Samburon where Vice-Mayor Agawin and his companions approached him the next day, 14 May 1961, and invited him to go to the municipal building in Kauswagan. He voluntarily went with the vice-mayor and there readily admitted that he alone stabbed Ernesto Flores. Giving credence to the testimony of prosecution's eyewitnesses on the stabbing of Ernesto Flores, as well as to Vice-Mayor Agawin's repetition in open court of the victim's ante mortem statement; rejecting accused Salva's admission that he alone, without the participation or presence of his co-accused, stabbed the deceased, and not believing the alibi of accused de Gracia and Sorima, the trial court, in a separate decision convicted both accused of the crime of murder as charged. Both accused appealed directly to this Court. Counsel de oficio for accused-appellants Narciso de Gracia and Raymundo assigns five alleged errors of the trial court, which boil down to one issue: the credibility of the witnesses. Appellants contend that the testimonies of prosecution's eye-witnesses to the stabbing of deceased Ernesto Flores are highly incredible, inherently improbable, absurd and inconsistent. Thus, they claim that it is contrary to common sense and Filipino custom for these witnesses and the three accused, who are common friends and whose position between them immediately prior to the stabbing incident was merely a few fathoms apart, not to have greeted and talked to one another; that it is inexplicable for the accused to have chosen for the stabbing a place where there were potential witnesses who could easily identify them; that it is unnatural for said accused to have left their victim still alive; that it is strange that the victim should have sought assistance and refuge in his father's house which is more distant than Gac-ang's house; that it is also improbable for these witnesses to have allowed Flores, who was their friend, to proceed to the seashore without even warning him of the imminent danger to his life; and that these witnesses were inconsistent not being sure who among the two accused ordered their co-accused Salva to stab Flores or whether it was Flores' arms or hands which de Gracia and Sorima held, and that these witnesses testified differently from what they stated in their affidavits. Hence, it is insisted that the testimonies of Silma and Gac-ang should not be given credence. These alleged improbabilities strike us as more apparent than real, and were duly explained in the record. Witnesses Silma and Gac-ang testified that they became afraid of the appellants, who were reputed to be killers and were facing charges for homicide in the local court and also in Davao; so much so that when Sorima became angry at not being given credit at Lacida's store, and threatened to make

E V I D E N C E : H E A R S A Y E V I D E N C E | 71 "paregla" (i.e., to kill someone), Silma and Gac-ang left the accused and went home. This fear evidently motivated the latter's subsequent passivity during the stabbing, as well as their evasive affidavits on the day after the killing. The averred inconsistency in the testimonies of Silma and Gac-ang appears only in minor details, and reinforces rather than weakens their credibility, for it is usual that witnesses to a stirring event should see differently some details of a startling occurrence. This has been judicially taken notice of by the courts (People vs. Limbo, 49 Phil. 94; People vs. De Otero 51 Phil. 201; U.S. vs. Go Foo Suy, 25 Phil. 187). Anent the conduct of the appellants on the fateful night as described by both eyewitness, it must be remembered that appellants were under the influence of liquor, and thus their behavior and reactions can not be measured by normal standards of conduct. Nor is there anything unusual in the deceased's rushing home upon being stabbed, since his father's house was not very far away, and it is not shown that he was intimate enough with Silma and Gac-ang to seek refuge in their house. We find, therefore, no ground for altering the trial court's appreciation of the credibility of eyewitnesses, Silma and Gac-ang, specially since no improper motive on their part has been proved. Appellants also contend that the testimony of Vice-Mayor Nemesis Agawin regarding Ernesto Flores' dying declaration had not satisfied the requirements of an ante mortem statement since the declarant had not made it under the consciousness of an impending death, nor had the statement fulfilled the requirements of res gestae, because said declaration was neither natural nor spontaneous, or unreflective and instinctive, but rather it was made in reply to a question asked from the declarant; and the prosecution not having specified the purpose for which Agawin's testimony was offered, the same is inadmissible in evidence for being hearsay. We are in accord with the trial court in admitting the testimony of Vice-Mayor Agawin regarding Flores' dying declaration, wherein he identified appellants as his assailants. We believe that the circumstances under which the victim made such identification have fulfilled the requirements of either an ante mortem statement or as part of theres gestae. Judged by the nature and extent of the injury inflicted (deep stab wound on the abdomen, causing his intestines to protrude), Flores could not ignore the seriousness of his condition, and it is safe to infer that the deceased made the declaration under the consciousness of impending death. The same identification may also be considered as part of the res gestae, since it was made immediately after the stabbing incident and appears to be natural and spontaneous, and made before the deceased, who had no enmity toward appellants, could contrive or devise a plan to incriminate them. There was no necessity for the prosecution to specify the purpose for which it offered Agawin's testimony, for said purpose was self-evident. Besides, the defense failed to object on time to its presentation in the trial court. Hence, the trial court correctly admitted said testimony. Appellants urge that their co-accused Alfredo Salva's voluntary confession of guilt in which he acknowledged that he alone, without the presence or participation of appellants, stabbed Ernesto Flores, and their sworn declarations in open court vehemently denying any direct participation in the stabbing of deceased Ernesto Flores are reliable, worthy of credence and belief. They finally contend that, taking into consideration all circumstances, the prosecution had not proved their guilt beyond reasonable doubt; hence, they are entitled to judgment of acquittal. We have carefully reviewed the records of this case and find no sufficient reason to warrant the disturbance of the factual findings and conclusions of the trial court in convicting accused-appellants Narciso de Gracia and Raymundo Sorima.

E V I D E N C E : H E A R S A Y E V I D E N C E | 72 Salva's attempts to exonerate his co-accused Sorima and de Gracia appear fatally infirmed by his own unreliability, as demonstrated by the record. His spontaneous question, when arrested by Vice-Mayor Agawin, whether the two appellants herein had been detained contradicts his assertions of sole authorship, for he had no reason for making such a query if he had acted alone in killing Flores. Furthermore, Salva's testimony at the trial of Sorima and de Gracia, that Flores assaulted him without provocation, is inconsistent with his conduct in pleading guilty to the charge of murder as described in the information, without any attempt to show extenuating circumstances in his favor. As to the testimony of the appellants herein on their whereabouts at the time their victim met his untimely end, the same is totally uncorroborated by any one else, and can not prevail over the version of disinterested eyewitnesses Silma and Gac-ang, which was, in turn, confirmed by the statements of their victim to Vice-Mayor Agawin. We concur, therefore, with the trial court in finding both appellants guilty of murder of Ernesto Flores, the crime being qualified by alevosia or treachery. The immobilization of Flores by these appellants while Salva stabbed him and the suddenness of the attack on their unprepared victim, who had met them with a friendly greeting just before being assaulted, leave no doubt that the culprits took measures to forestall any danger to themselves. However, treachery absorbs superior strength and nocturnity (U.S. vs. Estopia, 28 Phil. 97; U.S. vs. Macalinao, 4 Phil. 407); evident premeditation was not proved; while commission of the offense in an uninhabited place is contradicted by the house of Silma and Gac-ang being only a few fathoms away from the place of the attack. Thus, none of the aggravating circumstances alleged in the information can be appreciated. Upon the other hand, the record clearly shows that both appellants were under the influence of liquor, and no habituality being established, appellants appear entitled to the benefit of one mitigating circumstance that would result in the application of the minimum penalty for murder, i.e., reclusion temporal in its maximum degree. WHEREFORE, the conviction of the accused Raymundo Sorima and Narciso de Gracia for the crime of murder is upheld; but the penalty is reduced, pursuant to the Indeterminate Sentence Law, to not less than twelve (12) years of prision mayor and not more than eighteen (18) years of reclusion temporal. In all other respects, the judgment under appeal is affirmed. Costs against appellants.

E V I D E N C E : H E A R S A Y E V I D E N C E | 73 G.R. No. L-31045 October 1, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. MODESTO SILANG CRUZ, defendant-appellant. ROMUALDEZ, J.: As guilty of homicide with two extenuating circumstances, the defendant was sentenced to six years and one day of prision mayor, P300 indemnity to the heirs of the deceased, with subsidiary imprisonment in the case of insolvency, and costs. The defense opposes said judgment because the trial court admitted document Exhibit A as an antemortemstatement; did not find that the defendant acted in self-defense; and did not acquit him. It is true that in Exhibit A, Calixto Perea, the wounded man, did not state that he had given up all hope of living; but the evidence shows that he was in a very serious condition, so much so, that while testifying, he asked the justice of the peace to let him rest, because he felt very ill on account of his wounds. And Calixto Perea died a few hours later. From the circumstances of the case we believe it maybe deduced with certainty that, although he did not express in so many words that he felt he was dying and that he had lost all hope of surviving the mishap, still he was of that conviction. And this is sufficient for its admissibility as an ante-mortem statement, as held by this court in the case of People vs. Chan Lin Wat (50 Phil., 182) Inasmuch as it is not disputed that Calixto Perea was killed by the defendant, it is incumbent on the latter to establish clearly and sufficiently that he committed the act in self-defense (U. S. vs. Coronel, 30 Phil., 112; and People vs. Baguio, 43 Phil., 683), and this defense has not been proved in these proceedings. Therefore, this homicide, of which the defendant is undoubtedly guilty, remains without an explanation compatible with the innocence of said accused. He must therefore answer for that death before the law. With respect to the extenuating circumstances admitted by the trial court, the Attorney-General states the following in his brief:1awph!l.net . . . We do not agree with the trial court that the appellant, in inflicting the wounds that caused the death of the deceased, acted from an impulse so powerful as to produce passion and obfuscation, simply because the deceased favored his friend Cornelio Enriquez's courting of Asuncion Hernandez whom the appellant also courted. Neither may the third extenuating circumstance of article 9 of the Penal Code be considered in favor of the defendant, for; taking into account the wound in the deceased's abdomen, and the weapon used by the appellant, the intent to kill is manifest. We find this observations of the Attorney-General correct and well founded in the record. Touching the passion and obfuscation, the fact that the deceased favored a rival of the defendant in his courtship of the young woman, Asuncion Hernandez, does not constitute a legitimate and sufficient cause of that passion and obfuscation which mitigates the guilt. As was held in the case of United States vs. Herrera (13 Phil., 583), and United States vs, Fitzgerald (2 Phil., 419), the accused must have been actuated by such causes, both strong and powerful, as naturally produced passion and obfuscation, and those cause which merely give rise to the excitement inherent in combatants are not sufficient. Furthermore, the obfuscation must originate from lawful feelings (U. S. vs. Flores, 28 Phil., 29). The act of the deceased was not enough to obfuscate the defendant, nor did the latter have any right to prevent others from courting the Hernandez girl, or the deceased from favoring said courtship.

E V I D E N C E : H E A R S A Y E V I D E N C E | 74 With respect to the mitigating circumstance of lack of intent to commit so great a wrong as that committed, it cannot be deemed present, considering the weapon employed by the defendant and the part of the deceased's body upon which it had been used. There is no great or obvious disproportion between the means and circumstances of the attack and the consequences thereof (U. S. vs. Rodriguez, 23 Phil., 22). And there being no aggravating circumstance to be taken into consideration, the penalty must be imposed in its medium degree, as recommended by the Attorney-General according to the provisions of article 81, rule 1, of the Penal Code. Wherefore, the judgment appealed from is modified, and the defendant is held guilty of the crime of homicide penalized in article 404 of the Penal Code, without any modifying circumstance, and he is hereby sentenced to fourteen years, eight months, and one day of reclusion temporal, to indemnify the heirs of the deceased in the amount 1,000, to suffer the accessory penalties provided in article 59 of the Penal Code, and to pay the costs of both instances. So ordered.

E V I D E N C E : H E A R S A Y E V I D E N C E | 75 G.R. No. 25587 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AGUSTIN CHAN LIN WAT, defendants-appellants. PER CURIAM: This appeal has been brought to reverse a judgment of the Court of First Instance of Rizal, finding the appellant, Chan Lin Wat, guilty of the offense of murder and sentencing him to undergo the penalty of death, to indemnify the heirs of Manuel Escarella in the amount P1,000 and to pay the costs. The victim of the offense which is the subject of prosecution in this case was one Manuel Escarella who, shortly before his death, was employed as assistant in the private information office of W. S. Grove. For a short time prior to the commission of this offense Escarella had been engaged in the investigation of the origin of a fire which had destroyed a warehouse in Kalaba, Nueva Ecija, apparently owned by one Tan Yong, who had collected insurance thereon. On a night near the middle of September, 1925, several Chinese gathered at the table of Tan Yong, in his residence at No. 664 Magdalena Street, Manila. There were present on this occasion, in addition to Tan Yong himself, the following, among others, namely, Chan Lin Wat, Chan Lin Tam, Ong Kim Ba and Lim Sio Chong. While they were eating Tan Yong asked his guests who among them was sufficiently brave to kill a person. Chan Lin Tam answered that he was in a position to kill anybody. Tan Yong replied that Chan Lin Tam was small but could start the killing, and that he (Tan Yong) would give a reward of P500 to all who would help. No name was apparently them mentioned as that of the intended victim, but Chan Lin Wat knew that Tan Yong had Manuel Escarella in mind, for the reason that Tan Yong had repeatedly expressed great concern over the investigation which was being conducted by Escarella into the burning of the warehouse in Kalaba. A few days after the incident above-mentioned Tan Yong planned another dinner. On this occasion Manuel Escarella was to be one of the guests and, in order to insure his presence, Tan Yong caused Chan Lin Wat to extend an invitation to Escarella to attend this dinner. At the time of making this arrangement, Tan Yong gave Chan Lin Wat the sum of P5 to pay the expense of bringing Escarella to the place. Chan Lin Wat was thus chosen to act as decoy for the reason that he was on intimate latter. Accordingly, Chan Lin Wat went, on the afternoon of September 21st, to the house of Manuel Escarella. He was there told that Escarella was out. Chan Lin Wat thereupon directed his way towards the office of an attorney where he and Escarella had agreed to meet the same afternoon. He did not find Escarella at the attorney's office, but on his way back met Escarella at the intersection of Rizal Avenue and Azcarraga Street, Manila, just in front of the panciteria "Canton." The two apparently remained together for the remainder of the afternoon, and they were presently joined by Chan Lin Tam. At about 8 o'clock the three were picked up at the corner of Magdalena and Soler Streets by Lim Sio Chong, in an automobile to the panciteria "Far Eastern" on T. Pinpin Street, where they found Tan Yong awaiting them. The five here took dinner. It appears that the automobile used on this occasion by Lim Sio Chong had been lately purchased by Tan Yong but was registered in the name of Lim Sio Chong, who acted as chauffeur. It appears further that on the day proceeding this incident Chan Lin Wat had an interview with Lim Sio Chong and had then

E V I D E N C E : H E A R S A Y E V I D E N C E | 76 arranged with him for the use of the automobile on the evening of the succeeding day, and for the use of the automobile Chan Lin Wat promised to supply the necessary gasoline himself. At the same time it was arranged that Lim Sio Chong should come to the corner of Magdalena and Soler Streets on the next evening, where he would find Chan Lin Wat awaiting him. This engagement was precisely carried out, as already shown. When the five finished eating at the "Far Eastern," they proceeded in Chong's car to the Luneta where they loitered for a while, after which they proceeded to a house of ill-fame in Pasay. Here they stayed until midnight, or after. Upon leaving this place they directed their course to a cabaret in Santa Ana. Upon arrival at this place they did not go in, but, following a suggestion then made by Chan Lin Wat or Tan Yong, decided to take a drive to Pasig, 6 or 8 miles away, over a road leading through the country. They accordingly proceeded towards Pasig; but when they reached the site of an unused quarry some distance beyond the entrance to the Fort McKinley reservation, the automobile was stopped and turned towards Manila. However, after running a short distance from where the turn was made, the car was again stopped. Lim Sio Chong, who was driving, pretends that he had no intervention in the stopping of the car at this place and he says that he at first supposed that the gasoline might be out. He therefore examined the tank and found nothing wrong. Returning to his place in the car, he found that the electrical switch had been turned off, a trick of which he supposes Chan Lin Tam, who was sitting at his right, to have been the author. Lim Sio Chong also says that, upon discovering the cause of the trouble, he was proceeding to start the car by the use of the starter, but Tan yong told him to desist, as the battery was weak, and advised him to start the car by means of the crank. Lim Sio Chong refused to obey this suggestion, whereupon Tan Yong ordered Chan Lin Wat to take the tool and crank the car. At the same time Chan Lin Wat asked Escarella, who had been sitting on the rear seat between Tan Yong and Chan Lin Wat, to get out so that Chan Lin Wat could get the tool from under that seat. Escarella thereupon got out and placed himself on the left of the car near the front mud-guard. Meanwhile Chan Lin Wat, with the cranking tool in hand, came up behind Escarella and struck him in the back of the head with the cranking tool. Upon receiving this blow Escarella turned and, seeing Chan Lin Wat, asked him why he struck him. At the same time Escarella received a kick on the breast from Chan Lin Wat and fell to the ground with his face upward, his body grazing the left rear mud-guard of the automobile. Thereupon Chan Lin Wat, Tan Yong and Chan Lin Tam surrounded the fallen man and inflicted various physical injuries upon him. Lim Sio Chong further claims that, while the three above-mentioned were engaged in abusing the fallen man, he himself started the car, intending to run away, but Chan Lin Wat took hold of his left arm and threaded to kill him if he did not wait. The three assailants of Escarella then resumed their seats in the car supposedly dead man being left in the margin of the road. Thus far we have been following the narrative of Lim Sio Chong with reference to what occurred after the car was turned. The appellant Chan Lin Wat has given two versions of the affair, which are in part vitally inconsistent with each other and both differing from the version of Lim Sio Chong. In a lengthy written confession given soon after he was arrested (Exhibit D), the appellant admitted that a plot had been formed to kill Manuel Escarella and that he himself invited Escarella to join the party on the fatal evening. He stated, however, in this declaration that Tan Yong was the one who struck Escarella in the head with the cranking iron while the latter was stooping down and looking at the engine. In the same declaration, the appellant added:" Inasmuch as I was near Escarella and I was the only one whom he saw, he asked me why I

E V I D E N C E : H E A R S A Y E V I D E N C E | 77 struck him, since he had done me nothing bad. I told Escarella that I did not hit him, and after having said so, Tan Yong told me to keep quiet and he would give me money." After the appellant had been arrested, he was taken by the Manila police, in company with Lim Sio Chong, to the scene of the murder. In the course of the journey the appellant was heard to speak in the Tagalog language to Lim Sio Chong, informing him that the appellant now intended (in view of the confession which Lim Sio Chong had made implicating the appellant) to testify that Lim Sio Chong was the one who killed Escarella. Pursuant to this threat we find the appellant saying, when testifying as a witness in his own behalf at the trial, that Lim Sio Chong was the man who struck Escarella in the head with the cranking iron. In this statement the appellant is corroborated by Chan Lin Tam who appeared at the trial as a voluntary witness for the defense, although the police had not previously succeeded in arresting him as one of the accused persons in this case. Both the appellant and the 1st named witness also united in testifying at the trial that Lim Sio Chong killed Escarella without assistance from other members of the party. They also said that, after the homicide had been accomplished and the party was ready to start to Manila, Lim Sio Chong backed the car for a short distance and then started forward, causing the car to pass over Escarella's body. Upon examining the record we find it established beyond the possibility of rational doubt that this crime had been deliberately planned and that the four persons concerned were all engaged therein as principals either by direct participation or by aiding the actual slayer or slayers. The testimony of Lim Sio Chong is open to criticism as that of an accomplice, but on all vital points, his statements are corroborated by the written confession of the appellant, as well as by the dying declaration of Escarella, to which reference will now be made. Strange to say, this creature, who had been left for dead, revived sufficiently to make his way to the guard post near the entrance to the Fort McKinley reservation, a short distance from the scene of the crime. Upon his there making his condition known to the sentry, a conveyance was called and he was carried to St. Luke's Hospital, in the City of Manila. The next morning his wife, Carmen Cuenca, came to see him and he told her that Chan Lin Wat was the leader of those who had assaulted him. He stated further that another member of the gang was a man whose name was written on the back of an almanac in Escarella's house. Later Escarella was questioned, just before his death, by agents of the secret service in the presence of the attending physicians. Escarella then stated that Chan Lin Wat was the one who struck him on the back of the head with a blunt instrument and that, upon being struck, he asked his assailants why he did it. Instead of replying, Chan Lin Wat kicked him on the breast. As a result of these blows, the declarant stated that he fell to the ground unconscious. He here again stated the name of another of his assailants was written on the back of an almanac in his house, which name afterwards appeared to be that of Tan Yong. At the time this examination was conducted, Escarella showed such signs of weakness that the doctors requested that the conversation be brought to an end. About half an hour later, Escarella died, notwithstanding injections made by the physicians in an effort to prolong his life. Upon examination of the body several bruises were found on the head, in addition to the cut resulting from the blow in the back of the head from the cranking tool. A number of ribs were also broken and various lesions were found in the thoracic and abdominal cavities, which, as the doctors supposed, were the caused of death. Both the appellant and Lim Sio Chong fled to the South immediately after the deed and were both arrested a few days later in the Province of Albay. The appellant has a bad record for violence and other

E V I D E N C E : H E A R S A Y E V I D E N C E | 78 forms of misbehavior, having been heretofore convicted of the offenses of less serious physical injuries, perjury and robbery from the person. In the brief of the appellant much stress is placed upon the lack of moral weight in the testimony of Lim Sio Chong and an attempt is made to demonstrate that Lim Sio Chong and not the appellant did the killing. The reply to this is that while it may be granted that the appellant could not have been convicted on the uncorroborated testimony of Lim Sio Chong, yet, as already pointed out, the testimony of this witness is fully corroborated by the appellant's written confession so far as concerns the principal points of the existence of the plot and the fact that the death of Escarella was brought about by the party of conspirators of which the appellant was a member at the time and place mentioned in the complaint. Whether the fatal blow, or blows, were struck by one or the other of the plotters is a matter of no importance. It is not improbable that the role first assigned to the appellant was to act as decoy and that the role of executioner was first allotted to Lim Sio Chong. We take it that the order of Tan Yong or Lim Sio Chong to use the cranking tool was probably a preconcerted signal for the killing of Escarella, and it may be that Lim Sio Chong's courage was not equal to the ordeal. As a consequence, instead of using the tool, he may replied, as he claims, that if the others wanted the crank use, someone else must use it. Thereupon Chan Lin Wat intervened and struck the treacherous and fatal blow, or blows, assisted sides of Escarella's body lends probability to the claim that the car was designedly caused to run over the body of the unconscious man; and the idea of the perpetrators of the murder in leaving the body so conditioned was that it would be assumed by the police that Escarella had been killed by an automobile. The complete realization of this scheme was frustrated by the fact that the victim was not completely dead and lived to give a sufficient account of the assault to lead to the apprehension of two of the perpetrators. As already stated, Tan Yong has never been captured; and the name of Lim Sio Chong was struck from the information in order that he might be admitted as a witness for the prosecution. It is supposed in the first assignment of error that the court was without jurisdiction to allow the name of Lim Sio Chong to be thus discarded in order that he might be admitted as a prosecuting witness, for the reason that an order of severance had been obtained by the two accused and Lim Sio Chong was not being tried at the time the court allowed him to be discharged. The contention is untenable. Notwithstanding the fact that a separate trial court had been ordered for the two, they were both being prosecuted for the same crime upon a joint information. It cannot be admitted that the right of the court to order the discharge of one accused in asking for a severance. In the fifth assignment of error exception is taken to the admission of the dying declarations of Escarella, it being supposed that the proof has not shown with sufficient certainty that he believed death was impending when said declarations were made. There may possibly be something in this contention with respect to the first declaration made by Escarella to his wife, but the same cannot be said of the declaration (the same in substance) made about half an hour before Escarella's death. When this declaration was made, the sufferer was so weak that the doctors begged the interrogator to cease questioning the sufferer. The fact that he died only a few minutes thereafter, in connection with the nature of the wounds that had been inflicted upon him, leaves no room to doubt that he must then have known that death was near and had given up hope of survival. In order that a dying declaration may be

E V I D E N C E : H E A R S A Y E V I D E N C E | 79 admissible, it is not necessary to prove that the declarant should estate that he has given up the hope of life. It is enough if, from the circumstances, it can be inferred with certainty that such must have his state of mind. Other assignments go to supposed errors of the court in various features of the findings of the facts or admission of documentary evidence. Our study of the record leads to the conclusion that the supposed errors were not committed, or were non-prejudicial, and that the appellant is undoubtedly guilty of the offense of murder, regardless of whether the mortal blow was given by the appellant or some other member of the conspiracy. The proposition is well settled that, in carrying a conspiracy into effect, every act of one of the conspirators in furtherance of the common purpose is in contemplation of law the act of all (U. S. vs. Ipil, 27 Phil., 530; U. S. vs. Remigio, 37 Phil., 599; People vs. Cabrera, 43 Phil., 82; People vs. Carbonel, 48 Phil., 868). There was present in this crime the qualifying circumstance of evident premeditation and the aggravating circumstance of treachery (alevosia). Nocturnity may property, though perhaps not necessarily, in this case be considered as absorbed in alevosia; and we so consider it. It is not clearly shown that the offense was committed in an uninhabited place, nor is it shown that advantage was taken of superior strength in any other manner than was inherent in the treacherous nature of the attack. In view of the presence of the qualifying factor of evident premeditation and the aggravating circumstance of alevosia the court did not err in imposing the penalty appropriate to murder in its maximum degree. In conclusion we deem it proper to record the fact the this case has been considered in full court by all the members thereof, except Chief Justice Avancea, who is now absent on leave and not at this time regularly attending the sessions of the court. The judgment appealed from is affirmed, and the sentence of death will be carried into effect in the manner prescribed by law upon a day to be fixed by the judge of the court of origin. So ordered, with costs against the appellant.

UPON MOTION FOR RECONSIDERATION September 28, 1972 PER CURIAM: The attorneys for the appellant have interposed a motion for reconsideration, asking that the decision of this court, promulgated on March 30, 1927, affirming the judgment of the court below, be set aside and that the appealed judgment be reversed. In this motion our decision is criticized as illegal on the ground that the Chief Justice did not participate. For the rest it is insisted that the judgment is not in conformity with the evidence. Upon of no point of non-participation of the Chief Justice in the decision, it will be noted that at the time the case was considered and voted, the Chief Justice was absent on formal leave and therefore was not then regularly attending the sessions of the court. The law relied upon by the appellant requires that decisions imposing the death sentence shall be signed by all the members of the court except such as

E V I D E N C E : H E A R S A Y E V I D E N C E | 80 are legally disqualified (inhibido legalmente) from taking part in the consideration of the case (Act No. 3104, sec. 1). In Fuentes vs. Director of Prisons (46 Phil., 22), it was held that this provision requires the participation of those members of the court only who are on duty at the time the case is heard. When, as happened in this case, a Justice is absent upon leave, approved by formal resolution of the court, it must be considered that such member is legally disqualified (inhibido legalmente) in the sense intended by the law. The contrary conclusion would interpose a serious obstacle to the work of the court in capital cases, and could not have been intended by the Legislature. All that is required is unanimity on the part of all of the Justices constituting the effective working body at the time the case is considered and determined. While the law does not permit the non-participation of Justice who is on duty in such a decision as this, it does not require the participation of those members of the court who are legally excused from work, as when a member is on leave of absence.. It follows that, in so far as the motion for reconsideration is directed to the point of the legal validity of the decision, the motion is not well founded. But the resolution of the present motion itself requires the participation of the Justices to the same extent as was necessary in the original determination of the case; and the Chief Justice, being now on duty, after having informed himself fully on the whole record, announces his adherence to the decision of the court is therefore unanimous in the imposition of the extreme penalty allowed by law, and the motion to rehear must be denied. So ordered.

E V I D E N C E : H E A R S A Y E V I D E N C E | 81 [G.R. No. 116918. June 19, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONFILO MARTINEZ y DE LA ROSA, JOHN DOE and PETER DOE, accused. BONFILO MARTINEZ y DELA ROSA, accused-appellant. DECISION REGALADO, J.: In an information filed before Branch 121 of the Regional Trial Court of Caloocan City on March 8, 1994, accused-appellant Bonfilo Martinez and two other unidentified persons were charged with the special complex crime of robbery with rape allegedly committed as follows: That on or about the 28th of December, 1991 in Kalookan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with (sic) one another, with intent of gain and by means of violence and intimidation employed upon the persons of MICHAEL BUENVINIDA Y SOLMAYOR, POL BONGGAT, SHERWIN SOLMAYOR, JONATHAN BONGGAT, JUNIOR SOLMAYOR, GLORIA SOLMAYOR and GLORIVIC BANDAYANON Y QUIAJO while the aforesaid persons were inside the house of ERNESTO BUENVINIDA viewing television program, said accused, all armed with guns of unknown caliber, tied the hands of the occupants of the house, did then and there wilfully, unlawfully and feloniously take, rob and carry away the following articles belonging to ERNESTO BUENVINIDA, to wit: 1. Radio Cassette Recorder worth P3,000.00 2. Assorted imported perfumes 30,000.00 3. Assorted imported canned goods 5,000.00 4. Cash money amounting to 8,000.00 5. Cash money in U.S. Dollar $1,000.00 that in the course of said robbery, said accused, with the use of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with one GLORIVIC BANDAYON Y QUIAJO, against the latters will and without her consent.[1] Although the two Does remained unknown and at large, appellant was arrested on March 3, l994 for soliciting funds for a fictitious volleyball competition.[2] After his arrest, he was confined at the Bagong Silang Sub-station detention cell for an hour and was later transferred to the Caloocan City Jail.[3] Appellant entered a plea of not guilty during his arraignment in Criminal Case No. C-46704 (94) on March 21, 1994.[4] As collated from the transcripts of the testimonies of prosecution eyewitnesses Glorivic Bandayanon[5] and Michael Buenvinida,[6] the indicated coverage of which yield the particular facts hereunder narrated, the circumstances attendant to the crime charged are detailed in the paragraphs that follow. Michael Buenvinida, Michelle Buenvinida, Gloria Solmayor, Sherwin Solmayor, Junior (JR) Solmayor, Paul Bonggat, Jonathan Bonggat and Glorivic Bandayanon were in Ernesto and Cornelia Buenvinidas house situated at Lot 25, Block 20, Wallnut St., Rainbow Village, Caloocan City when the crime was committed on December 28, 1991. Michael and Michelle are the children of Ernesto and Cornelia. Gloria is a sister-in-law of Cornelia who was in the house for a visit, while Sherwin, Junior, Paul and Jonathan are Cornelias nephews. Glorivic is a friend of Cornelia who volunteered to look after the latters children while she is in Sweden. Ernesto was at the office at the time of the commission of the crime.

E V I D E N C E : H E A R S A Y E V I D E N C E | 82 While the occupants of the house were watching a television show in the living room at around 6:30 P.M., Michael noticed a man wearing short pants and holding a handgun jump over the low fence of their house. The man entered the house through its unlocked front door and introduced himself to the surprised group as a policeman. The intruder then told them that Michaels father got involved in a stabbing incident in the local basketball court. As if on cue, two men followed the first man in entering the house and promptly thereafter covered their faces with handkerchiefs. These two were wearing long pants and also carried handguns. The first man who entered the house did not cover his face. With guns pointed at them, the occupants of the house were brought to the masters bedroom where they were tied and detained by the three intruders. Later, one of the armed men, identified by Michael as herein appellant, untied Michael and ordered him to pull out the plugs of the appliances in the house, such as the television set, the V.H.S. player and the radio cassette recorder. Appellant and the other masked man then began to search the house for valuables in the living room and in the kitchen. Meanwhile, the first man remained in the masters bedroom and found cash money, in pesos and dollars, and bottles of perfume. The men then placed in a big bag the radio cassette player, canned goods, money and perfumes that they had found inside the house. Thereafter, the first intruder, whom Glorivic referred to as the mastermind of the group, returned to the masters bedroom and asked the terrified group for jewelries. Unable to get any jewelry, he brought Glorivic to the childrens (Michael and Michelles) bedroom opposite the masters bedroom. Upon entering the room, the man turned on the lights there. In the meanwhile, his two masked companions continued looking around the house for other valuables. Inside the bedroom, the ostensible leader of the gang untied Glorivic and ordered her to search the room for jewelries. After Glorivic failed to find any, the man directed her to remove her clothes and pointed his gun at Glorivics head. Despite her pleas and cries, the man removed the shirt, long pants and underwear of Glorivic while keeping the gun leveled at her. Shortly after, the man put the gun on top of the ironing board beside the bed, then pushed Glorivic towards the bed and lay on top of her. Glorivics resistance proved to be futile as the man was able to violate her chastity. Before the first man could leave the room, another member of the group entered and pushed Glorivic again to the bed when she was just about to put on her dress. Upon entering the room, the second mans cloth cover tied around his face fell and hang around his neck. After threatening to kill her, the man put a pillow on her face, forcibly spread Glorivics legs and has sexual congress with her. Glorivic would later point to appellant during the trial as this second man. After the second man was through, the third man came in. While Glorivic was still sitting on the bed and crying, the third man took the bed sheet and covered her face with it. Just like what his companions did before him, the third man had sexual intercourse with Glorivic through force and intimidation, but not without first removing the handkerchief tied over his face. Michael was able to see the three malefactors enter and leave the room one after the other as the door of the masters bedroom was left open. He was also able to hear Glorivic crying and her implorations to her tormentors in the opposite room. After the consummation of the odious act, the third man told Glorivic to dress up. Glorivic felt blood flowing down her thighs as she put on her clothes. Thereafter, the third man tied her up and brought her back to the company of the other occupants of the house. Michael saw Glorivic with disheveled hair and wearing her pants turned inside out, with blood on the lower parts. The felons left after intimating to the group by way of a threat that they were going to explode a hand grenade. Around five minutes later, after ascertaining that the culprits had left, Michael and the others untied each other. Thereafter, they went to the house of his fathers friend located two blocks away and, from there, they proceeded to the Urduja police detachment.

