PEOPLE OF THE PHILIPPINES, vs.

GUILLERMO ARINGUE y AMOGUIS

-SUPRA
PEOPLE OF THE PHILIPPINES vs. SUAREZ 267 SCRA 291
-SUPRA
PEOPLE OF THE PHILIPPINES vs. SALCEDO 273 SCRA 473
-SUPRA
G.R. No. 110107 January 26, 1995
PEOPLE
OF
THE
vs.
DOLORES LORENZO Y CORSINO, accused-appellant.

PHILIPPINES, plaintiff-appellee,

DAVIDE, JR., J.:

For having allegedly killed her husband on 30 July 1990, accused-appellant Dolores Lorenzo y
Corsino, a policewoman, was charged with the crime of parricide in an information 1 filed with the
Regional Trial Court (RTC), Tuguegarao, Cagayan, on 30 March 1992. The information was docketed as
Criminal Case No. 2060-92-TUG and raffled to Branch 5. The accusatory portion thereof reads as
follows:
That on or about July 30, 1990, in the Municipality of Tuguegarao, Province of
Cagayan, and within the jurisdiction of this Honorable Court, the said accused, PO1
Dolores C. Lorenzo, armed with a bolo and a fan knife, with intent to kill, with
evident premeditation and with treachery did then and there wilfully, unlawfully
and feloniously attack, assault, stab, hack and chop one, Agapito Lorenzo, her own
husband, inflicting upon him several injuries on the different parts of his body
which caused his death.
That in the commission of the offense, the aggravating circumstance of cruelty was
present.
After due trial, the trial court promulgated on 24 February 1993 2 its judgment finding the appellant
guilty of the crime of parricide and sentencing her to suffer the penalty of reclusion perpetua and to
pay the heirs of the victim P50,000.00.
At the trial, the prosecution presented barangay captain Isabelo Liban and SPO1 Jose Eclipse as its
witnesses. The defense presented the appellant herself and Romeo Racheta. The versions of both the
prosecution and the defense are summarized by the trial court as follows:
The prosecution's evidence tells the following story:

Agapito Lorenzo and accused Dolores Lorenzo were spouses

residing in Looban, Barangay 12, Balzain, Tuguegarao, Cagayan.
Among their neighbors are Barangay Captain Isabelo Liban,
Romeo Racheta and Robert Santos.
In the evening of July 30, 1990, SPO1 Jose Eclipse of the
Tuguegarao PNP Station was in Balzain, Tuguegarao, Cagayan
because that was his post for the night. At about a little past
10:00 o'clock that evening, a tricycle driver went to Policeman
Eclipse and reported to him a stabbing incident in said Barangay
12;
Policeman Eclipse rushed to the reported crime scene. On his
way, he met PO1 Dolores Lorenzo, a policewoman of his own
Station who immediately surrendered to him a blood-stained bolo
and a fan knife and told him, "I killed my husband".
The two proceeded to where the victim was. In front of the store
of Barangay Captain Isabelo Liban, Policeman Eclipse saw
Agapito sprawled on the ground with blood all over his body.
Policeman Eclipse called for Barangay Captain Liban to come out
of his house. In the presence and within the hearing of said
barangay official, Policewoman Lorenzo again said, "I'm
surrendering because I killed my husband".
Policeman Eclipse ordered somebody to get a tricycle to bring the
lifeless body of Agapito Lorenzo to a funeral parlor while he and
Policewoman Lorenzo went to the Tuguegarao PNP Station.
Policeman Eclipse turned over Policewoman Lorenzo together
with the bolo and knife to the Desk Officer, SPO3 Urbano Aquino.
Eclipse then orally made his report to the Desk Officer which was
noted down in the Police Blotter.
The defense painted another picture of the incident. It's theory is
that it was not Policewoman Lorenzo but a certain Robert Santos
who killed Agapito. Here is the defense's version of the incident.
In the afternoon of July 30, 1990, Agapito Lorenzo and his
neighbor Robert Santos were in the former's house passing the
time over a bottle of beer grande. When Policewoman Lorenzo
arrived home from work, Agapito, in the presence of Robert
Santos, met her with the following intemperate questions: "Your
mother's cunt, why do you arrive only now? Where did you come
from? To avoid further scandal, Policewoman Lorenzo just keep
quiet, went to change her clothes and proceeded to the kitchen
to prepare supper. Finding nothing to cook, she asked permission
from her husband to go to market.

Policewoman went to market and then immediately went back

home to cook what she bought. While cooking in the kitchen, she
heard a heated exchange of words between Robert Santos and
her husband in the sala of their house pertaining to some bullets
and a hand grenade which the latter gave Robert Santos.
Policewoman Lorenzo went to the sala to pacify the quarelling
men only to meet Robert Santos running out of the house with a
bolo and being chased by Agapito Lorenzo who was holding a
knife in his hand and whose clothes were splattered with blood.
When Agapito overtook Robert, a struggle for the possession of
the bolo ensued between the two men.
While wrestling, Agapito dropped his knife. Policewoman Lorenzo
picked it up and tried to stab Robert with it but she was so
overwhelmed by nervousness that she collapsed into
unconsciousness. Seconds later on, she regained consciousness
and found herself beside her dying husband.
Policewoman Lorenzo stood and picked up the knife and bolo. It
was at this precise time when Policeman Eclipse arrived at the
scene of the incident.
Policewoman Lorenzo gave the knife and bolo to Policeman
Eclipse. The Policeman invited her to go with him to the
Tuguegarao PNP Station. She obliged. When the two arrived at
the police station, Policeman Eclipse, in the presence of
Policewoman Lorenzo, reported to the Desk Officer that the latter
killed her husband. Since the policewoman had not yet fully
recovered her composure, she did not say anything. 3
The trial court gave full faith and credit to the testimonies of the prosecution witnesses. It found
nothing on record which showed that their impartiality had been vitiated or compromised or that they
had any motive to falsely impute upon the appellant the commission of the crime. It further declared
that when the appellant surrendered the knife and bolo to SPO1 Eclipse and volunteered the
information that she killed her husband, she made an extrajudicial confession and nothing more was
needed to prove her culpability. 4 The trial court held that the confession was admissible for it was not
made in violation of paragraph 1, Section 12, Article III of the Constitution. 5 The appellant was neither
under police custody nor under investigation in connection with the killing of her husband.
The trial court rejected the story of the defense and characterized it as "palpably a put-up scenario . .
. . [A] story which runs against the grain of ordinary reality, controverts logic and assails common
sense." 6
First, accused Policewoman Lorenzo testified that it is not true that she confessed
to Policeman Eclipse in the presence of Barangay Captain Liban that she killed her
husband. If her denial is true, why did she not correct or even protest when
Policeman Eclipse reported to the Desk Officer that she confessed having killed her

husband? Why did she not even try to correct the entry in the police blotter
containing said inculpatory report? On the contrary, by some inexplicable quirk, she
even let the cat out when she presented in evidence Exhibit "1".
Second, accused put forth the theory of her defense: it was not she but Robert
Santos who did her husband in. This theory is shot. If this is true, why did she not
tell it to Policeman Eclipse and Barangay Captain Liban at the scene of the crime?
Why did she withhold such a very vital information when she was brought to the
Tuguegarao PNP Station shortly after the incident? But the biggest "why" is: Why
did not the accused, wife of the slain man and policewoman at that, file a criminal
case against Robert Santos?
The accused's explanation was: she was still uncomposed when she turned over
the knife and bolo to Policeman Eclipse and even when she was in the police
station. She did not also file a case against Robert Santos because she found
herself the suspect and later on the accused.
These reasons do not cut ice. They are for the birds. No one with an ordinary
intelligence would buy such reasons.
Third, the accused never filed a counter-affidavit during the preliminary
investigation of this case. Not that a counter-affidavit is obligatory but that it
afforded the accused the best opportunity to explain her innocence and to identify
the "real killer" of her husband. Why did she not grab this chance as normal
people in the same situation would have done?
Fourth, accused version is simply implausible. According to Policewoman Lorenzo,
when she saw her husband Agapito chasing Robert out of the house, Agapito's
clothes were already bloodied. Since there is no proof at all that Robert ever
sustained any wound, the implication is that Agapito was already hacked and
stabbed by Robert inside the former's house.
It is therefore, difficult to believe that Agapito who already sustained several
wounds could chase Robert and even harder to imagine that he wrestled with
Robert for the possession of the latter's bolo. But why, it may be asked, should
Agapito still try to divest Robert of his bolo when he (Agapito) was holding a knife
which he could have easily used against the latter during the alleged clinching
between the two?
Finally, it is very unnatural for "assailant" Robert to have left his bolo before
running away from the scene of the crime. This is a concoction to provide an
explanation for the possession of the accused of a knife and a bolo.
Fifth, the version of accused and her witness Romeo Racheta are even at variance
at a very vital point. Thus, Policewoman Lorenzo said that when Agapito was able
to overtake Robert in front of the store of Barangay Captain Liban, the two
struggled for the possession of the bolo of Robert. Witness Racheta however said

that when Agapito chased Robert, he caught up with him when he was already
cornered. When Robert could no longer run anywhere else, he turned around, faced
Agapito and hacked and stabbed him many times. Such inconsistency in the
version of the two defense witnesses cannot but heighten one's conviction that the
defense theory is a conjured one. 7
The appellant appealed from the judgment to this Court and in her brief 8 contends that the trial court
erred in:
I. . . . GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES
ISABELO LIBAN AND SPO1 JOSE ECLIPSE.
II. . . . NOT HOLDING THAT THE GUILT OF THE ACCUSED WAS NOT PROVED BEYOND
REASONABLE DOUBT." 9
She discusses these jointly and, in support thereof, she asseverates that the testimonies of Liban and
Eclipse are inconsistent on material points, for while Liban declared in court and stated in his sworn
statement that he (Liban) came out of his house and heard the appellant confess to Eclipse that she
killed her husband, Eclipse testified that Liban did not come out of his house. One of them, she
continues, did not tell the truth and argues that a testimony on her alleged confession, which would
be devoid of any evidentiary value without corroboration.
She pleads that this Court discredit both Liban and Eclipse because the testimony of Liban was
improbable while that of Eclipse "was not so firm and resolute as to what was actually allegedly told
him by the accused." At one time, while testifying, he declared that the appellant told him that she
"accidentally injured her husband," but on another, he testified that the appellant told him that she
"killed her husband." 10 Also, as shown in the entry in the police blotter, 11 Eclipse was reported to
have disclosed that the appellant "voluntarily surrendered and asked him to bring her to the police
station because she allegedly killed her husband named Agapito Lorenzo, Jr. together with Robert
Santos who first stabbed him"; yet, in his testimony in court he pinned down only the appellant and
mentioned nothing about Santos. Furthermore, she charges the prosecution with suppression of
evidence in not presenting as a witness another police officer who Eclipse said accompanied him to
the scene of the crime and who used a vehicle which they rode in going to the police
station. 12
Meeting squarely the ratiocinations of the trial court in describing the story of the defense as a
"probably put-up scenario," the appellant asserts that it was error for the trial court to hold her failure
to correct the entry in the police blotter against her since there is nothing in the records which clearly
shows that she heard Eclipse making the report to the desk officer and that she saw the entry. The
appellant also contends that the trial court erred when it made capital of her alleged failure to file a
criminal complaint against Robert Santos since it was the police's duty to arrest and prosecute Robert
Santos, Eclipse having known of Robert Santos' killing of her husband. Besides, she was in detention
all throughout and suffering from trauma. She avers that the trial court erred when it held against her
the failure to file her counter-affidavit, since that was not obligatory and her non-filing was in accord
with her constitutional right to remain silent. Finally, she contends that the conclusions drawn by the
trial court in its evaluation of her testimony and that of her witnesses are mere speculations.