E V I D E N C E : H E A R S A Y E V I D E N C E | 83 Glorivic met appellant again on March 7, 1994. Policemen came to her place of work and asked her to come with them as they had a person in custody whom they suspected to be herein appellant. At the Caloocan City Jail, Glorivic was made to face eight detainees. She was able to readily recognize appellant among the group because of the mole on his right cheek. Before she picked him out from the other men, she carefully saw to it that the one she pointed out was really appellant. On the part of Michael, he stated that he was fetched by policemen on March 7, 1994 at his school to make an identification at the Dagat-Dagatan police station. Appellant was with six other inmates when they arrived at the station. Michael pointed to appellant as one of the robbers who entered their house, after readily remembering that he was the one who ordered him to unplug the appliances. Michael could never be mistaken in appellants identity because he could not forget the prominent mole and its location on appellants right cheek. Testifying at the trial,[7] appellant denied any participation in the robbery with rape committed in the Buenvinida residence. Appellant claimed that it was only on March 7, 1994 that he first met Glorivic Bandayanon and insisted that he does not know Michael Buenvinida. He claimed that he was in his house in Wawa, Paraaque together with his wife and children the whole day of December 28, 1991. He moved to Bagong Silang, Caloocan City in 1993 after he was able to find work as a mason under his brother who lives in the same district. On cross-examination, appellant denied having visited his brother at Bagong Silang from 1991 to 1992. However, upon further questioning by the public prosecutor, appellant admitted that he made several visits to his brother in 1991. Moreover, he explained that it usually took him three hours to travel to Caloocan City from Paraaque by public utility bus. Giving credence to the testimonies of the witnesses of the prosecution and rejecting appellants defense of alibi, the trial court[8] found appellant guilty of the composite crime of robbery with rape. Although the proper imposable penalty is death,[9] considering the lower courts finding of two aggravating circumstances of nocturnidad and use of a deadly weapon, appellant was sentenced to reclusion perpetua in observance of the then constitutional prohibition against the imposition of capital punishment. With regard to his civil liabilities, appellant was ordered to indemnify Ernesto Buenvinida in the sum of P73,000.00 as the value of his stolen and unrecovered personal properties, and to pay Glorivic Bandaya P30,000.00 by way of moral damages, plus the costs of suit.[10] In this present appellate review, appellant inceptively faults the lower court for convicting him despite the supposedly undependable and untrustworthy identification made by the eyewitnesses. He claims that Glorivic Bandayanon and Michael Buenvinida could have been mistaken in their identification[11]because (l) of the long interval of time before they were able to confront him; (2) his face was covered with a handkerchief as they themselves narrated in court; and (3) they could have been so gravely terrified by the criminal act as to have their mental faculties impaired. When an accused assails the identification made by witnesses, he is in effect attacking the credibility of those witnesses who referred to him as the perpetrator of the crime alleged to have been committed.[12] The case then turns on the question of credibility. It has long been a well-entrenched rule of evidence and procedure that the issue of credibility of witnesses is almost invariably within the exclusive province of a trial court to determine, under the principle that the findings of trial courts deserve respect from appellate tribunals.[13] The foregoing rule notwithstanding, we expended considerable time and effort to thoroughly examine the records and objectively assay the evidence before us, considering the gravity of the offense charged. However, we find no compelling reasons to overturn the lower courts conclusion on the accuracy and correctness of the witnesses identification of appellant as one of the persons who robbed the house of the Buenvinidas and raped Glorivic. The testimonies of the principal witnesses for the prosecution were not only consistent with and corroborative of each other. The transcripts of stenographic notes which we have conscientiously

E V I D E N C E : H E A R S A Y E V I D E N C E | 84 reviewed, further reveal that their narrations before the lower court were delivered in a clear, coherent and unequivocal manner. There was no perceptible hesitation or uncertainty on the part of Glorivic and Michael when they unerringly identified appellant during the trial. The unhurried, studious and deliberate manner in which appellant was identified by them in court added strength to their credibility[14] and immeasurably fortified the case of the prosecution. The records also show that the memory of these witnesses were not in any way affected by the passage of two years and three months since the tragedy. Glorivic categorically stated on the witness stand that the lapse of those years did not impair her memory and she could still identify those who raped her.[15] Michael asserted that he could still positively identify appellant because of the latters mole, as well as the several opportunities of the former to take a good look at appellants face during the robbery,[16] and the same is true with Glorivic. Appellants mole on his right cheek provided a distinctive mark for recollection and which, coupled with the emotional atmosphere during the incident, would be perpetually etched in the minds of the witnesses. It is the most natural reaction for victims of criminal violence to strive to ascertain the appearance of their assailants and observe the manner in which the crime was committed. Most often, the face and body movements of the assailants create a lasting impression on the victims minds which cannot be easily erased from their memory.[17] While appellant claims that his face was covered during the commission of the crime, there were providential points in time when the two witnesses were able to freely see his face and scan his facial features closely to as to enable them to identify him later on. Although appellant placed a pillow on her face. Glorivic declared that when the latter two offenders raped her, their faces were no longer covered. In the case of appellant, the handkerchief on his face fell upon his entering the room and he left it that way while he raped Glorivic.[18]And when the latter two transgressors entered the house, their faces were then exposed and it was only when they were already inside the house that they covered their faces with handkerchiefs.[19] These circumstances gave Michael and Glorivic sufficient time and unimpeded opportunity to recognize and identify appellant. There is no evidence to show that the two eyewitnesses were so petrified with fear as to result in subnormal sensory functions on their part. Contrarily, in a recently decided case, we held that fear for ones life may even cause the witness to be more observant of his surroundings.[20]The ample opportunity to observe and the compelling reason to identify the wrongdoer are invaluable physiognonomical and psychological factors for accuracy in such identification. The records do not disclose any improper motive on the part of the witnesses to falsely point to appellant as one of the robber-rapists. Appellant even admitted that he did not know Glorivic and Michael prior to the commission of the crime. It is doctrinally settled that in the absence of evidence showing that the prosecution witnesses were actuated by improper motive, their identification of the accused as the assailant should be given full faith and credit.[21] Where conditions of visibility are favorable, as those obtaining in the Buenvinida residence when the crimes were committed, and the witnesses do not appear to be biased, their assertions as to the identity of the malefactor should be accepted as trustworthy.[22] For his second assignment of error, appellant contends that the lower court should not have ordered him to pay the value of the unrecovered personalties to Ernesto Buenvinida, damages to Glorivic Bandayanon, and the costs of suit because he is not criminally liable as shown by the failure of the witnesses to properly identify him. We find speciosity in this second contention of appellant because such argument flows from the premise that he is not guilty. As the trial court found, and with which we resolutely agree as already explained, appellant is culpable beyond reasonable doubt for the special complex crime of robbery with rape committed in the early evening of December 28, l99l at Caloocan City.

E V I D E N C E : H E A R S A Y E V I D E N C E | 85 However, we deem worthy of elucidation the matter of the value of the items established to have been stolen from the house of the Buenvinidas. Incidentally, appellant claims in his brief that the amounts alleged in the information as the bases of his civil liability for robbery were just concocted and founded on speculation and conjectures.[23] To prove the value of the burglarized properties, the prosecution presented an affidavit executed by Ernesto Buenvinida[24] on March 7, 1994, containing a list of the stolen movables and with their corresponding values, as now found in the information. This affidavit was identified and marked as Exhibit H[25] for the prosecution during the testimony of SPO4 Abner Castro, [26] the police officer who conducted an investigation of the incident on December 28, 1991. In addition to testifying on the arrest and investigation of appellant, Castro repeated in open court the respective values of the personal properties as explained to him by Ernesto Buenvinida and how he helped Ernesto in the preparation thereof.[27] The same was formally offered in evidence[28] to prove, among others, the facts and amounts contained therein and as testified to by witness Castro. Although objected to by appellant as selfserving,[29] the lower court admitted said document for the purpose for which it was offered and as part of the testimony of said witness.[30] It may be theorized, and in fact appellant in effect so postulates, that the prosecution has failed to prove the value of the stolen properties and, for lack of evidence thereon, the civil liability therefor as adjudged by the court below may not be sustained. It is true that the evidence presented thereon consisted of the testimony of the investigator, Abner Castro, who based his evaluation on the report to him by Ernesto Buenvinida. These are legal aspects worth discussing for future guidance. While it is claimed that hearsay testimony was involved, it is actually and not necessarily so. The rule that hearsay evidence has no probative value does not apply here, since SPO4 Abner Castro was presented as a witness and testified on two occasions, during which he explained how the value of the stolen properties was arrived at for purposes of the criminal prosecution. During his testimony on his investigation report and the affidavit of Ernesto Buenvinida on the amounts involved, appellant had all the opportunity to cross-examine him on the correctness thereof; and it was this opportunity to cross-examine which negates the claim that the matters testified to by the witness are hearsay. And, said documents having been admitted as part of testimony of the policeman, they shall accordingly be given the same weight as that to which his testimony may be entitled. Again, even under the rule on opinions of ordinary witnesses, the value of the stolen items was established. It is a standing doctrine that the opinion of a witness is admissible in evidence on ordinary matters known to all men of common perception, such as the value of ordinary household articles.[31] Here, the witness is not just an ordinary witness, but virtually an expert, since his work as an investigator of crimes against property has given him both the exposure to and experience in fixing the current value of such ordinary articles subject of the crime at bar. Incidentally, it is significant that appellant never dared to cross-examine on the points involved, which opportunity to cross-examine takes the testimony of Castro out of the hearsay rule, while the lack of objection to the value placed by Castro bolsters his testimony under the cited exception to the opinion rule. Also not to be overlooked is the fact that the trial court has the power to take judicial notice, in this case of the value of the stolen goods, because these are matter of public knowledge or are capable of unquestionable demonstration.[32] The lower court may, as it obviously did, take such judicial notice motu proprio.[33] Judicial cognizance, which is based on considerations of expediency and convenience, displace evidence since, being equivalent to proof, it fulfills the object which the evidence is intended to achieve.[34] Surely, matters like the value of the appliances, canned goods and perfume (especially since the trial court was presided by a lady judge) are undeniably within public knowledge and easily capable of unquestionable demonstration. Finally, as a matter of law and not on the excuse that after all appellant cannot satisfy his civil liability, the real value of the asported properties would nonetheless be irrelevant to the criminal liability of appellant. Insofar as the component crime of robbery is concerned, the same was committed through violence against or intimidation of persons, and not through force upon things, hence the value of the

E V I D E N C E : H E A R S A Y E V I D E N C E | 86 property subject of the crime is immaterial.[35] The special complex crime of robbery with rape has, therefore, been committed by the felonious acts of appellant and his cohorts, with all acts of rape on that occasion being integrated in one composite crime. The value of the objects of the apoderamiento relates only to the civil aspect, which we have already resolved. One final complementary disposition is called for. Victim Glorivic Bandayanon was subjected by appellant and his co-conspirators to multiple rape, and under humiliating circumstances equivalent to augmented ignominy since she was abused by the three accused successively and virtually in the presence of one after the other. The award of P30,000.00 for moral damages made by the court below should accordingly be amended. WHEREFORE, the appealed judgment of the trial court is hereby AFFIRMED in full, with the sole MODIFICATION that the damages awarded to the offended party, Glorivic Bandayanon, is hereby increased to P50,000.00. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 87 [G.R. No. 144405. February 24, 2004] PEOPLE OF THE PHILIPPINES, appellee, FREDDIE, appellant. vs. FERDINAND MATITO Y TORRES, A.K.A.

DECISION PANGANIBAN, J.: Circumstantial evidence, when demonstrated with clarity and forcefulness, may be the sole basis of a criminal conviction. It cannot be overturned by bare denials or hackneyed alibis.

The Case Ferdinand Matito y Torres alias Freddie appeals the June 20, 2000 Decision[1] of the Regional Trial Court (RTC) of Malolos, Bulacan (Branch 12), in Criminal Case No. 240-M-99, finding him guilty of murder and sentencing him to reclusion perpetua. The dispositive part of the Decision is worded thus: WHEREFORE, finding herein accused Ferdinand Matito y Torres @ Freddie guilty as principal beyond reasonable doubt of the crime of murder as charged, there being no attendant mitigating or aggravating circumstance in the commission thereof, [the Court hereby sentences him] to suffer the penalty of reclusion perpetua, to indemnify the heirs of the deceased in the amount of P75,000.00, plus P100,000.00 as moral damages subject to the appropriate filing fee as a first lien, and to pay the costs of the proceedings. In the service of his prison term the accused, being a detention prisoner, shall be credited with the full time during which he had undergone preventive imprisonment, pursuant to Art. 29 of the Revised Penal Code.[2] The Information,[3] dated November 24, 1998, charged appellant as follows: That on or about the 16th day of October, 1998, in the [M]unicipality of Paombong, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a firearm and with intent to kill one Mariano Raymundo, Jr. did then and there willfully, unlawfully and feloniously, with evident premeditation, treachery and taking advantage of night time attack, as[s]ault and shoot with the said firearm the said Mariano Raymundo, Jr. hitting the latter on the different parts of his body, thereby causing him serious physical injuries which directly caused his death.[4] Upon his arraignment on February 5, 1999,[5] appellant, assisted by his counsel de parte,[6] pleaded not guilty. After trial in due course, the court a quo rendered the assailed Decision.

The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows: On October 16, 1998, around 10:30 in the evening, in San Roque, Hagonoy, Bulacan, Filomena[7] Raymundo heard gunshots just moments after her husband Mariano Raymundo, Jr. had stepped out of their house to go to the backyard to attend to his quails. As the shots came from the direction where Mariano was, Filomena rushed to the kitchen door and, upon opening it, saw Mariano who was about to come in. He was pressing his hands on his shoulder which was bloodied and bleeding. Once inside the house, Filomena asked Mariano what happened and who did it to him. Mariano replied: Binaril ako ni Pareng Freddie. Binaril ako ni Pareng Freddie. Mariano pushed Filomena away from the

E V I D E N C E : H E A R S A Y E V I D E N C E | 88 door when she tried to look outside. Filomena again asked Mariano who shot him, but Marianos voice by then was barely audible. Filomena and her two (2) daughters whom she had awakened, called out to their neighbors for help. Mariano was boarded on a tricycle and rushed to the Divine World Hospital where he was pronounced dead. Dr. Manuel Aves conducted an autopsy examination on the victim at the Hagonoy District Hospital. His examination revealed that the victim sustained one (1) fatal wound on the right lateral neck at the area of the carotid triangle; two (2) other wounds on the left shoulder and right hand. Dr. Aves placed the cause of death to hypovolemic shock due to GSW, neck. On the following day, the police invited appellant and his father for questioning and conducted paraffin tests on them. Filomena identified them as the last persons with whom Mariano had a quarrel prior to his death. On October 19, 1998, Teresita Manalo Lopez, Forensic Chemist of the PNP Crime Laboratory, Malolos, Bulacan, submitted her report that the right hand cast of appellant was positive for powder nitrates. While still alive, Mariano was a barangay tanod and the secretary of their neighborhood association. A month prior to his death, Mariano cut the supply of water to the house of appellant for his failure to pay his water bills for two (2) months. Also, Mariano had interceded for and on behalf of some neighbors who demanded that appellant move his fence away from their walk path. Then, about 6:30 in the evening of October 16, 1998, Marlene Raymundo, a daughter of Mariano and Filomena, met appellant along the road. After asking her where her father was, appellant cursed: Putang ina iyang Tatay mo. Yari sa akin iyang Tatay mo. Marlene Raymundo observed that appellant was drunk and his eyes were red.[8] (Citations omitted)

Version of the Defense The defense narrates its version of the facts in this manner: On the part of the accused, they presented as witness MR. CEFERINO GALVEZ, 44 years old, a third cousin of the victim [M]ariano Raymundo, Jr. He testified that he came to know of the death of Mariano Raymundo, Jr. through a neighbor and upon learning it went to his wake at Hangga, Hagonoy, Bulacan. While at this wake, he came to have a conversation with the victims widow who told him that her husband was already dead and was not able to say anything before he died since blood was already coming out through his nose and mouth. On cross[-]examination, he testified that the accused is a nephew of his wife and during the time he went to the wake of the victim, he saw many of their relatives. The accused, during that time was outside the yard. Another witness for the defense is DR. MANUEL AVES who on direct examination testified that the victim Mariano Raymundo, Jr. sustaine[d] three (3) gunshot wounds and the most fatal of which [was] the one that [was] inflicted in the neck of the deceased. The said injury [was] a bloody one that it can block the air passage of the victim making him unable to talk. On cross[-]examination, the doctor testified that the injury of the victim affect[ed] the larynx which [was] so severe that it [was] not possible that he [could] talk as his injury [was] in the neck. There [was] no possibility that the victim [could] speak.

E V I D E N C E : H E A R S A Y E V I D E N C E | 89 The accused himself, FERDINAND MATITO was placed on the witness stand and testified that he [was] the accused in this case and that he kn[e]w the victim Mariano Raymundo, Jr. because his wife is his sons godmother in his confirmation. He is also a neighbor, their r[e]sidence being almost 50 meters away from each other, separated by about four houses. On October 16, 1998, between the hours of 10:00 oclock to 11:00 oclock in the evening, he was at home with his wife and his four (4) children. On that night, at about past 8:00 oclock in the evening, after having dinner, his family went to bed. Between the hours of 1:00 to 2:00 oclock in the morning of the next day, they were awaken[ed] by two (2) policemen who [were] then with his brother Aries Matito. The policemen told him that they need[ed] to talk to [him] about the killing that happened that day and told [him] that his kumare told the policemen that we were the only ones that [had] a fight/quarrel with her victim husband. He asked the policemen who is the kumare that they [were] talking about and they told [him] that it [was] Felomena Raymundo. He told the policemen that he knew nothing about the killing and he was in fact only awaken[ed] by them. The accused also denied the allegations testified to by the victims daughter Marilyn and denied having said anything against the victim. In fact, between the hours of 6:00 in the evening of October 16, 1996, he [was] already at home. He also denied the allegations as testified to by the widow of the victim and denied having any misunderstanding with the victim when it cut[-]off the water supply. That they left a one meter passage when they put a barb[ed] wire fence around their house. Of the two instances mentioned, the accused denied having any heated argument or quarrel with the victim because ever since, they [had] good relationship as neighbors. He [had] no knowledge of any person who could have done the same to his kumpadre. On cross[-]examination, the accused testified that his good relation with the victim [was] the same as his kumadre and their children. Thats why he [did] not know of any reason why the widow of the victim [had] implicated him with the killing of her husband. On the day of October 16, 1998, he arrived home at around 4:30 in the afternoon from fishing. At about 8:00 oclock in the evening of that same day, he and his family already went to bed and slept until he was awaken[ed] by the two policemen who invited him for some inquiries at about 1:00 to 2:00 oclock in the morning of the next day. It [was] only at that time that he knew that his kumpadre, the victim, was already dead. At about 2:00 oclock in the morning, he was brought by the policemen to the laboratory office allegedly for examination but the examination did not [push] through x x x because the crime lab at that time [had] no wax so they asked [them] to return on the 17th of October, 1998. Thereafter, [he] was told that the examination showed that the results gave a positive result and thereafter [he] was [i]ncarcerated. On re-direct examination, he testified that he was [i]ncarcerated on 19 October 1998. Between the dates of October 16 to October 18, 1998 while he was not yet [i]ncarcerated, he was in their barangay attending x x x the wake of his kumpadre.[9]

Ruling of the Trial Court The RTC gave more credence and weight to the prosecution evidence. Debunking the defenses of denial and alibi, it accepted the testimony of the widow that her husband, prior to his death on that fateful night, declared that it was appellant who had gunned him down. It based its conclusion on her testimony and other pieces of circumstantial evidence, such as the presence of nitrate powder on the cast taken from the right hand of appellant; the bitter quarrel that ensued between him and the victim after the latter had cut off the formers water supply; the denial by appellant of the request of his neighbors (including the victim) to widen the right of way along the premises of his house; and hours before the victim was killed, the threatening remarks of appellant to the formers daughter. Hence, the trial court concluded that it was appellant who had shot the victim that night. The lower court explained: x x x the most incriminating circumstance against herein accused was the presence of gunpowder residue on his right hand which the defense failed to explain over the likelihood opined by the forensic

E V I D E N C E : H E A R S A Y E V I D E N C E | 90 chemist that he could have fired a gun. This, combined with the bitterness he had with the victim who was instrumental to the cutting off [of] the essential water supply to his house, in addition to the other personal differences between them that could sufficiently motivate him to take drastic action against the victim, makes the Court conclude that, there being no one else who could have done so, it could only be herein accused who indeed shot the victim to death, what with the word of his widow that before he collapsed into coma he was able to name him as the culprit, and of their 12-year old daughter that earlier that night of the shooting he uttered threatening remarks against her father.[10] Hence, this appeal.[11]

Issues In his Brief, appellant raises the following alleged errors for our consideration: 1. 2. The lower court erred in appreciating the testimony of the witness as a dying declaration. The lower court erred in convicting the accused when the prosecution failed to established the guilt of the accused beyond reasonable doubt.[12]

Succinctly worded, the main issue is the sufficiency of the prosecution evidence.

The Courts Ruling The appeal is partly meritorious.

Main Issue: Sufficiency of the Prosecution Evidence Appellant contends that the prosecution failed to prove beyond reasonable doubt that he had committed the crime charged. Supposedly, the RTC erred in giving full credence to the testimony of the widow that prior to the death of the victim, he had told her that it was appellant who had shot him. This dying declaration should have been rejected by the trial court, appellant argues, based on the testimony of Dr. Manuel Aves, the physician who had conducted the autopsy. According to the doctor, given the nature of the gunshot wound sustained by the victim on the right carotid artery, it would have been impossible for the latter to speak at all. We are not persuaded. The Court a quo was convinced of the credibility of the victims wife. The hornbook doctrine is that the trial court, which has the opportunity to observe the demeanor of the witnesses on the stand, is in the best position to discern whether they are telling the truth. Thus, unless tainted with arbitrariness or oversight of some fact or circumstance of significance and influence, its factual findings are accorded the highest degree of respect and will not be disturbed on appeal.[13] In this case, no sufficient reason was advanced by appellant to justify a deviation from this principle. The lower court accepted Felomena Raymundos story, because it cannot imagine t he widow inventing such narrative against the accused, if the victim did not really tell her that, and risking to let the real killer of her husband go scot free.[14] Moreover, the RTC deemed as incredulous the story proffered by the defense on the manner of the victims death. Rosalina de Guzman, who was presented by the latter as eyewitness, narrated in her testimony how three armed men had grappled with the victim before he died. According to her, one of these three men stabbed him on the neck; when he fought back, he was shot by another one of them. This concoction was implausible, because the autopsy shows that (1) the victim sustained three gunshot wounds, not just one such wound; and (2) the fatal injury on his neck was a bullet, not a stab, wound.

E V I D E N C E : H E A R S A Y E V I D E N C E | 91 Dying Declaration A dying declaration, also known as a statement in articulo mortis, may be received in evidence under Section 37 of Rule 130 of the Rules of Court, which we quote: SEC. 37. Dying Declaration. The declaration of a dying person, made under a consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. To be admissible, the following requisites should be met: (a) the declaration must concern the cause and the surrounding circumstances of the declarants death; (b) at the time the declaration is made, the declarant is under a consciousness of impending death; (c) he or she is competent as a witness; and (d) the declaration is offered in a case in which the declarants death is the subject of the inquiry. [15] Even though Dr. Aves was accepted as an expert witness by both parties, he was not identified as a speech therapist or as a neurologist who could authoritatively establish a causal connection between carotid blood vessel injuries and functional damage to the voice box. Neither was he able to relate those injuries to any of the nerves that controlled the speech mechanism of the victim. Moreover, there was no evidence of injury to the tongue, the lips or the mouth of the victim -- organs responsible for audible and articulate speech -- injury to which might have prevented him from communicating audibly to his wife before he lost consciousness. In addition, the fact that he was still able to enter the house after being shot three times, as well as the significant lapse of time before he died in the hospital, showed that he had ample time to communicate to his wife the assailants identity. That there was no way the victim could have told his wife before he died that it was appellant who had shot him cannot be accorded absolute credence and faith, as such testimony was given by Dr. Aves who was not a speech therapist or a neurologist.

Circumstantial Evidence Circumstantial evidence is defined as that evidence that indirectly proves a fact in is sue through an inference which the factfinder draws from the evidence established. Resort thereto is essential when the lack of direct testimony would result in setting a felon free. [16] It is not a weaker form of evidence vis--vis direct evidence.[17] Cases have recognized that in its effect upon the courts, the former may surpass the latter in weight and probative force.[18] To warrant a conviction based on circumstantial evidence, the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt.[19] The totality of the evidence must constitute an unbroken chain showing the guilt of the accused beyond reasonable doubt. On the strength of the circumstantial evidence proven in the current case, we hold that the court a quo did not err in convicting appellant of the crime charged. The combination of the circumstances comprising such evidence forms an unbroken chain that points to appellant, to the exclusion of all others, as the perpetrator of the crime. First, narrating how her husband, before he died, had identified his killer, the widow testified as follows: Q: Where is this Mariano Raymundo, Jr. now, your husband? A: Already dead, sir. Q: When did he die? A: October 16, 1998, sir.

E V I D E N C E : H E A R S A Y E V I D E N C E | 92 Q: Did you come to know the reason or cause of his death? A: Yes, sir. Q: What? A: He was shot, sir. Q: When? A: October 16, 1998, sir. Q: Where? A: Behind our house, sir. Q: How did you come to know that? A: Because [we] were the only ones there, sir. Q: How did you come to know that your husband was shot or killed? A: When he turned and stepped outside the door when I heard a gunshot, sir. Q: Was he talking with anyone when you heard gunshot? A: I did not hear of any, sir.

Q: How many minutes or seconds had elapsed when you heard a gunshot after he left? A: Only seconds, sir. Q: How far were you from him when you heard a gunshot? A: When I heard the successive gunshot my distance from him was about five (5) or six (6) arms length, sir. Q: Immediately when you heard the gunshot, what did you do? A: I was afraid. I opened the door and I saw him standing there about to come in, but holding his left shoulder bleeding, sir.

Q: Did you bother to ask him why was he bleeding? A: I asked him when he came inside what happened and who did this to you, sir.

Q: What was his reply? A: He said x x x two (2) times, Binaril ako ni Pareng Freddie. Binaril ako ni Pareng Freddie. Q: Who is this Pareng Freddie that he was trying to tell you who shot him? Court: Witness pointed to the accused inside the courtroom.[20] Appellant assails her testimony, because she allegedly told a neighbor during the wake that her husband had not been able to say anything to her before he died. When asked about this matter during the cross-examination, she explained that she had not mentioned the dying declaration at the time, so that appellant would not be forewarned that her husband had recognized him as the killler. She explained: Court: For clarification --

E V I D E N C E : H E A R S A Y E V I D E N C E | 93 Q: Why did you say that to that neighbor or person who asked you if your husband [told] you anything? A: Because my husband earlier told me that it was Pareng Freddie who shot him and if I would reveal that to the person who asked me, if I said anything, Pareng Freddie might come to know of it and might be able to escape, sir.[21] Second, the victims daughter narrated how appellant had spoken with her that fateful evening. He had asked her where her father was and even uttered threatening remarks against him. She testified thus: Fiscal: Q: On October 16, 1998, tell this Honorable Court if you have an occasion to see or meet Freddie Matito? A: Yes, sir. Q: Where? A: Along the road at San Isidro, sir. Q: About what time was that? A: 6:00 to 6:30 in the evening, sir. Q: And tell us the circumstances on how you saw or met the accused on that afternoon of October 16, 1998? A: We came across each other on the street, sir. Q: What if anything happened when you met him? A: He said something, sir.

Q: What was that he told you? A: He asked me where my father was. Q: And after that? A: He also said something else, sir. Q: What was that something else that he said? A: He said Putangina iyang Tatay mo. Yari sa akin iyang Tatay mo. Court: Anything else? A: No more, Your Honor. Fiscal: Q: What was the physical appearance of Freddie Matito at that time? A: He was drunk, sir, and his eyes looked red. Q: And thereafter, where did you proceed? A: I left, sir, and proceeded walking along the street, sir.[22] Third, a bitter quarrel ensued between the victim and appellant when the latters water supply was cut off by the former, the barangay tanod,and the secretary of the Homeowners Association.

E V I D E N C E : H E A R S A Y E V I D E N C E | 94 Fourth, when asked by his neighbors (including the victim) to widen the right of way along his premises -- which he, together with his father, had enclosed with barbed wire -- appellant refused to do so. Fifth, there was a bitter quarrel between the daughters of appellant and the victim. Sixth, nitrate powder was conclusively proven to be present on the cast taken from the right hand of appellant. Appellant assails this last piece of evidence, because the forensic chemist examined the cast on October 19 -- two days after it had been taken by police authorities. According to appelalnt, it may be possible that the gun nitrate was implanted by the police in their desire to accomplish something. [23] This argument does not persuade. Basic is the rule that police authorities enjoy the presumption of regularity in the performance of their official duties.[24]

Denial and Alibi Claiming good relations with the victim and his family, appellant denies having killed him. Moreover, the two are compadres. Appellant cannot understand why he was implicated by Felomena and her daughter, as he disclaims any quarrel with the victim. When asked where he was on the night when the killing occurred, appellant simply answered that he was at home sleeping. Alibi and denial, when unsubstantiated by clear and convincing evidence, are negative and selfserving, undeserving of any weight in law.[25]Alibi is an inherently weak defense, for it is easy to fabricate and difficult to disprove.[26] Appellant must prove that he was not only at some other place when the crime was committed, but that it was impossible for him to be at the locus criminis at the time the crime was perpetrated. This he failed to do. He cannot be exculpated from the crime by his contention that he was at home sleeping when the victim was killed. Their homes were only 50 meters apart;[27] thus, it was not impossible for the former to be at the locus criminis when the crime was committed.

Proper Penalty However, we are not convinced that appellant should be convicted of murder. To justify a conviction therefor, the qualifying circumstances invoked must be proven as indubitably as the killing itself. They cannot be deduced from unfounded inferences.[28] A review of the assailed Decision reveals that the trial judge did not discuss the presence of any qualifying circumstance that would elevate the killing to murder. Treachery, which must be proven positively,[29] cannot be appreciated in the instant case, because no one saw how the killing was carried out.[30] It must be emphasized that the core of the prosecution evidence is the dying declaration of the victim. Thus, appellants deliberate adoption of treacherous means in ending the victims life cannot be assumed. Neither can evident premeditation be considered, absent any clear showing of the time when appellant determined to commit the crime; an act indicating that he clung to such determination; and, between the determination and the execution thereof, a lapse of time sufficient to allow him to reflect upon the consequences of the act.[31] Finally, nighttime cannot be appreciated because, by itself, it is not an aggravating circumstance.[32] The fact that the victim was killed at night will not suffice to sustain this aggravating circumstance, because it must be shown that the darkness facilitated the commission of the crime and was purposely sought by appellant.[33]

E V I D E N C E : H E A R S A Y E V I D E N C E | 95 Verily, absent any qualifying circumstance, he can be convicted only of homicide. Under Article 249 of the Revised Penal Code, the penalty prescribed for such crime is reclusion temporal. There being no mitigating or aggravating circumstance, the penalty shall be imposed in its medium period, the range of which is from 14 years, eight (8) months and one (1) day; to 17 years and four (4) months. The Indeterminate Sentence Law is also applicable. As regards appellants pecuniary liabilities, we reduce the civil indemnity ex delicto imposed by the lower court -- from P75,000 to P50,000, consistent with current jurisprudence.[34] Although the entitlement to moral damages was proven, it is reduced from P100,000 to P50,000, pursuant to prevailing jurisprudence.[35] We deem it proper to award such damages for the pain and difficulty experienced by the family of the victim.[36] It must be emphasized that he was the breadwinner.[37] Since he died, the widow had to shoulder all he was doing to the family,[38]aside from her own duties and responsibilities. WHEREFORE, the appeal is PARTLY GRANTED. Appellant is found GUILTY beyond reasonable doubt of HOMICIDE and is sentenced to an indeterminate penalty of 9 years and four (4) months of prision mayor as minimum; to 16 years and four (4) months of reclusion temporalas maximum. He is likewise ordered to pay the heirs of the victim P50,000 as civil indemnity ex delicto and another P50,000 as moral damages. No costs.SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 96

SECOND DIVISION JESUS GERALDO and AMADO ARIATE, - versus November 20, 2008 PEOPLE OF THEPHILIPPINES, Respondent. x------------------------------------------- x DECISION CARPIO MORALES, J.: Petitioners Jesus Geraldo and Amado Ariate were, by Information dated December 23, 2002 filed on December 27, 2002before the Regional Trial Court of Surigao del Sur, charged with Homicide allegedly committed as follows: x x x [O]n the 1st day of July, 2002 at about 3:00 oclock early morning, more or less, at Sitio Tinago, Barangay Bunga, municipality of Lanuza, province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and mutually helping one another, armed with xxx handguns and with intent to kill, did, then and there, willfully, unlawfully and feloniously sho[o]t one ARTHUR U.[1] RONQUILLO, thereby hitting and inflicting upon the latter wounds described hereunder: G.R. No. 173608

POINT OF ENTRY: 1. Right lumbar area 2. Right iliac area POINT OF EXIT 1. Left lateral area of abdomen 2. Right hypogastric area which wounds have caused the instantaneous death of said ARTHUR U. RONQUILLO, to the damage and prejudice of his heirs in the following amount: P50,000.00 10,000.00 10,000.00 40,000.00 as life indemnity of the victim; as moral damages; as exemplary damages; and as actual damages.