The appellee agrees with the findings of fact and conclusions of the trial court and prays that the
challenged decision be affirmed.
The pith of the assigned errors and the focus of the appellant's arguments is the issue of the
witnesses' credibility. It is a well-entrenched rule that when such is the issue, appellate courts will
generally not disturb the findings of the trial court considering that the latter is in a better position to
decide the question, having heard the witnesses themselves and observed their deportment and
manner of testifying during the trial, unless certain facts of value have been plainly overlooked
which, if considered, might affect the result of the case. 13 The trial court has the singular opportunity
to observe and consider certain potent aids in understanding and weighing the testimony of
witnesses, such as the emphasis, gesture, and inflection of the voice of the witnesses while they are
on the witness stand. As these are not incorporated into the record, the appellate court cannot avail
of them and must therefore rely on the good judgment of the trial court. 14 The appellant has not
convinced us that the trial court plainly overlooked proved facts or circumstances which, if
considered, may affect the result of this case. We thus accept its assessment of the evidence as
correct and consider it binding, there being no showing that it was reached arbitrarily. 15 Our own
evaluation thereof yields no cause for the application of the exception to the settled rule.
We agree with the trial court that prosecution witness SPO1 Jose Eclipse told the truth when he
declared under oath that the appellant surrendered to him a blood-stained bolo and a fan knife and
told him that she killed her husband. Eclipse happened to be on his way to the scene of the stabbing
incident which was reported to him by a tricycle driver while he was in the performance of his official
duty at his assigned post in Barangay Balzain, Tuguegarao, Cagayan. Eclipse and the appellant both
belonged to the same police unit, the PNP at the Tuguegarao station. There is nothing in the records,
and more specifically in the cross-examination of Eclipse and the direct examination of the appellant,
which suggests, even remotely, that Eclipse had any improper motive to implicate a fellow police
officer in the commission of a serious crime or the slightest bias against the appellant which would
blemish his objectivity and truthfulness.
If there was any bias, it should have been, logically, in favor of the appellant because of esprit de
corps. Eclipse did not allow that sentiment to compromise his official and public duty as a peace
officer. It is settled that the absence of evidence as to an improper motive strongly tends to sustain
the conclusion that none existed and that the testimony is worthy of full faith and credit, for, indeed,
if an accused had nothing to do with the crime, it would be against the natural order of events and of
human nature and against the presumption of good faith for a prosecution witness to falsely testify
against the accused. 16
The appellant's emphasis on the inconsistency in the testimony of Eclipse as to what she actually
told him, i.e., that she "injured" her husband or "killed" him, is misplaced; the latter word was used
when the court asked him for the precise term used by the appellant. 17
Nor is there merit to the claim that Isabelo Liban's testimony must corroborate Eclipse's testimony or
the confession of the appellant since without such corroboration Eclipse's testimony would have no
probative value. This theory could only be a product of a misunderstanding of Section 3, Rule 133 of
the Rules of Court which provides:

Sec. 3. Extrajudicial confession, not sufficient ground for conviction. An

extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti.
Note that what must be corroborated is the extrajudicial confession and not the testimony of the
person to whom the confession is made, and the corroborative evidence required is not the
testimony of another person who heard the confession but the evidence of corpus delicti. Except
when expressly required by law, 18 the testimony of a single person, if credible and positive and if it
satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to
convict. 19 In determining the value and credibility of evidence, witnesses are to be weighed, not
numbered. 20
As to the corroborative evidence of corpus delicti, the appellant herself does not question its
presence because she knows that it has been overwhelmingly established in this case. Corpus
delicti is the body (material substance) upon which a crime has been committed, e.g., the corpse of a
murdered man or the charred remains of a house burned down. In a derivative sense, it means the
substantial fact that a crime was committed. It is made up of two elements: (a) that a certain result
has been proved, for example a man has died or a building has been burned, and (b) that some
person is criminally responsible for the act. Section 3, Rule 133 of the Rules of Court does not mean
that every element of the crime charged must be clearly established by independent evidence apart
from the confession. It means merely that there should be some evidence tending to show the
commission of the crime apart from the confession. Otherwise, the utility of the confession as a
species of proof would vanish if it were necessary, in addition to the confession, to adduce other
evidence sufficient to justify conviction independently of such confession. Otherwise stated, the other
evidence need not, independently of the confession, establish the corpus delicti beyond a reasonable
doubt. 21

26 and 33, Rule 130 of the Rules of Court that there is a distinction between an admission and
a confession. These sections reads as follows:
Sec. 26. Admission of a party. The act, declaration or admission of a party as to
a relevant fact may be given in evidence against him.
xxx xxx xxx
Sec. 33. Confession. The declaration of an accused acknowledging his guilt of
the offense charged, or of any offense necessarily included therein, may be given
in evidence against him.
In a confession. there is an acknowledgment of guilt. Admission is usually applied in criminal cases to
statements of fact by the accused which do not directly involve an acknowledgment of guilt of the
accused or of the criminal intent to commit the offense with which he is
charged. 24 Wharton 25 defines confession as follows:
A confession is an acknowledgment in express terms, by a party in a criminal case,
of his guilt of the crime charged, while an admission is a statement by the accused,
direct or implied, of facts pertinent to the issue, and tending, in connection with
proof of other facts, to prove his guilt. In other words, an admission is something
less than a confession, and is but an acknowledgment of some fact or circumstance
which in itself is insufficient to authorize a conviction, and which tends only to
establish the ultimate fact of guilt.
Underhill 26 distinguishes a confession from an admission as follows:

Since the corroboration of Isabelo Liban's testimony was unnecessary, we need not discuss its
intrinsic merits, more especially on its alleged inconsistencies vis-a-vis the testimony of Eclipse which
inconsistencies we, nevertheless, find to be on minor matters. Minor inconsistencies do not affect the
credibility of witnesses; on the contrary, they even tend to strengthen rather than weaken their
credibility because they erase any suspicion of rehearsed testimony. 22
The claim of suppression of evidence has no merit. The testimony of the other policeman whom
Eclipse requested to get a vehicle could only be corroborative in some respects but not of the fact of
the surrender of the blood-stained bolo and fan knife and of the appellant's telling Eclipse that she
killed her husband since it was explicitly shown that he was with Eclipse at the precise time of the
surrender. The prosecutor and the defense counsel asked no further questions of Eclipse to elicit
more on the presence of the other policeman. In any event, even if the latter were present, his
testimony would only be corroborative. Furthermore, it has never been shown that the said
policeman was not available to the defense. The presumption laid down in Section 3(e), Rule 131 of
the Rules of Court that "evidence willfully suppressed would be adverse if produced" does not apply
when the testimony of the witness not produced would only be corroborative, or when the said
witness is available to the defense because then the evidence would have the same weight against
one party as against the other. 23
We do not, however, agree with the trial court's characterization of the appellant's declaration that
she killed her husband as an extrajudicial confession. It is only an admission. It is clear from Sections

A confession is defined as an acknowledgment of guilt of the crime charged or of

the facts which constitute the crime; but it is an admission and not a confession if
the facts acknowledged raise an inference of guilt only when considered with other
facts.
While Wigmore

27

says:
A confession is an acknowledgment in express words, by the
accused in a criminal case, of the truth of the guilty fact charged
or of some essential part of it. 28

Nevertheless, whether it was a confession or an admission, it was admissible against the appellant
and, having been duly proved, together with the other facts and circumstances, the burden of the
evidence was shifted to the appellant to disprove, by strong evidence, that she made the admission
or, admitting it, to prove that she was not guilty of killing her husband. As earlier shown, the trial
court
characterized
her
story
as
"palpably
a
put-up
scenario
. . . . [A] story which runs against the grain of ordinary reality, controverts logic and assails common
sense." The five reasons enumerated by it to support this conclusion are founded on or are inferred
from facts duly established by the prosecution or are otherwise solidly based on common experience,
logic, and common sense.

The trial court had stated that if indeed the appellant never confessed to Eclipse that she killed her
husband, she should have protested when Eclipse reported to the desk officer that she had confessed
to the killing of her husband or she should have attempted to correct the entry in the police blotter
containing this inculpatory report. The appellant demonstrated her penchant for falsehood when, in
order to refute this statement, she asserted in her brief that nothing in the record clearly shows that
she heard Eclipse making the report and that she read the entry in the police blotter. She
conveniently forgot that on cross-examination she admitted having heard Eclipse making the report
but claiming that she did not protest because she was not in her right senses and was in a state of
shock at the time. Thus:
Prosecutor Saguncio:
Q Did the desk officer ever talk to you?
A No, sir.
Q So it was only PFC Eclipse who talked to the desk officer?
A Yes, Sir.
Q Within your hearing and you heard PFC Eclipse talked to the
desk officer?
A Yes, Sir.
Q And what did PFC Eclipse report to the desk officer?
A The one that is appearing in the excerpt of the police blotter,
sir.

Pros. Saguncio:
Q You heard this and you did not make any comment?
A Yes, sir, but because at this time I was not in my right senses
because I was then shocked at that time. 29
The appellant's failure to assert, at any part of the entire event, from the time she went with Eclipse
to the police station up to the time she was committed to jail and even thereafter until she took the
witness stand, that it was not she who killed her husband only serves to reinforce and strengthen this
Court's respect for the trial court's finding that her story that "it was not she but Robert Santos who
did her husband in, "is shot." We find it incredible that a peace officer and a wife of the victim would
not forthwith denounce or reveal the identity of the assailant if it were true that it was not she who
killed her husband. This Court has held that the testimony of the accused is not credible where he
has adopted an attitude of indifference relative to the crime he is accused of and where he failed to
inform the police authorities and the fiscal during the investigation that it was not he but somebody
else who committed the murder. 30
Even granting for the sake of argument that the appellant only surrendered a blood-stained bolo and
a fan knife but did not admit that she killed her husband, we find in this case several circumstances
whose concordant combination and cumulative effect 31 point to the appellant, to the exclusion of all
others, as the guilty party. These circumstances are the following:
1. A tricycle driver reported to Eclipse a stabbing incident and the latter
immediately proceeded to where it took place;
2. Eclipse met the appellant who had with her a blood-stained bolo and a fan knife;
3. The appellant surrendered to Eclipse the blood-stained bolo and the fan knife;
4. The appellant's husband lay dead nearby with nine chop wounds, thirteen stab
wounds, and nine incised wounds on different parts of his body, with abrasions and
multiple contusions as well; 32

xxx xxx xxx

Court:
Q When you said that you heard Pat. Eclipse reported to the desk
officer you meant to say that you heard him telling the police
officer that you killed your husband Agapito Lorenzo, Jr. together
with Robert Santos who first stabbed him, is that not so?
A Yes, sir.
Court:
Proceed.

5. Eclipse accompanied the appellant to the police station and, in her presence, the
former reported to the desk officer that she surrendered to him and told him that
she had killed her husband; the desk officer then entered this report in the police
blotter;
6. Although the appellant heard the report, she did not protest to Eclipse or except
to the report; and
7. The appellant never asked the police authorities to investigate Robert Santos for
his complicity in the killing of her husband; despite the unhampered opportunities
for her to denounce Santos as the alleged killer of her husband, she implicated
Santos only when she testified on 21 January 1993, 33or after the lapse of nearly
two and one-half years after the incident.

These circumstances constitute an unbroken chain which leads to one fair and reasonable conclusion
that points to the appellant, to the exclusion of all others, as the guilty person. The requirements
then of Section 4, Rule 133 34 of the Rules of Court on the sufficiency of circumstantial evidence to
convict the appellant are present. 35
To be appreciated in the appellant's favor, however, is the mitigating circumstance of voluntary
surrender. The penalty for parricide under Article 246 of the Revised Penal Code is reclusion
perpetua to death, which are both indivisible penalties. In the light of the mitigating circumstance,
the proper penalty which should be imposed upon the appellant should be reclusion perpetua,
pursuant to Rule 3, Article 63 of the Revised Penal Code.
The challenged decision is then in accordance with the facts and the applicable laws.
WHEREFORE, the appealed decision of Branch 5 of the Regional Trial Court of Tuguegarao, Cagayan in
Criminal Case No. 2060-92-TUG is AFFIRMED.
Costs against the appellant.
SO ORDERED.

Upon investigation by the police, the branch supervisor of Dunkin Donut informed the police that the
total sales of the establishment on August 8, 1991 in the amount of P10,000.00 and which was
allegedly kept in the safety locker in the same place where the dead body was found, was missing
(ibid, p., 7, Exh. K). The supervisor of the security agency where the victim was employed also
informed the police that he suspected the appellant as the culprit (ibid, p. 15, Exh. K). Acting on this
allegation by the supervisor, the police proceeded to the place of appellant and were able to
interview Maribel Diong ("Diong") and Hilda Dolera ("Dolera") (ibid, p. 15; Exh. L). The police then
tried to convince Diong and Dolera, who allegedly told the police that appellant allegedly confessed
to them that he killed somebody in the evening of August 8, 1991 (ibid). Diong and Dolera were not
presented in court to substantiate their affidavits.
Based on the alleged statements of Diong and Dolera, the police formed a team to apprehend the
appellant who allegedly had an agreement to meet Dolera (Exh. L). On August 10, 1991, appellant
was apprehended by the police in front of Jollibee Restaurant in Caloocan City (ibid, pp. 9, 16).
Allegedly recovered from the appellant were the amount of P2,415.00 and one handgun which was in
his cousin's residence (ibid, p. 16).
Thereafter, appellant was brought to the police headquarters where his confession (Exh. N) was
taken on August 12, 1991 allegedly on his freewill and with the assistance of a lawyer (ibid, pp. 1314). A booking and arrest report was also prepared by Pat. Nestor Napao-it on August 12, 1991 (Exh.
J).[7]

[G.R. No. 118607. March 4, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULITO FRANCO y TIANSON, accusedappellant.
DECISION
FRANCISCO, J.:
Appellant JULITO FRANCO y TIANSON was charged with [1] and convicted[2] of the crime of
robbery with homicide.[3] He was sentenced to reclusion perpetua and directed to indemnify Dunkin'
Donut and the heirs of Aurelio Cuya, in the amounts of P12,000.00 and P30,000.00, respectively.
Contending "that the trial court erred in convicting x x x him x x x [based] on evidence illegally
obtained,"[4] appellant now interposes this appeal. For its part, the Solicitor General recommended
appellant's acquittal on the ground that "his guilt was not proven beyond reasonable doubt." [5]
The appeal is impressed with merit.
Quoted hereunder is the narration of the factual antecedents of this case, as summarized by
the Solicitor General in its Manifestation,[6] and duly supported by the evidence on record:
On August 9, 1991 at around 6:45 a.m., Angelo Tongko, then an employee of Dunkin Donut located at
Quintin Paredes [Street], Binondo, Manila, discovered the lifeless body of Aurelio Cuya, a security
guard of the said establishment (tsn, Nov. 19, 1991, pp. 2-3). Upon discovery of the lifeless body,
Tongko informed his co-workers, (ibid, p. 3) who then reported the matter to the police (ibid. p, 3).

The trial court convicted the appellant on the basis principally of his alleged extra-judicial
confession.[8] This is evident from the assailed decision which even quoted the pertinent portions of
the aforementioned extra-judicial confession. [9] But gospel truth as it may seem, we cannot stamp
with approval the trial court's undue consideration and reliance on this extra-judicial confession for,
as the records reveal, the same was not offered in evidence by the prosecution. [10] Neither were its
contents recited by the appellant in his testimony.[11] It was a grave error for the trial court, therefore,
to have considered the same, let alone be the basis of appellant's conviction.
We thus reiterate the rule hat the court shall consider no evidence which has not been formally
offered.[12] So fundamental is this injunction that litigants alike are corollarily enjoined to formally
offer any evidence which they desire the court to consider. [13] Mr. Chief Justice Moran explained the
rationale behind the rule in this wise:
x x x "the offer is necessary because it is the duty of a judge to rest his findings of facts and his
judgment only and strictly upon the evidence offered by the parties to the suit." [14]
It cannot be argued either that since the extra-judicial confession has been identified and
marked as Exhibit "N" by the prosecution in the course of the cross-examination of the appellant,
[15]
then it may now be validly considered by the trial court. Indeed, there is a significant distinction
between identification of documentary evidence and its formal offer. [16] The former is done in the
course of the trial and is accompanied by the marking of the evidence as an exhibit, while the latter
is done only when the party rests its case. Our settled rule incidentally is that the mere fact that a
particular document is identified and marked as an exhibit does not mean that it has thereby already
been offered as part of the evidence of a party. [17]

From the records, it appears that not a single person witnessed the incident. In fact, aside from
the testimony of police investigator Pat. Nestor Napao-it, none of the other three prosecution
witnesses, to wit: (1) Angelo Tongko a Dunkin' Donut employee who testified to have found the
body of Aurelio Cuya inside the supervisor's room of the establishment in the early morning of August
9, 1991,[18] (2) Dr. Marcial Cenido the physician who autopsied the body of Aurelio Cuya, and who
testified on the cause of the latter's death;[19] and (3) Teresita Cuya the wife of Aurelio Cuya who
testified on the civil aspect of the case, [20] ever imputed, directly or indirectly, to the appellant the
commission of the crime. With respect to the testimony of Pat. Nestor Napao-it, [21] there is no dispute
that his testimony on the conduct of the investigation is admissible in evidence because he has
personal knowledge of the same. [22] However, his testimony on appellant's alleged separate
confession/admission to Hilda Dolera and Maribel Diong, which the trial court invariably considered in
its decision as establishing the truth of the facts asserted therein, is hearsay. In the terse language of
Woodroffes, said testimony is "the evidence not of what the witness knows himself but of what he
has heard from others"[23] And whether objected to or not, as in this case, said testimony has no
probative value[24]. To repeat, the failure of the defense to object to the presentation of incompetent
evidence, like hearsay, does not give such evidence any probative value.
Anent the issue of admissibility of Exhibits "F"[25] and "G"[26] original and additional sworn
statements of Maribel Diong, and Exhibits "H"[27] and "I"[28] original and additional sworn
statements of Hilda Dolera, it assumes significance to note that their admission in evidence has been
seasonably objected to by the appellant on the ground that they are hearsay. [29] The trial court
nonetheless admitted them "as part of the testimony of Pat. Nestor Napao-it". [30] While we agree that
these exhibits are admissible in evidence, their admission should be for the purpose merely of
establishing that they were in fact executed [31] They do not establish the truth of the facts asserted
therein.[32] In this case, our reading of the assailed decision, however, reveals that the foregoing
exhibits were undoubtedly considered by the trial court as establishing the truth of the facts asserted
therein. And herein lies another fatal error committed by the trial court because, without Maribel
Diong and Hilda Dolera being called to the witness stand to affirm the contents of their sworn
statements, the allegations therein are necessarily hearsay [33] and therefore inadmissible. A contrary
rule would render nugatory appellant's constitutional right of confrontation which guarantees him the
right to cross-examine the witnesses for the prosecution.
Truly, it is our policy to accord proper deference to the factual findings of the court below
especially when the issue pertains to credibility of witnesses. But no such issue is involved here.
Instead, the principal issue raised herein is whether or not the evidence adduced by the prosecution
are sufficient to overcome appellant's constitutional right to be presumed innocent. We believe in the
negative, hence, we acquit.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, convicting the
appellant of the crime of robbery with homicide is REVERSED. Appellant JULITO FRANCO y TIANSON
is hereby ACQUITTED and his immediate release from prison is ordered unless he is being held on
other legal grounds. No costs.
It is SO ORDERED.
[G.R. No. 119239. May 9, 2000]

FRANCISCO ENRIQUEZ y CRUZ, petitioner,

SANDIGANBAYAN, respondents.

vs. PEOPLE

OF

THE

PHILIPPINES,

and

[G.R. No. 119285. May 9, 2000]

CARMENCITA G. ESPINOSA, petitioner, vs. The HONORABLE SANDIGANBAYAN, and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
GONZAGA_REYES, J.:
The instant petitions for review on certiorari seek the reversal of the Sandiganbayans decision of
February 28, 1995, in Criminal Case No. 14385, convicting herein petitioners Francisco C. Enriquez
(ENRIQUEZ) and Carmencita G. Espinosa (ESPINOSA) of the crime of malversation of public funds,
defined in Article 217(4) of the Revised Penal Code.
The essential antecedents as can be gathered from the documentary and testimonial evidence are
the following: Sclex
ENRIQUEZ was Municipal Treasurer, while ESPINOSA was Administrative Officer and acting Municipal
Cashier of the Office of the Municipal Treasurer of Pasig (Pasig Treasury). By virtue of Local
Government Audit Order No. 88-01-3, an audit team headed by Carmencita Antasuda as team leader
conducted an audit examination of the cash and accounts of the Pasig Treasury covering the period
from May 4, 1987 to November 30, 1987. The audit disclosed, among other things, "accused
Enriquezs accounts contained a shortage amounting to P3,178,777.41, which shortage was mainly
due to a dishonored China Banking Check No. 303100 dated October 7, 1987 in the amount
of P3,267,911.10." Said check was deposited with the Quezon City District Treasury Office (Quezon
City Treasury) as part of the collections of the Pasig Treasury. The check was dishonored for the
following reasons: (a) it was not received in payment of any tax; (b) it was not acknowledged by an
official receipt; (c) the account against which it was drawn was under garnishment; (d) the signatory
therein was not authorized to sign; and (e) it was drawn against insufficient funds. Xlaw
On December 3, 1987, a letter of demand was sent to ENRIQUEZ by the Commission on Audit (COA)
to restitute the value of the dishonored check. In a reply dated December 5, 1987, ENRIQUEZ denied
responsibility for the shortage and pointed to ESPINOSA as the one to whom the letter of demand
should be addressed as the custodian of said check
China Banking Check No. 303100 dated October 7, 1987 in the amount of P3,267,911.10 was
payable to the Municipal Treasurer of Pasig and was drawn by one "D. Noble". The check bears
ENRIQUEZs indorsement at the back and was accompanied by a statement of checks also bearing
the initials of ENRIQUEZ. The subject check was transmitted from the Pasig Treasury to the Quezon
City Treasury as the official district treasury for municipal deposits. According to Benito Buenviaje, a
casual janitor of the Pasig Treasury, on October 15, 1987, ENRIQUEZ instructed him to get the
bundled checks from his table and to deliver them to the Quezon City Treasury. He could not recall
how many checks were taken from the table of the municipal treasurer because they were already

bundled. Benito Buenviaje was issued two official receipts, one of which, O. R. No. 279451, was in the
amount of P3,308,774.44, and included the amount of the dishonored check.

aforementioned in the Office of the Municipal Treasurer of Pasig, Metro Manila , to

the damage and prejudice of the government.

Several days after, the Quezon City Treasury informed the Pasig Treasury of the dishonor of CBC
Check No. 303100. The check was deposited by the Quezon City Treasury under Account No. 6 with
the PNB, Cubao Branch, for credit to the Pasig Treasury but it was dishonored and returned on
October 21, 1987 for the reasons above-mentioned.

CONTRARY TO LAW."[2]
When arraigned, on April 23, 1990, ENRIQUEZ and ESPINOSA pleaded not guilty to the charge. After
trial, the Sandiganbayan rendered its judgment, promulgated on February 28, 1995, convicting
ENRIQUEZ and ESPINOSA, thusly: Scmis

The then Mayor Mario Raymundo of Pasig sent a letter-request to the NBI to conduct an investigation
of the alleged shortage and Atty. Federico Opinion, Jr., Chief of the Special Action Unit of the NBI was
designated, together with two (2) other agents to conduct the investigation. As found by the NBI, the
drawer of subject check was a certain "D. Noble", with the account (CBC No. 0026813-6) registered in
the name of one Leonora Reyes of EDSA Home Improvement Center, Inc. In the course of the
investigation, Atty. Opinion furnished Eliodoro Constantino, Senior Document Examiner of the NBI, the
initials of accused Enriquez appearing in the subject check and the statement of checks, together
with standards of comparison consisting of several documents. A comparative examination by the
NBI Questioned Document Expert of the specimens submitted revealed that the questioned and
standard sample specimen initials of ENRIQUEZ were not written by one and the same person. Xsc
It appears that less than a month before the dishonor of the subject check or on September 23, 1987,
ESPINOSA herself had gone to the Quezon City Treasury to make a deposit of checks and statement
of checks. Felisa Cervantes, Computer Operator of the Quezon City Treasury, accepted the checks
and the corresponding statements and issued Official Receipt No. 279339 in the amount
of P3,583,084.18. ESPINOSA later returned to Felisa Cervantes and requested her to cross-out the
first figure "3" on the official receipt to conform with the actual amount of P583,084.18 deposited
therein.
In an Information dated February 5, 1990, ENRIQUEZ together with ESPINOSA were charged with
Malversation of Public Funds committed as follows: Sc
"That during the period from May 4, 1987 to November 30, 1987, or on dates
subsequent thereto, in the Municipality of Pasig, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the said accused Francisco C.
Enriquez being then the Municipal Treasurer of Pasig, Metro Manila, Carmencita
Espinosa then the Administrative Officer I and designated as Cashier in the Office
of the Municipal Treasurer of Pasig, Metro Manila and Belinda Santos [1], a Clerk in
the Realty Tax Section and designated as Asst. Cashier in the Treasurers Office of
Pasig, Metro Manila, duly appointed/designated and qualified as such, hence, all
accountable officers by reason of the duties of their respective offices, accountable
for the funds and properties received by them in their official positions as such,
conspiring and confederating with each other and taking advantage of their official
positions with wanton disregard of auditing laws, rules and regulations, did then
and there willfully, unlawfully and feloniously and with grave abuse of confidence,
misappropriate, misapply and convert to their own personal use and benefit the
amount of THREE MILLION ONE HUNDRED SEVENTY EIGHT THOUSAND SEVEN
HUNDRED SEVENTY-SEVEN AND 41/100 (P3,178,777.41), Philippine currency, from
the said public funds received by them in their respective official positions

"WHEREFORE, judgment is hereby rendered finding both accused Francisco

Enriquez y Cruz and Carmencita Espinosa y Gonzales GUILTY beyond reasonable
doubt as co-principals in the offense of Malversation of Public Funds, as defined and
penalized under Article 217, paragraph 4 of the Revised Penal Code and crediting
each of them with the mitigating circumstance of voluntary surrender, without any
aggravating circumstance in offset, and applying the Indeterminate Sentence Law,
each of them is hereby sentenced to suffer the indeterminate penalty ranging from
TEN (10) YEARS and ONE (1) DAY of prision mayor, as the minimum, to SEVENTEEN
(17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as the
maximum; to further suffer perpetual special disqualification; to pay, jointly and
severally, the Government of the Republic of the Philippines in the same amount
of P3,178,177.41, and to pay their proportional share of the costs of the action.
SO ORDERED."[3]
Accused ENRIQUEZ and ESPINOSA blamed each other for the shortage. ENRIQUEZ tried to show that
he is not the custodian of the funds of the municipality and that it is ESPINOSA and the deceased coaccused Belinda Santos who had custody and safekeeping over the funds and the keys to the vault.
For her part, ESPINOSA claimed that it was accused ENRIQUEZ and Imelda San Agustin, the duly
appointed cashier who are the ones responsible for the alleged shortage. The Sandiganbayan found
that ENRIQUEZ and ESPINOSA in conspiracy with each other misappropriated public funds in their
custody and sought to cover up the shortages already existing in the municipal treasurys collections
by depositing the subject China Banking Corporation check in the amount of P3,178,777.41. The
Sandiganbayan, in its assailed decision, ratiocinated thus:
"xxx xxx xxx.
From the narration of the evidence, testimonial and documentary, adduced by both
accused Enriquez and Espinosa in their defense, it appears that certain
circumstances of paramount importance have been ignored or overlooked by the
defense, considering the foregoing admitted facts on record, which are, that the
instant prosecution is for Malversation of Public funds and that once a shortage in
said funds had been established, it is the accountable officer (or officers) who
bear(s) the obligation to submit a satisfactory explanation as to why he (or they)
should not be held accountable therefor (Article 217, Revised Penal Code).
These circumstances have not been thoroughly nor diligently delved into by either
of the accused, who were apparently more concentrated in pointing to each other

and shifting the blame for the appearance and/or introduction into the municipal
treasurers accounts of a check in the amount of P3,267,911.10 drawn against the
China Banking Corporation, dated October 7, 1987 (Exhibit E). As testified to by
prosecution witness Auditor Carmelita Antasuda, said check was made to form part
of the collections of the municipal treasurer, sometime in October 1987, despite
the fact that there was no official receipt appearing to have been issued for it and
neither does it appear to have been issued in payment of taxes or obligations due
to the municipality of Pasig. Afterwards, said check, bearing accused Enriquez
indorsement at the back, was included in a statement of checks (Exhibit P)
prepared in the Pasig Municipal Treasurers Office for transmittal to, and deposit
with, the Quezon City Treasurers Office, the latter being the official district treasury
for municipal deposits. Missc

the neighborhood of P3-million and were attempting to conceal or cover-up this

shortage through the same modus operandi. Misspped
The audit examination which was conducted on December 1, 1987 (Exhibit D)
covered the period from May 4, 1987 to November 30, 1987. The shortage
of P3,178,777.41 was arrived at as follows:
"Accountability:
Beginning Balance, May
4, 1987 P 17,843,0007.26