CONTRARY TO LAW.[2]

At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son Arnel, among other persons, on being informed of the shooting of Arthur Ronquillo (the victim), repaired to where he was, not far from his residence, and found him lying on his side and wounded. Although gasping for breath, he was able to utter to Mirasol, within the hearing distance of Arnel, that he was shot by Badjing[3] and Amado.

E V I D E N C E : H E A R S A Y E V I D E N C E | 97

Petitioners who were suspected to be the Badjing and Amado responsible for the shooting of the victim were subjected to paraffin tests at the Philippine National Police (PNP) Crime Laboratory in Butuan City. In the PNP Chemistry Report No. C-002-2002-SDS,[4] the following data are reflected: xxxx TIME AND DATE RECEIVED REQUESTING PARTY/UNIT : 1105H 03 July 2002 : Chief of Police Lanuza Police Station Lanuza, Surigao del Sur :

SPECIMEN SUBMITTED

Paraffin casts taken from the left and the right hands of the following named living persons: A = Jesus Geraldo Jr. alias Bajing B = Amado Ariate /x/x/x/ /x/x/x/

PURPOSE OF LABORATORY EXAMINATION To determine the presence of gunpowder residue, Nitrates. /x/x/x/ FINDINGS: Qualitative examination conducted on specimens A and B gave NEGATIVE results for powder residue, Nitrates. /x/x/x/ CONCLUSION: Specimens A and B do not reveal the presence of gunpowder residue, Nitrates. /x/x/x/ REMARKS: The original copy of this report is retained in this laboratory for future reference. TIME AND DATE COMPLETED: 1700H 03 July 2002 x x x x (Underscoring supplied)

In a document dated July 1, 2002 and denominated as Affidavit[5] which was subscribed and sworn to before Clerk of Court II Manuel A. Balasa, Sr. on July 26, 2002, the victims son Arnel gave a statement in a question and answer style that herein petitioners Jesus Geraldo and Amado Ariate were the ones who shot his father.

E V I D E N C E : H E A R S A Y E V I D E N C E | 98 In another document dated July 4, 2002 also denominated as Affidavit[6] which was subscribed and sworn to also before the same Clerk of Court II Balasa on July 26, 2002, Mirasol also gave a statement in a question and answer style that her father uttered that herein petitioners shot him. At the witness stand, Mirasol echoed her fathers declaration that Badjing and Amado shot him. Arnel substantially corroborated Mirasols statement.[7] Upon the other hand, petitioners gave their side of the case as follows: Petitioner Ariate, a barangay tanod of Bunga, declared that Barangay Kagawad Omboy Roz (Roz) woke him up at 3:00 a.m.of July 1, 2002 and informed him that the victim was shot. He and Roz thus borrowed a tricycle, proceeded to the crime scene and, along with others, brought the victim to the hospital where he was pronounced dead on arrival. Ariate submitted himself to a paraffin test and tested negative for gunpowder residue/nitrates.[8] Petitioner Geraldo declared that he slept in his house located also in Barangay Bunga, Lanuza at 9:30 p.m. of June 30, 2002 and woke up at 4:00 a.m. the following day. At 6:30 a.m., on seeing many people in the vicinity of the 45-meter away house of one Josita Bongabong where the victims body was found, he inquired and learned that the victim was shot. Policemen subsequently went to his house and advised him to take a paraffin test. He obliged and was tested at the PNP Crime Laboratory and was found negative for gunpowder residue/nitrates.[9] In the course of the testimony of Ariate, his counsel presented the PNP Chemistry Report reflecting the negative results of the paraffin test on him and Geraldo. The trial court restrained the presentation of the document, however, as reflected in the following transcript of stenographic notes taken on March 21, 2003: xxxx Q I am showing to you [Ariate] a copy of the result of the paraffin test attached to the record of this case.

COURT Is it covered in the Pre-trial Order? You cannot do that. That is why I told you; lay your cards on the table. ATTY. AUZA May I ask for the courts reconsideration. COURT Denied. I am warning you, all of you. ATTY. AUZA With the denial of our motion for reconsideration, I move to tender exclusive evidence. He would have identified this result. The paraffin test, which [forms] part of the affidavit of this witness attached to the record of this case on page 29. May I ask that this will be marked as Exhibit 3 for the defense. COURT Mark it. (Marked).[10] (Underscoring supplied)

E V I D E N C E : H E A R S A Y E V I D E N C E | 99

As shown from the above-quoted transcript of the proceedings, the trial court restrained the presentation of the result of the paraffin tests because the same was not covered in the Pre-trial Order. In the Pre-trial Order,[11] the trial court noted the parties agreement that witnesses not listed in this Pre-trial Order shall not be allowed to testify as additional witnesses. Significantly, there was no agreement to disallow the presentation of documents which were not reflected in the Pre-trial Orders. At all events, oddly, the trial court allowed the marking of the PNP Chemistry Report as Exhibit 3.[12] When petitioner Geraldos turn to present the same PNP Chemistry Report came, the trial court ruled:

COURT That is the problem in the Pre-Trial Brief if the exhibits are not stated. I will set aside that Order and in the interest of justice I will allow the accused to submit, next time I will not any more consider exhibits not listed in the Pre-trial Order.[13] (Underscoring supplied)

The version of the defense was in part corroborated by witnesses. The trial court, passing on the demeanor of prosecution witness-the victims eight-year old daughter Mirasol, observed: . . . She talks straightforward, coherent and clear, very intelligent, with child mannerism[s]. While testifying she was criss-crossing her hands, touching anything within her reach, innocent and simple, pressing of[f] and on her stomach but she talks with correct grammar. No doubt, this Court was convinced of her testimony which was corroborated by her brother Arnel Ronquillo.[14]

On the nature and weight of the dying declaration of the victim, the trial court observed: A dying declaration may be xxx oral or in writing. As a general rule, a dying declaration to be admissible must be made by the declarant while he is conscious of his impending death. However, even if a declarant did not make a statement that he was on the brink of death, the degree and seriousness of the wound and the fact that death supervened shortly afterwards may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying condition; People vs. Ebrada, 296 SCRA 353. Even assuming that the declaration is not admissible as a dying declaration, it is still admissible as part of the res gestae since it was made shortly after the startling occurrence and under the influence thereof, hence, under the circumstances, the victim evidently had no opportunity to contrive.[15] (Underscoring supplied)

Finding for the prosecution, the trial court convicted petitioners, disposing as follows:

E V I D E N C E : H E A R S A Y E V I D E N C E | 100 WHEREFORE, finding the accused JESUS GERALDO y CUBERO and AMADO ARIATE y DIONALDO guilty beyond reasonable doubt of the crime of Homicide penalized under Article 249 of the Revised Penal Code and with the presence of one (1) aggravating circumstance of night time and applying the Indeterminate Sentence Law, the maximum term of which could be properly imposed under the rules of said code and the minimum which shall be within the range of the penalty next lower to that prescribe[d] by the code for the offense, hereby sentences each to suffer the penalty of TEN (10) YEARS and ONE (1) DAY of Prision Mayor minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal maximum as maximum, with all the accessory penalties provided for by law. To pay the heirs of the victim the amount of P50,000.00 as life indemnity, P100,000.00 as moral damages and P20,000.00 as exemplary damages. The claim for actual damages is denied, there being no evidence to support the same. The bail bond put up by the accused Jesus Geraldo and Amado Ariate are ordered cancelled and to pay the cost. SO ORDERED.[16] (Underscoring supplied)

The Court of Appeals, by Decision of June 30, 2006,[17] affirmed with modification the trial courts decision. It found that the trial court erred in appreciating nocturnity as an aggravating circumstance. And it reduced the award of moral damages[18] toP50,000, and deleted the award of exemplary damages. Thus the Court of Appeals disposed: WHEREFORE, in view of the foregoing, the appealed decision is hereby AFFIRMED save for the modification of the penalty imposed. Accordingly, accusedappellants are each hereby sentenced to suffer an indeterminate penalty of Eight (8) years, Five (5) Months and One (1) Day of prision mayor medium as minimum, to Seventeen (17) Years and Four (4) Months of reclusion temporal medium as maximum, with all accessory penalties provided by law, and to jointly and solidarily pay the heirs of the victim the amount of P50,000.00 as indemnity and P50,000.00 as moral damages. SO ORDERED.[19] (Italics in the original)

Hence, the present Petition[20] raising the following issues: I WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSED-APPELLANTS AS THE ALLEGED ASSAILANT HAS BEEN ADEQUATELY ESTABLISHED AS PER EVIDENCE ON RECORD? II WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSED-APPELLANTS HAD BEEN ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT?[21] (Emphasis and underscoring supplied)

E V I D E N C E : H E A R S A Y E V I D E N C E | 101 Petitioners argue: With due respect, herein petitioners disagree with the holding of the Honorable Court of Appeals that It is not necessary that the victim further identify that Badjing was in fact Jesus Geraldo or that Amado was Amado Ariate because, [so petitioners contend], it is the obligation of the prosecution to establish with moral certainty that indeed the persons they identified as the as the assailant of Arthur O. Ronquillo were really the ones who perpetrated the crime. Admittedly, prosecution witnesses were able to identify positively herein petitioners as the alleged assailant[s] of Arthur O. Ronquillo. But said identification is based on the assumption that they were the very same BADJING AMADO and/or BADJING AND AMADO referred to by their deceased father in his dying declaration. What the Honorable Court of Appeals failed to consider is that, just because the victim declared that it was BADJING AMADO and/or BADJING AND AMADO who shot him does not necessarily follow that herein petitioners were really the perpetrators in the absence of proof that the BADJING referred to by him is Jesus Geraldo and that the AMADO is Amado Ariate. It would have been a different story had the prosecution witnesses [been] eyewitnesses because proof that the BADJING AMADO and/or BADJING AND AMADO referred to by the victim and the persons identified by the prosecution witnesses are the same is unnecessary. Herein petitioners believe, that even assuming that there are no other BADJING or AMADO in the barangay, still it does not follow that the person[s] referred to by the dying declarant as his assailant were Jesus Geraldo alias BADJING and Amado Ariate alias AMADO. Although, it is inconceivable how the Honorable Court of Appeals arrived at the said conclusion that there are no other BADJING AMADO and/or BADJING AND AMADO in the barangay absent any proof to that effect from the prosecution.[22] (Underscoring in the original)

The petition is impressed with merit. The trial court relied on the dying declaration of the victim as recounted by his daughter Mirasol and corroborated by his son Arnel. A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarants death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarants death. [23] There is no dispute that the victims utterance to his children related to the identities of his assailants. As for the victims consciousness of impending death, it is not necessary to prove that he stated that he was at the brink of death; it suffices that, judging from the nature and extent of his injuries, the seriousness of his condition was so apparent to him that it may safely be inferred that such ante mortem declaration was made under consciousness of an impending death.[24] The location of the

E V I D E N C E : H E A R S A Y E V I D E N C E | 102 victims two gunshot wounds, his gasping for breath, and his eventual death before arriving at the hospital meet this requirement.[25] It has not been established, however, that the victim would have been competent to testify had he survived the attack. There is no showing that he had the opportunity to see his assailant. Among other things, there is no indication whether he was shot in front, the post-mortem examination report having merely stated that the points of entry of the wounds were at the right lumbar area and the right iliac area.[26] Lumbar may refer to the loins or the group of vertebrae lying between the thoracic vertebrae and the sacrum,[27] or to the region of the abdomen lying on either side of the umbilical region and above the corresponding iguinal.[28] Iliac relates to the ilium, which is one of the three bones composing either lateral half of the pelvis being in man broad and expanded above and narrower below where it joins with the ischium and pubis to form part of the actabulum.[29] At all events, even if the victims dying declaration were admissible in evidence, it must identify the assailant with certainty; otherwise it loses its significance.[30] In convicting petitioners, the trial court, as stated earlier, relied on the testimony of the victims daughter Mirasol, which was corroborated by her brother Arnel, that the Badjing and Amado mentioned by the victim as his assailants are herein petitioners whom they claimed to know because they live in the same barangay.[31] The Court of Appeals believed too the siblings testimonies, holding that It is not necessary that the victim further identify that Badjing was in fact Jesus Geraldo or that Amado was Amado Ariate. There was never an issue as to the identity of the accused. There was no other person known as Badjing or Amado in their neighborhood or in their barangay. Accusedappellants never presented any proof that a person in their locality had the same aliases or names as they. It is not uncommon that even an eightyear-old child can identify that Jesus Geraldo was known as Badjing and that Amado Ariate was Amado.[32] (Underscoring supplied)

Contrary, however, to the immediately-quoted ruling of the appellate court, it is the prosecution, not petitioners, which had the burden of proving that petitioners were, at the material time, the only ones in the barangay who bore such nicknames or aliases. This, the prosecution failed to discharge. When there is doubt on the identity of the malefactors, motive is essential for their conviction.[33] The Court notes that in their affidavits supporting the criminal complaint, the victims wife and children Mirasol and Arnel proffered not knowing any possible motive for petitioners to shoot the victim.[34] At the trial, no evidence of any motive was presented by the prosecution. Petitioners defense of denial and alibi thus assumes importance. Specifically with respect to petitioner Ariate, the victims wife admitted that Ariate accompanied her family in bringing the victim to the hospital.[35] While non-flight does not necessarily indicate innocence, under the circumstances obtaining in the present case, Ariates spontaneous gesture of immediately extending assistance to the victim after he was advised by the Barangay Kagawad of the victims fate raises reasonable doubt as to his guilt of the crime charged.[36]

E V I D E N C E : H E A R S A Y E V I D E N C E | 103

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated June 30, 2006 affirming with modification the Decision of Branch 41 of the Surigao del Sur Regional Trial Court is REVERSED and SET ASIDE. Petitioners Jesus Geraldo and Amado Ariate are ACQUITTED of the charge of Homicide for failure of the prosecution to establish their guilt beyond reasonable doubt. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release

of petitioners unless they are being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 104 FIRST DIVISION [G.R. No. 136859. April 16, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICHARD BACUNAWA and ERNESTO BACUNAWA,accused-appellants. DECISION YNARES-SANTIAGO, J.: Accused-appellants, brothers Richard and Ernesto Bacunawa, were charged with murder in an Information[1] which reads: That on or about January 19, 1994 in the evening thereof, at Barangay Canomay, Municipality of Dimasalang, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the abovenamed accused conspiring together and confederating with each other, with intent to kill by means of treachery and taking advantage of their superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab EMERSON LARGO, with a bladed weapon, inflicting upon him mortal wound which caused his death thereafter. CONTRARY TO LAW. Accused-appellants pleaded not guilty. Trial on the merits ensued. At around 9:30 in the evening of January 19, 1994, prosecution eyewitness Gil Ortega and the victim Emerson Largo were on their way home when they passed accused-appellants Richard and Ernesto Bacunawa. Suddenly, Ernesto Bacunawa put his arms around Largo and Richard Bacunawa stabbed him with a one foot-long knife. Gil Ortega was three (3) arms length away from the victim when the stabbing took place. Thereafter, accused-appellants fled. Ortega was able to see accused-appellants faces from the beam of the headlight of a motorcycle and the Coleman lamp at the house of one Melchor Arcueno, which illuminated a portion of the road approximately five arms length from where the victim was stabbed. Prosecution witness Jeffrey Cervantes corroborated Gil Ortegas testimony. According to him, he and his wife were on their way to the town plaza of Canomay, Dimasalang, to watch the program in celebration of the town fiesta. Along the way, they passed by the house of Melchor Arcueno and saw accused-appellants standing at the side of the said house. Richard Bacunawa was carrying a knife and wearing a sleeveless shirt. Shortly thereafter, they met Gil Ortega and the victim Emerson Largo, who were on their way home to change clothes as they were planning to attend the dance being held at the plaza. After walking a few meters, Cervantes heard Emerson Largo shout for help, saying that he was hit. Cervantes went back to help and saw the victim with a stab wound at the right side of his abdomen. He also saw the culprits running away as they were illuminated by the light of the motorcycle. While the victim was at the hospital of Dr. Alino, he gave a dying declaration pointing to Richard Bacunawa as the one who stabbed him. He thumbmarked his dying declaration with his own blood. The declaration was witnessed by SPO2 Pedrito Afable and Christopher Capacio. Eventually, Emerson died. Accused-appellants, however, had another version of the incident. According to Ernesto Bacunawa, he was looking for his brother Richard at the slaughterhouse where the latter worked. Not finding his brother there, he proceeded to Canomay, Dimasalang. As he passed by the road going to the church and the Zenaida Theater, which is about 150 meters from the scene of the crime, he heard and recognized the voice of his brother shouting for help. He rushed to where his brother was and found him being ganged upon by five men. He claimed that his younger brother was being punched and kicked even as he was already flat on his back. As Ernesto came to Richards aid, the victim attacked and tried to stab him. He allegedly retaliated by stabbing him on the frontal part of his body. He claimed that he did not know the identities of the persons who attacked his younger brother. After stabbing the victim, he

E V I D E N C E : H E A R S A Y E V I D E N C E | 105 helped his brother while the victims companions fled. The following morning, the brothers went to the farm of their uncle to help make copra. It was only there that they learned of the identity of the victim. The trial court found the testimonies of prosecution witnesses Jeffrey Cervantes and Gil Ortega credible and, thus, rendered judgment as follows:[2] WHEREFORE, the court finds and so holds that the accused Richard Bakunawa (sic) and Ernesto Bakunawa (sic) are guilty beyond reasonable doubt of the crime of Murder, and hereby sentences each of them to suffer imprisonment of reclusion perpetua with all the accessory penalties of the law, and to indemnify the heirs of Emerson Largo, the sum of P50,000.00 and the further sum of P50,000.00 as moral damages without subsidiary imprisonment in case of insolvency. Accused-appellants interposed this appeal, claiming that the trial court erred: I. IN HOLDING THAT RICHARD BACUNAWA STABBED THE VICTIM FOR THE TRUTH WAS THAT ERNESTO BACUNAWA REALLY STABBED THE VICTIM AND NOT RICHARD. II. IN BELIEVING THAT ERNESTO BACUNAWA EMBRACED THE VICTIM FOR THE TRUTH WAS THAT THERE WAS NO EMBRACING OF THE VICTIM BEFORE THE STABBING. III. IN BELIEVING THE THEORY OF THE PROSECUTION FOR THERE WAS NO QUARREL, GRUDGE, OR COMPELLING MOTIVE TO KILL. IV. IN BELIEVING THE TESTIMONY OF JEFFREY CERVANTES THAT RICHARD BACUNAWA WAS CARRYING AND EXHIBITING PUBLICLY A FOOT-LONG KNIFE BEFORE THE STABBING. V. IN BELIEVING THE TESTIMONY OF EYEWITNESS, GIL ORTEGA, THAT THE ACCUSED WERE LIGHTED (SIC) BY THE MOTORCYCLE AND SAID WITNESS RECOGNIZED THEM. VI. IN BELIEVING THE TESTIMONY OF GIL ORTEGA THAT HE KNEW RICHARD BACUNAWA AND ERNESTO BACUNAWA ONE YEAR BEFORE JAN. 19, 1994. VII. IN BELIEVING THE TESTIMONY OF EYEWITNESS, GIL ORTEGA, THAT RICHARD BACUNAWA AND ERNESTO BACUNAWA, EMERSON LARGO, GIL ORTEGA, THREE OTHER PERSONS WHOM YOU (SIC) CANNOT (SIC) RECOGNIZE, INCLUDING JEFFREY CERVANTES AND HIS WIFE WERE PRESENT DURING THE INCIDENT.[3] We are not persuaded. First, the defense insists that Ernesto Bacunawa, not Richard Bacunawa, was the one who stabbed Largo to death. This was based on Ernestos supposed admission that he was the one who delivered the death blow on Largo. Also, the defense claims that the victim and the eyewitnesses imputed the crime to Richard because he was the one known to them. This argument is flawed. Prosecution eyewitness Gil Ortega and the victim himself positively identified Richard Bacunawa as the person who delivered the fatal thrust. The defense failed to substantiate its claim that the victim and the eyewitness shifted the blame on Richard Bacunawa simply because they did not personally know Ernesto Bacunawa. Richard Bacunawa lived in the same town as Ortega and Largo since birth; hence, it is possible that the latter knew him better and not Ernesto. On the other hand, Ortega and Largo also knew Ernesto Bacunawa since he has been staying in Dimasalang, Masbate, at least one month prior to the incident. Most damaging for accused-appellants was the dying declaration of Largo. At the time he executed his statement before the police, wherein he categorically identified Richard Bacunawa as his assailant, he was already in the throes of death. It would have been highly unusual for a dying victim not to identify and pin down his real assailant.

E V I D E N C E : H E A R S A Y E V I D E N C E | 106 As a general rule, when a person is at the point of death, every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth, and therefore, his statements, under such circumstances, deserve great weight.[4] Moreover, at the time of the commission of the crime, the scene was illuminated by a lamp emanating from a nearby house. Also, the headlight of a motorbike provided additional lighting. Time and again, this Court has ruled that where conditions of visibility are favorable and the witnes ses did not appear to be biased against the accused, their assertions as to the identity of the malefactors should normally be accepted. In the absence of any evidence to show that the witness was actuated by any improper motive, his identification of the accused as the assailant should be given full faith and credit.[5] Second, the defense claims there was no conspiracy between Richard Bacunawa and Ernesto Bacunawa. They attempted to discredit the eyewitness account of Gil Ortega stating that Ernesto Bacunawa put his arms around the victim prior to the stabbing by Richard Bacunawa, claiming that no statement to this effect was made in the victims dying declaration.[6] The defenses claim is untenable. A victim in the throes of death will not bother to narrate a detailed account of the incident. What is foremost in his mind is survival and the fact that he had already named his assailant would have sufficed for the time being. Besides, an examination of Largos dying declaration shows that it was in the question-and-answer format. The investigating officer merely asked him four (4) questions, to wit: (a) whether he knew the identity of his assailant; (b) the name of his assailant; (c) whether he knew of any motive on the part of his assailant; and (d) how did he feel at that time. Clearly, he was not required to discuss in detail the step-by-step assault on his person. Contrary to accused-appellants claim, conspiracy is present in this case, as shown by the following circumstances: Upon seeing the victim, and without uttering any word, Ernesto Bacunawa tried to restrain Largo while Richard Bacunawa stabbed the victim. This clearly shows that there was unity in purpose and common criminal design between them. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is conspiracy if at the time of the commission of the felony, the defendants had the same criminal purpose and acted in unison towards the execution of their common criminal design. Once the conspiracy is proven, the act of one becomes the act of all regardless of who actually rendered the fatal blow on the victim. [7] Third, the defense maintains that the Bacunawa brothers could not have harmed Largo considering the absence of any motive for them to do so. However, this theory conflicts with Ernesto Bacunawas admission that he was the one who killed the victim. Besides, proof of motive is unnecessary in view of the positive identification of the accused-appellants.[8] Last, the trial court properly appreciated the qualifying circumstance of treachery. The victim and his companion, Gil Ortega, were unsuspecting and totally unaware of the harm that was forthcoming. Immediately upon passing by accused-appellants, Ernesto Bacunawa suddenly restrained Largo by embracing him while Richard Bacunawa stabbed him on the stomach. The manner of the attack was so sudden leaving the victim no opportunity and time to offer even a token resistance. [9] The means of execution were spontaneously and consciously adopted. It can only be labeled as treacherous. The trial court was, therefore, correct in finding accused-appellants guilty of the crime of Murder, for which the imposable penalty is reclusion perpetua to death.[10] There being neither aggravating nor mitigating circumstance, the lesser of the two indivisible penalties shall be imposed. [11] The trial court likewise did not err in awarding the sums of P50,000.00 as death indemnity and P50,000.00 as moral damages to the heirs of Emerson Largo, the same being consistent with prevailing jurisprudence. WHEREFORE, based on the foregoing, the decision of the trial court, finding accused-appellants Richard Bacunawa and Ernesto Bacunawa guilty beyond reasonable doubt of the crime of Murder, and sentencing them to suffer the penalty of reclusion perpetua and to pay the heirs of Emerson Largo the sums of P50,000.00 as death indemnity and P50,000.00 as moral damages, is AFFIRMED in toto. Costs de officio.SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 107 THIRD DIVISION [G.R. No. 138265. May 29, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER LAMASAN, accused-appellant. DECISION CARPIO-MORALES, J.: On appeal is the Decision of October 6, 1998 of the Regional Trial Court of Iloilo City, Branch 23, in Criminal Case No. 48021 finding Roger Lamasan (appellant) guilty of murder for killing Rolando Parreas, Jr. (the victim). On August 29, 1997, appellant was, by Amended Information,[1] charged with murder allegedly committed as follows: That on or about July 15, 1997, in the Municipality of Mina, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot Rolando Parreas, Jr. with the use of an unlicensed firearm he was then provided, hitting the victim and inflicting upon said Rolando Parreas, Jr. wounds in his stomach which caused his death thereafter. (Underscoring in the original). CONTRARY TO LAW. The Office of the Solicitor General (OSG) presented the prosecutions version of the facts leading to the death of the victim as follows: At around 8:00 oclock in the evening of July 15, 1997, Gerardo Pasamanero was in his house at Del Pilar Street, Mina West, Mina, Iloilo when Rolando Parreas, Jr. [the victim], barangay captain of Brgy. Agmanhaphao, Mina, Iloilo, and Gelacio Aloquia, a barangay tanod, passed by. Pasamanero invited the two to his house to drink beer. They talked about the forthcoming seminar of barangay captains and the project they were about to implement (pp. 4-5, TSN, October 21, 1997). At that point, appellant . . . arrived, entered Pasamaneros house and provoked [the victim] and Aloquia. He shouted at them: If you are brave in your place, I am also brave. If you are brave, you pull out your firearm. To that, [the victim] answered: Pare, we know each other and we did not come here for trouble. Appellant, however, continued with his provocation and attempted to pull out his firearm. When he was about to pull out his firearm, [the victim] immediately hugged him and Aloquia grabbed the .38 caliber revolver from appellants waist and then handed it to Pasamanero (pp. 6-8, ibid). Pasamanero left [the victim] and Aloquia with an instruction not to harm appellant while he went to the police station to report the incident. He surrendered the revolver to P/Inspector Alex Velez (p. 9, TSN, November 4, 1997). In a short while, Pasamanero came back with P/Insp. Velez and his two (2) men who conducted an investigation. The dispute, however, was settled with a dialogue between appellant and [the victim] and the latter agreed that appellant would be detained at the police station (pp. 9-11, TSN, October 21, 1997). [The victim] sustained a wound on his lips after appellant punched him (p. 16, ibid). The police brought appellant to the Mina Police Station which was about fifty (50) meters away from Pasamaneros house, while [the victim] and Aloquia proceeded to the house of one Mariano Parian in the same barangay to attend to the latters wake (pp. 11-13, ibid). It was already 9:00 oclock in the evening (p. 18, TSN, November 4, 1997). It turned out, however, that appellant managed to escape and ran towards the dark while he was being brought to the police station. The policemen pursued him but failed to catch him (pp. 33-35, TSN, December 9, 1997).

E V I D E N C E : H E A R S A Y E V I D E N C E | 108 That same evening, at around 11:00 oclock, Edwin Reyna, a resident of Del Pilar Street, Mina West, Mina, Iloilo, went to the wake of Mariano Parian and, there, he met [the victim] and Gelacio Aloquia. [The victim] showed to him his swollen lips which, according to him, was caused by his wrestling with appellant. After half an hour, [the victim] and Aloquia told him that they were going home. Shortly after the two (2) walked out of the house, Edwin Reyna, who was then standing by the door, heard a gunshot and saw [the victim] fell (sic) down. He immediately ran towards him and cuddled him. [The victim] told him: Bring me to the hospital x x x Im going to die. He also told him that appellant . . . shot him. Reyna shouted for help and carried [the victims] body to the police patrol car. [The victim] was brought to the Iloilo Provincial Hospital at Pototan, Iloilo where he died not long thereafter (pp. 4-10, TSN, November 25, 1997). Gelacio Aloquia, who was with [the victim] when the shooting took place, saw [appellant] standing about 4 meters away, facing him and holding a 15-inch firearm. When [appellant] saw him, he immediately walked away. Aloquia was able to recognize [appellant] because of the light coming from the balcony of the house which was only about 5 to 6 meters away from [appellant] (pp. 14-17, TSN, December 2, 1997). [On July 15, 2002], [the victim] died of hemorrhage secondary to multiple pellet wounds (p. 20, TSN, October 14, 1997).[2] That appellant was neither a licensed/registered firearms and ammunition holder of any kind or caliber nor ha[d] he applied to possess any firearms, much more an authority to carry firearms outside residence[3] was established by the prosecution. Denying the accusation and proferring alibi, the defense gave the following version, as related by the trial court: [After consuming a glass of beer inside the house of Pasamanero, (appellant claimed as follows: He) asked permission to leave but as (the victim) was restraining him from leaving, an argument ensued in the course of which he saw Aloquia holding a firearm on his waist. Pasamanero soon left but returned 10 minutes later with P/Insp. Alex Velez and two (2) policemen. Not long after, Aloquia threw his firearm under the table which Pasamanero recovered (Exh. C-1). The incident between him and [the victim] was eventually settled by P/Insp. Alex Velez following which he was conducted to Sitio Burot by P/Insp. Velez with PO3 Sotelo and PO2 Moises de Pablo on board a patrol vehicle.] He thereafter took supper in his house and slept at about 11:00-11:30 oclock in the evening. Past 12 oclock midnight, however, [P]/Insp. Velez woke him up and told him to man the radio room at the police station where he worked as a radio man. Upon reaching the police station, he was detained inside the cell where he was told that he was suspected of killing [the victim]. He claims that he does not own any firearm and that the testimony of Brgy. Captain Pasamanero concerning the recovery from his waist of a firearm is a big lie. He denies having shot [the victim]. He never went to the house of Mariano Parian where [the victim] was shot. On cross-examination, he admitted that there was no previous quarrel between him and [the victim] nor Barangay Captain Gerardo Pasamanero. [O]n his part, Dionisio Camino, a trisikad driver, averred that he was present at the house of Mariano Parian attending the wake on July 15, 1997. While playing pusoy at the left side of the house, he heard one (1) gunshot at about 11:30 oclock in the evening. He saw [the victim] lying face up at the door of the house from a distance of about two (2) armslengths (sic). Contrary to the testimony of Gelacio Aloquia, he did not see Edwin Reyna at the crime scene and that nobody came near and talked with the victim during the time when the incident happened. With corroboration, Pinky Lamasan averred that at about 10:00 oclock in the evening of July 15, 1997, her husband[-appellant] arrived at their house situated at Sitio Burot, Mina East, Mina, Iloilo, with P/Insp. Alex Velez and two (2) other PNP members. [Appellant] took his supper, rested and slept at about 11:00

E V I D E N C E : H E A R S A Y E V I D E N C E | 109 oclock in the evening. At about 12:30 oclock in the morning of July 16, 1997, [P]/Insp. Alex Velez returned and fetched [appellant] to man the radio. She woke up at 5:00 oclock in the morning of July 16, 1997 and went to the public market at 7:00 oclock that same morning. [Appellant] failed to return home. Then, somebody told her that [he] was detained. She went to the municipal jail and [he] told her that he is a suspect in the murder of [the victim]. She was stunned upon hearing it because he could not have murdered [the victim] as he never left the house that evening. Victoria Caos, Forensic Chemist, National Bureau of Investigation, Regional Office VI, Iloilo City, conducted a paraffin examination on July 16, 1997 on [appellant] upon the request of [P/Insp.] Alex Velez, Chief of Police, PNP, Mina, Iloilo (Exh. 3, p. 304, rec.). She prepared Chemistry Report No. C97-46 (Exh. 4, p. 305, rec.) which yielded negative results for nitrates on the left and right hands of [appellant] (Exh. 4-C). (Emphasis and underscoring supplied).[4] Discrediting appellants denial and alibi in favor of the positive and categorical declaration of prosecution witness Aloquia that he saw appellant standing and holding a long firearm some four meters away from the victim, as well as the victims dying declaration, as related by Aloquia and Reyna, that appellant was the one who killed the victim, the trial court convicted appellant of murder by Decision of October 6, 1998,[5] the dispositive portion of which reads: WHEREFORE, premises considered and in the light of the facts obtaining and jurisprudence aforecited, JUDGMENT is hereby rendered finding the accused Roger Lamasan GUILTY beyond reasonable doubt of the crime of Murder and there being no mitigating nor aggravating circumstance attendant in the commission thereof hereby sentences said accused to the penalty of Reclusion Perpetua pursuant to Section 6 of Republic Act 7659 amending Article 248 of the Revised Penal Code. The said accused is further condemned to indemnify the heirs of the deceased Rolando Parreas, Jr. the sum of P129,530.00 by way of actual damages, P30,000.00 moral damages and P50,000.00 death compensation. The Warden, Iloilo Rehabilitation Center, is ordered to commit the person of the accused to the National Penitentiary at the earliest opportunity. SO ORDERED.[6] Hence, the present appeal which ascribes the following errors to the trial court: I. THE LOWER COURT ERRED IN RULING THAT THE QUALIFYING CIRCUMSTANCE OF TREACHERY ALLEGEDLY ATTENDED THE COMMISSION OF THE ALLEGED CRIME OF MURDER. ON THE BASIS OF THE PROSECUTION EVIDENCE, THE ALLEGED CRIME COMMITTED IS ONLY HOMICIDE. II. THE LOWER COURT ERRED IN NOT UPHOLDING THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF THE ACCUSED AND IN BASING CONVICTION MERELY BY DRAWING STRENGTH FROM THE WEAKNESS OF THE EVIDENCE FOR THE DEFENSE. The second assigned error shall first be dwelt upon for if it is meritorious discussion of the first is rendered unnecessary. Contrary to appellants claim, the prosecution prima facie overcame his constitutional presumption of innocence. Prosecution witness Reyna clearly pierced such presumption as his following testimony shows, quoted verbatim:

E V I D E N C E : H E A R S A Y E V I D E N C E | 110 [ATTY. ALIM for the prosecution:] Q A Q A Q A Q A Q A Q A Q A : : : : : : : : : : : : : : So what happened next after [the victim] asked permission from you to go home? After he had asked permission from me, I told them to just go ahead first. And what happened next after that? After a while I heard the gunshot. What did you do after hearing that fire of the gun? I saw [the victim] as if falling down. What did you do then? After that Gelacio Aloquia ran to him and I also ran to him. What did you do in running going to the place where [the victim] fell? We cradled him. What was your distance from the place where [the victim] fell? Three (3) or four (4) meters. Now, what happened next Mr. Witness after you cradled [the victim]? He told us, You bring me to the hospital. xxxxx Q A Q A Q A Q A : : : : : : : : What did [the victim] say? Bring me to the hospital as if Im going to die. Have you seen the wounds, if any, of [the victim]? I saw. On what part of his body? At the stomach. What else did [the victim] tell you? He pointed to [appellant] as the one responsible of shooting him.

COURT: What did he exactly tell you? A Q A : : : I was shot by [appellant]. You are sure that that is what he said? Yes, Your Honor. (Emphasis supplied).[7]

While prosecution witness Aloquia did not, like Reyna, see appellant shoot the victim, he corroborated Reynas testimony on material points as his following testimony reflects: [ATTY. ALIM for the prosecution:] Q A Q A : : : : What happened next after [the victim] asked permission to leave the house? He went out of the house. What about you? I followed him.

E V I D E N C E : H E A R S A Y E V I D E N C E | 111 Q A Q A Q A Q A Q A Q A : : : : : : : : : : : : How about Edwin Re[y]na? He was near the door. What happened next after [the victim] was already outside of the house? There was a shot. Shot of what? 12 gauge. What happened next after you heard that fire of gun? I looked where the shot emanated and I saw [appellant]. The same [appellant], the accused in this case? Yes, sir. Why do you know that it was [appellant]? Because I saw him.

COURT: What was he doing when you saw him? A Q A Q A Q A Q A : : : : : : : : : Standing, facing me. What was his attire? I can not recall the shirt. Was he holding any weapon? Yes, sir. What firearm? 12 gauge. Is it long or short? Like this (Witness demonstrating the length of 15 inches.) How do you know it is a 12 gauge shotgun?

ATTY. ALIM: A Q A : : :

From the appearance and from the shot I heard. You saw [appellant] after the gun was fired? Yes, sir.

COURT: How far was he from where the victim was situated? A : More or less 4 meters. What did he do then after that?

ATTY. ALIM: A Q A : : :

When he saw me he immediately walked. In what part of the house of Parian? If you enter the house it is on the right side.

COURT: About what time was that when you saw him standing? A : 11:30 in the evening.

E V I D E N C E : H E A R S A Y E V I D E N C E | 112 Q A Q A : How would you have seen him at a distance of 4 meters away when it was night time? : : : Because the light coming from the balcony of the house reaches the door. How far was the light in relation to [appellant] when you saw him holding a firearm? Maybe about 5 or 6 meters, more or less. Was that a fluorescent lamp?

ATTY. ALIM: A :

One (1) fluorescent lamp and the light used in the coffin. What did you do then after you heard that fire of the gun?

ATTY. ALIM: A Q A Q A Q A Q A Q A

: I cuddled [the victim] and asked him who shot him and he answered, [appellant]. : : : : : : : : : : What else did he tell you? He asked me to bring him immediately to the hospital because his wound is fatal. What about Edwin Re[y]na? Two of us cuddled him. What did you do then after you have [the victim] cuddled? (sic) He was brought to the hospital and we followed him. To what hospital? Pototan Provincial Hospital. And what happened to [the victim] after that? He died.[8] (Emphasis supplied).

No person who knows of his impending death would make a careless or false accusation, hence, a dying declaration is entitled to the highest credence. Thus, it has been held that when a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.[9] Under Section 37 of Rule 130 of the Rules of Court, the requisites for the admissibility of ante mortem statements are: (1) the statement concerns the crime and the surrounding circumstances of the declarants death; (2) at the time it was made, the declarant was under the consciousness of an impending death; (3) the declarant would have been competent as a witness had he survived; and (4) the declaration was offered in a criminal case for homicide, murder, or parricide in which the declarant was the victim.[10] All four requisites are present in the case at bar. Thus, from the evidence of the prosecution, it is clear that the victim identified appellant as his killer; and the victim made the declaration in contemplation of his impending death and he died shortly as a result of his fatal wounds. Had the victim survived, it cannot be gainsaid that he was competent to testify in court. Lastly, the dying declaration was offered in a criminal prosecution for murder in which the declarant was the victim. That Reyna gave an account of what he witnessed only after ten days from the commission of the crime was adequately explained by him when he testified that he was initially reluctant to get involved in a case but felt that he had to break his silence for justice to prevail.[11] The delay of Reyna in reporting what he had witnessed does not thus impair his credibility nor destroy the probative value of his testimony.

E V I D E N C E : H E A R S A Y E V I D E N C E | 113 Contrary to appellants claim, there is no discrepancy between Reynas testimony and his declarations in his sworn statement. While Reyna declared at the witness stand that the victim had told him that he was punched by appellant, whereas in his sworn statement no categorical statement about a punching incident was mentioned, Reyna did actually refer to such incident in his sworn statement when he declared that the victims swelling lips resulted from grappling with [appellant] for the possessi on of a firearm.[12] In any event, sworn statements, being taken ex parte, are almost always incomplete and often inaccurate for various reasons, sometimes from partial suggestion or for want of suggestions and inquiries.[13] In fine, the prosecution prima facie established appellants guilt beyond reasonable doubt. Appellant failed, however, to rebut the prima facie evidence against him. His alibi is inherently weak, he having failed to demonstrate that it was physically impossible for him to have been at the scene of the crime.[14] That appellants house is within the vicinity of Mina East, Iloilo where the crime occurred is undisputed, hence, it was not physically impossible for him to leave his house and repair to the house of Pari-an, shoot the victim, and then return to his house where he was found and later haled into the local police station. It is, however, non sequitur to conclude, and that brings the discussion to the first assigned error, that the attack was tainted with treachery because it was sudden. For alevosia to be considered to have attended the killing, it was necessary for the prosecution to establish that: (1) the employment of means of execution gave the victim no opportunity to defend himself or to retaliate, and (2) the means of execution were deliberately or consciously adopted.[15] This, the prosecution failed to do. Neither did the prosecution prove that there was evident premeditation, for it failed to prove: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit had clung to his determination; and (3) a sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will, the essence of premeditation being that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. [16] The presence of the qualifying circumstances of treachery and evident premeditation having been ruled out, the crime for which appellant should be faulted must thus be modified from murder to homicide. Accordingly, the penalty to be imposed on appellant must correspondingly be lowered. There being one aggravating circumstance of using an unlicensed firearm in the commission of homicide, the proper imposable penalty should be reclusion temporal in its maximum period. As to the civil aspect of the case, the award of actual damages for the funeral expenses in the total amount of P129,330.00, itemized as follows: P40,000.00 for coffin; P1,530.00 for burial services; P10,000.00 for 12 sacks of rice; P30,000.00 for 6 pigs; P13,800.00 for 1 truckload of soft drinks; and P34,000.00 for 2 cows, is affirmed, it being supported by undisputed evidence.[17] The award of P50,000.00 as civil indemnity is also affirmed, as is that of moral damages which is increased to P50,000.00 in line with current jurisprudence. WHEREFORE, the decision on review is AFFIRMED with MODIFICATION. As modified, appellant Roger Lamasan is found GUILTY beyond reasonable doubt of the crime of homicide, aggravated by the use of an unlicensed firearm, and is hereby sentenced to suffer an indeterminate sentence of Twelve (12) Years of prision mayor, as minimum and Seventeen (17) Years, Four (4) Months and One (1) Day of reclusion temporal, as maximum. Appellant is also ORDERED to pay the heirs of Rolando Parreas the amount of P129,330.00 as actual damages, P50,000.00 as civil indemnity, and P50,000.00 as moral damages.SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 114 EN BANC [G.R. No. 127753. December 11, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO VALDEZ Y DULAY, accusedappellant. DECISION BUENA, J.: For automatic review is the decision of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta, Pangasinan convicting appellant Domingo Valdez y Dulay guilty of two crimes: (1) murder for which he was sentenced to suffer the death penalty and (2) illegal possession of Firearms and Ammunition under Presidential Decree No. 1866 for which he was sentenced to suffer reclusion perpetua based on the following criminal indictments: CRIMINAL CASE NO. U-8719 That on or about 31st day of October, 1995 at barangay San Roque, Municipality of San Manuel, Province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully, and feloniously attack and shot one Labrador Valdez y Madrid, hitting the latters chest and the gunshot wounds inflicted being mortal, caused the direct and immediate death of the said victim, to the damage and prejudice of his heirs. Contrary to Article 248, Revised Penal Code.[1] CRIMINAL CASE NO. U-8720 That on or about the 31st day of October, 1995 at barangay San Roque, Municipality of San Manuel, Province of Pangasinan, and within the jurisdiction of this honorable Court, the said accused did then and there, wilfully, unlawfully, and feloniously have in his possession, control and custody a firearm of an unknown caliber, make and brand without authority of law, and which he used in shooting to death Labrador Valdez y Madrid. Contrary to Presidential Decree No. 1866.[2] On October 31, 1995, at around 9:00 oclock in the evening at Sitio Laclac, Barangay San Roque, San Manuel, Pangasinan, Marcelo Valdez was under his nipa house talking with his son Labrador Valdez. At that time, Marcelos other housemates his wife, son Rolando Valdez, daughter-in-law Imelda Umagtang and an eight-year-old boy named Christopher Centeno were staying upstairs preparing to sleep. In the course of their conversation, Labrador was lying sideways on a carabao sled, placed under the family nipa house. He was facing his father at the eastern side of the house, at a distance of about less than two (2) meters from each other. [3] TSN, June 13, 1996, pp. 14 and 17. 3 Suddenly, two consecutive gunshots were fired coming from the western side of the house by an assailant.[4] The first shot landed on the left forefinger and thumb of Labrador, while the second shot hit him two (2) inches from the left shoulder, below the neck which exited at the right side just below his breast.[5] After firing, the assailant immediately ran away towards the west direction.[6] Marcelo Valdez who was talking to his son, immediately called for help while the victim managed to walk upstairs towards the kitchen. The stunning sound of the two gunfire and Marcelos cry for help alerted Imelda Umagtang and her common-law husband Rolando Valdez, who were both lying on bed, to verge upon the kitchen where they saw the victim bathed in his own blood. When Rolando inquired from the victim who shot him, the latter replied that it was the appellant. At this time, the victims brother and in-laws arrived. They also asked the victim what happened and the latter once more said that it was appellant who shot him. At such time, the search for the passenger jeep that will transport the victim to

E V I D E N C E : H E A R S A Y E V I D E N C E | 115 the hospital continued. After an hour, they were able to find a passenger jeep but the victim already succumbed to death prior to his transport to the hospital. The next day, on November 1, 1995, Dr. Asuncion Tuvera of San Manuel Rural Health Unit conducted the autopsy on the cadaver of the deceased in the latters house. The medical examination revealed the following gunshot woundsA. External findings: Chest - gunshot wound at the left sternal line 2 inches below the left clavicle, 2 cm in diameter penetrating - gunshot wound at the right enterior axillary line at the level of the lumbar area. Extremities lacuated wound on the left thumb and index finger with fracture of the phalanges. B. Internal findings: Chest fracture of the 3rd enterior left rib. Abdomen placuated wound of the liver. Cause of death: Cardio respiratory arrest secondary to severe hemorrhage secondary to gunshot wound on the chest and lumbar area. (Exhibit E; records, p. 7) Thereafter, appellant was charged before the trial court with two separate information for murder and illegal possession of firearms to which he pleaded not guilty. After trial, judgment was rendered convicting appellant as earlier mentioned. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing, the Court finds: IN CRIMINAL CASE NO. U-8719: The accused DOMINGO VALDEZ Y DULAY GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under republic Act No. 7659 otherwise known as the Heinous Crime Law, the offense having been committed with the attendant aggravating circumstances of evident premeditation, abuse of superior strength and nighttime, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law, to pay the heirs of the victim LABRADOR VALDEZ in the amount ofP50,000.00 as indemnity; P23,500.00 as actual damages; P200,000.00 as moral damages; and to pay the costs. IN CRIMINAL CASE NO. U-8720: The accused DOMINGO VALDEZ Y DULAY, GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866 and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs. Finally, it is said: Dura lex, sed lex, translated as The law is harsh, but that is the law. SO ORDERED.[7]

E V I D E N C E : H E A R S A Y E V I D E N C E | 116 Appellant questions his conviction arguing that the court a quo erred I. in convicting the accused of murder notwithstanding the failure of the prosecution to prove his guilt beyond reasonable doubt. II. in appreciating the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation, abuse of superior strength and nighttime on the assumption that indeed accused appellant shot the victim. III. in not applying the provision of R.A. 8294, amending P.D. 1866 IV. in convicting the accused for two separate offenses V. finding the accused guilty of violating P.D. 1866[8] After a careful examination of the records, appellants conviction should be upheld. The elements of murder concur in this case. Appellant shot the victim twice. The wounds sustained by the deceased at the left thumb, index finger and at the left shoulder below the neck exiting to the right side just below the breast were caused by bullets. As a result of these gunshot wounds, the victim suffered Cardio respiratory arrest secondary to severe hemorrhage secondary to gunshot wound on the chest and lumbar area which was described in the medico-legal report as the proximate cause resulting to his death. Appellants defense is premised primarily on denial and alibi. He argues that on the day of the incident he was hauling and transporting 27 cavans of palay with Reymante and Conrado Centino[9] from 6 to 9 oclock in the evening of October 31, 1995, to the house of Mrs. Juanita Centino. Thereafter, they took supper at Conrados house and drank wine and went home around 11 oclock in the evening. His version was corroborated by Reymante and Conrado and the latters mother, Mrs. Centino, a sexagenarian. Such defenses, however, aside from being inherently weak, cannot prevail against a positive and explicit identification of him not only by Marcelo Valdez but also by the victim himself. To exculpate himself, appellant must not only show that it was impossible for him to be at the place where the crime was committed, but it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[10] The distance between the place where the crime happened, to the Centinos house where appellant claimed he was, is more or less one (1) kilometer, which could be negotiated by walking for thirty (30) minutes, and twenty (20) minutes by riding a vehicle. [11] Appellants whereabouts at the time of the incident was insufficient to foreclose any possibility for him to be present at the scene of the crime, given the proximity of the two places. Appellant further contends that witness Marcelo Valdez could not have positively identified him because there was only a single kerosene lamp lighting the area and the witness was already seventy years old, who, at such age, would have a nebulous identification of the assailant. Appellants assertion of impossibility of identification in a period of a few seconds look at the time of the second shot, which was fired successively, was negated by the fact that appellant shot the victim at a distance of around two meters from the kerosene lamp. The distance of the appellant from the kerosene lamp does not preclude the possibility of identification since the place was properly illumined capacitating the witness to identify the assailant. In fact, both Marcelo and the deceased were able to identify appellant. Appellant capitalizes on the alleged failure of Lilia Valdez (wife of the deceased) to mention to the officer who investigated the killing, that she heard her husband say that the appellant was his assailant. He argues that her testimony in court that she heard her husband say that it was appellant who shot him, was merely an afterthought. In support thereof, appellant quotes the following answers of Lilia Valdez during cross-examination ATTY. VIRAYQ: Now, in the sworn statement Madam witness which you gave to the police authorities of San Manuel, Pangasinan, you never mentioned that your husband told you that he was allegedly shot by the accused, is this correct?

E V I D E N C E : H E A R S A Y E V I D E N C E | 117 A: Yes, sir. ATTY. VIRAY: The answer is not responsive, we request the question to be read back. COURT: She said, she did not tell that to the police. ATTY. VIRAY: Q: Why did you not tell to the police authorities that your husband told you that your husband was shot by Domingo Valdez? A: I forgot, sir. [TSN, July 3, 1996, pp. 24-25] We have thoroughly reviewed the records and studied the alleged contradiction between the court testimony and the sworn statement of Lilia Valdez only to find that appellant is misleading the court. In her sworn statement Lilia Valdez stated 15. Q: Was you (sic) husband able to identify his assailant?

A: Yes, sir. He identified Domingo Valdez as his assailant when asked by brother-in-law Rolando Valdez before he was brought down to kitchen on the way to the hospital, sir. [Exhibit D, Folder II, Records, p. 3] It is also clear from the records that as early as November 1, 1995, the day after the killing, the principal prosecution witness Marcelo Valdez (father of the deceased), along with Lilia Valdez (wife of the deceased), Imelda Umagtang (sister-in-law of the deceased) alluded to appellant as the killer before police officer Avelino Sandi, Jr. who conducted the investigation. Their respective sworn statements were reduced into writing denouncing and identifying appellant as responsible for the death of Labrador Valdez. Imelda Umagtang[12] testified to these utterances of the deceased in court. The victims septuagenarian father Marcelo Valdez likewise affirmed t he identity of the appellant as the assailant. He testified in court that he recognized the assailant with the lighting coming from the kerosene lamp hanging on the wall, which illuminated the whole ground of the nipahut.[13] He claimed that he recognized appellant at the second shot[14] at a distance of around three meters (3) away from him.[15] At the time appellant fired the second shot, appellant was less than a meter away from the victim[16] and around two meters from the kerosene lamp.[17] Lilia Valdez, the victims wife, recounting that fateful day, similarly attested appellants culpability in court. She testified that when her husband was shot she was in her house with her children, about 25 to 30 meters[18] from the victims location. When she heard the gunfire and the summons of her parents-inlaw that her husband was shot, she rushed to her husband and saw him bloodied, lying prostrate in the kitchen. She asked the victim what happened and the latter answered that appellant shot him. Appellant likewise debunks the probative value given to Imelda Umagtangs testimony that she heard the victim say that it was appellant who shot him because such statement was not directed to her by the victim but to Rolando Valdez.[19] This according to appellant finds support in the following testimony of Imelda ATTY. VIRAY Q: So it is very clear from your statement that it was your live-in boyfriend, Rolando Valdez, who asked question from the victim not you, is this correct? A: Yes, sir. Q: You never asked questions from the victim, is this correct? A: No, sir. I heard what he revealed to my live-in boyfriend, sir.[20]

E V I D E N C E : H E A R S A Y E V I D E N C E | 118 There is no rule that a person who hears something cannot testify on what she heard. A dying declaration need not be particularly directed only to the person inquiring from the declarant. Anyone who has knowledge of the fact of what the declarant said, whether it was directed to him or not, or whether he had made inquiries from the declarant or not, can testify thereto. Hearsay evidence, whether objected to or not, possesses no probative value unless the proponent can show that the same falls within the exception to the hearsay rule.[21] The statement of the deceased uttered shortly after being wounded by the gunfire is a dying declaration, which falls under the exception to the hearsay rule.[22] It may be proved by the testimony of the witness who heard the same or to whom it was made.[23]Appellant contends that the identification by the deceased of his assailant, which was admitted as a dying declaration under Section 37, Rule 130 of the Rules of Court, cannot be admitted because when the said statements were uttered the declarant was not conscious of his imminent death,[24] relying on the following testimony of Imelda Umagtang and Lilia Valdez, thus Q: What was your observation when he was lying down waiting for the ride to come? A: He was already very weak, sir. Q: Did somebody ask of his physical condition at that time? A: Yes, sir. Q: Who? A: Lago Valdez, sir. Q: What did he ask? A: He asked if he can still manage, sir. Q: What did Labrador Valdez answer? A: He said, no more, sir. Q: What do you mean by he cannot manage anymore? A: He was already very weak at that time, sir. Q: And? A: And he was dying, sir. Q: He said he was dying? A: No, sir. Q: But he was feeling weak already? A: Yes, sir.[25] and Q: When you were there near your husband lying in the kitchen in the house of your father-in-law, what was your observation regarding his physical condition? A: He was shot, Your Honor. Q: Did you ask him what was he feeling at that time? A: Yes, sir. Q: What did he answer? A: He said, he was weak, Your Honor.

E V I D E N C E : H E A R S A Y E V I D E N C E | 119 Q: Did he tell you that he is going to die? A: No, Your Honor.[26] The victims statements prior to his death identifying appellant as his assailant have the vestiges of a dying declaration, the elements for its admissibility are: (1) the declaration was made by the deceased under consciousness of his impending death; (2) the deceased was at time competent as a witness; (3) the declaration concerns the cause and surrounding circumstances of the declarants death; and (4) it offered in a criminal case wherein the declarants death is subject of inquiry.[27] These requirements are present in this case. The deceased made, before his death, more than one statement, naming the person who shot him. The statements uttered by the deceased were in response to the queries about the identity of the assailant. Such utterances are admissible as a declaration of the surrounding circumstances of the victims death, which were uttered under the consciousness of an impending death. That the victim was conscious of his impending death is shown by the extent and seriousness of the wounds inflicted upon the victim. The victim, prior to his death, was competent to be a witness in court and such dying declaration is offered in a criminal prosecution for murder where he was himself a victim. In a further but futile attempt to exculpate himself from liability, appellant contends that he has no motive to kill the victim. While he admitted that the victim eloped with his wife, he was not the only suspect having a motive to kill the victim. Suffice it to say that the evidence on motive is inconsequential when the identity of the culprit has been positively established[28] as in this case. Ultimately, the issues raised by appellant fall within the sphere of credibility of witnesses which, the reviewing court on appeal, ordinarily gives deference to the assessments and conclusion of the trial court provided it is supported by the evidence on record. Findings of facts by the trial court are usually not disturbed on appeal on the proposition that the lower court had the unique opportunity of having observed the elusive and incommunicable evidence of the witnesses deportment on the stand while testifying. The killing was attended by treachery when the deceased was shot at his back while lying on a carabao sledge conversing with his father, in a sudden and unexpected manner giving him no opportunity to repel it or defend himself against such attack,[29] and without any provocation on his part. With respect to the other aggravating circumstances of evident premeditation, abuse of superior strength, and nighttime, this Court cannot appreciate the same against the appellant for lack of factual basis. There is no evidence on record that appellant contemplated and took some time of cool reflection before performing his evil act for evident premeditation to set in. The abuse of superior strength, assuming there is any, is already absorbed in treachery. Nighttime as an aggravating circumstance was not established for lack of proof that appellant specifically sought the darkness of night to perpetuate his deed. In the absence of any evidence that nocturnity was specifically sought for by the offender in the commission of the crime, such aggravating circumstance may not be validly appreciated. In criminal prosecutions, the accused is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.[30] The prosecution ably discharged its duty by establishing its case against appellant through the required quantum of proof. In Criminal Case No. U-8720, appellant was found guilty of the crime of Illegal Possession of Firearms and Ammunition punished under P.D. 1866 and was sentenced to suffer the penalty of reclusion perpetua and to pay the costs. His separate indictment was on account of the unlicensed firearm used in the killing. Under Section 1 of Republic Act No. 8294,[31] if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Although the crime in this case was committed in 1995, the amendatory

E V I D E N C E : H E A R S A Y E V I D E N C E | 120 law (R.A. No. 8294) which became effective on July 6, 1997, fifteen (15) days after its publication in Malaya and Philippine Journal on June 21, 1997, since it is favorable to appellant, [32] shall be given a retroactive effect. Therefore, the illegal possession or use of the unlicensed firearm may no longer be separately charged[33] and only one offense should be punished, viz., murder in this case, and the use of unlicensed firearm should only be considered as an aggravating circumstance. [34] Considering that appellant is liable for murder, the illegal possession case can no longer be pursued because it is merely treated as an aggravating circumstance. Article 248 of the Revised Penal Code penalizes murder with reclusion perpetua to death. Since the killing was committed with the use of an unlicensed firearm, such circumstance will be treated merely as an aggravating circumstance under R.A. 8294. Pursuant to Article 63 of the Revised Penal Code, when the law prescribes a penalty composed of two indivisible penalties, such as reclusion perpetua to death, there being one aggravating circumstance, the greater penalty (death) shall be applied. However, the aggravating circumstance of use of an unlicensed firearm cannot be appreciated in this case because its retroactive application would be unfavorable to the accused, since the higher penalty of death would necessarily be imposed. Thus, we could only impose the penalty of reclusion perpetua in line with the ruling in People vs. Nepomuceno, Jr.[35] It must be underscored that although R.A. No. 7659 had already taken effect at the time the violation of P.D. No. 1866 was allegedly committed x x x there is nothing in R. A. No. 7659 which specifically reimposed the death penalty in P.D. No. 1866. Without such reimposition, the death penalty imposed in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm shall remain suspended pursuant to Section 19(1) of Article III of the Constitution. Conformably therewith, what the trial court could impose was reclusion perpetua. WHEREFORE, the assailed judgment is hereby MODIFIED as follows: 1. In Criminal Case No. U-8719 for MURDER, the penalty imposed on accused-appellant DOMINGO VALDEZ Y DULAY is reduced to reclusion perpetua. In addition to the death indemnity of P50,000.00, the P200,000.00 moral damages awarded by the trial court to the heirs of Labrador Valdez y Madrid is reduced to P50,000.00, and the P23,500.00 awarded as actual damages is likewise reduced to P19,000.00, the amount actually proved. 2. In Criminal Case No. U-8720 for ILLEGAL POSSESSION OF FIREARMS, the sentence imposed on accused-appelant DOMINGO VALDEZ y DULAY is SET ASIDE and ANNULLED and the case is DISMISSED, the act charged therein being considered merely as an aggravating circumstance pursuant to P.D. 1866, as amended by Rep. Act No. 8294. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 121 [G.R. No. 24937. March 20, 1926. ] THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. GREGORIA BINGAAN,Defendant-Appellant. E. A. Perkins for Appellant. Attorney-General Jaranilla for Appellee. SYLLABUS 1. WHERE THERE IS A REASONABLE DOUBT, DEFENDANT SHOULD BE ACQUITTED. Where the defendant was charged with the crime of parricide and plead self-defense, and the act was committed in the home of the deceased some time during the night, and when there was no light in the house, and there were no eyewitnesses, and all of the six wounds which the defendant inflicted were on the left side of the deceased, and where the evidence tends to show that there was a struggle between the husband and the wife, and that she honestly thought that her own wife was in serious danger, and the record shows that her height was only 4 feet and 6 inches, and her weight 37 kilos, all of such facts, together with the surrounding circumstances, are sufficient to create a reasonable doubt as to the guilt of the defendant, resulting in her acquittal. STATEMENT The appellant was charged in the Court of First Instance of Oriental Negros with the crime of parricide in the following information:jgc:chanrobles.com.ph "That on or about June 7, 1925, in the municipality of La Libertad, Oriental Negros, Philippine Islands, and within the jurisdiction of this court, the aforesaid accused willfully, unlawfully and feloniously, with premeditation, treachery, nocturnity and trespass to dwelling (sic) did attack and wound her husband, Gaspar Balbuena, with a knife, inflicting upon him several wounds, as a consequence of which said Gaspar Balbuena died a few hours thereafter; contrary to law."cralaw virtua1aw library She was found guilty and sentenced to cadena perpetua, with the accessory penalties, to pay an indemnity of P1,000 to the heirs of the deceased, and the costs, from which she appeals, contending that "the lower court erred in not acquitting the defendant of the crime charged." DECISION

JOHNS, J. :

In analyzing the evidence, the Attorney-General says:jgc:chanrobles.com.ph "It is an undisputed fact that the accused killed her husband Gaspar Balbuena. It has been established also, in our opinion, that there was an unlawful aggression on the part of the deceased. The only witness of the occurrence was the accused, and her uncontradicted testimony on this point is so cogent and reasonable that it has to be accepted. No sufficient motive for the accused to kill her husband has been proved. The more or less strained relations existing between them, due to the jealousy of the husband, could not, we believe, have induced her to kill him in the manner she did. If her husband was sleeping or lying down, according to his dying declaration, when he was stabbed, one thrust of the knife, at some vital part of his body would have been sufficient to end his life. But the fact is that the deceased received six wounds, only three of which could be considered deadly. The position of these wounds, all on the left side of the deceaseds body, one on the left shoulder and two in the left arm; their depth, the maximum

E V I D E N C E : H E A R S A Y E V I D E N C E | 122 being 1 inches; and their length, from 1 1/3 to 2 inches, all corroborate the testimony of the accused that there was a struggle between her and the deceased. If her intention was to kill her husband, while the latter was sleeping or lying down unaware of the intended attack, she could have inflicted one deep wound at some vital part of his body, which would have prevented him from struggling and would have been made the other wounds unnecessary. It cannot be presumed that she would entertain herself by making several cuts in his arms and shoulders. The fact that the wounds were from 1 1/3 to 2 inches long would also indicate that there must have been a struggle, for otherwise it would have been much easier to inflict a deep short wound on a man who is lying down unaware. All these circumstances substantiate the testimony of the accused to the effect that she was defending herself, and disprove the statement in the so-called dying declaration to the effect that the deceased was treacherously stabbed while he was lying down. "It seems clear also that there was no provocation on the part of the accused. The deceased suspected his wife of infidelity; but that mere suspicion which may have been groundless and which the deceased could have investigated otherwise than by trying to force a confession from her cannot be considered a sufficient provocation on her part. "But it is submitted that the means she used to defend herself from her husband was not reasonably necessary. According to her statement, after her husband had scratched her arm with a knife, threatening to kill her if she would not confess, she struck his hand that was holding the knife with a stick causing said weapon to fall to the floor, from which she picked it up and hid it in the loom. After this she could have defended herself with the stick or with her hands from the attacks of her unarmed husband. It should be considered that she was 28 years old (Exhibit I, folio 8) and her husband 53 (Exhibit B, folio 4), which circumstance may give some idea as to their relative strength. Furthermore, when the knife fell from her husbands hand, and he was paralized for a few seconds by the pain caused by the blow on his hand, she could have prepared to defend herself from any further aggression of the deceased, without using a deadly weapon, or called for help from the neighbors. "It is, therefore, submitted that the accused is guilty of parricide with the mitigating circumstance of incomplete self-defense." And in conclusion recommends that, under articles 86 and 95 of the Penal Code, the penalty of cadena perpetua should be modified by applying the penalty two degrees lower, which is prision mayor, and that the latter penalty be imposed in its minimum degree, which is from six years and one day to eight years. In a vigorous brief, the attorney de oficio strongly urges an acquittal. It appears from the prison record that the appellant is 28 years old; that her weight is 37 kilos; and that her height is 4 feet and 6 inches. The alleged crime was committed in the home of the deceased and the appellant some time during the night in question, and when there was no light in the dwelling, and at a time when they were alone. As the Attorney-General points out, about 3 p. m. on the next day, and in a very weakened condition, the husband made a statement in his native language, which was reduced to writing by the justice of the peace of the municipality of La Libertad, and later translated into Spanish. In this statement, the deceased says:jgc:chanrobles.com.ph "Upon arriving at my house I took a rest near the door of the street afterwards went into the house to sleep; but as I was moving around my wife got up saying why do you undress on the bed? She hit me and struck me, and on account of the darkness, I thought that she had only struck me with the fist until I felt the blood flowing from the wound in the abdomen, whereupon I realized that she had used a cutting instrument."cralaw virtua1aw library In his statement to the chief of police, the deceased is refuted to have said:jgc:chanrobles.com.ph

E V I D E N C E : H E A R S A Y E V I D E N C E | 123

"In going up the house of Teofilo, I found the deceased, and the municipal president asked him what happened to you? The wounded man answered that about 2 oclock in the morning his wife wounded him with a knife while he was lying on a bench, that his wife went to him."cralaw virtua1aw library There is a direct conflict in the two statements. In the one, the deceased claims that he was stabbed while in bed, and in the other while he was lying on a bench. As the Attorney-General points out, all of the six wounds were inflicted on the left side of the deceased, three of which were on the left side of his abdomen, one on his front left lower shoulder, one on his left arm, and one on the left joint between the forearm and the arm, and the maximum depth of the wounds was 12 inches, and their length 1 1/3 to 2 inches. This would clearly indicate that there was a struggle, and that the deceased was not stabbed while he was lying down on either the bed or the bench, as he claimed. If he was stabbed, as he claimed, the wounds would not have been inflicted at the different places shown on his body, and they would have been much deeper. The two statements of the deceased are in direct conflict with the actual physical facts. It is very apparent, as the Attorney-General says, that the wounds were inflicted by the defendant during a struggle between her and her husband. It will be noted that the weight of the defendant is 37 kilos, and her height is 4 feet and 6 inches. The defendant claims that she inflicted the wounds at a time when her husband had her by the throat and was choking and kicking her, and when she thought that her life was in danger. She also testified that the knife which she used was first in the possession of the deceased, and that she hit his wrist with a piece of bamboo which made him drop it on the floor, and that she then, and for the first time, obtained possession of the knife. It should be remembered that this is a criminal case, and the defendant is entitled to the benefit of a reasonable doubt. Considering her weight and height, and giving her the benefit of this doubt, the evidence is not sufficient to sustain a conviction. If the parties were of the same size, height, and weight, it might be a case of an incomplete self-defense, but the height and size of the defendant made it an unequal contest. The fact that it was dark, and the place of the struggle, the actions, manner and conduct of the deceased, would give the defendant reasonable grounds for believing that her life was in danger. The defendant is entitled to a reasonable doubt, and as we analyze the evidence, she had reasonable grounds to believe that her life was in danger, and for such reasons her plea of self-defense must be sustained. The judgment of the lower court is reversed, and the defendant is acquitted, with costs de oficio. So ordered.