The statement of the checks (Exhibit P), together with the check in question
(Exhibit E), and another statement of checks (Exhibit 7-Espinosa) was admittedly
brought by Benito Buenviaje, a casual janitor in the municipal treasurers office,
upon the instruction of accused Enriquez to the Quezon City Treasurers Office and
received thereat on October 15, 1987. Buenviaje was issued two official receipts,
one of which, O. R. No. 279451 (Exhibit 7-b-Enriquez), was in the amount
of P3,308,774.44, which included the dishonored check (Exhibit M-1, Page 2 par. 3).
The check was deposited by the Quezon City Treasury Office under Account No. 6
with the PNB, Cubao, Branch, for credit to the Pasig municipal treasury but it was
dishonored and returned on October 21, 1987 because the account was under
garnishment and the check had an unauthorized signatory (Exhibit E-2). As found
by the NBI, the drawer of the said check was a certain "D. Noble", with the account
(CBC No. 0026813) being in the name of one Leonora Reyes of EDSA Home
Improvement Center, Inc. (Exhibit M-1, page 3, par. 5).
Hence, as of October 15, 1987, the municipal collections had a virus fatally
imbedded within it, a wayward private check which cannot lawfully be credited to
the municipal treasury or to the accountability of either of the accused herein, as
primary and secondary accountable officers. Worse, on September 23, 1987,
accused Espinosa had tried to foist a similar scam by personally bringing to the
District Treasury in Quezon City bundles of checks listed in three (3) statements of
checks, dated September 15, 1987 and signed by accused Enriquez, totaling
P583,084.18 (Exhibits 22, 22-a and 22-b-Espinosa). While the total amount on the
adding machine tapes when presented, was P3,583,084.18, as testified to by Maria
Felisa Cervantes (TSN, pp. 6-31, May 21, 1991), with accused Espinosa being
issued Official Receipt No. 279339 (Exhibits 11-to11-d-Enriquez), she later returned
to Cervantes and said she had committed a mistake and had Cervantes cross out
the figure 3" in said receipt to conform with the actual amount of the checks which
was P583,084.18 only.
Coupled with the same scenario that transpired on October 15, 1987 with respect
to the dishonored CBC Check in the amount of P3,267,911.10 (Exhibit E), which
likewise reached the Quezon City Treasurers Office thru a statement of checks
signed by accused Enriquez (Exhibit P), then it can logically be presumed that
during the months of September and October, 1987, both accused Enriquez and
Espinosa were already aware of an impending shortage in their accountabilities in

Add: Collections and

Withdrawals 184,065.858.18
Total P 201,908,865.44
Less: Disbursements and
Deposits 194,433,214.14
Balance of Accountability P 7,475,651.30
Cash and Valid Cash Items 4,296,873.89
Shortage P 3,178,177.41
The shortage is accounted for as follows:
Disallowed cash item CBC
Check #303100 P 3,267,911.10
Overrecording of withdrawals ( 100,018.10)
Underrecording of withdrawals 10,001.18
Underremittance of collections 1,410.55
Overremittance of collections ( 539.00)
Overrecording of deposits 10.40

Overfooting of expenditures .53

collections. What should be explained is why no official receipt was issued therefor
and wherein will be seen the nature and purpose for the issuance of the check and
why it had to be utilized for covering up shortages already existing in the municipal
treasurys collections.

Overfooting of collections ( .04)

Underfooting of collections ( .80

There being no evidence on record to the contrary, then We can logically presume
that the dishonored check (Exhibit E) had been utilized for either of these
objectives, to wit: (a) it was surreptitiously encashed with the municipal treasury
through a revenue collection clerk or someone performing collection tasks, most
probably accused Santos, and after which the check was included in the Daily
Statements of Collections, or (b) it was borrowed from the account holder, Leonora
Reyes, or from one D. Noble who was in possession thereof, for the specific purpose
of covering-up missing collections in the municipal treasury. Either way, the
transaction was irregular and improper, as were other transactions in said office. As
pointed out by Auditor Antasuda in her Memorandum for the Chairman, COA, dated
July 15, 1988 (Exhibit F-1), the audit examination revealed that not all the checks in
the municipal treasury were deposited intact; there were delayed deposits of
collections; it took one month or more for collections to be deposited with the
District Treasurer; the cash balances always exceeded the cash reserve limit; cash
was transferred from one fund to another with check collections being used to
replace the transferred cash; there were loose controls and no control records in
the handling of dishonored checks, and delayed issuance of receipts on check
payments, among many other defects and deficiencies (Exhibit F-1 a)." [4]

Total P 3,178,777.42
It would appear probable, therefore, that even as early as May and prior to October
15, 1987, the shortage had already existed in the municipal accounts, traceable to
and aggravated by over-recording/under-recording of withdrawals, underremittance/over-remittance or collections, over-recording of deposits, over-footing
of expenditures, over-footing/underfooting of collections and, most importantly, the
dishonored CBC Check for P3,267,911.10 (Exhibit E). Since the total accountability
of P7,475,651.30, as found by the audit team less cash and valid cash items
amount to P4,296,873.89 still resulted in a shortage of P3,178,777.42 then the only
logical and plausible conclusion to be arrived at is that collections were, indeed,
short between May 4, 1987 and November 30, 1987 and, consequently, efforts had
to be exerted by accused Enriquez and Espinosa, even including resort to extralegal measures, to conceal and/or cover-up the missing public funds. Naturally,
such measures can only be resorted to and utilized by the personnel therein who
would be held responsible for any shortage that would ultimately be found. They
are accused Enriquez, the primary accountable officer, being the municipal
treasurer, and accused Espinosa and the late accused Belinda Tuao-Santos, whom
he had designated as Cashier and Assistant Cashier as early as December 3, 1984
(Exhibit C-1), and who performed the duties appurtenant thereto despite the
appointment of Imelda San Agustin as Cashier on July 1, 1987 (Exhibit 1-Espinosa).
As to why accused Enriquez still allowed accused Espinosa, and the late accused
Santos, whose actual appointments were those of Administrative Officer I and
Revenue Collection Clerk, respectively (Exhibits C and A), to continue discharging
the duties and functions of Cashier and Asst. Cashier after July 1, 1987, only he can
explain. The burden, likewise, is on him to explain why he allowed all three of them
(San Agustin, Espinosa and Santos) to perform over-lapping work and permitted a
situation to arise where accountability could not be pin-pointed for collections,
cash-counts and remittances." Spped
xxx xxx xxx
"As reflected on the record, accused Enriquez and Espinosa were engaged in
mutual recriminations, with the former pointing to the latter, and the latter pointing
to the former and Imelda San Agustin, as the ones responsible for the irregular
entry and receipt of the dishonored CBC Check for P3,278,161.10 (Exhibit E) as part
of the municipal collections, with accused Enriquez even denying his
signatures/initials on the check itself and the statement of check (Exhibit P),
through which said dishonored check was remitted to the Quezon City Treasurers
Office. But, as We have previously pointed out, for purposes of the instant
prosecution, it is completely and entirely immaterial and irrelevant as to who
received said CBC check and who remitted the same as part of the municipal

xxx xxx xxx.

Through their separate petitions for review, ENRIQUEZ and ESPINOSA come to this Court for relief
respectively raising numerous and lengthy assigned errors which we shall summarize herein. For
ENRIQUEZ, that the Sandiganbayan erred in convicting him: 1. despite absence of proof of the
missing funds; 2. despite the overwhelming and unrebutted evidence that he had no participation in
the negotiation of the subject check; and 3. despite the inherent weakness of the prosecution
evidence. For ESPINOSA, that the Sandiganbayan erred in convicting her: 1. considering she was not
an accountable officer at the time the alleged shortage was incurred; 2. there was no proof that she
tried to conceal or cover-up the missing public funds; 3. there was no proof that she collected,
misappropriated or spent the missing funds for her own personal benefit; and 4. the prosecution
failed to prove her guilt beyond reasonable doubt. Jospped
The arguments boil down to whether or not ENRIQUEZ and ESPINOSA had incurred a shortage in their
accounts as Municipal Treasurer and Administrative Officer/designated as Acting Cashier,
respectively, which they had attempted to conceal through a bad check. Sppedjo
In Diaz vs. Sandiganbayan,[5] this Court held:
"Generally, the factual findings of the Sandiganbayan are conclusive upon this
Court but there are established exceptions to that rule, such as, sans preclusion:,
when (1) the conclusion is a finding grounded entirely on speculation, surmise and
conjecture; (2) the inference made is manifestly an error or founded on a mistake;
(3) there is grave abuse of discretion; (4) the judgment is based on

misapprehension of facts; and (5) the findings of fact are premised on a want of
evidence and/or contradicted by evidence on record. In these instances, this Court
is bound to review the facts in order to avoid a miscarriage of justice." [6]
We could do no less than to re-examine the evidence on record considering that the decision of the
Sandiganbayan, pertinent portions of which we have quoted earlier, appears to be grounded on
probabilities and conjecture. Miso
After an assiduous scrutiny of the pleadings and the evidence, testimonial and documentary, the
Court is convinced that the acquittal of ENRIQUEZ and ESPINOSA must be decreed.
The crime of malversation for which ENRIQUEZ and ESPINOSA had been charged is defined under
Article 217 of the Revised Penal Code, its pertinent provisions read:
"ART. 217. Malversation of public funds or property Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds
or property, xxx."
xxx xxx xxx.

instant petitions focus themselves. We are constrained to conclude that the prosecution, upon whose
burden was laden the task of establishing proof beyond reasonable doubt that petitioners had
committed the offense charged, failed to discharge this obligation. The Sandiganbayan found the
denials of the accused and their acts of shifting the blame and passing the responsibility for the
dishonored check to each other as unacceptable and indicative of their guilt. However, it must be
emphasized that although the evidence for the defense may be characterized as weak, criminal
conviction must come from the strength of the prosecutions evidence and not from the weakness of
the defense.[8] We are not convinced that the evidence in this case has proven beyond reasonable
doubt that the accused are guilty of the crime charged for reasons stated hereunder: Nexold
First. There is no evidence to prove that the Pasig Treasury incurred a cash shortage in the amount
of P3,178,777.41, which amount, incidentally, is even less than the amount of the dishonored check.
As per report of the audit team, the alleged shortage was computed and based on the value of the
dishonored check. We reproduce again the pertinent portion of the audit examination relied upon by
the Sandiganbayan to establish the shortage:
"The shortage is accounted for as follows:
Disallowed cash item CBC
Check #303100 P 3,267,911.10
Overrecording of withdrawals ( 100,018.10)

The failure of the public officer to have duly forthcoming such public funds or
property, upon demand by a duly authorized officer, "shall be prima facie evidence
that he has put such missing funds or property to personal use."
The elements of malversation under the above penal provision are:

Underrecording of withdrawals 10,001.18

Underremittance of collections 1,410.55
Overremittance of collections ( 539.00)

(a) That the offender is a public officer.

Overrecording of deposits 10.40

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

Overfooting of expenditures .53

(c) That those funds or property are public funds or property for which he is
accountable.
(d) That he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them. [7]
Verily, the first two elements are present in this case. The findings of the Sandiganbayan that
ENRIQUEZ and ESPINOSA are public officers who have the custody or control of funds or property by
reason of the duties of their office are duly supported by the evidence. It is the last two
elements, i.e., whether or not the amount represented in the dishonored check constituted public
funds and whether ENRIQUEZ and/or ESPINOSA really misappropriated said public funds, where the

Overfooting of collections ( .04)

Underfooting of collections ( .80
Total P3,178,777.42"[9]
As stated in the assailed decision, it was only the drawn check, based on the audit examination that
brought about the shortage. It was palpable error for the Sandiganbayan to conclude that the check
which the audit team had pinpointed as the shortage due to its dishonor was at the same time,
intended and used by ENRIQUEZ and ESPINOSA to "cover up" shortages in the funds allegedly in
their custody. The shortage must be clearly established as a fact, i.e., that over and above the funds
found by the auditor in the actual possession of the accountable officers, there is an additional

amount of P3,178.777.42 which could no longer be produced or accounted for at the time of audit.
Evidence of shortage is necessary before there could be any taking, appropriation, conversion, or loss
of public funds that would amount to malversation. It makes no sense for any bogus check to be
produced to "cover up" an inexistent malversation. [10]
Indeed, no less than the sole witness for the prosecution, audit team leader, Carmelita Antasuda,
who conducted the cash count and cash examination of the Pasig Treasury, testified that based on
their audit examination, it was only the subject check that brought about the shortage. Her testimony
on this point goes:
Q: Now, your examination covered the months from May to November, 1987, were
you able to determine whether in May there were already missing funds from the
Treasury of Pasig?
A: In our examination we cannot determine if there were missing funds prior to our
cut-off date.
Q: In other words from the months of May, June, July, August and September, there
was not shown or you were not able to discover whether there had been losses
already during those months?
A: No sir.
Q: In your testimony last Friday you related to us that only checks were remitted
from Pasig to Quezon City Treasury and the cash collections were retained in Pasig
to take care of payments for local obligations, is that right?