E V I D E N C E : H E A R S A Y E V I D E N C E | 124 SECOND DIVISION [G.R. Nos. 140538-39. June 14, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. GODOFREDO B. ADOR and DIOSDADO B. ADOR III, appellants. DECISION PUNO, J.: The quiescence of the fading day was shattered by bursts of gunfire, startling the otherwise tranquil but sanguine folks of Pacol, Naga City. As the fusillade of shots ceased and the wisp of smoke cleared, frolicking promenaders stumbled upon Ompong Chavez who was gasping his last, clutching his intestines which had spewed out from his bloodied stomach. He did not in fact reach the hospital alive. A breath away, Abe Cuya lay lifeless on the pavement. He died on the spot. For the twinned deaths, the Adors, six (6) of them, were haled to court. In two (2) separate informations,[1] Diosdado Sr.,[2] Diosdado Jr., Diosdado III, Godofredo, Rosalino and Allan, all surnamed Ador, were charged with the murder of Absalon Abe S. Cuya III and Rodolfo Ompong S. Chavez. The Informations in Crim. Cases Nos. 97-6815 and 97-6816 identically read: That on or about March 10, 1997, in the City of Naga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with intent to kill, with treachery and the aid of armed men, did then and there willfully, unlawfully and feloniously shoot ABSALON ABE CUYA III (RODOLFO OMPO CHAVEZ y SAN ANDRES[3] for Crim. Case No. 97-6816) with firearms, inflicting upon him multiple and mortal gunshot wounds which caused his death, to the damage and prejudice of his heirs. With the aggravating circumstance of evident premeditation and nighttime. CONTRARY TO LAW. However, only four (4) of the six (6) Adors, namely, Diosdado Sr., Godofredo, Rosalino and Allan, were taken into custody. The two (2), Diosdado Jr. and Diosdado III, remained at large. Trial thus proceeded only against Diosdado Sr., Godofredo, Rosalino and Allan who all pleaded not guilty. Diosdado Sr. is the father of Diosdado Jr., Diosdado III and Godofredo, while Rosalino is the father of Allan. Diosdado Sr. and Rosalino are brothers.[4] In its effort to secure the conviction of the accused, the prosecution presented a total of sixteen (16) witnesses: Mercy Beria, Larry Cado, Medico-Legal Officer of Naga City Dr. Joel S. Jurado, Police Inspector Ma. Julieta Razonable, SPO1 Benjamin Barbosa, SPO3 Augusto Basagre, Major Ernesto Idian, Inspector Reynaldo F. Fulgar, SPO1 Noli Reyes Sol, SPO3 Eduardo C. Bathan, Inspector Vicente C. Lauta, Ernani Castillo, PO3 Augusto I. Nepomuceno, Absalon Cuya Sr., Efren Chavez and Pablo Calsis. From the evidence of the prosecution, it appears that on March 10, 1997, at around seven-thirty in the evening, while Mercy Beria, Larry Cado and some eleven (11) others were leisurely walking along Kilometer 11 on their way to Zone 1, Kilometer 10, Pacol, Naga City, to attend a wedding anniversary, they heard several gunshots. Shortly after, they met a certain Pablito Umali who told them that Ompong Chavez had been shot. They ran to Chavez straight off and saw him already lying on the ground, about 1 meters away from a lighted electric post, holding on to his intestines which were starting to come out. Beria shook Chavez and asked him what had happened. Chavez replied tinambangan kami na Ador (We were ambushed by the Adors) and requested that he be brought to the hospital as he was dying. About eight (8) meters from where Chavez was, in a dark spot, lay Abe Cuya, dead.[5] Upon learning of the shooting incident through their radio communication, SPO1 Benjamin Barbosa, together with PO2 Alexander Diaz, immediately proceeded to the crime scene to conduct an

E V I D E N C E : H E A R S A Y E V I D E N C E | 125 investigation. SPO3 Eduardo Bathan and SPO1 Wilfredo Fernandez, among others, were already there.[6] SPO1 Barbosa collected some pieces of evidence, took some pictures and made some sketches.[7] SPO1 Fernandez on the other hand interviewed one Cresenciana Mendoza in her house which was nearby, and when he heard people shout that Chavez was still alive, he brought Chavez to the hospital but the latter expired on the way.[8] That same evening, upon being informed that the Adors had a long-standing grudge against the Cuyas, SPO1 Barbosa sought the help of then Barangay Captain Josue Perez to accompany him to the residence of the Adors. They arrived at the Adors at around ten oclock that evening and spoke with their patriarch, Diosdado Ador Sr. SPO1 Barbosa looked for the other male members of the Ador family but was told by Diosdado Sr. that they were already asleep. Diosdado Sr. nevertheless promised to present them the following day.[9] The following morning, March 11, 1997, Barangay Captain Perez accompanied the Adors, namely, Diosdado Sr., Diosdado III, Godofredo, Rosalino, Allan and Reynaldo, to SPO1 Barbosa at the PNP Central Police Headquarters. The Adors were informed of their constitutional rights to remain silent and to choose their own counsel. They were then brought to the PNP Crime Laboratory at the Provincial Headquarters and subjected to paraffin tests.[10] On the way to the crime laboratory, Godofredo told his police escort that he had been entrusted with a handgun which he kept in his residence.[11] The information was relayed to Major Ernesto Idian, then Deputy Chief of Police of Naga City, who ordered PO3 Augusto I. Nepomuceno to accompany him in recovering the gun because Godofredo said that he would turn in the gun only to PO3 Nepomuceno. Thus, Major Idian, PO3 Nepomuceno and some others accompanied Godofredo to the latters residence. Upon reaching the Ador residence, Godofredo, together with PO3 Nepomuceno, went to their backyard, retrieved the gun from under a fallen coconut trunk and turned it in to the latter. Godofredo allegedly told the police that he fired the said gun outside their house on the night of March 10 after he heard several gunshots.[12] PO3 Nepomuceno identified the gun as a caliber .38 paltik handgun which had no serial number.[13] PO3 Nepomuceno then turned over the handgun to Major Idian[14] who likewise identified it as a .38 caliber revolver. Major Idian returned the handgun to PO3 Nepomuceno for ballistic and paraffin examination.[15] Thereafter, PO3 Nepomuceno placed his initials on the gun and put it in his private locker while preparing the documents for the examinations and the possible filing of a case for Illegal Possession of Firearm.[16] Also, on the same day, March 11, 1997, Dr. Joel S. Jurado, Medico-Legal Officer of Naga City, conducted an autopsy on the bodies of Chavez and Cuya. Based on the autopsy reports, Dr. Jurado testified that Cuya sustained five (5) gunshot wounds and died from cardio-pulmonary arrest, massive intra-thoracic, intra-abdominal, intra-cranial hemorrhage secondary to multiple gunshot wounds penetrating the heart, brain, lungs and digestive tract.[17] Chavez on the other hand had three (3) gunshot wounds and died from traumatic shock and massive intra-abdominal hemorrhage secondary to multiple gunshot wounds penetrating the right kidney and the internal abdominal organs.[18] Dr. Jurado further testified that that he recovered a slug from Cuyas head three (3) days after he conducted the autopsy - after Cuyas relatives called his attention to a protruding mass in Cuyas head. Thus, he had Cuyas cadaver sent back to the funeral parlor, opened it and was able to extract a deformed .38 caliber slug which he thereafter submitted to the City Prosecutors Office.[19] Police Inspector Reynaldo Fulgar, Chief of the Firearm Identification Section of the PNP Crime Laboratory, Camp Ola, Legaspi City, testified that based on the ballistic examination he conducted on the bullets submitted to his office, the .38 caliber slug recovered from Cuyas head matched the three (3) .38 caliber test bullets which were test-fired from the suspected firearm surrendered by Godofredo. He however averred that the .38 caliber bullets were actually fired from a .357 Smith and Wesson Magnum homemade revolver without serial number, and not from a .38 caliber revolver. [20] The paraffin casts taken from the Adors were also transmitted to the PNP Crime Laboratory Services for examination and yielded the presence of gunpowder nitrates, thus (1) Diosdado A. Ador both hands, positive;

E V I D E N C E : H E A R S A Y E V I D E N C E | 126 (2) Diosdado B. Ador III right hand, positive; left hand, negative; (3) Godofredo B. Ador right hand, positive; left hand, negative; (4) Rosalino A. Ador both hands, positive; (5) Reynaldo T. Ador both hands, negative;[21] (6) Allan T. Ador both hands, positive. [22] Absalon Cuya Sr., father of deceased Cuya III, said that the killing of his son was driven by the longstanding feud between the Adors and his family. He said that Diosdado Jr. had earlier accused his other son Liberato of frustrated homicide for allegedly stabbing him (Diosdado Jr.). [23]Then, Adelina, a daughter of Diosdado Sr., filed a case for abduction with multiple rape against him, Absalon III, Rayne and Josephine, all surnamed Cuya, after the romantic relationship between Adelina and his deceased son Absalon III turned sour.[24] He also presented official receipts of the funeral and burial expenses which amounted to P10,230.00.[25] Efren Chavez, brother of deceased Chavez, likewise spoke of the animosity between the Chavez and the Ador families. He produced a certification from the PNP Naga City Police Station that on February 17, 1997, a blotter was entered in the Daily Record of Events showing that deceased Chavez reported a certain Ricardo Ador who while under the influence of liquor caused him physical injury.[26] The witness likewise presented an official receipt showing that the family spent P3,500.00 for the funeral of the deceased Chavez.[27] After presenting Chavez, the prosecution rested its case. On April 7, 1998, the four (4) accused filed a demurrer to evidence for utter lack of evidence.[28] On May 13, 1998, the trial court dismissed the cases against Diosdado Sr., Rosalino and Allan but denied the demurrer to evidence against Godofredo WHEREFORE, this Court finds the demurrer to evidence to be justified for the accused Diosdado A. Ador, Allan T. Ador and Rosalino Ador, hence, the same is hereby granted insofar as these accused are concerned. Said accused therefore, namely: Diosdado A. Ador, Allan T. Ador and Rosalino Ador are ACQUITTED in Crim. Cases Nos. 97-6815 and 97-6816. The bailbonds posted for their provisional liberty are hereby cancelled. Trial of the case insofar as Godofredo B. Ador is concerned shall proceed. SO ORDERED.[29] Thus, trial proceeded against Godofredo. For his defense, Godofredo denied any participation in the killings of Cuya and Chavez. He said that on March 10, 1997, at around seven oclock in the evening, he heard several gunshots while he was having dinner with his wife and four (4) children in their house in Pacol, NagaCity. Since his wife advised him not to go out anymore, he slept after dinner. The following day, while he was gathering pili nuts, his long-time friend Dominador Bautista arrived and asked him to go down from the tree. Bautista wanted to borrow money and on his way to see him, found a gun by the footpath. Bautista gave the gun to him. It was his first time to hold a gun. He tried it out and fired three (3) times. After firing the gun, he removed the empty shells from its chambers and threw them away. He then wrapped the gun with plastic and hid it under a coconut trunk. Bautista left when he told him that he had no money. He then continued to gather pili nuts until Major Idian and three (3) other policemen came. Godofredos father told him that they were being suspected of killing Chavez and Cuya the night before. Thus, they went to the provincial headquarters, were subjected to paraffin testing and made to sign a blank bond paper. After that, they went back to the central police station. At the central police station, Godofredo narrated to a certain Calabia that that morning, his friend Bautista found a gun along the road and gave it to him. He hid the gun under a coconut trunk. Calabia relayed the information to Major Idian who directed PO3 Nepomuceno to go with Godofredo to get the gun. Godofredo led PO3 Nepomuceno to where he hid the gun, retrieved it and handed it to the latter. They then returned to the

E V I D E N C E : H E A R S A Y E V I D E N C E | 127 police headquarters where he was jailed. He asserted that the gun presented in court is different from the gun he surrendered to the police.[30] Bautista corroborated Godofredos story. He testified that he found the gun which Godofredo yielded to PO3 Nepomuceno. He said that he was on his way to see Godofredo to borrow money when he chanced upon the handgun on the pathway. He gave the gun to Godofredo and the latter tested it by pulling its trigger. After firing the gun, Godofredo removed the empty shells and threw them. Godofredo then wrapped the gun with plastic and hid it under a fallen coconut trunk.[31] Meanwhile, Diosdado Jr. was arrested on October 9, 1998, at Barangay Doa, Orani, Bataan, and committed to the Naga City Jail onNovember 17, 1998, while Diosdado III surrendered to the court and was committed to the same city jail on November 22, 1998. On November 23, 1998, both Diosdado Jr. and Diosdado III were arraigned and entered a plea of not guilty. Hence, trial against them commenced and proceeded jointly with the case of the remaining accused, Godofredo. The prosecution presented Pablo Calsis[32] as a witness against Diosdado Jr. and Diosdado III. Calsis testified that on March 10, 1997, at around 7:30 in the evening, he dropped by the house of Cresenciana Mendoza whom he fondly called Lola Kising at Kilometer 10, Pacol, Naga City, before going home from work. After asking permission from her to go home and while about to urinate outside her house, he heard several gunshots. He ducked by a sineguelas tree at a nearby flower plantation. As he was about to stand up, he saw Disodado Jr., Diosdado III, Godofredo and another unidentified man run away. Godofredo was carrying a short firearm while Diosdado Jr. had a long firearm. [33] He saw Chavez and Cuya lying on the road. Chavez was about five (5) meters away from where he stood while Cuya was ten (10) meters away. The place was illuminated by a bright light from an electric post. There were no other people around. Calsis ran away for fear that he might be identified by the assailants. He heard Chavez mumbling but shirked nevertheless.[34] Calsis narrated to Absalon Cuya Sr. what he saw only after about one (1) year and nine (9) months. Fear struck him.[35] He maintained that he knew the assailants because he and his wife lived in the house of Lola Kising after they got married.[36] Immense fear prevented him from attending to Chavez, even while he heard him murmuring, and from informing the families of the victims of the incident that very same night. He was about to tell the Chavez family the following morning but was counseled by his Lola Bading, the sister of his Lola Kising, against getting involved in the case. [37] Calsis and his family left their residence in Pacol one (1) month after the incident because he was afraid the assailants might have identified him.[38] Even Lola Kising left her residence two (2) months after the incident. [39] It was only after he learned from Absalon Cuya Sr. that the trial court dismissed the cases for lack of evidence insofar as some of the original accused were concerned that he took pity on the respective families of the victims who have failed to get justice for the death of their loved ones.[40] In defense, Diosdado Jr. testified that on March 10, 1997, he was in Marikina City working as a warehouseman and timekeeper of the Consuelo Builders Corporation. He was there the whole time from February 15, 1997, until March 24, 1997.[41] Pablo Aspe, a co-worker of Diosdado Jr., corroborated the latters testimony. He said that on February 15, 1997, he and Diosdado Jr. left Pacol, Naga City, together to work in Consuelo Construction in Marikina City. They were with each other in Marikina City the whole time from February 15, 1997, until he (Aspe) went home to Naga City on March 22, 1997. While in Marikina City, they resided and slept together in their barracks at the construction site.[42] Diosdado III also took the witness stand. On March 10, 1997, at around seven oclock in the evening, he was at their house at Zone 1, Pacol,Naga City, watching television with his parents and cousins Reynaldo and Allan when they heard gunshots. They ignored the gunshots, continued watching television and slept at eight oclock. The following day, at around six oclock in the morning, while he was fetching water, four (4) policemen arrived at their house and talked to his father. Thereafter, his father called him, his brother Godofredo, uncle Rosalino and cousins Allan and Reynaldo. The policemen then requested all of them to go to the PNP Central Police Headquarters for investigation regarding the killings of Chavez and Cuya. Upon reaching the police headquarters, they were interviewed by the media and

E V I D E N C E : H E A R S A Y E V I D E N C E | 128 afterwards brought to the provincial headquarters where they were subjected to paraffin tests. They were then brought back to the Central Police Headquarters and later allowed to go back home to Pacol. Then, sometime in October, 1997, his father was arrested by the police. Diosdado III was at their residence when his father was picked up. Only his father was taken by the police. He continued to reside in their house until April, 1998, when he transferred to Sagurong, San Miguel, Tabaco, Albay, to work as a fisherman. On November 21, 1998, he received a letter from his father telling him to come home. Thus, he went home the following day. On November 23, 1998, he surrendered to the court.[43] The defense also presented Barangay Captain Josue Perez and an uncle of Diosdado Jr. and Disodado III, Jaime Bobiles. Perez testified that he was the barangay captain of Pacol from 1982 until May, 1997. In 1996, Cresenciana Mendoza left their barangay permanently to live with her children in Manila because she was sickly and alone in her house. He said that Mendoza never came back. He does not know any Pablo Calsis and the latter could not have talked to Mendoza on March 10, 1997, because at that time, Mendoza was not there and her house was already abandoned.[44] Similarly, Bobiles confirmed the testimony that Diosdado III worked as a fisherman in Tabaco and stayed in his residence from May 1, 1998, until November 1998 when Diosdado III received a letter from his father and had to go home.[45] In rebuttal however, prosecution witness SPO1 Fernandez asserted that he interviewed Cresenciana Mendoza that fateful night of March 10, 1997.[46] After the rebuttal witness was presented, the cases were finally submitted for decision.[47] On August 2, 1999, the trial court held that a chain of circum stances x x x lead to a sound and logical conclusion that indeed the accused (Diosdado III and Godofredo) committed the offense charged[48] and as such rendered judgment WHEREFORE, premises considered, this court finds the accused Godofredo B. Ador and Diosdado B. Ador III GUILTY beyond reasonable doubt of the crime of MURDER, defined and penalized under the provisions of Article 248 of the Revised Penal Code, as amended by Republic Act 7659 in Criminal Cases Nos. 97-6815 and 97-6816, hereby sentences the said accused Godofredo B. Ador and Diosdado B. Ador III to suffer the penalty of RECLUSION PERPETUA in Criminal Case No. 97-6815; RECLUSION PERPETUA in Criminal Case No. 97-6816, to pay the heirs of Absalon Abe Cuya III P25,000 each by way of actual damages and P50,000 in each criminal case by way of indemnity. To pay the heirs of Rodolfo Ompong Chavez the sum of P50,000 in each criminal case by way of indemnity, such accessory penalties as provided for by law and to pay the cost. For insufficiency of the prosecution to prove the guilt of the accused Diosdado B. Ador, Jr. beyond reasonable doubt, he is hereby ACQUITTED in Crim. Cases Nos. 97-6815 and 97-6816. The Jail Warden of the Naga City District Jail is hereby ordered to forthwith release from its custody the accused Diosdado B. Ador, Jr., unless his further detention is warranted by any other legal cause or causes. SO ORDERED.[49] Hence, this joint appeal interposed by Disodado III and Godofredo. They maintain that the trial court gravely erred in convicting them of murder based on circumstantial evidence. The testimony of prosecution witness Pablo Calsis that he saw them running away from the scene of the crime was concocted. The handgun turned in by Godofredo was not the same gun presented by the prosecution during the trial. The unusual discovery of a slug from the head of the deceased - three (3) days after the autopsy was conducted and after the cadaver was turned over to the family of the victim - was quite doubtful. Even the supposed dying declaration of the victim specifically pointed to neither Diosdado III nor Godofredo. And, the trial court erred in admitting in evidence those taken against them in violation of their constitutional rights to counsel during custodial investigation.[50]

E V I D E N C E : H E A R S A Y E V I D E N C E | 129 The rules of evidence allow the courts to rely on circumstantial evidence to support its conclusion of guilt.[51] It may be the basis of a conviction so long as the combination of all the circumstances proven produces a logical conclusion which suffices to establish the guilt of the accused beyond reasonable doubt.[52] All the circumstances must be consistent with each other, consistent with the theory that all the accused are guilty of the offense charged, and at the same time inconsistent with the hypothesis that they are innocent and with every other possible, rational hypothesis except that of guilt. [53] The evidence must exclude each and every hypothesis which may be consistent with their innocence.[54]Also, it should be acted on and weighed with great caution.[55] Circumstantial evidence which has not been adequately established, much less corroborated, cannot by itself be the basis of conviction.[56] Thus, for circumstantial evidence to suffice, (1) there should be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[57] Like an ornate tapestry created out of interwoven fibers which cannot be plucked out and assayed a strand at a time apart from the others, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion that the accused, to the exclusion of all others, is guilty beyond reasonable doubt. [58] The test to determine whether or not the circumstantial evidence on record are sufficient to convict the accused is that the series of the circumstances proved must be consistent with the guilt of the accused and inconsistent with his innocence.[59] Accordingly, we have set guidelines in appreciating circumstantial evidence: (1) it should be acted upon with caution; (2) all the essential facts must be consistent with the hypothesis of guilt; (3) the facts must exclude every theory but that of guilt; and (4) the facts must establish such a certainty of guilt of the accused as to convince the judgment beyond a reasonable doubt that the accused is the one who committed the offense.[60] Measured against the guidelines set, we cannot uphold the conviction of the accused based on the circumstantial evidence presented. The first circumstance which the prosecution sought to prove is that the accused were supposedly seen fleeing from the locus criminis,armed with their respective weapons. Thus, the trial court, gleaning from the evidence presented, found that [w]hen about to stand, Calsis saw Godofredo B. Ador, Diosdado B. Ador, Jr. and Diosdado B. Ador III, and a person going to the direction of the house of the Adors which is about 500 meters away.[61] In fact, prosecution witness Calsis allegedly even saw Diosdado Jr. carrying a long firearm but x x x could not determine what kind of gun it was.[62] However, the trial court acquitted Diosdado Jr. But only rightly so. For, Calsis had difficulty in identifying the Adors notwithstanding his assertion that he knew and saw them personally. We defer to his direct examination ATTY. TERBIO (Private Prosecutor): Q. You said you recognized the persons running, could you tell us their names? PABLO CALSIS: A. Yes sir. Q. Name them? A. Godofredo Ador, Jr., Sadang III. Q. How about the others? A. I could not tell his name but if I see him I could identify him. Q. The 4 persons whom you saw that night, if they are present in court, please point them out? A. Yes sir. Q. Point particularly Godofredo Ador, Jr.?

E V I D E N C E : H E A R S A Y E V I D E N C E | 130 A. (Witness pointed or tapped the shoulder of a person inside the courtroom who answered by the name Diosdado Ador, Jr.) Q. How about this Sadang III? A. (Witness tapped the shoulder of a man who answered by the name of Diosdado Ador III.) Q. Likewise, point to the third person? A. (Witness pointed to a man) COURT: Delete that portion from the record, he is not on trial. ATTY TERBIO: Q. You said you saw 4 persons, is the fourth one inside the courtroom? A. None sir.

Q. But if you saw that person, will you be able to recognize him? A. Yes sir. Q. Why do you know these persons whom you just tapped the shoulder? xxx xxx xxx

A. I know these persons having lived in the house of Lola Kising. Q. How far? A. Around 100 meters. Q. On the said date and time and place, you said you saw them running, how far were you from them? A. Around 10 meters. (Emphases supplied)[63] The testimony of Calsis, if at all, could hardly be used against Diosdado III whom he miserably failed to positively identify during trial. In fact, the acquittal of Diosdado Jr. by the trial court renders the entire testimony of Calsis in serious doubt. Calsis was presented to positively identify the assailants who were supposedly personally known to him and were just ten (10) meters away from him. It puzzles us no end why he cannot even identify the Adors in open court. Thus, despite Calsis assertion that Diosdado Jr. was one of the assailants, the trial court doubted him and gave credence to the alibi of Diosdado Jr. that the latter was in Nangka, Marikina, when the killings took place. The trial court favored the unbiased testimony of Aspe who said that Diosdado Jr. worked as a timekeeper and warehouseman with him at the Consuelo Construction at Nangka, Marikina, from February 15, 1997, until March 22, 1997, and went home to Pacol only on May 27, 1997. This ruling is strengthened by the fact that on the morning following the killings, all the male members of the Ador family were brought to the police headquarters for paraffin examination and Diosdado Jr. was not among them.[64] We thus respect the finding of the trial court that indeed Diosdado Jr. was not at the scene of the crime absent any indication that the lower court overlooked some facts or circumstances which if considered would alter the outcome of the case.[65] While it is true that the courts are not bound to accept or reject an entire testimony, and may believe one part and disbelieve another,[66] our Constitution and the law mandate that all doubts must be resolved in favor of the accused. Calsis committed an obvious blunder in identifying the supposed assailants which this Court cannot simply let go. On the contrary, it creates reasonable doubt in our minds if Calcis really saw the persons he allegedly saw or if he was even where he said he was that evening. For, it is

E V I D E N C E : H E A R S A Y E V I D E N C E | 131 elementary that the positive identification of the accused is crucial in establishing his guilt beyond reasonable doubt. That is wanting in the instant case. What is more, Calsis asseverations, at the outset, could no longer be used against Godofredo since both the prosecution and the defense have already rested and the case against Godofredo was already submitted for decision when Calsis was presented.[67] Neither can they still be used against Diosdado Jr. who was already acquitted by the trial court. Both Diosdado III and Godofredo denied the charges hurled against them. But, while it is true that alibi and denial are the weakest of the defenses as they can easily be fabricated, [68] absent such clear and positive identification, the doctrine that the defense of denial cannot prevail over positive identification of the accused must yield to the constitutional presumption of innocence. [69] Hence, while denial is concededly fragile and unstable, the conviction of the accused cannot be based thereon. [70] The rule in criminal law is firmly entrenched that verdicts of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense.[71] The second circumstance is the handgun turned in by Godofredo. But this was bungled by the prosecution. Major Idian, Deputy Chief of Police of the Naga City Police Station, to whom the handgun was turned over after Godofredo surrendered it, identified it as a caliber .38 revolver, thus ATTY TERBIO (Private Prosecutor): Q. What kind of firearm was it? MAJOR IDIAN: A. Revolver handgun, caliber .38 with 6 rounds ammunition. .38 caliber.[72]

Q. What is the caliber? A.

Similarly, PO3 Nepomuceno who then had been with the PNP for eight (8) years already and to whom Godofredo turned in the handgun, likewise identified it as a caliber .38, thus ATTY TERBIO (Private Prosecutor): Q. What is the caliber of that gun? PO3 NEPOMUCENO: A. .38 caliber.[73]

However, Insp. Fulgar, Chief of the Firearm Identification Section of the PNP Crime Laboratory, testified that [t]he indorsement coming from the City Prosecutors Office x x x alleged that the .38 caliber live bullet was fired from a .38 caliber revolver. But our office found out that the firearm was not a .38 caliber revolver but a .357 caliber revolver.[74] Could it be that the handgun was replaced before it was turned over to the PNP Crime Laboratory? While the prosecution traced the trail of police officers who at every stage held the gun supposedly recovered from Godofredo, it never clarified this discrepancy which is quite glaring to ignore. It is difficult to believe that a Deputy Chief of Police and a police officer of eight (8) years will both mistake a .357 caliber for a .38 caliber handgun. Likewise, a Chief of the Firearm Identification Section of the PNP Crime Laboratory cannot be presumed not to know the difference between the two (2) handguns. Suffice it to say that the prosecution failed to clear up the variance and for this Court to suggest an explanation would be to venture into the realm of pure speculation, conjecture and guesswork. Thus, faced with the obvious disparity in the suspected firearm used in the crime and that which was turned over by Godofredo, his declaration that the handgun presented in court was different from the gun he gave to the police deserves serious, if not sole consideration.

E V I D E N C E : H E A R S A Y E V I D E N C E | 132 Consequently, even the third circumstance, the .38 caliber slug supposedly recovered from the head of the victim three (3) days after the autopsy was conducted loses evidentiary value as its source is now highly questionable. It has become uncertain whether the deformed slug was fired from the .38 caliber revolver turned in by Godofredo or from a .357 caliber handgun as attested to by the Chief of the Firearm Identification Section of the PNP Crime Laboratory. Neither can this Court rely on the dying declaration of the dying Chavez nor on the results of the paraffin tests to convict either Diosdado III or Godofredo or both. To refute these, we need not go far and beyond the 13 May 1998 Order of the trial court partially granting the demurrer to evidence filed by the accused The only direct evidence introduced by the prosecution is the testimony of Mercy Beria, that she heard Rodolfo Ompong Chavez say tinambangan kami na Ador (We were ambushed by the Adors). Sad to say, no specific name was ever mentioned by the witness. Neither was she able to tell how many (persons) Adors were involved. This testimony if it will be given credence may inculpate any person with the family name Ador as assailant. The prosecution therefore was not able to establish with moral certainty as to who of the Adors were perpetrators of the offense x x x x Paraffin tests are not conclusive evidence that indeed a person has fired a gun. The fact that the accused-appellants tested positive of gunpowder nitrates does not conclusively show that they fired the murder weapon, or a gun for that matter, for such forensic evidence should be taken only as an indication of possibility or even of probability, but not of infallibility, since nitrates are also admittedly found in substances other than gunpowder. (People v. Abellarosa, G.R. No. 121195, 27 November 1996; People v. de Guzman, 250 SCRA 118; People v. Nitcha, 240 SCRA 283)[75] Thus, while a dying declaration may be admissible in evidence, it must identify with certainty the assailant. Otherwise, it loses its significance. Also, while a paraffin test could establish the presence or absence of nitrates on the hand, it cannot establish that the source of the nitrates was the discharge of firearms a person who tests positive may have handled one or more substances with the same positive reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco and leguminous plants.[76] In People v. Melchor,[77] this Court acquitted the accused despite the presence of gunpowder nitrates on his hands [S]cientific experts concur in the view that the result of a paraffin test is not conclusive. While it can establish the presence of nitrates or nitrites on the hand, it does not always indubitably show that said nitrates or nitrites were caused by the discharge of firearm. The person tested may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, pharmaceuticals and leguminous plants such as peas, beans and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco. The presence of nitrates or nitrites, therefore, should be taken only as an indication of a possibility but not of infallibility that the person tested has fired a gun. In fine, the admissions made by Godofredo to Major Idian and PO3 Nepomuceno including the gun in question cannot be considered in evidence against him without violating his constitutional right to counsel. Godofredo was already under custodial investigation when he made his admissions and surrendered the gun to the police authorities. The police had already begun to focus on the Adors and were carrying out a process of interrogations that was lending itself to eliciting incriminating statements and evidence: the police went to the Ador residence that same evening upon being informed that the Adors had a long-standing grudge against the Cuyas; the following day, all the male members of the Ador family were told to go to the police station; the police was also informed of the dying declaration of deceased Chavez pointing to the Adors as the assailants; the Adors were all subjected to paraffin examination; and, there were no other suspects as the police was not considering any other person or group of persons. The investigation thus was no longer a general inquiry into an unsolved crime as the Adors were already being held as suspects for the killings of Cuya and Chavez.