JUSTICE ESCAREAL:
Q: While in the possession of?
ATTY. SANCHEZ:
Q: Of the Treasurer of Pasig, meaning it did not enter the cash collections, the
encashment of the checks did not enter the treasurer of Pasig would not the
obligation for which that amount in check was paid be recorded as still unpaid?
A: I would like to clear that. When payments are made in the Municipal Treasurer of
Pasig through checks it is automatically issued an official receipt for that payment
and the check and. and the fact that it is already issued an official receipt it follows
that the taxpayer had already paid the amount of his tax.
JUSTICE ESCAREAL:
Q: In this particular case, did you find any official receipt issued for the check?
A: None, Your Honor. There has been no official receipt issued to that particular
check.
Q: In the name of the drawer Dean Noble you did not find any official receipt?
A; No sir.

A: Yes sir.

Q: There was no receipt for Mr. Noble in the record of the Treasury of Pasig?

Q: Now, you also stated that you were not able to determine whether checks or
cash or whether just cash was supposed to have been lost; is that right?

A: None, Your Honor.

JUSTICE ESCAREAL:

A: Yes sir.
You may now proceed.
Q: Now, if a check, as you also said is payable always to the Municipal Treasury of
Pasig, is that right?
A: Yes sir.
Q: If a check was lost, the record of the Municipal Treasurer of Pasig would record
the payment as record the obligations of the payee as unpaid; is that right?

ATTY. SANCHEZ:
Q: Now, if these cash collections were lost where the object of whatever
manipulation that was done according to the charge in this case only cash
collections is not the basis of your statement in your recommendation number 1 in
Exhibit F, your report is not the basis of that recommendation of yours the fact that
these cash collections were lost?

A: When was the check was lost.

Q: Supposing a check was paid to the Municipal Treasurer of Pasig was lost or was
not encashed?

A: In our examination, sir the result that the shortage was on a check
corresponding to the amount of the check and it is that check which we disallowed
so we do not know if it was cash or it was that check that was cashed that was

taken only that we know that it was that check that we disallowed in audit and it is
that check that resulted in the shortage."[11]
Equally revealing from the above-quoted testimony of Carmelita Antasuda is her declaration that
they could not identify whether it was cash or check that was lost. This admission by the audit team
leader necessarily weakens the reliability of the audit findings. The respondent court itself gathered
from Antasudas cross-examination as follows: Manikx
"The cashbook that they examined covered the months of May to November 1987
and they conduct cash examinations twice a year. Based on their review, Auditor
Diche conducted two cash counts from May to November 1987, one in September
23, 1987 and another on October 9, 1987 but she does not know what were the
results of her cash counts. They were not able to find out as to when the check
(Exhibit E) was actually entered in the municipal treasury because the collection
voucher does not bear any collection pertaining to said check. Neither were they
able to discover whether there had been losses during the months from May to
September 1987. In fact, there has been no official receipt issued for the said
check. They did not find anything irregular in the statements of checks turned over
to them by Imelda Augustin.xxx"[12]
Evidently, the audit examination lacked the thoroughness and completeness required by the Manual
of Instructions to Treasurers and Auditors and Other Guidelines. [13] In People vs. Tinga[14], the Court
had occasion to state:
"At this juncture, it may not be amiss to state that considering the gravity of the
offense of Malversation of Public Funds, just as government treasurers are held to
strict accountability as regards funds entrusted to them in a fiduciary capacity, so
also should examining COA auditors act with greater care and caution in the audit
of the accounts of such accountable officers to avoid the perpetration of any
injustice. Accounts should be examined carefully and thoroughly "to the last detail,"
"with absolute certainty" in strict compliance with the Manual of Instructions. x x
x."

accountability of either of the accused herein, as primary and secondary accountable officers." [16] For
this reason, the Sandiganbayan had to rely on its cover-up theory which is not plausible from the
evidence on record. Maniks
Third. There is no showing that the subject check was received by the Pasig Treasury in an official
capacity; that there was a duty to receive or collect the said amount; and that there was an
obligation to account for the same. The evidence submitted, just to the contrary, would point out that
the subject check was not issued in payment of taxes or obligations due to the municipality and
consequently no official receipt was issued for it. Indeed, the subject check never formed a portion of
the public funds of the municipality for which either ENRIQUEZ or ESPINOSA are accountable
for. Manikan
Fourth. The Sandiganbayan clearly erred in inferring from the incident that transpired on September
23, 1987, wherein ESPINOSA deposited checks with the Quezon City Treasury for which she was
issued an official receipt in the amount of P3,583,084.18, but which she later corrected to conform to
the actual amount of the checks as P583,084.18, as indicative of a modus operandi to cover-up a
shortage in the amount of P3 million. ESPINOSA has explained, and her testimony remains
unrebutted, that she requested that the correction be made because she discovered 15 minutes after
she was issued the official receipt that the checks and the accompanying statements of
checks[17] had not been endorsed and signed by ENRIQUEZ. Moreover, the general rule is that the law
will not consider evidence that a person has done a certain act at a particular time as probative of a
contention that he has done a similar act at another time. This is the rule of res inter alios
acta[18] found in Section 34, Rule 130 of the Rules of Court, as amended. [19] Said incident could not
even sufficiently establish a plan or scheme between ENRIQUEZ and ESPINOSA to cover-up a
shortage that has never been proven. Oldmiso
In view of the foregoing, the presumption is that ENRIQUEZ and ESPINOSA are innocent, and the
presumption continues up to the moment their guilt is proved beyond reasonable doubt. To justify
their conviction of the offense charged, the evidence must establish their guilt to a moral certainty. In
the instant case, the proofs on record fall short of that required criterion. Consequently, the degree of
moral certainty required to justify conviction for this particular offense is sorely wanting and
petitioners acquittal thereof must be adjudged.

Apparently, the Sandiganbayan relied on the statutory presumption that the "[f]ailure of a public
officer to have duly forthcoming any public funds with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put such missing funds or property
to personal uses." It must be emphasized that the prima facie presumption arises only if there is no
issue as to the accuracy, correctness, and regularity of the audit findings and if the fact that funds
are missing is indubitably established.[15] In the instant case, audit team leader Carmelita Antasuda
could not even equivocally state whether it was cash or check that was lost, if at all there was any,
belying the accuracy and correctness of the teams audit report.

To repeat, the only facts established by the evidence against ENRIQUEZ is that he instructed Benito
Buenviaje to deliver the bundled checks placed on his desk which apparently included the bogus
check. His intials appearing thereon were found to be forged by the NBI. On the other hand, the acts
established against ESPINOSA consisted of what transpired at the Quezon City Treasury on
September 23, 1987. We cannot, however, derive from these circumstances, without more, a
conclusion that ENRIQUEZ and ESPINOSA pocketed an amount of more than 3 million pesos from the
funds in their capacity as accountable public officers and, to prevent discovery, had caused the
issuance of the bogus check to cover up the shortage. Ncm

Second. There is no evidence that ENRIQUEZ or ESPINOSA had received such an amount which they
could no longer produce or account for at the time of the audit. The Sandiganbayan merely
speculated that it was "surreptitiously encashed with the municipal treasury through a revenue
collection clerk or someone performing collection tasks" or "it was borrowed from the account holder
for the purpose of covering-up missing collections." In its own words the subject check was a
"wayward private check which cannot lawfully be credited to the municipal treasury or to the

There would appear to have been lapses or deficiencies in the observance of auditing rules and
regulations in the handling of the funds of the municipal treasury e. g. delay in deposits of
collections, cash balances exceeding cash reserve limit, loose controls and no control records, etc. as
pointed out by the audit team, and questions as to how a private check was bundled together with
legitimate collections of the Pasig Treasury for transmittal to the Quezon City Treasury, but the same
do not warrant a finding of criminal culpability, which requires proof beyond reasonable doubt on the

part of ENRIQUEZ and ESPINOSA. However, the Chairman of the Commission on Audit should be
apprised of this decision for whatever action he may deem appropriate.
WHEREFORE, the decision of the Sandiganbayan (Second Division) promulgated on February 28,
1995 is REVERSED and SET ASIDE, and the petitioners Francisco C. Enriquez and Carmencita G.
Espinosa are ACQUITTED of the charge of malversation of public funds under Article 217(4) of the
Revised Penal Code. The Division Clerk of Court is directed to furnish the Chairman of the
Commission on Audit copies of this decision. Ncmmis

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]

SO ORDERED.

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.

[G.R. No. 122954. February 15, 2000]

In its Resolution dated October 10, 1994,[6] the Second Division of this Court resolved -

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.

" 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 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."

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.

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.

Based on the available records and the admissions of the parties, the antecedents of the present
petition are as follows:

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.

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.:

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

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. 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;"
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 facieevidence 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 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
byhabeas 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 prior to 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 after petitioner, 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.
[Adm. Matter No. MTJ-00-1241. January 20, 2000]
ATTY.
NAPOLEON
S.
BELLOSILLO, respondent

VALENZUELA, complainant vs.

JUDGE

REYNALDO

B.

DECISION

The Answer, dated February 16, 1998, of respondent Judge denied the allegations of the complaint,
branded the same without any legal and factual basis; theorizing:

PURISIMA, J.:
The Affidavit-Complaint dated October 17, 1997 of Attorney Napoleon S. Valenzuela charged
respondent Judge Reynaldo Blanco Bellosillo of Branch 34 of the Metropolitan Trial Court of Quezon
City with gross violation of the constitutional right of subject accused to assistance by counsel of her
own choice, gross misconduct, oppression, partiality and violation of the Code of Judicial Ethics;
averring:
"2. That on September 4, 1997, I was hired as counsel for the accused in Criminal
Case No. 65382-86 entitled People of the Philippines vs. Ms. Meriam V. Colapo for
Violation of B.P. 22 which case is being heard before Quezon City Metropolitan Trial
Court Branch 34, presided by Hon. Judge Reynaldo Blanco Bellosillo;
3. That subsequently, I then filed a Manifestation praying for the Honorable Court
to allow the accused to post bail; a copy of the Manifestation is hereto attached as
Annex A and A-1 and made as integral parts hereof;
4. That Judge Reynaldo Bellosillo as was his custom, talked to my client before
granting bail for her provisional liberty inside his chambers and in my absence;
5. That the next day, September 5, 1997, my client Meriam Colapo informed me
that Judge Reynaldo B. Bellosillo had angrily ordered her to remove me as counsel
and even suggested one Atty. Puhawan of the PALAO QUEZON CITY as my
replacement; xxx
6. That as a consequence thereof, the undersigned had no recourse but to file a
Notice of Withdrawal with the conformity of my client Meriam V. Colapo xxx;
7. That although I was aghast and flabbergasted with the unfathomable actuation
of Judge Bellosillo, I can think of no reason what impelled him with anger to order
my client for my replacement;
7. [sic] That the actuation of Judge Reynaldo Blanco Bellosillo is certainly
oppressive, arrogant, and a gross misconduct affecting his integrity and efficiency
which merits a dismissal from the service;
8. That such despotic act of Judge Bellosillo is likewise indicative of partiality and
gross ignorance of the Constitution and the constitutional right of accused Meriam
Colapo to choose her own counsel to defend her in court;
9. That such arrogant act of Judge Bellosillo would certainly violate and kill my right
to earn and practice law; Spped
xxx."[1]

"1. That when Complainants Accused Client and Witness, Meriam J. [sic] Colapo,
appeared before the undersigned respondent to post Bail she was unassisted by
Complainant-Counsel and upon inquiry informed that she is allegedly changing him
not having liked the idea of being referred by a Metro-TC Branch 34 Personnel to its
PAO Lawyer Joseph B. Sia, who rejected her due to the Prohibitive policy of his
office to represent an Accused in BP 22 Cases and instead referred her to the
Complainant-Lawyer, Napoleon S. Valenzuela, a former PAO Employee, who
allegedly changed [sic] her unreasonably for the preparation of a mere
Manifestation To Post Bail;
2. That respondent could not have referred Complainants Accused Client Witness
to tha [sic] PALAO knowing its Prohibitive Policy to also represent Accused in BP 22
Cases as previously made clear by its Chief, Atty. Jose Puhawan;
3. That out of delicadeza and in recognition of Complainants right to practice the
law profession, respondent never talked to him about it;
4. That the Motion to Withdraw filed by Complainant with the Conformity of his
Accused Client Witness, Meriam V. Colapo, is a matter strictly just between the two
of them, to which respondent was never a privy;
5. That had Complainant been more prudent, he could have just verified from the
respondent the veracity of his clients statements which for legal intents and
purposes are inadmissible for being hearsay, thus, this unfounded time consuming
Complaint could have been avoided;
6. That respondent discharges his functions with all integrity and good faith and
without fear or favor knowing that justice must never be distorted as to do so
would make even the wise blind and subvert tha [sic] cause of the innocent;
xxx"[2] Jo spped
In the Resolution[3] issued on June 16, 1999, this Third Division referred the Complaint to the
Executive Judge of the Regional Trial Court of Quezon City, for investigation, report and
recommendation.
On September 22, 1999, Executive Judge Perlita J. Tria Tirona sent in the following Report and
Recommendation, to wit:
"Complainant alleged that: on September 4, 1997, he filed a motion praying that
his client Meriam V. Colapo accused in a BP 22 case then pending in Metropolitan
Trial Court, Branch 34, Quezon City, presided over at that time by respondent, be
allowed to post bail for her provisional liberty. Respondent before acting on the
Motion allegedly talked to the accused and ordered her to replace her counsel,

herein complainant, with Atty. Puhawan from PALAO, Quezon City. Accused Colapo
informed him of this incident and told him she was terminating his services
pursuant to the instructions of the respondent.
In deference to his clients wishes, complainant filed a Notice of Withdrawal of his
appearance with his clients (Colapos) conformity. Spped jo
According to complainant, he could not think of any reason for respondent to order
his client to replace him.
On cross examination, complainant stated that he worked with the Public
Attorneys Office for seven (7) to eight (8) years. He resigned in 1995.
Complainants wife used to be an officemate of respondent at the Public Attorneys
Office in Makati in 1988.
Complainant admitted that his client Colapo was referred to him by Atty. Sia, his
friend, who is with the Public Attorneys Office (PAO) where he used to work. He is
aware of the PAO/PALAO policy not to represent any person charged with BP 22.
Complainant likewise admitted that he filed his notice of withdrawal on the basis of
what his client Colapo told him. However, he did not confront the respondent about
it. He believed his client because she was agitated. According to his client Colapo,
respondent recommended Atty. Puhawan and he right away filed his withdrawal as
counsel.
At first, complainant stated that the affidavit of his client Colapo was prepared by
the Notary Public Lino Soriano. Then he stated that he assisted her in the
preparation of the same.
Complainant further alleged that it was also on September 5, 1997 (when his
clients bond was approved) that Colapo informed him that respondent wanted him
changed as counsel.
However, in his Notice of Withdrawal as counsel which he filed in Court, he stated
that he was informed by his client Colapo on September 7, 1997, which
complainant again claims to be a typographical error.
Complainant further admitted that his Notice of Withdrawal was with the
conformity of his client Colapo.
No other witness was presented by the complainant.
Respondent Judge Bellosillo, testified that he does not personally know Miriam [sic]
Colapo. He first met her when she appeared before him in his Court for the
approval of her bail bond. She was allowed to post bail on the basis of the
manifestation filed by her counsel on record, complainant Atty. Napoleon S.
Valenzuela. At that time she was notassisted [sic] by her counsel (complainant was
absent) but he (respondent) allowed her just the same to post bail because

according to him he personally knows Colapos counsel complainant Atty.