E V I D E N C E : H E A R S A Y E V I D E N C E | 133 Consequently, the rights of a person under custodial investigation, including the right to counsel, have already attached to the Adors, and pursuant to Art. III, Sec. 12(1) and (3), 1987 Constitution, any waiver of these rights should be in writing and undertaken with the assistance of counsel. Admissions under custodial investigation made without the assistance of counsel are barred as evidence. [78] The records are bare of any indication that the accused have waived their right to counsel, hence, any of their admissions are inadmissible in evidence against them. As we have held, a suspects confession, whether verbal or non-verbal, when taken without the assistance of counsel without a valid waiver of such assistance regardless of the absence of such coercion, or the fact that it had been voluntarily given, is inadmissible in evidence, even if such confession were gospel truth.[79] Thus, in Aballe v. People,[80] the death weapon, a four-inch kitchen knife, which was found after the accused brought the police to his house and pointed to them the pot where he had concealed it, was barred from admission as it was discovered as a consequence of an uncounseled extrajudicial confession. With hardly any substantial evidence left, the prosecution likewise played up the feud between the Adors on one hand and the Chavezes and the Cuyas on the other hand, and suggested that the Adors had an axe to grind against the Chavezes and the Cuyas. For sure, motive is not sufficient to support a conviction if there is no other reliable evidence from which it may reasonably be adduced that the accused was the malefactor.[81] Motive alone cannot take the place of proof beyond reasonable doubt sufficient to overthrow the presumption of innocence.[82] All told, contrary to the pronouncements of the trial court, we cannot rest easy in convicting the two (2) accused based on circumstantial evidence. For, the pieces of the said circumstantial evidence presented do not inexorably lead to the conclusion that they are guilty.[83] The prosecution witness failed to identify the accused in court. A cloud of doubt continues to hover over the gun used and the slug recovered. The dying declaration and paraffin examination remain unreliable. Godofredos uncounseled admissions including the gun he turned in are barred as evidence. And, the supposed motive of the accused is simply insufficient. Plainly, the facts from which the inference that the accused committed the crime were not proven. Accordingly, the guilt of the accused cannot be established, more so to a moral certainty. It is when evidence is purely circumstantial that the prosecution is much more obligated to rely on the strength of its own case and not on the weakness of the defense, and that conviction must rest on nothing less than moral certainty.[84] Consequently, the case of the prosecution has been reduced to nothing but mere suspicions and speculations. It is hornbook doctrine that suspicions and speculations can never be the basis of conviction in a criminal case.[85] Courts must ensure that the conviction of the accused rests firmly on sufficient and competent evidence, and not the results of passion and prejudice.[86] If the alleged inculpatory facts and circumstances are capable of two (2) or more explanations, one of which is consistent with the innocence of the accused, and the other consistent with his guilt, then the evidence is not adequate to support conviction.[87] The court must acquit the accused because the evidence does not fulfill the test of moral certainty and is therefore insufficient to support a judgment of conviction.[88] Conviction must rest on nothing less than a moral certainty of the guilt of the accused.[89] The overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt.[90] It is thus apropos to repeat the doctrine that an accusation is not, according to the fundamental law, synonymous with guilt the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. The prosecution has failed to discharge its burden. Accordingly, we have to acquit. IN VIEW WHEREOF, the Decision of the Regional Trial Court of Naga City, Br. 25, in Crim. Cases Nos. 97-6815 and 97-6816 dated August 2, 1999, finding accused-appellants Godofredo B. Ador and Diosdado B. Ador III guilty beyond reasonable doubt of two (2) counts of murder and imposing on them the penalty of reclusion perpetua, is hereby REVERSED and SET ASIDE. Accused-appellants Godofredo B. Ador and Diosdado B. Ador III are ACQUITTED on reasonable doubt and their IMMEDIATE RELEASE is hereby ORDERED unless they are being held for some other legal cause. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 134

SECOND DIVISION JUANITO TALIDANO, Petitioner, , - versus FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL EIGHTH DIVISION OF THE COURT OF APPEALS, AND LABOR ARBITER ERMITA C. CUYUGA, Respondents. G.R. No. 172031

Promulgated:

July 14, 2008

x----------------------------------------------------------------------------x

DECISION TINGA, J.: This Petition for Certiorari[1] under Rule 65 of the Rules of Court seeks to annul the Decision[2] and Resolution[3] of the Court of Appeals, dated 16 November 2005 and 2 February 2006, respectively, which upheld the validity of the dismissal of Juanito Talidano (petitioner). The challenged decision reversed and set aside the Decision[4] of the National Labor Relations Commission (NLRC) and reinstated that of the Labor Arbiter.[5] Petitioner was employed as a second marine officer by Falcon Maritime and Allied Services, Inc. (private respondent) and was assigned to M/V Phoenix Seven, a vessel owned and operated by Hansu Corporation (Hansu) which is based in Korea. His one (1)-year contract of employment commenced on 15 October 1996 and stipulated the monthly wage at $900.00 with a fixed overtime pay of $270.00 and leave pay of $75.00.[6] Petitioner claimed that his chief officer, a Korean, always discriminated against and maltreated the vessels Filipino crew. This prompted him to send a letter-complaint to the officer-in-charge of the International Transport Federation (ITF) in London, a measure that allegedly was resented by the chief officer. Consequently, petitioner was dismissed on 21 January 1997. He filed a complaint for illegal dismissal on 27 October 1999.[7] Private respondent countered that petitioner had voluntarily disembarked the vessel after having been warned several times of dismissal from service for his incompetence, insubordination, disrespect and insulting attitude toward his superiors. It cited an incident involving petitioners incompetence wherein the vessel invaded a different route at the Osaka Port in Japan due to the absence of petitioner who was then supposed to be on watch duty. As proof, it presented a copy of a fax message, sent to it on the date of incident, reporting the vessels deviation from its course due to petitioners neglect of duty at the bridge,[8] as well as a copy of the report of crew discharge issued by the master of M/V Phoenix Seven two days after the incident.[9]

E V I D E N C E : H E A R S A Y E V I D E N C E | 135 Private respondent stated that since petitioner lodged the complaint before the Labor Arbiter two (2) years and nine (9) months after his repatriation, prescription had already set in by virtue of Revised POEA Memorandum Circular No. 55, series of 1996 which provides for a one-year prescriptive period for the institution of seafarers claims arising from employment contract.[10] On 5 November 2001, the Labor Arbiter rendered judgment dismissing petitioners complaint, holding that he was validly dismissed for gross neglect of duties. The Labor Arbiter relied on the fax messages presented by private respondent to prove petitioners neglect of his duties, thus: x x x The fax message said that the Master of M/V Phoenix Seven received an emergency warning call from Japan Sisan Sebo Naika Radio Authority calling attention to the Master of the vessel M/V Phoenix Seven that his vessel is invading other route [sic]. When the Master checked the Bridge, he found out that the Second Officer (complainant) did not carry out his duty wathch. There was a confrontation between the Master and the Complainant but the latter insisted that he was right. The argument of the Complainant asserting that he was right cannot be sustained by this Arbitration Branch. The fact that there was an emergency call from the Japanese port authority that M/V Phoenix Seven was invading other route simply means that Complainant neglected his duty. The fax message stating that Complainant was not at the bridge at the time of the emergency call was likewise not denied nor refuted by the Complainant. Under our jurisprudence, any material allegation and/or document which is not denied specifically is deemed admitted. If not of the timely call [sic] from the port authority that M/V Phoenix Seven invaded other route, the safety of the vessel, her crew and cargo may be endangered. She could have collided with other vessels because of complainants failure to render watch duty.[11]

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the dismissal as illegal. The dispositive portion of the NLRCs decision reads: WHEREFORE, premises considered, the decision appealed from is hereby reversed and set aside and a new one entered declaring the dismissal of the complainant as illegal. Respondents Falcon Maritime & Allied Services, Inc. and Hansu Corporation are hereby ordered to jointly and severally pay complainant the amount equivalent to his three (3) months salary as a result thereof.[12] The NLRC held that the fax messages in support of the alleged misbehavior and neglect of duty by petitioner have no probative value and are self-serving. It added that the ships logbook should have been submitted in evidence as it is the repository of all the activities on board the vessel, especially those affecting the performance or attitude of the officers and crew members, and, more importantly, the procedures preparatory to the discharge of a crew member. The NLRC also noted that private respondent failed to comply with due process in terminating petitioners employment.[13] Private respondent moved for reconsideration,[14] claiming that the complaint was filed beyond the one-year prescriptive period. The NLRC, however, denied reconsideration in a Resolution dated 30 August 2002.[15] Rejecting the argument that the complaint had already prescribed, it ruled: Records show that respondent in this case had filed a motion to dismiss on the ground of prescription before the Labor Arbiter a quo who denied the same in an Order

E V I D E N C E : H E A R S A Y E V I D E N C E | 136 dated August 1, 2000. Such an Order being unappealable, the said issue of prescription cannot be raised anew specially in a motion for reconsideration. (Citations omitted)[16] It appears that respondent received a copy of the NLRC Resolution[17] on 24 September 2002 and that said resolution became final and executory on 7 October 2002.[18] Private respondent brought the case to the Court of Appeals via a Petition for Certiorari[19] on 8 October 2002. The petition, docketed as CA-G.R. Sp. No. 73521, was dismissed on technicality in a Resolution dated 29 October 2002. The pertinent portion of the resolution reads: (1) [T]he VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING was signed by one Florida Z. Jose, President of petitioner Falcon Maritime and Allied Services, Inc., without proof that she is the duly authorized representative of petitioner-corporation; [T]here is no affidavit of service of the petition to the National Labor Relations Commission and to the adverse party; [T]here is no explanation to justify service by mail in lieu of the required personal service. (Citations omitted)[20]

(2) (3)

An entry of judgment was issued by the clerk of court on 23 November 2002 stating that the 29 October 2002 Resolution had already become final and executory.[21] Meanwhile, on 12 November 2002, private respondent filed another petition before the Court of Appeals,[22] docketed as CA G.R. SP No. 73790. This is the subject of the present petition. Petitioner dispensed with the filing of a comment.[23] In his Memorandum,[24] however, he argued that an entry of judgment having been issued in CA-G.R. SP No. 73521, the filing of the second petition hinging on the same cause of action after the first petition had been dismissed violates not only the rule on forum shopping but also the principle of res judicata. He highlighted the fact that the decision subject of the second petition before the Court of Appeals had twice become final and executory, with entries of judgment made first by the NLRC and then by the Court of Appeals. The appellate court ultimately settled the issue of prescription, categorically declaring that the one-year prescriptive period applies only to employment contracts entered into as of 1 January 1997 and not those entered prior thereto, thus: x x x The question of prescription is untenable. Admittedly, POEA Memorandum Circular [No.] 55 prescribing the standard terms of an employment contract of a seafarer was in effect when the respondent was repatriated on January 21, 1997. This administrative issuance was released in accordance with Department Order [No.] 33 of the Secretary of Labor directing the revision of the existing Standard Employment Contract to be effective by January 1, 1997. Section 28 of this revised contract states: all claims arising therefrom shall be made within one year from the date of the seafarers return to the point of hire. It is crystal clear that the one-year period of prescription of claims in the revised standard contract applies only to employment contracts entered into as of January 1, 1997. If there is still any doubt about this, it should be removed by the provision of Circular [No.] 55 which says that the new schedule of benefits to be embodied in the

E V I D E N C E : H E A R S A Y E V I D E N C E | 137 standard contract will apply to any Filipino seafarer that will be deployed on or after the effectivity of the circular. The respondent was deployed before January 1, 1997. As acknowledged by the petitioners, the rule prior to Circular [No.] 55 provided for a prescriptive period of three years. We cannot avoid the ineluctable conclusion that the claim of the respondent was filed within the prescriptive period.[25]

Despite ruling that prescription had not set in, the appellate court nonetheless declared petitioners dismissal from employment as valid and reinstated the Labor Arbiters decision. The appellate court relied on the fax messages issued by the ship master shortly after petitioner had committed a serious neglect of his duties. It noted that the said fax messages constitute the res gestae. In defending the non-presentation of the logbook, it stated that three years had already passed since the incident and Hansu was no longer the principal of private respondent. Petitioners motion for reconsideration was denied. Hence he filed this instant petition. Citing grave abuse of discretion on the part of the Court of Appeals, petitioner reiterates his argument that the appellate court should not have accepted the second petition in view of the fact that a corresponding entry of judgment already has been issued. By filing the second petition, petitioner believes that private respondent has engaged in forum shopping.[26] Private respondent, for its part, defends the appellate court in taking cognizance of the second petition by stressing that there is no law, rule or decision that prohibits the filing of a new petition for certiorari within the reglementary period after the dismissal of the first petition due to technicality.[27] It rebuts petitioners charge of forum shopping by pointing out that the dismissal of the first petitio n due to technicality has not ripened into res judicata, which is an essential element of forum shopping.[28] In determining whether a party has violated the rule against forum shopping, the test to be applied is whether the elements oflitis pendentia are present or whether a final judgment in one case will amount to res judicata in the other.[29] This issue has been thoroughly and extensively discussed and correctly resolved by the Court of Appeals in this wise: The respondents two arguments essay on certain developments in the case after the NLRC rendered its decision. He points out with alacrity that an entry of judgment was issued twice first by the NLRC with respect to its decision and then by the Ninth Division of the Court of Appeals after it dismissed on technical grounds the first petition for certiorari filed by the petitioner. Neither event, for sure, militates against the institution of a second petition for certiorari. A decision of the NLRC is never final for as long as it is the subject of a petition for certiorari that is pending with a superior court. A contrary view only demeans our certiorari jurisdiction and will never gain currency under our system of appellate court review. It is more to the point to ask if a second petition can stand after the first is dismissed, but under the particular circumstances in which the second was brought, we hold that it can. The theory of res judicata invoked by the respondent to bar the filing of the second petition does not apply. The judgment or final resolution in the first petition must be on the merits for res judicata to inhere, and it will not be on the merits if it is founded on a consideration of only technical or collateral points. Yet this was exactly how the first petition was disposed of. SP 73521 was dismissed as a result of the failure of the

E V I D E N C E : H E A R S A Y E V I D E N C E | 138 petitioner to comply with the procedural requirements of a petition for certiorari. The case never touched base. There was no occasion for the determination of the substantive rights of the parties and, in this sense, the merits of the case were not involved. The petitioner had actually the option of either refilling [sic] the case or seeking reconsideration in the original action. It chose to file SP 73790 after realizing that it still had enough time left of the original period of 60 days under Rule 65 to do so. Since the dismissal of the first petition did not ripen into res judicata, it may not be said that there was forum shopping with the filing of the second. The accepted test for determining whether a party violated the rule against forum shopping insofar as it is applicable to this setting is whether the judgment or final resolution in the first case amounts to res judicata in the second. Res judicata is central to the idea of forum shopping. Without it, forum shopping is non-existent. The dismissal of the first petition, moreover, if it does not amount to res judicata, need not be mentioned in the certification of non-forum shopping accompanying the second action. The omission will not be fatal to the viability of the second case. (Citations omitted)[30] Private respondent, in turn, questions the propriety of the instant certiorari petition and avers that the issues raised by petitioner can only be dealt with under Rule 45 of the Rules of Court.[31] Against this thesis, petitioner submits that the acceptance of the petition is addressed to the sound discretion of this Court.[32] The proper remedy to assail decisions of the Court of Appeals involving final disposition of a case is through a petition for review under Rule 45. In this case, petitioner filed instead a certiorari petition under Rule 65. Notwithstanding this procedural lapse, this Court resolves to rule on the merits of the petition in the interest of substantial justice,[33] the underlying consideration in this petition being the arbitrary dismissal of petitioner from employment. Petitioner submits that the Court of Appeals erred in relying merely on fax messages to support the validity of his dismissal from employment. He maintains that the first fax message containing the information that the vessel encroached on a different route was a mere personal observation of the ship master and should have thus been corroborated by evidence, and that these fax messages cannot be considered as res gestae because the statement of the ship master embodied therein is just a report. He also contends that he has not caused any immediate danger to the vessel and that if he did commit any wrongdoing, the incident would have been recorded in the logbook. Thus, he posits that the failure to produce the logbook reinforces the theory that the fax messages have been concocted to justify his unceremonious dismissal from employment. Hence, he believes that his dismissal from employment stemmed from his filing of the complaint with the ITF which his superiors resented.[34] Private respondent insists that the appellate court is correct in considering the fax messages as res gestae statements. It likewise emphasizes that non-presentment of the logbook is justified as the same could no longer be retrieved because Hansu has already ceased to be its principal. Furthermore, it refutes the allegation of petitioner that he was dismissed because he filed a complaint with the ITF in behalf of his fellow crew members. It claims that petitioners allegation is a hoax because there is no showing that the alleged complaint has been received by the ITF and that no action thereon was ever taken by the ITF.[35] Private respondent also asserts that petitioner was not dismissed but that he voluntarily asked for his repatriation. This assertion, however, deserves scant consideration. It is highly illogical for an

E V I D E N C E : H E A R S A Y E V I D E N C E | 139 employee to voluntarily request for repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is proper to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal.[36] The paramount issue therefore boils down to the validity of petitioners dismissal, the determination of which generally involves a question of fact. It is not the function of this Court to assess and evaluate the facts and the evidence again, our jurisdiction being generally limited to reviewing errors of law that might have been committed by the trial court or administrative agency. Nevertheless, since the factual findings of the Court of Appeals and the Labor Arbiter are at variance with those of the NLRC, we resolve to evaluate the records and the evidence presented by the parties.[37] The validity of an employee's dismissal hinges on the satisfaction of two substantive requirements, to wit: (1) the dismissal must be for any of the causes provided for in Article 282 of the Labor Code; and (2) the employee was accorded due process, basic of which is the opportunity to be heard and to defend himself.[38] The Labor Arbiter held that petitioners absence during his watch duty when an emergency call was received from the Japanese port authority that M/V Phoenix Seven was invading other route constituted neglect of duty, a just cause for terminating an employee. Records reveal that this information was related to private respondent via two fax messages sent by the captain of M/V Phoenix Seven. The first fax message dated 18 January 1997 is reproduced below:

JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER THAT THEY DECIDED TO DISCHARGE 2/OFFICER ATOSAKA PORT. DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER. CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT SHIP IS INVADING OTHER ROUTE. SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O NOT CARRY OUT HIS WATCH DUTY. MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE WILL COME BACK HOME. FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE SCALE. MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH I.E.U. PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.[39]

The second fax message dated 20 January 1997 pertained to a report of crew discharge essentially containing the same information as the first fax message. The Court of Appeals treated these fax messages as part of the res gestae proving neglect of duty on the part of petitioner. Section 42 of Rule 130[40] of the Rules of Court mentions two acts which form part of the res gestae, namely: spontaneous statements and verbal acts. In spontaneous exclamations, the res

E V I D E N C E : H E A R S A Y E V I D E N C E | 140 gestae is the startling occurrence, whereas in verbal acts, the res gestae are the statements accompanying the equivocal act.[41] We find that the fax messages cannot be deemed part of the res gestae. To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances.[42] Assuming that petitioners negligencewhich allegedly caused the ship to deviate from its courseis the startling occurrence, there is no showing that the statements contained in the fax messages were made immediately after the alleged incident. In addition, no dates have been mentioned to determine if these utterances were made spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be admitted as part of the res gestae of the first kind. Neither will the second kind of res gestae apply. The requisites for its admissibility are: (1) the principal act to be characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act.[43] Petitioners alleged absence from watch duty is simply an innocuous act or at least proved to be one. Assuming arguendothat such absence was the equivocal act, it is nevertheless not accompanied by any statement more so by the fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine whether the fax messages were made simultaneously with the purported equivocal act. Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion is questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained such information only from the Japanese port authorities. Verily, the messages can be characterized as double hearsay. In any event, under Article 282 of the Labor Code,[44] an employer may terminate an employee for gross and habitual neglect of duties. Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence connotes want of care in the performance of ones duties. Habitual neglect implies repeated failure to perform ones duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee.[45] Petitioners supposed absence from watch duty in a single isolated instance is neither gross nor habitual negligence. Without question, the alleged lapse did not result in any untoward incident. If there was any serious aftermath, the incident should have been recorded in the ships logbook and presented by private respondent to substantiate its claim. Instead, private respondent belittled the probative value of the logbook and dismissed it as self-serving. Quite the contrary, the ships logbook is the repository of all activities and transactions on board a vessel. Had the route invasion been so serious as to merit petitioners dismissal, then it would have been recorded in the logbook. Private respondent would have then had all the more reason to preserve it considering that vital pieces of information are contained therein.

E V I D E N C E : H E A R S A Y E V I D E N C E | 141

In Haverton Shipping Ltd. v. NLRC,[46] the Court held that the vessels logbook is an official record of entries made by a person in the performance of a duty required by law. [47] In Abacast Shipping and Management Agency, Inc. v. NLRC,[48] a case cited by petitioner, the logbook is a respectable record that can be relied upon to authenticate the charges filed and the procedure taken against the employees prior to their dismissal.[49] In Wallem Maritime Services, Inc. v. NLRC,[50] the logbook is a vital evidence as Article 612 of the Code of Commerce requires the ship captain to keep a record of the decisions he had adopted as the vessel's head.[51] Therefore, the non-presentation of the logbook raises serious doubts as to whether the incident did happen at all. In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer.[52] Private respondent miserably failed to discharge this burden. Consequently, the petitioners dismissal is illegal.

We also note that private respondent failed to comply with the procedural due process requirement for terminating an employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern since it constitutes a safeguard of the highest order in response to man's innate sense of justice. The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement of due process in termination proceedings, which must be complied with even with respect to seamen on board a vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side of the alleged offense or misconduct, which led to the management's decision to terminate. To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employers decision to dismiss him.[53] Private respondents sole reliance on the fax messages in dismissing petitioner is clearly insufficient as these messages were addressed only to itself. No notice was ever given to petitioner apprising him in writing of the particular acts showing neglect of duty. Neither was he informed of his dismissal from employment. Petitioner was never given an opportunity to present his side. The failure to comply with the two-notice rule only aggravated respondents liability on top of dismissing petitioner without a valid cause. Pursuant to Section 10 of Republic Act No. 8042[54] or the Migrant Workers Act, employees who are unjustly dismissed from work are entitled to an amount representing their three (3) months salary considering that their employment contract has a term of exactly one (1) year plus a full refund of his placement fee, with interest at 12% per annum.[55]

IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE. The Decision of the NLRC is REINSTATED with the MODIFICATION that in addition to the payment of the sum equivalent to petitioners three (3) months salary, the full amount of placement fee with 12% legal interest must be refunded. SO ORDERED.

E V I D E N C E : H E A R S A Y E V I D E N C E | 142 G.R. No. L-25856 April 29, 1968 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JACINTO RICAPLAZA @ TOTING RICAPLAZA, Defendant-Appellant. Jacinto Ricaplaza @ Toting Ricaplaza was charged with the crime of robbery in band with homicide in an information filed by the Provincial Fiscal of Cotabato, together with five other persons whose identities were, at the time of the trial, still unknown and at large, in the Court of First Instance of Cotabato. After trial, the court found Jacinto Ricaplaza guilty beyond reasonable doubt of the crime of robbery with homicide only, as the number of the robbers was not established by the evidence. There being no modifying circumstance attendant in the commission of the crime, the accused was sentenced to suffer the penalty of reclusin perpetua, to indemnify the heirs of the deceased, Francisco Poncardas, in the sum of P6,000.00, and P375.00 for the value of a shotgun, P120.00 for the value of jewelry, and P320.00 for the value of a transistor radio, all belonging to the deceased; and to indemnify Miss Gliceria Ruellan the sum of P45.00 for her wrist watch, P5.00 for the value of her goggles and cash amount of P30.00, all of which were lost in the robbery committed on the night of June 18, 1962, and to pay the costs. Hence, this appeal from the decision. On June 18, 1962, at about 7:00 o'clock in the evening, Francisco Poncardas was lying down on the sofa that was in the sala of his house in Padidu, Glan, Cotabato. He had just taken supper with the members of his household, namely: Irinea Clarrisan, his wife; Rufina Poncardas, daughter; Justiniano Poncardas and Lucia, grandson and granddaughter, respectively; Josefina Bigapria, his ward; and Gliceria Ruellan a public school teacher boarding in the house. All of a sudden, a man entered the sala with a pistol pointed at Francisco Poncardas, and demanded where his money was. At that moment, Lucia was wiping the dining table which was about 3 meters from the sala; Josefina was washing dishes in the kitchen; Ruellan and Rufina were in the toilet, about 20 meters, away from the house. Francisco Poncardas reacted to the demand by rising from the sofa and tried to wrest the gun from the intruder. Shots were thereupon fired at Francisco, from someone outside the house and by the intruder himself. As a consequence, Francisco suffered gunshot wounds, fell to the floor and died instantly. After the robbers had fled, it was found that the wardrobe was forced open by a shot right at the key hole and things were scattered all over the room. The following articles were found missing: A shotgun worth P375.00, Jewelry worth P120.00, and a transistor radio worth P320.00, all belonging to the deceased. Gliceria Ruellan lost cash in the amount of P30.00, a wrist watch worth P45.00 and goggles worth P5.00. Jose Poncardas, son of the deceased, also claimed that cash amounting to P9,000.00 kept by the deceased in his aparador was missing. He stated this amount represented the proceeds of the sales of copra made by the deceased. At the time of the commission of the crime on June 18, 1962, Lucia Ferolino and Josefina Bigapria were living in the house of Francisco Poncardas (TSN, pp. 15, 75, 82, 888, 107). Both were studying and being supported by the deceased, aside from the fact that Lucia is his granddaughter (TSN, pp. 15, 75, 82). Gliceria Ruellan was a school teacher boarding in the house of the deceased but she did not pay for her board and lodging (TSN, pp. 299-300). When Lucia and Josefina were called to testify in this case both were only 12 years of age (TSN, pp. 15, 88). Lucia Ferolino testified that she first met appellant Jacinto Ricaplaza in May, 1962, when he stayed for two days and two nights in the house of her grandfather Francisco Poncardas in Padidu, Glan, Cotabato. She said she served meals to him (TSN, pp. 105, 110, 111). On the night in question, after taking supper, she was wiping the dining table which was about 3 meters from the sala, when all of a sudden a man entered, pointed his gun to his grandfather, and asked: "Where is the key?" She recognized the intruder as Toting Ricaplaza. Her grandfather stood up and grappled with him. At once she heard a shot from the

E V I D E N C E : H E A R S A Y E V I D E N C E | 143 intruder. Then she saw one robber at the window shot her grandfather. As a consequence, her grandfather fell. (TSN, pp. 90-92) She wanted to go upstairs, but when she saw four legs in the stairs, she went instead to the kitchen and told Josefina that there were robbers in the house and that her grandfather was shot. (TSN, pp. 93-37) Lucia and Josefina then ran towards the door to escape, but they were blocked by appellant who, at gunpoint, ordered them to go inside, otherwise, they would be killed. They obeyed and ran to the sala. Upon seeing Francisco Poncardas dead, they ran outside through the main door towards the evergreen. Josefina separated from her. She proceeded to the house of Melchor Poncardas. Lucia declared that she was positive it was Jacinto Ricaplaza who shot her grandfather because she saw his face. (TSN, pp. 98-102, 116-118.) When she and Josefina returned to the house of Francisco Poncardas after the shooting had stopped, they volunteered the information to the people there that it was Jacinto Ricaplaza who killed Francisco Poncardas. (TSN, p. 122.) Josefina Bigapria testified that she was living in the house of Francisco Poncardas when the incident happened. The deceased was the one sending her to school. (TSN, p. 15) On the night in question, she was washing dishes in the kitchen when Lucia Ferolino came running and told her that there were robbers in the house and that her grandfather was shot. Before that, she heard gunshots inside the house. She (Josefina) and Lucia ran towards the door but they were blocked by appellant and pointed his pistol to them. They were told by appellant to go inside otherwise they would be killed. They ran to the sala and saw Francisco Poncardas dead. They went out running towards the evergreen. She heard many shots outside. On the road, they met Rufina Poncardas. They told her that Toting Ricaplaza blocked their way by the kitchen. Then she (Josefina) and Lucia parted ways. Josefina went running to the house of Melchor Poncardas where she met Lucia. When it was already quiet, she and Lucia went back to the house of Francisco Poncardas. There were many people inside the house. Without being asked, they told the people there that Toting Ricaplaza shot Francisco Poncardas. (TSN, pp. 23-24; 25-26; 36-39.) Witness declared that she knew appellant before the night of the incident because he stayed in the house of Francisco Poncardas in May, 1962 for two days and two nights and that she and Lucia served him food. (TSN, pp. 25, 26, 55.) When Lucia and Josefina were brought to jail to identify the assailant of Francisco Poncardas, they singled out appellant among three individuals in the jail as the person whom they saw on the night in question, (TSN, pp. 42, 131.) Josefina further identified appellant by the scars on his face: One in the right forehead and the other on his left cheek. She said she saw those scars during the night of the incident because she looked very well at appellant's face. Appellant did not wear mask at the time. (TSN, pp. 44, 45, 46, 50.) Both witnesses declared that appellant was wearing a cap. (TSN, pp. 84, 142.) They recognized appellant by the light of electric bulbs when they tried to escape towards the kitchen door but were blocked by appellant. (TSN, pp. 98-100.) Gliceria Ruellan testified that when Francisco Poncardas was shot, she was in the toilet together with Rufina Poncardas. The toilet was about 20 meters from the house. They were about to return to the house but when they saw men firing towards the house, they fled to the house of Melchor Poncardas. Five minutes later, Lucia Ferolino arrived and she told witness that Francisco Poncardas was killed by Toting Ricaplaza. (TSN, pp. 282-285.) . It is argued that having met the appellant occasionally, and considering the length of time that had elapsed since Lucia and Josefina first met him in May 1962 to June 18, 1962, when the crime was committed, it is not possible that these witnesses could print in their minds the look of appellant especially under a situation of fear and distress. The argument is untenable. It is true that Lucia and Josefina met appellant only once before the commission of the crime on June 18, 1962, but their meeting was not merely casual. For two days in May, 1962, appellant and the witnesses stayed together in the house of Francisco Poncardas. The children served meals to appellant during his

E V I D E N C E : H E A R S A Y E V I D E N C E | 144 two days stay there. They ate together. They saw appellant converse with the deceased while they were eating. (TSN, pp. 26, 55, 65, 105, 110, 111.) They held all the time and opportunity to look at appellant's face. From May to June 1962, only a month had elapsed. It is not possible that these children could forget appellant's face for so short a time. Generally, children have good and retentive memory, especially at the ages of 12 like Lucia and Josefina. They said they were afraid, but not so much. They still remember appellant's face. (TSN, pp. 33, 116.) Lucia and Josefina were subjected to rigid questioning on cross-examinations. Attempts were made by counsel to mislead them by suggesting that the one they saw on the night in question had a similarity to appellant, but despite long and tedious cross-examination, the children stuck to their testimony that it was appellant Toting Ricaplaza whom they saw and not another who looked like him. Never for a moment did they falter, waver or vaccillate in their testimonies during their direct and cross-examinations. As the record shows, they testified in a clear, straightforward manner which can only mean that what they narrated in court was what they actually saw and observed on the night in question. Their story remained consistent and free from material contradictions. Appellant maintains that Lucia and Josefina were taught by the prosecution what to say in court and because of their tender age and relationship with the deceased, coupled with the fact that the expenses for their education were shouldered by the deceased, the said children had to adopt whatever coaching the prosecution should advise them to testify in court. And in the case of Miss Ruellan, appellant claims that she had to follow the suggestion of the private prosecutors if only to please the relatives of the deceased and to manifest in some way her debt of gratitude for having lived in the house of the deceased without expense. Just because Lucia and Josefina were young in age and the former was the grand-daughter of the deceased and, like Miss Ruellan, were given free board and lodging, did not necessarily mean that they could allow themselves to be used as tools of the relatives of the deceased by perjuring themselves. This is specially true of Miss Ruellan who, as a school teacher, is presumed to have a high regard for truth and to be conscious of the far-reaching results of her testimony. Anyhow, the contention is devoid of factual basis, and merits no consideration. It has been consistently ruled that where no improper motive has been shown, relationship to the victim does not render the clear and positive testimony of witnesses less worthy of full faith and credit (People vs. Tividad, et al., L-21469, June 30, 1967; People vs. Santos, et al., L-17215-17, Feb. 28, 1967; People vs. Reyes, et al., L-18892, May 30, 1966; People vs. Villalba, L-17243, August 23, 1966; People vs. Asmawil, L-18761, March 31, 1965; People vs. Libed, et al., L20431, June 23, 1965; People vs. Miranda, et al., L-18508-09). In the case at bar, no improper motive has been proved on the part of the witnesses for the prosecution. It cannot be assumed that in seeking justice and the punishment of the assailant, they would indiscriminately, and without any motive, point to the wrong parties. (People vs. Valera, L-15662, August 20, 1962; People vs. Tagaro, L-18518, January 31, 1963; People vs. Asmawil, supra; People vs. Constantino et al., L-23558, August 10, 1967.) The trial court, after having observed the witnesses on the stand, found them credible. The conclusion of the trial court regarding the credibility of witnesses, commands great respect and consideration, and appellate courts will not interfere with the conclusion of the trial court concerning the credibility of witnesses for the latter is in a better position to appreciate the same, having seen and heard the witnesses themselves and observed their behaviour and manner of testifying during the trial. (People vs. Portugueza, L-22604, July 31, 1967; People vs. Gumahin, L-22357, October 31, 1967; People vs. Jaravata, L-22029, August 15, 1967; Addenbrook vs. People L-22995, June 29, 1967; People vs. Castro, L-20555 & L-21449, June 30, 1967.)