Valenzuela.
Respondent further stated that when he inquired from Ms. Colapo where her lawyer
was, Ms. Colapo, in a very disappointing mood said that she was going to change
her counsel because she did not like the idea of paying somebody who could not
appear for her at the time she needed him most. Later on he was informed of the
notice of withdrawal filed by complainant Napoleon Valenzuela with the conformity
of his client Colapo. He did not bother to read the withdrawal anymore because
anyway it contained the conformity of his client Colapo. It was only when he
received the 1st indorsement of the Court Administrator which contained the
complaint and the annexes to the complaint of Atty. Valenzuela that he came to
read the notice of withdrawal. Had he read the notice of withdrawal earlier, he
could have called them for a conference, and confront both of them, considering
that the information given to him (complainant) by Colapo is different from what
appeared in the notice of withdrawal as counsel, filed by herein complainant.
Respondent likewise stated that in all honesty and good faith, he honored the entry
of appearance of the new counsel and dismissed the case against Ms. Colapo on
the basis of the Affidavit of Desistance filed by the complaining witness in the case
against Colapo. Miso
On cross examination, respondent admitted that he talked to accused Colapo
before he approved the bail, who was then not assisted by her counsel, to find out
if she is the one who appears in the picture attached to the bail bond, and to inform
her of her undertaking under the bail, and when he inquired from Colapo where her
lawyer was, she answered in a very disappointed manner that she was going to
change her counsel because she did not like the idea of paying somebody who
could not represent her at the time she needed him most and because of the fact
that she was referred to one Atty. Sia of the PAO Office who in turn referred her
(Colapo) to complainant who allegedly charged her (complainant) so much for the
preparation of the manifestation.
Respondent likewise denied that he ever referred Ms. Colapo, complainants client
to the PALAO knowing fully well that the PALAO does not represent an accused in a
BP 22 case. Besides, according to respondent, it was none of his business whether
Colapo would want to change her counsel. He (respondent) stated that he is not
aware whether Atty. Gusapos, the lawyer who replaced the complainant, is a PALAO
lawyer since he used his private or residential address when he entered his
appearance."
Prescinding from the foregoing, Judge Tirona concluded:
"The undersigned finds the evidence adduced by the complainant insufficient to
substantiate his charges against respondent Judge Bellosillo.
The basis of complainants complaint is the affidavit of his client Meriam Colapo to
the effect that respondent Judge suggested to her (Meriam Colapo) that she should

change her counsel (herein complainant), and that respondent recommended Atty.
Puhawan of the PALAO.

affiants allegations.[5] An affidavit is hearsay unless the affiant is presented for cross-examination.
[6]
Mani kx

However, Meriam Colapo was not presented by complainant to testify because she
is presently in Brunei. While complainant claims that Meriam Colapo is willing to
testify, said willingness is not sufficient to lend credence to the present charge
since respondent has every right to cross examine said witness.

Sans the testimony of witness Meriam Colapo, to corroborate complainants allegations and
submission, the case against the respondent judge cannot prosper. The employment or profession of
a person is a property right within the constitutional guaranty of due process of law. [7] Respondent
judge cannot therefore be adjudged guilty of the charges against him without affording him a chance
to confront the said witness, Meriam Colapo; otherwise, his right to due process would be infringed.

It should likewise be noted that the lawyer who replaced complainant as counsel for
Meriam Colapo was not Atty. Puhawan, the lawyer allegedly suggested by
respondent but one Atty. Gusapos allegedly of the PALAO, although no evidence
was presented by complainant to show that indeed Atty. Gusapos is also with
PALAO notwithstanding the fact that he promised to submit a certification from
PALAO that Atty. Gusapos is indeed an employee of said office. Nex old
If Meriam Colapo has to discharge complainant as allegedly suggested by
respondent so as not to antagonize said respondent judge, why did they not
engage the services of Atty. Puhawan, the lawyer allegedly suggested by
respondent to take complainants place as counsel?
On the other hand, respondent in denying the charge, stated that he could not
have even suggested Atty. Puhawan of PALAO to take complainants place as
counsel since PALAO lawyers are not allowed to represent an accused in a BP 22
case.
Besides, even complainant himself could see no reason why respondent would
suggest to Meriam Colapo to change complainant as counsel and instead to engage
the services of Atty. Puhawan.
Thus, the only evidence of the complainant, which is the Affidavit of his client
Meriam Colapo, cannot be the basis of a finding of guilt even in an administrative
case.
In view of the foregoing, the undersigned respectfully recommends that the
charges against respondent Judge Reynaldo B. Bellosillo be dismissed for lack of
evidence."
All the facts of the case studiedly considered, with a thorough evaluation of the records on hand, the
Court finds merit in the findings and recommendations of Executive Judge Tirona, absent any
discernible basis for adjudging respondent Judge Bellosillo liable under the premises.
Apart from his testimony and affidavit-complaint, complainant did not adduce enough evidence to
prove his charges. He did not even present his primary witness, Meriam Colapo, to support the
charge that respondent Judge Bellosillo pressured the latter to replace him as defense counsel. The
affidavit[4] of Meriam Colapo cannot be given credence and is inadmissible without the said affiant
placed on the witness stand to give the respondent Judge an opportunity to test the veracity of

WHEREFORE, for insufficiency of evidence, the Complaint at bar against respondent Judge Reynaldo
Blanco Bellosillo is hereby DISMISSED.
SO ORDERED.

[G.R. No. 127573. May 12, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE SILVESTRE y CRUZ, accusedappellant.

DECISION
GONZAGA-REYES, J.:
This is an appeal from the decision [1] of the Regional Trial Court (RTC) of Malabon, Branch 72,
dated August 7, 1996, finding the accusedappellant Jose Silvestre y Cruz alias Jojo Bungo guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. 16579-MN.
The accused, Jose Silvestre y Cruz alias Jojo Bungo, was charged with the crime of murder in an
information[2] that reads:
That on or about the 18th day of January, 1996, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, and with treachery and evident premeditation while armed with a gun, did then and there,
willfully, unlawfully and feloniously shoot one LUISITO PALENCIA y TOBIAS hitting him four (4) times
on the different parts of his body, as a consequence said LUISITO PALENCIA y TOBIAS, sustained
injuries which directly caused his death.
On April 24, 1996, accused-appellant was arraigned whereupon he entered a plea of not guilty
to the crime charged.[3]
The prosecution presented three witnesses: the victims widow, Marina Palencia; an eyewitness
to the shooting, Felicitas Torres; and the arresting officer, SPO2 Benjamin Querubin.
Marina Palencia testified that she was the widow of the victim, Luisito Palencia; that they have
three children: Harry, 18; Regine, 16; and Carmille, 11; and that when he was alive, he was
employed as an installer and repairman of P.L.D.T. earning P14,877.00 a month. As a consequence
of the death of her husband, she had incurred actual expenses in the amount of P66,500.00.[4]

Felicitas Torres testified that on 11:45 a.m. of January 18, 1996, she bought bread from the
Concepcion Bakery in Malabon, Metro Manila. While waiting for a ride in front of the said bakery, she
observed a man and a woman talking with each other. She then heard two shots fired. When she
turned her head, she saw a man on the ground face down and beside him, a man holding a gun. She
sought cover for a short while, then saw the man with a gun fire two more times at
the fallen man. She boarded a jeep after the last two shots were fired. While boarding, she heard
someone say binaril na ni Jojo si Palencia.
On February 5, 1996, she went to the branch office of P.L.D.T. in Malabon to pay for the
telephone bill of her employer. While there, she overheard that no one was willing to testify about
the shooting. She informed one of the employees that she was a witness to the incident, and was
brought to the manager who asked her to testify as one of the witnesses in the case. On the same
day, she was accompanied by a certain Jun, an employee of the P.L.D.T., to the police station to give
her statement.
At the police station, she identified the only person presented to her for purposes of
identification as the assailant. She was later informed that this person was Jojo Bungo. In court,
Torres also identified the accused Jojo Bungo, whose real name is Jose Silvestre, as the assailant. [5]
The parties dispensed with the presentation of Dr. Alberto Bondoc by making admissions
concerning the manner and nature of his testimony, to wit:
1. that he is duly qualified and competent as a physician and medico-legal officer who had
conducted an autopsy examination;
2. that he conducted the actual autopsy on the cadaver of the victim in this case by the name of
Luisito Palencia to be marked as Exhibit B;
3. that in the course of the autopsy examination the witness prepared a sketch of the human body
showing the locations and number of gunshot wounds sustained by the victim marked as Exhibit C;
4. that in the course of its examination he extracted a slug embedded on the said victim which
cannot be traced to any gun because there was no ballistic examination; and,
5. that the final report containing the findings and conclusions particularly with respect to the fact
and cause of death was prepared, thereby dispensing with the actual presentation of Dr. Bondoc as a
prosecution witness.[6]
The prosecutions last witness was SPO2 Benjamin Querubin who testified that on February 5,
1996, Jojo Bungo was arrested outside his residence at Bagong Bantay, Quezon City after a six-hour
stakeout. At the time of arrest, a .38 snub nose paltik revolver was recovered from Silvestre after
he was frisked. He also identified Jojo Bungo in court.
On cross-examination, Querubin testified that there was a witness who gave her statement
regarding the crime committed on January 18, 1996 but that she did not cooperate and even failed to
subscribe to her statement.[7]
[8]

The defense presented SPO2 Angelito Balacaa, the investigating officer, who testified that
he was the officer who took the statement of Felicitas Torres. On cross-examination, he stated that
there was no line-up made when Torres identified the accused because when Torres statement was
taken, she readily mentioned the name of the suspect. When he presented the suspect to Felicitas,
the latter identified him as the one who shot Luisito Palencia.
The defense next called SPO1 Crizaldo Castillo who did not appear despite his being
subpoenaed. Castillo was supposed to testify on a statement made by a certain Bernadette Matias, a
witness to the shooting, who was not presented at the trial. His testimony was dispensed with when

the prosecution admitted the existence and the contents of her written statement after the Court
persuaded both parties to stipulate on his testimony. [9]
The defense rested its case and made its offer of evidence as follows:
I will no longer present the accused. I am offering Exh. 1, 1-A and 1-A-1 a statement taken by SPO1
Castillo immediately after the incident took the statement of witness Bernadette Matias on 18 of
January, 1996 at 1:00 oclock in the afternoon and in that affidavit statement the witness stated that
the suspect that she does know the name of the suspect and he is 55 between 120 to 130 ang bigat
and kulot ang mabuhok, maiksi ang buhok, brushed up, likewise Exh. 1-A-1 the word kayumanggi on
Question No. 7 answer of the witness is to prove the person whom the eyewitness saw who shot the
victim was a kayumanggi likewise offering this affidavit as part of his testimony of the witness. [10]
The prosecution objected to the purpose for which the exhibit was offered since the affidavit
was not presented for identification; and the Court admitted it only as proof of its existence and
contents.
On August 7, 1996, the Regional Trial Court rendered its decision finding the accused guilty
beyond reasonable doubt of the crime of murder. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered finding accused Jose Silvestre y
Cruz @ Jojo Bungo GUILTY beyond reasonable doubt of the crime of murder and he is hereby
accordingly sentenced to the prison term of reclusion perpetua.
Accused Silvestre is also
ordered to pay Mrs. Marina Palencia, the following amounts:
(1) P66,500.00 for the actual expenses spent in connection with the death and burial of Luisito;
(2) P50,000.00 for the loss of Luisitos life; (3) P100,000.00 by way of moral damages for the pain
and anguish suffered by the victims family due to the untimely death of Luisito and an additional
amount equivalent to three (3) years salary computed at the rate of P14,877.00 a month
corresponding to Luisitos monthly salary by way of lost income.
Costs against accused Silvestre.
SO ORDERED.
Malabon, Metro Manila, August 7, 1996.[11]
Hence, this appeal where accused assigns the following errors:
I. THE GUILT OF THE ACCUSED WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT OR
PROSECUTION EVIDENCE HAS NOT OVER-COME ACCUSED CONSTITUTIONAL PRESUMPTION OF
INNOCENCE.
II. THE COURT A QUO ERRED WHEN IT CONVICTED THE ACCUSED SOLELY BASED ON THE LONE
TESTIMONY OF PROSECUTIONS PRINCIPAL WITNESS WHO IS NOT CREDIBLE AND POSITIVE.
III.
THE COURT A QUO GRAVELY ERRED IN TREATING JUDICIAL ADMISSION OF THE PARTIES AS
HEARSAY IN CHARACTER.
IV.
THE COURT A QUO ERRED IN APPRECIATING EVIDENT PREMEDITATION AND TREACHERY
FOR WANT OF EVIDENCE.