E V I D E N C E : H E A R S A Y E V I D E N C E | 145 Appellant assails the testimony of Lucia Ferolino to the effect that after the appellant had allegedly asked for the key, he immediately shot Francisco Poncardas without giving the latter a chance to say anything or answer the inquiry. This, appellant claims, is inconsistent with the ordinary course of events since the deceased and appellant were intimate and related to each other (the deceased was allegedly the second cousin of appellant's father). Appellant maintains that under the circumstances, the natural reaction would have been for the appellant to wait for the answer of the deceased before shooting him. He mentions some probable comments that the deceased could have made, thus: "What is the matter, Toting"; or "Why have you done this to me, Toting"; or "Don't you pity me, Toting"; or "Please don't kill me, Toting." This, the deceased never said, much more mentioned appellant's name, during his supposed distressed moments and, therefore, the reasonable inference is that the person who shot him was not known to him in any way. Reduced to few words, appellant's theory is that what is not ordinary is not credible. Appellant's argument ignores the fact that different persons respond to crisis differently. Francisco Poncardas might have been a man of few words. Besides, the deceased treated appellant like a son (appellant testified that the deceased loved him very much, even gave him money (TSN, p. 822), and, as a father, he must have thought that he could stop appellant by simply getting the gun from him, sans any dialogue. And so, without much ado, he tried to wrest the gun from the appellant. It was perhaps this attitude of the deceased that provoked the appellant, so he shot his benefactor. This is not uncommon nowadays. Many cases there are when children are masterminds of robbery against their own parents or against the persons who have given them shelter, food and education. Children have the temerity of shooting their own parents even for trifling reasons, as when they are refused money, or when they are scolded or prevented to do this and that. If children can do this to their own parents, what more of strangers? It is argued that robbers do not usually commit robbery in a place where they are well known, and more so, when the place is well lighted, and that robbers instinctively commit robbery with the highest precaution in order that nobody may recognize them. This theory does not hold true anymore. Time has changed a great deal. Now, robberies are committed left and right in broad daylight, in the midst of crowds, and under the very noses of police authorities. Even if their identities are known, the robbers can get away with the robbery; they hide in far away places where they are not known and with assumed names, they enjoy their loot. Before they are caught, if ever they can be discovered, they have pulled another robbery and disposed of their loot. Like in the case at bar, among the robbers who participated in the commission of the crime, only appellant was apprehended and brought to trial; the others, who presumably hold the stolen goods and money, have not yet been apprehended and are scot free. It is also contended that the trial court erred in considering as part of the res gestae the statement of Luisa Ferolino that immediately after she arrived in the house of Melchor Poncardas, to where she fled during the time of the robbery, Lucia told Ruellan that Francisco Poncardas was killed by a person named "Toting", because appellant claims that when Lucia returned to the house of the deceased after the robbers had left, she did not mention this information to anybody, more so to the police officers who were investigating the case. (TSN, pp. 283-285; 298-299.) Appellant doubts that this information connecting him to the crime had really been relayed to Ruellan, otherwise, as appellant claims, she would have reiterated the statement to the authorities. The failure of Miss Ruellan to inform the police officers about the statement does not make her an incredible witness. In the first place, she was not asked about the statement. And since Lucia and Josefina, who have actually witnessed the incident, had already volunteered the information to the people inside the house of Poncardas (TSN, p. 122), there was no need for Miss Ruellan to repeat the same statement. There are three requisites for the admission of evidence of res gestae: (1) that the principle act, the res gestae, be a startling occurrance; (2) that the statements were made before the declarant had time to contrive or devise; and (3) that the statements must concern the occurrence in question and its immediately attending circumstances. (Moran Comments on the Rules of Court, Vol. 5, 1963 Ed. 36.)

E V I D E N C E : H E A R S A Y E V I D E N C E | 146 There is no question that robbery with homicide is a startling occurrence so as to produce nervous excitement. The declaration of Lucia Ferolino that appellant shot her grandfather, no doubt, concerned the occurrence in question. The question then to determine is whether the statement, made after the robbery and homicide had ended, was made before the declarant had time to contrive or devise anything contrary to the real fact that occurred. Lucia Ferolina testified that after she saw Toting Ricaplaza shoot her grandfather, she ran to the kitchen and informed Josefina Bigapria about the incident. Then the two of them went out running towards the evergreen, hide for a while, and then proceeded to the house of Melchor Poncardas. Upon arrival there, Lucia immediately informed Miss Ruellan that the person who shot her grandfather was Toting Ricaplaza. The intervening time between the act and the declaration relating to it is so short that it may not be deemed to have relieved the declarant from the exciting influence of the startling occurrence. No other circumstance had intervened which might have removed from Lucia's mind the startline incident. The identification of appellant may, therefore, be considered as part of the res gestae since it was made before the declarant could contrive or devise a plan to incriminate him. But, even if the statement of Miss Ruellan admitted by the trial court as part of the res gestae is excluded, still the evidence in respect to the participation of the appellant in the commission of the crime is convincing. The appellant vigorously assails the decision because the trial court did not accord credence to his defense of alibi. Appellant denied the charge that he was one of those who robbed and killed Francisco Poncardas on the night of June 18, 1962. While admitting having been at the house of the deceased in May, 1962, he denied, however, that he had been served his meals there by Lucia and Josefina (TSN, pp. 794-795). To determine the truth of appellant's alibi, it is important to enumerate here his activities before and after the commission of the crime.chanroblesvirtualawlibrarychanrobles virtual law library Appellant testified that on June 18, 1962, from morning up to 4:00 o'clock in the afternoon, he was busy working in the fishpond of Dionisio Liong in Balangonan, Abad Santos, Davao, many kilometers away from Padidu, Glan, Cotabato. From the fishpond, be went to the house of Dionisio Liong where he sat by the balcony and listened to the radio up to 6:00 o'clock, when he was asked by one Leonardo Saavedra to help him catch pigs (TSN, pp. 805, 808-809, 874-875). The catching of pigs lasted for about half an hour, after which he was ordered by Dionisio Liong to close the gate of the fishpond and repair the dikes. He left the fishpond at about 10:00 o'clock in the evening (TSN, pp. 811, 874-875). The next day, June 19, appellant learned of the tragedy. He felt worried and wept because the deceased was to him like his father who loved him very much and even gave him money (TSN, pp. 815, 822). On June 23, he left Balangonan for Dadiangas. He declared that although in going to Dadiangas, he had to pass Glan, he did not bother to stop there because his wife and children were waiting for him in Dadiangas where they intended to take a bath at the beach on June 24 - St. John the Baptist Day (TSN, pp. 823-825; 851). Appellant presented witnesses to corroborate his claim: Capt. Jose Momongan who was then the Commanding Officer of the 101st P.C. Company stationed at General Santos, Cotabato; Sgt. Salvador Garcira of the same company; Dionisio Liong, Leonardo Saavedra and Hilario Tubuan. Captain Jose Momongan testified that he first met appellant in May, 1962, in General Santos, Davao. He met him again in Balangonan on June 16, 1962, where he went to investigate the boundary dispute between Glan and Abad Santos regarding Batulaki and to see the fishpond offered to him by Dionisio Liong (TSN, pp. 342-346). He did not know appellant's real name. He merely called him Ting. On June 18, 1962, at about 6:00 to 6:30 in the afternoon, appellant, with two others, was ordered by Dionisio Liong to catch pigs. The catching of pigs lasted up to 7:00 o'clock in the evening. Witness saw appellant again while he and Dionisio Liong were eating supper about 7:30 o'clock that evening. Appellant ate

E V I D E N C E : H E A R S A Y E V I D E N C E | 147 supper during the second serving (TSN, pp. 352-354). After eating, appellant went to the fishpond together with the other employees of Liong. That from the veranda of Liongs house, he could see appellant and his companions in the fishpond until they returned to the house at 10:00 o'clock in the evening (TSN, pp. 356, 357). He further declared that appellant was wearing white shirt and maong pants with a red cap on the day in question. The next day, June 19, he saw appellant early in the morning in the beach of Balangonan wearing the same cap (TSN, pp. 357-358). Dionisio Liong testified that appellant is, a relative of his wife. He first met him in May, 1961 in Dadiangas, Cotabato. The second time he met him was on June 15, 1962, when appellant applied for a job in his fishpond. He immediately appointed him as supervisor of his fishpond although he knew that he had no experience in fishpond business. Before appellant's appointment, there was a regular supervisor of the fishpond (TSN, pp. 726- 728, 745-746). Witness declared that appellant arrived in Balangonan in the morning of June 15, 1962. He said the distance between Balangonan and Padidu, Glan can be negotiated by boat in 3 to 4 hours (TSN, pp. 751, 769). In the afternoon of June 18, 1962, appellant emptied the fishpond up to 6:30 o'clock. Afterwards, he chased hogs with two other companions. The chasing of hours lasted until 7:00 o'clock. The last time he saw appellant was at 10:00 o'clock that same evening (TSN, pp. 733-735). Witness testified that he knew Capt. Jose Momongan since 1961. He said he did not offer his fishpond to Capt. Momongan; it was the Captain who wanted to buy it. And the Captain went to Balangonan not to convince him to sell his fishpond but to investigate the boundary dispute regarding Batulaki (TSN, pp. 754-759). On June 18, 1962, after lunch, the Captain took his siesta. After he woke up, witness and the Captain conversed off and on inside his house until 10:00 o'clock in the evening. The Captain did not go out of the house from the time he woke up from his siesta (TSN, pp. 765-766). In the preliminary investigation before the Justice of the Peace Court, appellant testified as follows: Appellant arrived in Balangonan on June 16, 1962, at 12:00 o'clock noon. On June 18, 1962, after chasing pigs, appellant took his supper with Captain Momongan at about 8:00 o'clock or more. Afterwards, appellant slept. That the distance between Balangonan and Padidu, Glan can be travelled in one and a half hours using a boat with 40 horse power engine. Sergeant Salvador Garcira testified that he saw appellant about 6:00 o'clock in the afternoon of June 18, 1962, before chasing the hog. He saw him again at 6:40 after catching the pigs. That was the last time he saw appellant (TSN, p. 665). In the preliminary investigation, however, witness declared that the last time he saw appellant was on June 18, 1962, at 5:15 in the afternoon. (TSN, pp. 683-689). Appellant's alibi must fail. According to appellant, his uncle Francisco Poncardas loved him very much. Yet when he learned of his uncle's tragic death in Padidu, Glan, he did not even bother to go there and pay his last respects to the deceased or condole with his bereaved family. And all because his wife and children were waiting for him in Dadiangas where they intended to take a bath at the beach there. Appellant explained later that he did not go to Glan anymore because he was being suspected as the mastermind of the robbery and homicide. For more reason he should have presented himself to the family of the deceased and to the authorities as well in order to clear his name, if indeed, he had nothing to do with the commission of the felony. This is the most logical thing that an innocent man would have done under the circumstances. Appellant's behaviour is unusual and inconsistent with human experience. His actions betray his guilty conscience. Appellant had chosen the time between 6:30 and 7:00 o'clock in the evening to catch pigs. The reason he gave for so doing is that the pigs during day time go to the mountains and come back late in the afternoon. He said the pigs were domesticated. This is a very peculiar excuse. Domesticated pigs do not usually go far but remain within the premises of the house. If ever they go far and get lost, they would not

E V I D E N C E : H E A R S A Y E V I D E N C E | 148 know how to come back, unlike the dogs and cats. And if the pigs were really that tamed as suggested by appellant, there was no need for him to chase them. While eating the pigs can be caught without difficulty. There is evidence that the house of Dionisio Liong is surrounded by coconut trees and forest (TSN, p. 895). This piece of evidence renders more unconvincing appellant's excuse. Chasing pigs in open space crowded with trees at nighttime is a departure from the ordinary way of catching them. It will be observed that the testimonies of defense witnesses dovetailed in nearly every detail as to where and what appellant did prior to, at the time of, and even after the commission of the crime. The things related by the witnesses seemed to be very fresh and vivid in their minds despite the lapse of time. The exact and uniform time given by said witnesses, their having noticed said time without special reason for doing so, and their close association with appellant, render their testimonies unconvincing. (People vs. Fontanosa, et al., L-19421, May 29, 1967; People vs. Raquel, L-17401, November 28, 1964). It is also worthy to note that the aforesaid testimonies suffer from flaws and inconsistencies. Thus, Captain Momongan declared that in the afternoon of June 18, 1962, he stayed in the veranda of Dionisio Liong's house from where he witnessed the chasing of the hogs. From there, he also saw appellant and his companions, while they were working in the fishpond. He also stated that he and Dionisio Liong ate their supper ahead; appellant ate his supper during the second serving. On the other hand, Dionisio Liong testified that Captain Momongan did not leave the house from the moment he woke up from his siesta; they were conversing off and on inside his house up to 10:00 o'clock in the evening. He also denied the Captain's claim that he offered his fishpond to him. While the variance may pertain only to minor matters of the incident, they surely affect witnesses' credibility. To establish an alibi, it is not enough to prove that the defendant was at some other place when the crime was committed but must, likewise, demonstrate that it was physically impossible for him to have been at the scene of the crime at such time. (People vs. De los Santos, et al., L-19067-68, July 30, 1965; People vs. Libed, et al., L-20431, May 27, 1966; People vs. Noril Sampang, L-15743, March 31, 1966; People vs. Sinaon, L-15631, May 27, 1966; People vs. Constantino, L-23558, August 10, 1967; People vs. Pelagio, et al., L-16177, May 24, 1967.) . Assuming that appellant was really in Balangonan on the day in question - June 18, 1962 - there is evidence that it was not physically impossible for him to be at the place of the crime at the precise time the robbery and homicide were committed. During the preliminary investigation, Sgt. Garcira testified that the last time he saw appellant was at 5:15 in the afternoon of July 18. And Dionisio Liong declared that the distance between Balangonan and Padidu, Glan could be negotiated in one and a half hours by boat. The crime at bar was committed at about 7:00 o'clock in the evening of June 18, 1962. It is true that Liong tried to change his testimony in court (TSN, pp. 736, 736, 743) but between his testimony at the trial and his testimony at the preliminary investigation, the latter should be given credence because it was made when declarant had not had sufficient time to meditate or concoct what to say in court. Then, too, appellant's alibi deserves scant consideration for it is supported only by friends and relatives. That Captain Momongan is a friend of appellant can be gleaned from the following facts: Captain Momongan played the role of defense counsel for appellant and even asked the court to let him act as amicus curiae at the preliminary investigation. He made representations to the Mayor of Glan and to the relatives of the deceased that appellant was not guilty of the crime charged. (TSN, p. 521.) And he even approached important people to have the case against appellant dismissed. (TSN, p. 529.) He did not also make any effort to examine appellant or take his testimony in writing despite his knowledge that two witnesses positively identified and linked him to the crime. He also failed to determine the identity of the persons who may shed light to the commission of the crime and the authors thereof. And, notwithstanding that there was already a warrant for the arrest of appellant, Captain Momongan still allowed him to go to Glan as a free man. (TSN, pp. 528-529.) Witness claimed that he had no familiarity with appellant; in fact, he declared that he knew of appellant's real name only when he was implicated in

E V I D E N C E : H E A R S A Y E V I D E N C E | 149 the crime. But from the very start of the case up to its termination, Captain Momongan has shown extraordinary interest to have him cleared of the crime charged. His interest had assumed a personal character. The other witness, Dionisio Liong, is related to appellant by affinity. He admitted that he hired appellant as supervisor of his fishpond although he knew very well that he had no experience whatsoever in its management. It is strange that appellant was hired just a few days before the commission of the crime and immediately thereafter he hurriedly left. His employment, therefore, may be said to have another purpose than the mere taking care of the fishpond. He had chosen this place as a convenient start for his journey to Glan, Cotabato, to commit the murder and the robbery. There is one circumstance which clinches the certainty of the identification of the accused. Josefina Bigapria stated without being asked that the man who entered the sala of Francisco Poncardas was wearing a cap. When Captain Momongan was testifying in turn for the defense, he volunteered the information that appellant was wearing a cap on the day in question and also the next day when he saw him at the bench of Balangonan. (TSN, pp. 357-358.) This extraordinary coincidence attests to the reliability of the identification made by Josefina Bigapria. The rule is that alibi is the weakest of all defenses and that the same should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime. And since alibi can easily be fabricated, the same must be established by clear and positive evidence, free from doubt and bias, and that purely oral evidence presented to prove it cannot prevail over positive evidence showing the presence of the defendant at the scene of the crime and his participation in the commission thereof. (People vs. Reyes, et al., L-18892, May 30, 1966; People vs. Contante, L-14639, December 28, 1964; People vs. Sagario, et al., L-18659, June 29, 1965.) Appellant's evidence on this point is not sufficient to overcome the positive identification made by the prosecution witnesses - Lucia Ferolino and Josefina Bigapria - that he was the very man who shot Francisco Poncardas. Finally, the appellant contends that the trial court erred in not considering the confessions of Alfredo Fernandez and Remigio Arzula admitting their participation in the commission of the crime at bar, and exonerating by reason thereof. The confessions of Alfredo Fernandez and Remigio Arzula (Exhibits 1 and 2), were submitted as evidence for the defense. In said confessions, Fernandez and Arzula admitted their participation in the commission of the crime charged, naming their companions but not in any way mentioning the name or nickname of appellant. The theory of the defense is that not having been mentioned in the aforesaid confessions, appellant has no participation at all in the felony; otherwise, the declarants would have made mention of appellant as a participant in the commission thereof. Before Alfredo Fernandez and Remigio Arzula were brought to the constabulary headquarters, they were confined in the provincial jail in General Santos charged with vagrancy. They were interviewed on June 25, 1962, but their testimonies were reduced into writing only the next day, June 26th. The reason, according to Captain Momongan, is that the declarants at first denied their participation but through the use of diplomatic techniques, he was able to persuade the suspects to admit their guilt. What these techniques are, the Captain did not clearly explained. First, he said, he appealed to the suspects' civic conciousness and moral duty. Then he said, he employed the persuasive technique which took longs hours to make. What he did, he declared, is to make the two suspects disagree on certain facts resulting first to the confession of Arzula, followed by Fernandez. (TSN, pp. 515-520.) True, there was a reenactment of the crime but it was made to fit the statements narrated in the confessions (TSN, pp. 382383.) The confessions, Exhibits 1 and 2, consisted of 30 questions. Only 15 questions relate to the killings of Glan. The suspects were questioned for several hours for two days before the written confessions were

E V I D E N C E : H E A R S A Y E V I D E N C E | 150 secured. While there is no claim or evidence of physical torture, the above circumstances show beyond doubt that pressure was applied to subvert the declarant's freedom of will, thereby making their confessions involuntary. The trial court shared with this view when it dismissed the case against Alfredo Fernandez and Remigio Arzula. UPON THE FOREGOING CONSIDERATIONS, the decision appealed from being in accordance with law and the evidence, the same affirmed, with costs against the appellant.

E V I D E N C E : H E A R S A Y E V I D E N C E | 151 G.R. No. L-25504 July 31, 1969 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROBERTO NER Y FELICIANO, DefendantAppellant. CONCEPCION, C.J.: Appeal by defendant Roberto Ner y Feliciano from a decision of the Court of First Instance of Manila convicting him of the crime of murder, with which he is charged, and sentencing him to life imprisonment, with the corresponding accessory penalties, to indemnify the heirs of the deceased Jose de Leon, in the sum of P6,000, without subsidiary imprisonment in the event of insolvency, and to pay the costs. It is not disputed that, while he was in his apartment at No. 2036-C Anacleto Street, Sta. Cruz, Manila, on May 17, 1964, at about 10:00 p.m., Jose de Leon was shot and sustained several wounds in different parts of the body, as a consequence of which, he died soon thereafter, before reaching the North General Hospital, to which he was brought immediately after the occurrence. According to Dr. Angelo Singian, Assistant Chief Medical Examiner of the Manila Police Department, the cause of death was profuse hemorrhage due to a "through and through" gunshot wounds, five (5) produced be a .38 or .45 caliber firearm and four (4) by a .32 caliber firearm. Indeed, .45 and .32 caliber slugs and shells were found at the scene of the shooting. Later, the corresponding information for murder was filed against Roberto Ner y Feliciano, who allegedly killed Jose de Leon "conspiring and confederating with two (2) others, whose true names, identities and whereabouts are still unknown", although the complaint filed with the office of the City Fiscal of Manila named Valentino Villanueva and Jose Lopena as the persons who had thus assisted Ner in the commission of the crime. After due trial, under a plea of not guilty, the lower court convicted and sentenced Ner as above stated. Thereupon, Ner moved for a new trial, upon the ground of newly discovered evidence, but the motion was denied. Hence, this appeal. The case hinges on whether or not appellant has been sufficiently identified as the killer or one of the killers of Jose de Leon. In this connection, the main witnesses for the prosecution were Estanislao de Leon, Leonardo Bolea, Rodolfo Rosales, and Artemio Tiong. The first is a lieutenant in the Manila Police Department, and will, accordingly, be referred to by his aforementioned rank. The lieutenant was, at the time of the occurrence, in his house at No. 2036 Anacleto St., about 30 meters away from that of Jose de Leon, who was his nephew and will hereafter be referred to as "Boy", his nickname. Upon hearing the report of gun fire, the lieutenant ran to the latter's house, at the ground floor of which he learned that the shooting had taken place in Boy's apartment, at the third floor. At the door of said apartment, he found Boy on the floor, lying on his right side, bleeding profusely, with his feet at the door and the head inside the room, wearing no other garment than a "short" trunk. Lifting Boy's head, the lieutenant inquired about the identity of his assailant, to which Boy answered, in a "low voice"; "Bobby" "Pirate". These are the nicknames of appellant herein. As the lieutenant asked "who Bobby" and "who Pirate" was, Boy looked at him (lieutenant), but did not answer. Forthwith, the lieutenant ran down and asked several persons, whom he found at the ground floor, to get a vehicle so that Boy could be taken to a hospital. Then the lieutenant and four (4) other persons, who followed him to Boy's apartment, brought Boy down and placed him in a jeep, at the door of the building, whereupon the lieutenant bade those helping him to take Boy "to the hospital," which they did. Meanwhile, the lieutenant posted himself at the door of the apartment, outside the same, "so that nobody could touch anything." According to Leonardo Bolea, he thrice saw appellant Ner, accompanied by Jose Lopena and Valentino Villanueva, in the evening of May 17, 1964, cruising aboard a red-colored jeep along Anacleto St., where he was. In fact, when the jeep passed in front of Bolea, for the first time - after he had bought cigarettes from a store nearby - Lopena greeted him. When the jeep passed for the third time, Bolea was

E V I D E N C E : H E A R S A Y E V I D E N C E | 152 seated in front of the house of one Aling Asiang, about 15 meters away from the building in which Boy's apartment was. Ner was then behind the "wheel", with Villanueva seated beside him, and Lopena in the back seat. The jeep made a U-turn and then parked in front of said apartment, facing Camarines street. Lopena alighted from the jeep and talked with someone seated on a bench, whereas Ner, followed by Villanueva, entered said building. Soon there was a volley of shots in Boy's apartment, after which Ner emerged hurriedly from the building, holding a firearm, which he threw into the back of the jeep. He blew its born twice, and, forthwith starting the motor, drove off alone. Then Angelina Viray, Boy's common-law wife rushed out of the apartment shouting several times "Binaril si Boy ni Pirate; binaril si Boy" (Boy was shot by Pirate; Boy has been shot). Thereafter, the lieutenant came running towards the apartment. The testimony of Rodolfo Rosales was, substantially, to the same effect. He was at Anacleto Street, near said apartment, at the time of the occurrence and shortly before. In fact, Bolea passed in front of him on his (Bolea's) way to the place of Aling Asiang. When the aforementioned jeep passed for the third time, with Ner, Lopena and Villanueva on board the vehicle, they parked it in front of the building above mentioned. Then Ner and Villanueva entered the same, but, no sooner had they done so than gunshots were fired. Forthwith, Ner ran out of the building and sped away. Then Angelina Viray emerged therefrom saying "Tulungan ninyo ako. Binaril si Boy; binaril si boy ... Pirate" (Help me. Boy has been shot; Boy has been shot ... Pirate"). Immediately thereafter, the lieutenant went up the building and entered Boy's apartment. Rosales followed the lieutenant to the third floor of the building and saw the body of Boy on the floor, in a pool of blood. The lieutenant held Boy's head and asked him who had shot him. Boy opened his eyes and, with a trembling voice, replied: "Pirate" or "Bobby Pirate". The lieutenant further inquired: "What Bobby? What Pirate?" Rosales heard no answer. He was, also, one of those who brought Boy to the North General Hospital, but Boy died before reaching the same. Artemio Tiong declared that, in response to a call, received by him as mobile patrolman, he reached Boy's apartment at about 10:09 p.m., but he (Boy) was then already gone. Tiong, however, asked Angelina Viray what had happened and she said that Boy lived with her in the apartment, she being his wife; that between 9:50 and 10:00 o'clock that evening, Pirate Bobby Ner had visited them; that Boy and Ner talked in the living room, after which, Ner left; that, when Boy and Angelina retired to their bedroom, soon thereafter, somebody knocked at the door; that as Boy opened the same, there was a hail of gunshots; that rushing out of the bedroom, she saw Boy sprawled on the floor, mortally wounded; and that his assailant was Bobby Ner alias Pirate. The main witness for the defense was Rolando Raymundo, an 18 year-old tricycle operator, who would have us believe that, at the time of the occurrence, he was with his tricycle, parked beside the house of one Mrs. Aguilar, across the street from Boy's apartment. Then two (2) men came in an army jeep and went up the apartment. Soon, several shots rang out in succession, whereupon said men rushed out of the apartment, boarded the jeep and sped away. None of them was, however, appellant Ner, whom the witness knows. Neither did he see either the lieutenant or Leonardo Bolea or Rodolfo Rosales, at the scene of the occurrence. The defense introduced, also, the testimony of Ernesto Pascual and Eduardo Benito, who affirmed that on May 17, 1964, between 9:00 and 10:00 p.m., Bolea and Rosales were in a pool-room at Rizal Avenue, from which they proceeded to the scene of the occurrence after being informed that the same had taken place. Likewise, testifying for the defense, Teodoro Villanueva, father of Valentino Villanueva, stated that Angelina Viray had never mentioned the name of Boy's assailant and that the first person who entered Boy's apartment, after the occurrence, was one Corporal Herrera, not Lt. de Leon, who did not reach the apartment until 12 minutes after the shooting. Appellant Ner did not take the witness stand. He now maintains that His Honor, the trial Judge, Hon. Federico Alikpala, had erred in giving credence to the witnesses for the prosecution; in taking into

E V I D E N C E : H E A R S A Y E V I D E N C E | 153 account the testimony of Patrolman Tiong, relative to the statements made to him by Angelina Viray, notwithstanding the fact that she had not been placed on the witness stand; in drawing an unfavorable inference from his (appellant's) failure to testify on his behalf; in not holding that the evidence is insufficient to establish his guilt; and in denying his motion for a new trial. Upon a review of the record, we find ourselves unable to disturb the findings of fact made by Judge Alikpala. Indeed, the lieutenant had no reason to implicate appellant herein, if Boy had not really named him (appellant) as his assailant. Instead of impelling him to commit perjury, the fact that Boy was his nephew was an added inducement for the lieutenant to adhere to the truth, as, otherwise, he would not only contribute to the conviction of an innocent person, but also, assist the guilty party in evading punishment. The veracity of the lieutenant's testimony is, moreover, bolstered up by the testimony of Rosales, who heard the lieutenant inquire about the identity of the assailant, as well as the answer given by Boy. Neither had Rosales and Bolea any possible motive to falsely incriminate appellant herein. On the contrary, the records show that Rosales and Bolea were old acquaintances of and in friendly terms with appellant Ner and Valentino Villanueva, as well as Jose Lopena, both of whom were, likewise, implicated by said witnesses for the prosecution. And this they must have done from the very beginning, for - as stated in appellant's motion for reconsideration - Villanueva and Lopena were included in the charge filed by the police in the office of the City Fiscal of Manila, because of which they took to hiding soon thereafter. The defense makes capital of the fact that, according to Dr. Singian, Boy may have lived "one to two minutes" after being shot, during which period of time "it might be possible but less probable" for him to speak. Appellant deduces therefrom that Boy could not have told the lieutenant, when the latter reached the former's apartment, that his assailant was "Bobby", "Pirate", because the lieutenant's residence was about 30 meters away from Boy's apartment and said two minutes must have elapsed before the lieutenant had covered the distance. This conclusion is, however, debatable. Besides, Dr. Singian spoke merely in terms of possibilities and probabilities. He did not say that Boy could not have lived longer than or spoken after two (2) minutes. He even confessed that one "could not be certain," or positive about it. Indeed, Boy did live several minutesafter the lieutenant had reached him. In fact, the lieutenant even asked several persons to take Boy to the North General Hospital, in view of which, said persons went up the apartment of Boy, took him down the building in which his apartment was, placed him in a jeep parked at Anacleto street and brought him to said hospital, although he died on the way thereto. By this time, from 5 to 10 minutes, at least, must have elapsed since he was shot. Hence, Boy may have really told the lieutenant that the assailant was "Bobby" "Pirate". Appellant assails the veracity of Rosales, upon the ground that there are several contradictions between his testimony in court and that given by him at the preliminary investigation, in the office of the City Fiscal and between his testimony in chief and the answer given by him on cross-examination. The alleged contradictions refer to whether the jeep used by appellant Ner came from Camarines street or Tayabas street, before it parked in font of the house in which Boy had his apartment; whether the jeep had three (3) of fourt (4) passengers; whether the passengers who entered said house were two (2) or three (3); the period of time that elapsed from such entry to the shooting; the caliber and color of the gun carried by appellant, when he emerged from said house, immediately after the occurrence; whether he started the motor of the jeep before blowing its horn, or the latter was first; and the precise words uttered by Angelina Viray when she came out of the building. These are, however, minor details which do not affect the testimony of Rosales on appellant's presence in Boy's apartment, at the time of the occurrence, on which he has not incurred in any contradiction and was corroborated by Bolea, the lieutenant and Tiong. Furthermore, as regards the events immediately preceding the occurrence, it is well to remember that Rosales had not anticipated the same. Accordingly, his attention was not focused on appellant's jeep and its occupants, so that it was

E V I D E N C E : H E A R S A Y E V I D E N C E | 154 only natural for him (Rosales) to have no more that a general idea about it, and to be uncertain about minute details. In fact, minor inconsistencies of a witness tend to enforce, rather than weaken, his testimony, for they indicate that it was spontaneuos and unrehearsed. 1 Again, when Rosales testified in the City Fiscal's office, Valentino Villanueva, his father Teodoro Villanueva, Jose Lopena and the latter's lawyer were seated beside him (Rosales). Valentino Villanueva was so close to Rosales that the former used to nudge the latter's feet in the course of his testimony. There were then no other persons in said office, except the investigating fiscal and Boy's father, who was some distance away. Considering that Valentino Villanueva and Jose Lopena, aside from appellant Ner, who was then at large, had been implicated by Rosales, we accept, as satisfactory, his explanation to the effect that the inaccurate details mentioned by him on that occasion were due to his extremely nervous at that time. It is next contended that Rosales had contradicted the lieutenant, because the latter testified that he was alone in Boy's room when he (lieutenant) inquired about the assailant's identity and Boy answered "Bobby" "Pirate", whereas Rosales affirmed that he saw and heard Boy give his ante mortem statement, and because the lieutenant claimed to have met Angelina Viray as the former proceeded to Boy's apartment, although Rosales declared otherwise. We find no contradiction between these testimonies, for the lieutenant was inside Boy's apartment and Rosales was outside the same when ante mortem statement was made. So, too, when the lieutenant proceeded to said apartment, he was in such a hurry that he did not pay attention to the people on the way thereto. What has been said concerning Rosales applies equally to the contradictions allegedly found in Bolea's testimony. Emphasis is placed by appellant upon Bolea's failure to relate to the relatives of Boy, at any of the three (3) or four (4) days he (Boy) was lying in estate, what he (Bolea) had witnessed in the evening of the occurrence. This has been sufficiently explained by Bolea. Boy's assassination was not an ordinary passion crime. He had been killed in gangland or goon fashion. All of his supposed assailants were then at large. Worse still, Valentino Villanueva, one of those he believed to have participated in the commission of the offense, was living in the same building in which Boy had his apartment. In short, Bolea's silence was dictated by prudence and the instinct of self-preservation. The defense insists that the testimony of Patrolman Tiong concerning his conversation with Angelina Viray should be disregarded as hearsay, for Angelina did not take the witness stand. Said conversation took place in Boy's apartment, on May 17, 1964, between 10:09 and 10:30 p.m., or immediately after the occurrence, and referred to the circumstances surrounding the same. At that time, Angelina had not, as yet, fully recovered from the effects of the assassination of her common-law husband, practically, if not actually, before her own eyes. In fact, she was not only crying; she had, also, been repeatedly saying, almost hysterically, that Boy had been shot by "Pirate". Tiong's testimony about the statements then made by her, before she could deliberated on the events that had transpired a few minutes before, was properly admitted under Sec. 36 of Rule 130 of the Rules of Court, pursuant to which: ... Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the RES GESTAE. ... Indeed, it has been held: ... that declarations which are the natural emanations or outgrowths of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or