THE COURT A QUO ERRED IN SENTENCING ACCUSED OF A PRISON TERM OF RECLUSION PERPETUA.
VI.
THE COURT A QUO ERRED IN ORDERING PAYMENT OF ACTUAL, MORAL DAMAGES, LOST OF
INCOME ABSENCE OF PROOF IN SUPPORT THEREOF OR FORMALLY OFFERED IN EVIDENCE. [12]
The accused-appellant argues that the lower court erred in finding the accused guilty beyond
reasonable doubt on the basis of the lone testimony of Felicitas Torres. According to the accusedappellant, Torres testified that she did not actually witness the accused shooting the victim because
she merely heard two shots fired and sought cover for a short while, and hence it was doubtful
whether she saw the man with a gun shooting at the fallen man two more times. As it was a startling
or frightful experience for a woman, it was not probable that she was brave enough to witness the
shooting which was merely five arms length away from her; and that the prosecution witness merely
speculated on the identity of the perpetrator from what she heard i.e., binaril na ni Jojo si
Palencia.[13]
Moreover, accused-appellant claims that there was an inconsistency between the sworn
statement of Torres and her testimony in Court. In her sworn statement, she had stated that xxx
nakita ko ang isang lalaki na natumba at isa pang lalaki na nakatayo sa harapan noong natumba
xxx[14] while in her direct testimony, she testified that: xxx I saw a man slumped head face down
xxx besides that man slumped on the ground a man with a gun. [15] He also avers that the
identification made by Torres was not positive and was a suggested identification since no police
line-up was conducted when she identified him at the police station. [16]
In addition, appellant argues that the lower court erred in treating the statement of Bernadette
Matias as hearsay despite the fact that the prosecution admitted the existence and contents of her
statement. He claims that he vigorously tried to secure subpoenas ad testificandum for the
witnesses, Bernadette Matias and SPO1 Crizaldo Castillo but the trial court opted instead to have the
parties stipulate on their testimonies. It is alleged that the trial courts insistence that the parties
stipulate on Matias declaration led him to believe that it was not necessary to present her to testify
under oath as the contents thereof were already admitted.
Lastly, the accused-appellant contends that the lower court erred in appreciating the qualifying
circumstances of treachery and evident premeditation, and in the absence of these circumstances,
the crime is not murder but simple homicide. He finally argues that the lower court erred in awarding
actual and moral damages despite the absence of proof of the factual basis therefor, and despite the
absence of a formal offer of evidence.
The appellee, on the other hand, posits that the guilt of the accused has been proven
beyond reasonable doubt.
First, Felicitas Torres positively identified the accused as the man who shot Luisito Palencia as
she had witnessed the shooting in broad daylight, while she was merely five (5) arms length away
from the accused.

The appellee also argues that there is no law requiring a police line-up as a requisite for proper
identification. Moreover, accused was not entitled to have counsel present at the time he was
identified since he was not subjected to any investigation or interrogation. [17]
As regards the affidavit of Bernadette Matias, the same is hearsay as she was not presented as
witness. Finally, the appellee contends that the presence of treachery as shown by the sudden and
unexpected assault upon the defenseless victim qualified the crime to murder.
The first issue to be resolved is whether Felicitas Torres, the lone witness to the killing was a
credible witness. We have carefully gone over the records and find nothing in her account of the
events that shows that her testimony suffers from incredibility. Felicitas Torres testified as follows:
DIRECT EXAMINATION BY FISCAL ACUA:
Q.

Now, at 11:45 in the morning of January 18, 1996, do you remember where you were?

A.

I was then near Concepcion Bakery.

Q.

Will you please tell us in what municipality is this Concepcion Bakery located?

A.

Malabon, Metro Manila.

Q.

Now, what were you doing at that time?

A.

Buying bread, sir.

Q.

Were you able to buy bread?

A.

Yes, sir.

Q.

After buying bread what did you do, if any?

A.

I waited for a tricycle to go home.

Q.

And you said you were waiting for a tricycle in going home when you said going home you
are referring to Hulo, Malabon?

A.

Yes, sir.

Q.

While you were waiting what happened while you were waiting for a ride?

A.

I noticed something, sir.

Q.

What was that you noticed?

A.

I noticed a man and a woman talking with each other.

Second, Felicitas testimony is consistent with the findings of the autopsy report which shows
that the victim sustained four (4) gunshot wounds.

Q.

How far were you more or less from this man and woman who was conversing with each
other?

Third, the defense did not show any improper motive on the part of Torres to falsely impute the
murder against the appellant. It was not shown that she knew the victims family nor the accused
prior to the incident.

A.

More or less five arms length.

Q.

Now, what happened after that, if any?

Fourth, as regards the alleged contradictory statements of Felicitas, the prosecution argues that
from the viewpoint of a stunned witness, the appellant could well be standing beside or in front of
the victim. Assuming her statements were in fact inconsistent, such inconsistency pertains to a
trivial matter as there was no inconsistency with respect to the fact of the shooting.

A.

I heard two shots then I turned my head.

Q.

Now, when you turned your head after hearing two shots, what did you see if any?

A.

And then I saw a man slumped head face down.

Q.

What else did you see?

A.

Then I saw besides that man slumped on the ground a man with a gun.

A.

He brought me to the office of PLDT at the second floor.

Q.

What then did you do if any after that?

Q.

What happened at the second floor of PLDT office at Malabon?

A.

I sought cover for a short while.

A.

I said I will testify.

Q.

What happened after seeking cover?

Q.

What then happened after that?

A.

Then I saw that man with a gun shot the man two times more.

A.

The complainant was called as she is a resident of Bulacan.

Q.

Now who was this man whom you saw fired twice more the man who was slumped face
down.

Q.

Now, did the complainant arrive?

A.

I do not know him personally but I recognized him.

A.

In the afternoon, sir.

Q.

Now, after the arrival, by the way, who was that person who arrived?

Q.

Now, if you see this man were you be able to identify him?

A.

Yes, sir.

A.

Mrs. Palencia, sir.

Q.

After Mrs. Palencia arrived what happened, if any?

Q.

Now, look around and point him to us if he is inside the Court room?

A.

Witness pointing to the person, step down and approached the person whom she pointed to
and when asked to stand and asked his name, he answered Jose Silvestre.

A.

The PLDT employee told her that I will be the one to testify in their favor.

Q.

After that what happened?

Q.

Now, after firing two more shots at the man whom you saw pasubsob, what then did the
accused do if any?

A.

Then after that we proceeded to the Malabon police station.

Q.

What happened at the headquarters of Malabon?

A.

I do not know anymore because I boarded a jeep after he fired the last two shots.

A.

My statement was taken down.[18]

Q.

Now, while you were boarding that vehicle that you take home did you hear anything on that
occasion?

A.

There was a commotion and then I heard binaril na ni Jojo si Palencia.

Q.

When did you come to know the complete name of Palencia?

A.

When I went to PLDT office.

Q.

When was that?

A.

February 5, 1996.

Q.

Do you recall what happened when you went to the PLDT before that which place of PLDT did
you go on February 5?

FINDINGS:

A.

Malabon office, sir.

1 Abrasions/Contusions: forehead, left.

Q.

Now, do you remember what happened when you went at PLDT branch in Malabon?

A.

I heard that no one wanted to testify for Palencia.

Q.

From whom did you hear this?

3 Stabbed Wounds:

A.

From the PLDT personnel.

3.1

Q.

So, what then did you do, if any?

A.

I approached one of them.

Q.

For what purpose did you approach this PLDT employee?

A.

I told him about the killing incident that I witnessed.

Q.

What did this PLDT employee do, if any?

Felicitas Torres categorically stated that she saw the accused Jose Silvestre whom she identified in
Court, shoot at the fallen man two times after hearing two gunshots. While she did not see the
accused-appellant actually fire the first two shots, she turned her head upon hearing the two
gunshots and saw a man slumped on the ground and a man with a gun beside him. After seeking
cover for a short while, she saw the man with the gun shoot the fallen man two more times
moments after the first two shots were fired. This leads to no other logical conclusion than that the
accused-appellant was the one who fired them.[19]
Her testimony is corroborated by the autopsy report [20] prepared by Dr. Alberto Bondoc, the
findings of which are:

2 Lacerated Wound: eyebrow, left, 22 mm.

angle of mandible, left, 9 mm., directed superiorly, posteriorly and medially.

3.2
back, level of L2, PVL, left, 11 mm., directed anteriorly, superiorly and slightly laterally, nonpenetrating.
4 Gunshot Wounds:

4.1 POE: back, level of L2, PVL, right, 8 x 10 mm., directed anteriorly, superiorly and
medially, puncturing the right lobe of the liver from inferior to superior, puncturing the
diaphragm, and lacerating the heart from the posterior wall of the right ventricle to the
anterior wall of the left atrium, and puncturing the anterior chest wall;
POX: none. A metallic slug, 9 x 18 mm. was recovered from the subcutaneous tissues of
the anterior chest wall, along the 2nd ICS, MCL, left.
4.2 POE: nape, level of C5, right, 8 x 8 mm., directed anteriorly, inferiorly and slightly
medially, fracturing T1;
POX: none. The slug embedded within the spinal canal.
4.3 POE: abdomen, AAL, just above the anterior iliac spine, right, 10 x 12 mm., directed
posteriorly, inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the right thigh.
4.4 POE: abdomen, MAL, just above the iliac crest, left, 10 x 12 mm., directed posteriorly,
inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the left thigh.

Question # 22.
T: Inihaharap ko ngayon sa iyo ang taong ito, ano ang masasabi mo sa kanya? (This investigator
confronting affiant with the suspect who is presently under detention at the Malabon
Municipal Jail.)
S: Siya nga ho ang nakita kong bumaril kay Tito Palencia. (Affiant pointing to the suspect Jojo
Bungo whose real identity is JOSE SILVESTRE Y CRUZ, 40 yrs. old, married, jobless, and res
at 240 C. Arellano St., Baritan, Malabon, Metro-Manila.)
While on cross-examination, Torres testified that:
Q. Now when you were already at the police station of Malabon with the employee of PLDT in
the name of Jun whom did you talk to?
A.

Jun asked them who is the investigator because I was going to give a statement.

Q.

Then where were you when Jun asked about the investigator?

A.

I was at the lobby, sir.

Q.

You were left by Jun at the lobby of the police station?

CAUSE OF DEATH:
Cardiorespiratory Arrest due to Hemorrhagic Shock due to Multiple Gunshot
Wounds, Back and Nape.

A.

Yes, sir.

Q.

And Jun went somewhere else inside the police station.

The autopsy report shows that the victim sustained four (4) gunshot wounds. This tallies with
the testimony of Torres whose account of the events reveals that a total of four shots was fired.

A.

Yes, sir.

Q.

So, at the time Jojo the alleged assailant was not still around?

A.

Yes, sir.

Q.

When Jun the police investigator came out they were already or Jun was already with them?

A.

I gave the statement first.

5. Hemopericardium, massive.
6. Hemoperitoneum, moderate.

This Court has ruled on countless occasions that the trial court is in the best position to
determine facts and to assess the credibility of witnesses as it is in a unique position to observe the
witnesses deportment while testifying which opportunity the appellate court is denied on appeal;
this Court will respect the findings and conclusions of the trial court provided that they are supported
by substantial evidence on record.[21] We find no cogent reason to disturb the trial courts
appreciation
of
the
evidence
and find no basis in the
record
to rule that Felicitas
Torres testimony was not credible.

Q.

Now, while you are giving your statement to the police investigator who was with you?

With regard to appellants argument that there was an inconsistency between Torres sworn
statement and her testimony in court, we agree with appellee that the alleged inconsistency
pertains to a trivial matter. While she stated in her sworn statement that the accused was in front of
(sa harapan) the victim she thereafter testified that the gunman was beside the victim. This
statement refers only to how the accused stood in relation to the victim and is not sufficient to
weaken her positive assertion that she saw the accused shoot the victim two times after hearing two
shots previously fired. This Court has repeatedly ruled that inconsistencies between the sworn
statements and direct testimony given in open court do not necessarily discredit the witness since
affidavits are oftentimes incomplete and are generally inferior to the testimony of the witness in open
court.[22]

A.

No one because I was told to enter the room alone.

COURT:
Q.

Now Jojo Bungo was eventually presented to you, is that not correct?

A.

Yes, sir.

Q.

Did you point him the assailant face to face?

A.

Yes, sir.

In addition, the appellant has failed to show any improper motive on the part of Torres to falsely
impute such a terrible crime to him. Torres did not know either the appellant or the victim prior to the
shooting on January 18, 1996. [23] The testimony of a single witness, when credible and trustworthy, is
sufficient to convict[24] and must be given full faith and credence when no reason to falsely testify is
shown.[25]

Q.

And what was his reaction as being pointed to you as the assailant?