E V I D E N C E : H E A R S A Y E V I D E N C E | 155 deliberation, must, upon the clearest principles of justice, be admissible as part of the act or transaction itself.2 It is true that, in saying that Boy had been shot by Pirate, Angelina did not explain to Patrolman Tiong whether or not she had seen the latter in the act of firing, although she said so in an affidavit made by her in the City Fiscal's office. Her story to Patrolman Tiong indicated, however, that she had seen appellant and Boy talking in the living room of his apartment, shortly before the shooting, and that, accordingly, she had personal knowledge of appellant's presence at the scene of the occurrence. The fact that Angelina's statement to Tiong was part of her narration, prompted by his questions about the details of the occurrence, does not detract from the spontaneity of her statement. 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 3 before he had time to think and make up a story 4 , or to concoct or contrive a falsehood 5 , or to fabricate an account 6 , and without any undue influence in obtaining it 7 , aside from referring to the event in question or its immediate attending circumstances. 8 Thus, in People v. Ruzol 9 , we said: The circumstance that as soon as Eladio and his uncle reached the Philippine Constabulary barracks, he promptly told the authorities, without doubt or hesitation, that it was Manuel Torres and Lorenzo Ruzol that killed his father, is convincing proof that he recognized the accused when he saw them. The discovery of the crime by the witness, his pursuit of the accused, and the fact that immediately thereafter, as soon as he arrived at the barracks, he positively pointed to the accused as the perpetrators of the crime, without any sufficient intervening time for him to fabricate his account, is convincing proof of the correctness of his identification. All the events occurred in rapid succession, and the pointing out of the accused as the perpetrators may be said to be parts of the res gestae. Similarly, the following statements have been held to be part of the res gestae: the statement of a child made within an hour of an alleged assault; 10 the testimony of a police officer as to what a victim told him not more than 30 minutes after the commission of an alleged crime; 11 the statements of defendant's employees made about 30 minutes after an accident; 12 and the declaration of a victim some 5 to 10 minutes after an incident. 13 Little need be said about the evidence for the defense. Teodoro Villanueva's assertion that Angelina had not mentioned appellant's nickname, immediately after the occurrence, cannot affect the result of the case. To begin with, his son, Valentino Villanueva, was one of those implicated by the evidence for the prosecution. Being naturally interested in the latter's failure, the testimony of Teodoro does not have much weight. Said interest is made even more manifest by the fact that it was Teodoro Villanueva who asked Ernesto Pascual and Eduardo Benito to testify for appellant herein. At any rate, said testimony cannot prevail over the positive evidence for the prosecution concerning the presence of appellant in Boy's apartment, corroborrated by Boy's ante mortem declaration and the testimony of Patrolman Tiong regarding the statement of Angelina Viray immediately after the occurrence. It is, likewise, clear that the negative testimony of Rolando Raymundo to the effect that none of the two (2) men who alighted from the jeep and entered the building at No. 2036 Anacleto street, was appellant Ner, and that he (Raymundo) had not seen the lieutenant, Leonardo Bolea and Rodolfo Rosales in that place, cannot blunt the positive testimony to the contrary of these witnesses for the prosecution. The inherent weakness of Raymundo's testimony becomes evident when we bear in mind that he denied having seen at the place of the occurrence, not only Bolea and Rosales, but, also, the lieutenant, despite the fact that the latter's presence in Boy's apartment had been admitted by defense witness Teodoro Villanueva. Then, again, if Raymundo merely failed to notice the lieutenant when the latter entered said building, then it is not unlikely - assuming that his (Raymundo's) tricycle was really

E V I D E N C E : H E A R S A Y E V I D E N C E | 156 parked in front of said building - that he had incurred in a similar oversight as regards the entry of Ner in the same building an the presence of Bolea and Rosales in the vicinity thereof. Indeed, such presence is incontestable, not only as regards the lieutenant, but, also, insofar as Rosales is concerned, he being one of those who brought Boy to the North General Hospital.. This fact, in turn, discredits the testimony of Ernesto Pascual and Eduardo Benito, who would have us believe that Rosales and Bolea were in a pool-room at Rizal Avenue, when Boy was shot, and that said witnesses for the prosecution did not leave said place until later, when someone came and brought news about the occurrence. Indeed, considering that the messenger of this news was someone who, apparently had walked from the scene of the occurrence, after 9 minutes to remove the latter from his apartment, Rosales could not have reached the same on time to bring Boy to the hospital - as he did had Pascual and Benito told the truth. Upon a careful review of the record, we are fully satisfied that Judge Alikpala has not overlooked or misunderstood any fact or circumstance of weight and importance in deciding this case, in view of which we can not disturb his findings of fact based upon a reliance on the testimony of the witnesses for the prosecution, and the view that of the witness for the defense is unworthy of credence. About a week after the promulgation of the decision appealed from, appellant filed a motion for new trial based upon allegedly newly discovered evidence, namely, the testimony of Angelina Viray, Valentino Villanueva and Jose Lopena, whose affidavits were attached to said motion. Appellant maintains that the lower court has erred in denying said motion. It is alleged therein that the defense could not have availed, prior thereto, of the testimonies of Valentino Villanueva and Jose Lopena because they had been in hiding up to June 14, 1965, or after the conclusion of the trial on April 2, 1965. The record shows, however, that, as early as December 16, 1964, or even before the prosecution had completed the presentation of its evidence, Villanueva and Lopena had executed a joint affidavit, in Manila, before appellant's counsel. Hence, the testimony of said witnesses is not newly discovered evidence. Neither is that of Angelina Viray. Indeed, the decision appealed from was promulgated on October 4, 1965. Thereupon, a news item about it appeared in the issue of the Manila Daily Bulletin, of October 5, 1965, reading: YOUNG HOOD METED OUT A LIFE TERM.chanrobles virtual law library 'A youthful police character Roberto Ner y Feliciano, was convicted for murder, yesterday and sentenced to life imprisonment by the Court of First Instance Judge Federico Alikpala convicted Ner for the slaying of Jose de Leon nephew of a police officer last May 17, 1964. De Leon was shot and killed in his house. The defense headed by Candelario R. Domingo, indicated it would ask for a new trial on the basis of newly found evidence. It intended to present a certain Angelina Viray, who was said in the verdict to be the common-law wife of De Leon and was also the lone eye-witness to the slaying. It is thus manifest that the testimony of Angelina Viray was available to the defense even before October 4, 1965, for, otherwise, appellant's counsel could not have announced then the intention to file a motion for new trial based upon her testimony, which, in fact, he filed soon thereafter. This explains why she did not appear before the court, despite the subpoena issued to her, as witness for the prosecution, when the trial began on September 10, 1964, and notwithstanding an affidavit subscribed and sworn to by her, before an assistant Fiscal of Manila, on June 17, 1964 - or before the filing of the information against appellant herein - confirming the story given by her to Patrolman Tiong in the evening of May 17,

E V I D E N C E : H E A R S A Y E V I D E N C E | 157 1964. Another subpoena issued to her for the resumption of the trial on September 29, 1965, could not be served, because she was "no longer residing at given address." The prosecution stated to the Court that it (the prosecution) had "tried to locate her" and had "not been successful" in this endeavor. At any rate, in her affidavit attached to the motion for new trial, Angelina declared -- contrary to her aforementioned affidavit of June 17, 1964 - that she did not see the person who shot Boy and that, immediately after the occurrence, she did not mention appellant's nickname as that of Boy's assassin. In their joint affidavit appended to the same motion, Valentino Villanueva and Jose Lopena, in turn, stated that Lopena "was never at Anacleto Street, Sta. Cruz, Manila, during the evening of May 17, 1964" and that "Valentino Villanueva was already sleeping in the bedroom of their apartment during said time" "about 10 o'clock" in the evening - "and date." Thus, this alleged newly discovered evidence is merely impeaching, cumulative or corroborative of that already introduced by the defense, for which reason Judge Alikpala did not abuse his discretion in denying appellant's motion for new trial. 14 Inasmuch as Boy was shot suddenly and unexpectedly, as he opened the door of his apartment, in response to the knocking thereat, soon after the visit paid to him by appellant herein, when he (Boy) was almost naked, for was about to go to bed, it is evident that appellant had acted with treachery, he having employed means and ways, in the commission of the crime, tending directly and specially to insure its execution, without risk to himself arising from the defense that Boy may put up, and which Boy had no opportunity to make. 15 The crime committed was, therefore, murder, which was attended, also, by the aggravating circumstance of dwelling of the offended party. Moreover, nighttime was manifestly sought, to be sure that Boy was not only in the house, but, also, about to go to bed. In fact, to avoid any possible miscalculation, appellant even pretended to pay Boy a social visit and to part from apartment in seeming friendly spirit, only to knock at the door thereof soon thereafter for the kill. 16The measures thus taken by appellant, coupled with the fact that he drove three times past the building in which the apartment was, together with two (2) men, before entering said building, armed with a firearm, establish beyond doubt that he had planned the commission of the offense and had, accordingly, acted with evident premeditation. 17 In view of this circumstance and the aggravating circumstances of nighttime and dwelling, without any mitigating circumstance to offset the same, the maximum penalty prescribed for murder, or death, should be meted out to appellant herein, although, for lack of the number of votes necessary therefor, the penalty imposed by the lower court is in order. WHEREFORE, modified as to the indemnity, which is increased from P6,000 to P12,000, 18 the decision appealed from should be as it is hereby affirmed, in all other respects, with costs against appellant Roberto Ner y Feliciano. It is so ordered.

E V I D E N C E : H E A R S A Y E V I D E N C E | 158 G.R. No. L-26240 October 31, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN GONDAYAO, alias "BEN", ET AL., defendants, BENJAMIN GONDAYAO, alias "BEN", and ANOY GONDAYAO, defendants-appellants. CONCEPCION, C.J.: Appeal, taken by defendants Benjamin Gondayao and Anoy Gondayao, from a decision of the Court of First Instance of Pangasinan, convicting them of the crime of murder, qualified by treachery, and sentencing them to life imprisonment and to jointly and severally indemnify the heirs of the deceased, Orlando Piol, in the sum of P6,000.00, and to pay two-fifths of the costs. After grappling with Benjamin Gondayao, near the market place, in the Barrio of Paitan, Municipality of Sual, Province of Pangasinan, on November 14, 1965, between 11:00 and 11:30 a.m., Orlando Piol appeared to have in addition to several lacerations on the head two (2) stab wounds on the back, 4 to 4-1/2 inches deep, in consequence of which he died that same afternoon, due to a massive internal hemorrhage. Immediately after the occurrence, Benjamin assumed full responsibility for said injuries, which he claimed to have inflicted in self-defense. On November 17, 1965, Macario Aquino, Chief of Police of Sual, filed, with the Municipal Court thereof, a complaint charging Benjamin Gondayao with homicide. Twelve (12) days later, Aquino filed an amended complaint charging murder, allegedly committed, not only by Benjamin Gondayao, but, also, by his brother, Anoy Gondayao, and Eduardo Bersamina, Eto Agbayani and Jovencio Yanday. Soon thereafter, the corresponding information for murder was filed, with the Court of First Instance of Pangasinan, against said five defendants. After due trial, under a plea of not guilty, said court rendered the appealed decision convicting Benjamin Gondayao and Anoy Gondayao as charged and sentencing them as stated at the beginning of this decision, as well as acquitting their three (3) co-defendants, for insufficiency of the evidence, with three-fifths (3/5) of the cost de officio. Hence, this appeal by the Gondayaos. The main eyewitnesses for the prosecution were Macario Pascua and Police Chief Macario Aquino. The first testified that, while he was reading a newspaper, in front of the house of the Vice-Mayor, in Barrio Paitan, Sual, Pangasinan, on November 14, 1965, between 10:00 and 11:30 a.m., he saw Benjamin Gondayao and his co-defendants, a few meters away, drinking gin in front of the store of Segundo Sevillena, which was alongside the house and store of the Vice-Mayor; that, after consuming a bottle of gin, Benjamin Gondayao, repeatedly cursed the "Nacionalistas" for not offering a drink despite their victory in the polls; that, as Orlando Piol who was nearby, replied by cursing the losers in the elections, an exchange of unfriendly utterances followed; that, eventually, the group headed by Benjamin picked up stones and threw them at Piol, who was hit several times on the head; that, as the same began to bleed, Piol drew out a dagger and approached Benjamin, who, forthwith, embraced him; that, grappling with each other, they both fell down, with Piol on top of Benjamin; that, at this juncture, Anoy Gondayao picked up a stone and hit Piol with it on the head, and then wrestled the dagger from him; that, upon a signal given by Benjamin, who had meanwhile managed to get away from under Piol, Anoy stabbed Piol on the back and, then, leaving the dagger imbedded therein, retreated; that thereupon Benjamin pulled out the dagger and sank it again on the back of Piol who was still facing downward, in a stooping position; and that Eduardo Bersamina, Eto Agbayani and Jovencio Yanday were then about 5 meters away. Macario Aquino did not witness the beginning of the incident. He was about 25 meters from the place of the occurrence, when he noticed a commotion. Rushing to the scene thereof, he saw Benjamin and Piol, about 3 meters away from him, rush at each other and grapple with one another, until they fell together from a bamboo bed, locally known as "papag", on which they were standing; that, inasmuch as the same and a wooden fence between him and the combatants prevented him from going to them directly and

E V I D E N C E : H E A R S A Y E V I D E N C E | 159 seeing what was going on after said fall, he walked about 10 meters, in order to go around the fence and approach the fighting men; that, bidding them to stop, he seized the hand of Benjamin which held a dagger, with which he was poised to stab Piol then lying down on his stomach, under Benjamin; that Aquino thereupon wrested from him the dagger, which was stained with blood; and that Benjamin then said it was he who had wounded Piol. Upon the other hand, Benjamin Gondayao testified that his remark, about the failure to give a blow-out on the part of the winner in the elections, was addressed to his nephew, Rudy Natividad; that, when Piol resented said remark, Benjamin replied that the same was not aimed at him, and that, perhaps, he (Piol) is a "nacionalista"; that after another exchange of unfriendly remarks, Piol drew out his dagger and said "I am going to kill you"; that Benjamin then tried to run away and went up the "papag", with the intention of jumping over the wooden fence beside it; that he was unable to do so because Piol followed him on top of the "papag"; that he, therefore, faced Piol, who thrust his dagger at him (Benjamin), but he parried the thrust with the left arm, which was then wounded slightly; that, by pressing the hand with which Piol held the dagger, Benjamin succeeded in disarming him; that, as Piol grappled with and embraced him, they fell to the ground, with Piol under him; that Piol landed over the dagger then held by Benjamin which pierced his (Piol's) back; that, as they kept on wrestling with each other, Piol managed to roll over and place himself on top of Benjamin; that Piol then picked up a stone and with it struck Benjamin on the face, thereby causing thereon a lacerated wound; that Piol tried to hit him a second time with the stone, but Benjamin warded off the blow; that he was then able to get another stone, with which he, in turn, hit Piol on the head several times; that Piol, however, squeezed the neck of Benjamin, who let loose the stone and, pulling Piol down with his (Benjamin's) right hand, stabbed him (Piol) with his (Benjamin's) left hand, by thrusting the dagger into his back; and that the Chief of Police then came and separated them. Benjamin's co-defendants set up their respective alibis, but We are not concerned with the three (3) defendants who were acquitted by the lower court. As regards appellant Anoy Gondayao, We note that the Chief of Police did not even see him at the scene of the occurrence, although said officer admitted that he had not paid any attention to the persons who were near the combatants. Again, it is difficult to see how Anoy Gondayao could have stabbed Piol without being noticed by said peace officer. In this connection, it is well to remember that, according to Macario Pascua the only witness who testified to the alleged participation of Anoy Gondayao in the commission of the crime charged this appellant stabbed Piol after the latter and Benjamin had fallen from the "papag" in the course of their fight. The Chief of Police was only three (3) meters away, looking at them, even before they had thus fallen. Hence, he would have, in all probability, seen Anoy, had he done what Pascua imputed to him (Anoy). There was, of course, the possibility that Anoy's intervention may have taken place as the Chief of Police went around the fence that separated him from the combatants and his attention was momentarily diverted from them. In a way, however, this circumstance is offset by the fact that, as soon as the Chief of Police approached the combatants and bade them to stop, Benjamin owned his responsibility for the injuries of Piol. This statement was made before Benjamin had time to reflect, and thus forms part of the res gestae, as well as carries much weight. All things being considered, We find that the prosecution has not established, beyond reasonable doubt, the guilt of Anoy Gondayao, who should, accordingly, be acquitted, for insufficiency of the evidence. With respect to appellant Benjamin Gondayao, his Honor, the trial Judge, found his testimony unworthy of credence and the record before Us fully justifies such finding. Indeed, Benjamin testified that, as he grappled with Piol on top of a "papag", they fell together therefrom, with him on top of Piol who landed on his back, over the dagger held by Benjamin, who had wrested it from Piol, and that this was how Piol sustained the first stab wound on the back. This cannot possibly be true, for the Chief of Police testified that Piol was holding the dagger when he and Benjamin fell down from the "papag". Besides, had Piol's back been pressed against the dagger, which was allegedly held by Benjamin, the resulting wound would have taken a markedly slanting direction instead of being almost at right angle with, or perpendicular to, the body, as it turned out to be. Then, too, Piol was on top of Benjamin, when they fell from the "papag", according to Macario Pascua.

E V I D E N C E : H E A R S A Y E V I D E N C E | 160 Again, Benjamin's version is that, after this accidental injury on the back of Piol, the latter succeeded in rolling over and being on top of him (Benjamin); that Piol then struck him on the face with a stone; that, after fending off another attempt of Piol to similarly hit him again, he (Benjamin) picked up another stone and, in turn, struck him with it on the head; that, as Benjamin squeezed him by the neck, he let the stone loose and, pulling Piol down with his (Benjamin's) right hand, he (Benjamin) stabbed Piol on the back on which, according to Benjamin, Piol was lying by thrusting the dagger with his left hand; and that, at this juncture, the Chief of Police came and took the weapon from him. This story is manifestly artificious and unworthy of credence. It should be noted that, according to Benjamin, he held the dagger, even before they fell from the "papag"; that the dagger was still in his hand when Piol allegedly struck his face with a stone; and that he (Benjamin), in turn, took another piece of stone, and hit Piol with it. This would have been impossible, however, unless Benjamin first released the dagger, which he then held; but, We cannot believe that he, or anybody for that matter, would have done so under the circumstances. Again, when Piol allegedly squeezed the neck of Benjamin, the latter threw the stone away and picked up the dagger once more. He would thus have Us believe that, in order to get the stone with which he claimed to have hit Piol on the head, he put the dagger in a convenient place from which, at the opportune moment, he got it back to inflict the second stab wound. The context of Benjamin's story does not convey the idea that he had such a control of the situation as to be able to choose the place where he would put the dagger and the time he would retrieve it. But, this is not all. Instead of stabbing Piol on the stomach, for, by this time, he was again lying down on his back according to the defense with Benjamin on top of him, he (Benjamin) thrust the dagger, with his left hand, into the back of Piol, causing therein another stab wound almost at right angle with his body, like the first. Just why, being in the precarious condition he depicted himself, Benjamin chose to stab Piol in such an awkward, inconvenient and unbelievable manner, the defense has not even tried to explain. Regardless of the foregoing, an injury inflicted in this fashion on Piol's back, which was allegedly pressed against the ground, would have necessarily been much more slanting than the first, instead of being almost perpendicular to the body. The fact of the matter and this has been established by the testimony of the Chief of Police, whose impartiality and veracity are not contested is that Piol was then lying down, not on his back, but on his stomach with Benjamin on top of him. This explains why and how he (Benjamin) managed to stab Piol on the back. It, likewise, shows that Piol could not have struck Benjamin on the face with a stone, much less squeezed his neck. . It is clear, from the foregoing, that Benjamin stabbed Piol twice from behind, after disarming him.1 Considering, moreover, that Benjamin had provoked the incident, by hurling uncomplimentary remarks at his political opponents, one of whom was Piol;2 that such remarks led to an altercation with Piol, in consequence of which, stones were thrown at him, hitting him on the head; that when, owing to the impact of said stone, which could have rendered him groggy, and the lacerated injuries thus sustained by him, Piol prepared himself to fight by drawing out his dagger, Benjamin accepted the challenge resulting from this act, by "rushing" to his encounter and grappling with him; and that, accordingly, Benjamin cannot be given the benefit of either complete or incomplete selfdefense.3 Although Piol was stabbed from behind, Benjamin did not act with treachery, for this was merely an incident of their struggle, which had begun with both contenders facing each other, each prepared for the fight that ensued.4 The crime committed by Benjamin Gondayao is, therefore, that of homicide, and no modifying circumstance having attended its perpetration, the penalty therefor (reclusion temporal) should be imposed in its medium period. Pursuant to the Indeterminate Sentence Law, he should, accordingly, be sentenced to an indeterminate penalty ranging from 8 years and 1 day of prison mayor, as minimum, to 14 years, 8 months and 1 day of reclusion temporal as maximum, with the corresponding accessory penalties. Moreover, the indemnity due from him to the heirs of Orlando Piol should be increased from

E V I D E N C E : H E A R S A Y E V I D E N C E | 161 P3,000.00 to P12,000.00, pursuant to People v. Pantoja5 and subsequent cases,6 apart from the fact that Anoy Gondayao should be acquitted, for insufficiency of the evidence against him, with the proportional part of the costs de officio. With the foregoing modifications, the decision appealed from should be, as it is hereby affirmed, in all other respects, with one-fifth (1/5) of the costs against appellant Benjamin Gondayao. It is so ordered.

[G.R. No. 133964. February 13, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIL PEA, accused-appellant. DECISION YNARES-SANTIAGO, J.: Accused-appellant Ramil Pea was charged with murder in an Information which reads, thus: That on or about the 8th day of December, 1995, in the municipality of Obando, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused armed with a firearm with intent to kill one Jimbo Pelagio y Ferrer, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault and shoot the said Jimbo Pelagio y Ferrer, hitting the latter on the head thereby inflicting wound which directly caused the death of the said Jimbo Pelagio y Ferrer.[1] In the early morning of December 8, 1995, accused-appellant hired Jimbo Pelagio, a tricycle driver working the night shift, to take him toPaco, Obando, Bulacan. When they reached their destination, he ordered Pelagio to get off the tricycle. Then, accused-appellant robbedPelagio of his money and repeatedly struck him on the head with a gun. Pelagio fell on the ground unconscious. Accusedappellant shot him on the head and fled on board his tricycle. That same morning, SPO1 Froilan Bautista got a call from the Valenzuela Emergency Hospital stating that a man had been shot on the head and was in their hospital. SPO1 Bautista and SPO1 Jose Sta. Ana rushed to the hospital and found the still conscious Pelagio lying on a stretcher. SPO1 Bautista took the statement of Pelagio in a question and answer method, which he took down on two sheets of yellow paper. After his statement was taken, Pelagio affixed his thumbmark on both sheets. In his statement, Pelagio related how accused-appellant inflicted his injuries on him. The owner of the tricycle, Wilfredo Lampa, after being informed that Pelagio had been shot, proceeded to the hospital. There, Pelagio told him that it was accused-appellant who shot him and took away his tricycle. Francisca Pelagio, Jimbo Pelagios mother, also rushed to the hospital. Upon advice of the doctors, Francisca brought her son to the JoseReyes Memorial Hospital. On February 6, 1996, Jimbo Pelagio expired. According to Francisca, she spent P26,000.00 for his medical and funeral expenses. For his part, accused-appellant claimed that he was in San Isidro, San Luis, Pampanga together with his wife on the date of the incident. He went into hiding in the house of his uncle, Maximiano Guevarra, for nine (9) months because he allegedly killed a certain Roger Wininsala. He came to know that he was being accused of the murder of Pelagio, whom he did not know, only while he was in detention on a drug charge. Accused-appellants testimony was corroborated by his uncle Maximiano Guevarra.

E V I D E N C E : H E A R S A Y E V I D E N C E | 162 The trial court was not persuaded. On May 13, 1998, it rendered a decision,[2] the dispositive portion of which reads: WHEREFORE, the foregoing considered, this Court hereby finds RAMIL PEA GUILTY beyond reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code and sentences him to suffer the penalty of Reclusion Perpetua and to pay the victims mother, Francisca Pelagio, the amount of P26,000.00 representing actual damages and the costs of suit. Hence this appeal. Accused-appellant claims that the trial court erred in finding that accused-appellant shot Pelagio because there is no evidence that a bullet was embedded in the skull of the victim. More specifically, the attending physicians were not presented to testify that the victim died of a gunshot wound in the head. Accused-appellant next claims that the evidence relied upon by the trial court is hearsay and inadmissible. He argues that said evidence does not constitute res gestae. Particularly, he emphasizes that it was imperative on the part of the lower court that it should have appreciated the principle of res gestae on the basis of the contents of Jimbo Pelagios statement reduced in handwritten form by SPO1 Bautista, and not on the dying declarations made by Jimbo Pelagio to SPO1 Bautista, Wilfredo Lampa and Francisca Pelagio because these prosecution witnesses had all the time to contrive and improvise on what was actually told them, allegedly by Jimbo Pelagio.[3] The pivotal issue is whether the statement of the victim Jimbo Pelagio as well as the testimonies of the prosecution witnesses on the victims declaration can be considered as part of the res gestae, hence, an exception to the hearsay rule. The statement or declaration made by Pelagio, taken by SPO1 Bautista, reads: T: S: T: S: T: S: T: S: T: S: T: S: T: S: T: S: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinuku nan ka ng salaysay? Opo, dahil pinagpapalo po ako ng baril ni RAMIL tricycle kong minamaneho. Taga saan itong si Ramil Pea? Sa Dulong Tangke, Valenzuela, (Malinta), M.M. Saan, kailan at anong oras nangyari ito? Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika4:15 ng umaga. Sakay mo ba itong si Ramil Pea? Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M. Dati mo bang kilala si Ramil Pea? Opo. Ano ba ang tatak ng tricycle mo? Yamaha RS-100, kulay itim. Sino and may-ari ng tricycle? Si Rey Dagul. Binaril ka ba ni Ramil? Muntik na ho. PEA sa ulo at kinuha and

E V I D E N C E : H E A R S A Y E V I D E N C E | 163 T: S: Bakit sa iyo ginawa ni Ramil and bagay na ito? Ewan ko ho.[4]

The trial court ruled that Pelagios statement was a dying declaration since it was uttered at the point of death and with consciousness of that fact due to the serious nature of his wounds. Thus, it admitted Pelagios statement in evidence as an exception to the hearsay rule. The requisites for the admissibility of dying declarations have already been established in a long line of cases. An ante-mortem statement or dying declaration is entitled to probative weight if: (1) at the time the declaration was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein thedeclarants death is the subject of the inquiry.[5] The first element is lacking in the case at bar. It was not established with certainty whether Pelagio uttered his statement with consciousness of his impending death. While he was in pain when he made his statement, he expressly stated that accused-appellant only pistol-whipped him and almost shot him.[6] The significance of a victims realization or consciousness that he was on the brink of death cannot be gainsaid. Such ante mortemstatement is evidence of the highest order because at the threshold of death, all thoughts of fabricating lies are stilled. The utterance of a victim made immediately after sustaining serious injuries may be considered the incident speaking through the victim. It is entitled to the highest credence.[7] Granting that Pelagio, after giving his statement, later on realized that he was dying, his statement still can not be considered a dying declaration. The crucial factor to consider is the contemporaneity of the moment when the statement was made and the moment of the realization of death. The time the statement was being made must also be the time the victim was aware that he was dying. While it may not qualify as a dying declaration, Pelagios statement may nonetheless be admitted in evidence as part of the res gestae. InPeople v. Marollano,[8] this Court held: The requisites for the admissibility of the victims ante mortem statement as part of the res gestae and also as a dying declaration are present in this case, hence the same should be admitted under both exceptions to the hearsay rule. (Citation omitted) While the admissibility thereof would naturally not be affected whether viewed under either or both considerations, the advantage of resting the issue on the aforesaid dual bases is that its admission would be invulnerable to a theorized absence of an element of one of said exceptions. This is particularly important in this case, considering that the very identification of the assailant and the accuracy thereof are essentially based on the declaration of the victim. (Emphasis supplied) A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae,is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances.[9] In People v. Naerta,[10] this Court held that: The term res gestae comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content. Pelagios declaration is admissible as part of the res gestae since it was made shortly after a startling occurrence and under the influence thereof. Under the circumstances, the victim evidently had no opportunity to contrive his statement beforehand.[11]

E V I D E N C E : H E A R S A Y E V I D E N C E | 164 In People v. Hernandez,[12] the infliction on a person of a gunshot wound on a vital part of the body should qualify by any standard as a startling occurrence. And the rule is that testimony by a person regarding statements made by another as that startling occurrence was taking place or immediately prior or subsequent thereto, although essentially hearsay, is admissible exceptionally, on the theory that said statements are natural and spontaneous, unreflected and instinctive, made before there had been opportunity to devise or contrive anything contrary to the real fact that occurred, it being said that in these cases, it is the event speaking through the declarant, not the latter speaking of the event. In this case, it is clear that the pistol-whipping and the gunshot on the head of Pelagio qualified as a startling occurrence. Notably, Pelagioconstantly complained of pain in his head while his statement was being taken by SPO1 Bautista, so much so that there was no opportunity for him to be able to devise or contrive anything other than what really happened. In People v. Putian,[13] the Court held that although a declaration does not appear to have been made by the declarant under the expectation of a sure and impending death, and, for that reason, is not admissible as a dying declaration, yet if such declaration was made at the time of, or immediately after, the commission of the crime, or at a time when the exciting influence of the startling occurrence still continued in thedeclarants mind, it is admissible as part of the res gestae. Indeed the defense admitted as much when it stated, thus: We should stress that Jimbo Pelagios handwritten statement, or his declarations therein, were made immediately after the res gestae or the principal act took place, and he had no time to contrive or devise, while his statements directly concerned the occurrence in question and its immediate circumstances. We should take note further that the handwritten statements contents are rather detailed in terms of the specifics of the circumstances before, during and after the subject incident which elicits guarded conclusion that notwithstanding Jimbo Pelagios physical condition at the Valenzuela Emergency Hospital, he was conscious and lucid enough to intelligently respond rather spontaneously on the questions propounded to him by SPO1 Bautista. These acts and statements made by Jimbo Pelagio definitely constitute part of res gestae and not the testimonies and/or written statements of the three prosecution witnesses in this case.[14] By stating, however, that the testimonies or the written statements of the three prosecution witnesses were taken into consideration by the trial court as part of the res gestae betrays a misapprehension of said principle. This Court agrees with the Solicitor General when it observed thus: Since res gestae refers to those exclamations and statements made by either the participants, victims or spectators to a crime before, during or immediately after the commission of the crime, they should necessarily be the ones who must not have the opportunity to contrive or devise a falsehood but not the persons to whom they gave their dying declaration or spontaneous statement. In other words, the witness who merely testifies on a res gestae is not the declarant referred to in the second requisite whose statements had to be made before he had the time to contrive or devise a falsehood. (citation omitted) Thus, even if there were intervening periods between the time the victim gave his account of the incident to the prosecution witnesses and the time the latter first disclosed what the victim told them, the same will not affect the admissibility of the victims declaration or statement as part of res gestae since it is sufficient that such declaration or statement was made by the victim before he had time to contrive or devise a falsehood.[15] In any case, there is no reason why SPO1 Bautista would contrive or devise a falsehood especially on the matter that Pelagio was shot on the head and that it was accused-appellant who shot him. As a police officer, he was duty-bound to investigate and unearth the facts of the case. There is a presumption that as an officer of the law, he sought only the truth. Besides, no motive was shown as to why he would contrive or devise a falsehood against accused-appellant.

E V I D E N C E : H E A R S A Y E V I D E N C E | 165 In his Investigation Report,[16] SPO1 Bautista gathered that accused-appellant shot Pelagio from the Radiologic Report conducted at theValenzuela District Hospital wherein the presence of metallic fragments was discovered. Moreover, the results of the C.T. Scan conducted on the victim showed the presence of metallic fragments in his skull. In Pelagios Death Certificate,[17] the underlying cause of death was indicated as gunshot wound to the head. There is, therefore, no merit in accused-appellants contention that there was no evidence that Pelagio was shot in the head. It should be noted that accused-appellant pistolwhipped Pelagio repeatedly. The Solicitor Generals following submission would, therefore, make sense: Given the probability that he was already unconscious or his head had become numb due to severe head injuries when accused-appellant shot him, it is not unlikely for the victim not to have known or felt being shot and hit by accused-appellant on the head. This was probably the reason why in his initial declaration, the victim merely stated that he was nearly shot by accused-appellant.[18] Regardless, Pelagio categorically declared that it was accused-appellant who caused his head injuries which eventually led to his death. SPO1 Bautistas testimony as well as Wilfredo Lampas and Francisca Pelagios merely corroborated Pelagios statement that it was accused-appellant who caused his head injuries. The trial court found, thus: The straightforward and consistent testimonies of the three vital prosecution witnesses bear the earmarks of credibility. Further, there exists no ill motive on their part to prevaricate. This absence of evidence as to an improper motive actuating the principal witnesses for the prosecution strongly tends to sustain that no improper motive existed and their testimony is worthy of full faith and credit (citation omitted), for witnesses do not generally falsely impute to an accused a serious criminal offense were it not the untarnished truth. (Citation omitted)

Settled is the rule that in the absence of any fact or circumstance of weight and influence which has been overlooked or the significance of which has been misconstrued to impeach the findings of the trial court, the appellate courts will not interfere with the trial courts findings on the credibility of the witnesses or set aside its judgment, considering that the trial court is in a better position to decide the question for it had heard the witnesses themselves during the trial. The evaluation of the credibility of witnesses is a matter that particularly falls within the authority of the trial court.[19]

However, this Court cannot agree with the trial court that the crime should be murder. While evident premeditation and treachery were alleged in the information, the trial court did not state why the killing was qualified to murder. The prosecution failed to establish the attendance of the qualifying circumstances with concrete proof. The crime proved was only homicide.

In accordance with Article 249 of the Revised Penal Code, accused-appellant should be sentenced to reclusion temporal. There being no mitigating or aggravating circumstance, the penalty to be imposed shall be the medium period of reclusion temporal, ranging from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, accused-appellant shall be entitled to a minimum penalty, to be taken from the penalty next lower in degree or prision mayor, in any or its periods, ranging from six (6) years and one (1) day to twelve (12) years.

E V I D E N C E : H E A R S A Y E V I D E N C E | 166 As to the matter of damages, we hold that the trial court should have awarded civil indemnity in the amount of P50,000.00 in line with prevailing jurisprudence.[20] The award of P26,000.00 as actual damages is upheld, being duly proven with receipts.[21]

WHEREFORE, in view of the foregoing, the decision is MODIFIED. Accusedappellant Ramil Pea is found guilty beyond reasonable doubt of homicide and sentenced to suffer an indeterminate sentence of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, and to pay the heirs of the victim Jimbo Pelagio the amount of P50,000.00 as civil indemnity and P26,000.00 as actual damages. Costs against accused-appellant. SO ORDERED.