Nothing.

Q.

Did he not deny the accusation against him?

As regards the lack of a police line-up when Torres identified Jose Silvestre as the assailant, we
agree with appellee that there is no law which requires a police line-up as essential to a proper
identification provided that the identification was not suggested to the witness by the police. [26] In the
present case, there is no showing that the identification made by Torres in the police station was
suggested to her. In her sworn statement,[27] Torres stated that:

A.

He did not, sir.

ATTY. SIRUELO:
Q.

Now, when he was presented for your identification he was alone?

A.

Yes, sir.

Q.

And you were told that this was Jojo Bungo?

Yes, sir.[28]
There is nothing in the testimony of Torres nor in her sworn statement that would show that the
police suggested that the suspect to be presented to her was Jojo Bungo. The police merely asked
what she could say about the person presented to her, and she spontaneously answered that he was
the one who shot Luisito Palencia. She was only informed that the person presented was Jojo Bungo
after she had already pointed him out. She could not have been mistaken in her identification of the
gunman as she was only five arms length away from them when the shooting occurred. During her
cross-examination, she explained how she was able to see the face of the gunman as follows:
Q. xxx when you arrived there at the headquarters you were already confronted with the
suspect Jojo?
A.

Yes, sir.

Q.

And that was only the first time that you saw his face?

FISCAL ACUA:
Misleading.

Witness may answer.

WITNESS:
No, because I saw him when he shot the victim.

ATTY. SIRUELO:
Q.

Atty.:
No, Your Honor, very material on our defense on the conflicting testimony of the witness.
Court:
Do you have a copy thereof?
Atty.:
I am referring to the witness, Bernadette Matias. I have a statement of the other witness.
Court:
Then show it to the Fiscal and probably the Fiscal can admit it.
Fiscal:
The reason why we did not present the witness because she was afraid in fact that was sworn to.
Court:
The existence and contents you can admit it Fiscal?

COURT:

A.

Can we not have stipulation or admissions concerning the testimony of Castillo as corroborative
only of that of Balacaa?

You testified that during those dates that you saw the assailant at the actual place of
incident thru his back only, is that not correct?

FISCAL ACUA:
That is misleading.
COURT:
Let us put this way.
Q.

On direct examination you said you saw a person who turned out to be Jojo Bungo shooting
at the victim who was already lying on the ground face down. On direct examination you
said that when you again saw the assailant Jojo for the first time his back was turned to
you. Now, the question is: how then did you see his face or recognize him as you claim?

A.

Because he was turning his head from side to side. [29]

Appellant also argues that the court a quo erred in treating the judicial admission of the
statement of Bernadette Matias made by the prosecution as hearsay. The records show that the
prosecution only admitted the existence and contents of the supposed statement made by
Bernadette Matias as shown by the following excerpt from the transcript:
Atty. Siruelo:
My next witness is SPO1 Crizaldo Castillo he was subpoenaed, Your Honor.
Court:

Fiscal:
Yes, Your Honor.
Court:
So we can dispense with the testimony of Castillo.[30]
The appellees admission only referred to the fact that the statement was made by
Matias. In People vs. Gaddi,[31] it was ruled that when testimony is presented to establish not the
truth but the tenor of the statement or the fact that the statement was made, it is not hearsay. [32] The
lower court was therefore correct in admitting only the existence and contents and not the truth or
veracity of the unsworn statement of Matias as an independently relevant statement [33] This
statement cannot be used to establish the veracity of it; it would be hearsay as Matias was not
presented in Court.
Appellant cannot fault the prosecution for the failure to present Bernadette Matias. The
prosecution has discretion to decide on who to call as witness during trial and its failure to do so did
not give rise to the presumption that evidence willfully suppressed would be adverse if
produced[34] since the evidence was at the disposal of both parties. [35] If the defense believed that
the testimony of Bernadette Matias was important to its case, it should have insisted on presenting
her as a witness, or as the appellee points out, made a tender of excluded evidence of the witness in
question under Section 40, Rule 132 of the Rules of Court. The same may be said of Joanna Santiago,
another supposed witness to the shooting, who was also not presented during trial.
The next issue to settle is whether treachery and evident premeditation can be appreciated to
qualify the crime into murder. In finding the presence of treachery and evident premeditation, the
court a quo ruled that:

A person being shot at while standing in a public place and talking to a woman must have been shot
with evident premeditation and treachery because he was unaware of the impending attack which
prevented him from putting up a defense that will repel the attack that will
also place the attacker under some sort of risk by reason of said defense. After having
fallen to the ground head first, said persons being shot two times more would have been indicative
of the treacherous plan to kill him.[36]
There is treachery when the offender commits any of the crimes against persons, employing
means, methods, or forms in the execution thereof which tend directly and specifically to insure its
execution without risk to himself arising from the defense which the offended party might make.
[37]
For treachery to be appreciated as a qualifying circumstance, two elements must concur: (1) the
employment of means of execution which gives the person attacked no opportunity to defend himself
or retaliate; and (2) the means of execution is deliberately or consciously adopted. [38]
We find the evidence of the prosecution insufficient to prove treachery as a qualifying
circumstance. The fact that Torres saw the accused-appellant shoot the victim while he was already
on the ground does not mean that that was the only assault made by the accused-appellant on the
victim.[39] When Torres saw the accused-appellant shoot the victim, she had already heard two shots
fired. The autopsy report shows that the victim also sustained two unexplained stab wounds. Given
these facts, Torres cannot be considered as having testified as to how the incident began since she
saw the incident already in progress. [40] Treachery cannot be considered when the witness did not see
the commencement of the assault.[41]

Sentence Law, the accused-appellant is sentenced to prision mayor, as the minimum, and reclusion
temporal in its medium period, as the maximum.[49]
The last issue to be resolved is whether the heirs of Luisito Palencia are entitled to actual and
moral damages and loss of income which would have been earned had it not been for the victims
untimely death.
We cannot sustain the award of P66,500.00 as actual damages in favor of the heirs of Luisito
Palencia. The records show that the prosecution failed to substantiate the bare assertion of the
widow, Marina Palencia, with other corroborative evidence. The Court can only grant such amount
for expenses if they are supported by receipts. [50] In the absence thereof, no award for actual
damages can be granted.
We affirm the award of P50,000.00 as indemnity for the loss of Luisitos life as this is in accord
with prevailing jurisprudence.[51] However, the award of moral damages must be reduced
from P100,000.00 toP50,000.00[52] as the purpose of this award is not to enrich the heirs of the victim
but to compensate them for the injuries to their feelings.[53]
We must also modify the award for loss of earning capacity. The absence of documentary
evidence to substantiate the widows claim for the loss will not preclude recovery for said amount.
[54]
Marina Palencia testified that her deceased husband earned P14,877.00 per month as a P.L.D.T.
repairman and installer.[55] It was also established that at the time of his death, the victim was fortyfour (44) years old.[56] Loss of earning capacity is computed based on the following formula: [57]

Moreover, treachery cannot be appreciated when no particulars are known with respect to the
manner by which the aggression was made or how the act began or developed [42] or when the
evidence lacks any details showing the manner of attack, its suddenness or unexpectedness, the
relative positions of the victim and his assailant, and the victims defenselessness. [43]

Net
Earning
Capacity (x)

Lastly, although the fatal wounds were found at the back of the victim, this does not, of itself,
compel a finding of treachery.[44] We disagree with the Regional Trial Courts ratiocination that a
person who, after falling to the ground head first, was shot two more times indicates the treacherous
plan to kill him as it does not prove the suddenness of the attack which prevented the victim from
defending himself or retaliating. The conclusion is speculative and based on a presumption not on
the evidence. It is a basic precept that treachery must be proven as indubitably as the killing itself
and it cannot be deduced from mere presumption or sheer speculation. [45]

2(80-44)
3

178,524.0
0

24

89,262.00

The court a quo also appreciated evident premeditation as a qualifying circumstance. For
evident premeditation to be appreciated, the following must be proved:
1.) the time when the accused determined to commit the crime;
2.) an act manifestly indicating that the accused has clung to his determination; and
3.) sufficient time between such determination and execution to allow him to reflect upon
the consequences of his act.[46]
Neither are we convinced that evident premeditation was proven. The records are bereft of
evidence of any of the above requisites of evident premeditation. There is absolutely no proof of the
time the accused decided to commit the crime. There is no showing how the accused, Jose Silvestre,
planned the killing of the victim, Luisito Palencia. Neither is there any showing of how much time
elapsed before he executed his plan. Absent all these, evident premeditation cannot be appreciated.

life expectancy
[2/3(80-age
at
death)]

Gross
Annual
Income
(GAI)

living expenses
(50% of GAI)

89,262.00

Net Earning Capacity = P 2,142,288.00

WHEREFORE, the appealed decision of the Regional Trial Court is hereby MODIFIED, and the
accused-appellant is found GUILTY OF HOMICIDE and sentenced to an indeterminate penalty of ten
(10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal, as maximum.[58] Accused-appellant is further ordered to pay the heirs
of the victim the following: (1). death indemnity P50,000.00, (2). moral damages P50,000.00, (3). loss
of earning capacity P2,142,288.00.
SO ORDERED.

[G.R. Nos. 127125 & 138952. July 6, 1999]

[47]

Since both treachery and evident premeditation cannot be appreciated to qualify the crime into
murder, the accused-appellant can only be convicted of the crime of homicide.[48] Article 249 of the
Revised Penal Code provides that the penalty for homicide is reclusion temporal. Since there are no
mitigating nor aggravating circumstances in the present case, the penalty that should be imposed on
the accused-appellant is reclusion temporal in its medium period. Applying the Indeterminate

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEX PANIDA, ERNESTO ECLERA, and
ALEX HORA, accused-appellants.
DECISION
MENDOZA, J.:

Accused-appellants were charged with the slaying of a tricycle driver and the taking of his
vehicle on April 11, 1994 in two informations filed with the Regional Trial Court of Pangasinan.
The information for the crime of carnapping charges:[1]
That on or about the 11th day of April, 1994 at Poblacion, municipality of Asingan, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another with intent to gain, did then and there
wilfully and unlawfully and feloniously take, steal and carry away one (1) motorcycle (Suzuki),
bearing Plate No. 2N-13220-92, Motor No. GP 100278040 and Chassis No. Spg-100 UN-110614,
worth P57,000.00 belonging to Sylvia Eclera without her knowledge and consent, thereafter, said
accused brought said motorcycle to Agoo, La Union and mortgaged it to Romulo de Vera in the
amount of P4,000.00, to the damage and prejudice of the said owner in the aforestated amount
of P57,000.00.
CONTRARY to Republic Act No. 6539 in relation to Art. 19 of the Revised Penal Code.
That charging the crime of murder reads:[2]
That on or about the 11th day of April, 1994 at barangay Lomboy, municipality of San Manuel,
province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and helping one another, with intent to kill, with treachery
and evident premeditation, abuse of superior strength and armed with knives and stone, did then
and there willfully, unlawfully and feloniously attack, assault and stab one ANDRES ILDEFONSO,
inflicting upon him fatal wounds in the different parts of his body which directly caused his
instantaneous death, to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code.
The case for carnapping was originally tried before Branch 38 of the Regional Trial Court at
Lingayen, Pangasinan. The case was later transferred to Branch 47 of the same court at Urdaneta. [3]
On the other hand, the case for murder was assigned to Branch 46 of the court, also at
Urdaneta. On motion of accused-appellants, the case was consolidated with the carnapping case
pending before Branch 47 of the Regional Trial Court of Urdaneta. [4]
Accused-appellants, who had pleaded not guilty to the charge of carnapping when the case was
still pending in Branch 38 at Lingayen, likewise pleaded not guilty to the charge of
murder. Thereafter, the two cases were jointly tried. [5]
At the initial presentation of evidence by the prosecution relative to the carnapping case before
Branch 38 at Lingayen, Pangasinan, three witnesses testified for the prosecution. Their testimonies
are summarized in the following portion of the decision of the trial court:
1) ROCKY ECLERA, 16 years old, a resident of San Vicente West, Asingan, Pangasinan,
testified that on 11 April 1994 at about 7:00 A.M., while he and the accused ALEX
HORA, ALEX PANIDA and ERNESTO ECLERA were at the Poblacion of Asingan,
Pangasinan, ALEX HORA invited the group to go to San Manuel, Pangasinan. They took
a motorized tricycle for their ride from Asingan to San Manuel. It was driven by
ANDRES ILDEFONSO.
Somewhere in Barangay Lomboy, San Manuel, a more or less deserted place, accused
ALEX HORA ordered the tricycle driver to stop the vehicle. Suddenly and unexpectedly
ALEX HORA repeatedly stabbed the tricycle driver with the use of a knife. Afterwards
when the driver appears to be still alive, hit the head of the driver with

stone. Thereafter, Alex Hora called the witness and the others, and they boarded the
same tricycle with Alex Hora as the driver.
They proceeded to the irrigation dike at Macalong, Urdaneta, Pangasinan. At such place,
ALEX HORA, with the help of ALEX PANIDA and ERNESTO ECLERA detached the
sidecar. After the sidecar was detached, they (all four of them) boarded the
motorcycle and went to Balite, Tarlac.
They stayed at Tarlac for three days and three nights. On the third day, upon his urging,
he was accompanied by accused ALEX PANIDA to Urdaneta, Pangasinan. At Urdaneta,
he parted ways with Alex Panida.
Accused ALEX HORA and ERNESTO ECLERA were left behind at Tarlac.
In connection with the cases, he remembered having executed a sworn statement given at
the police station at Asingan, Pangasinan. He identified a xerox copy of the same and
admitted having signed the statement (EXHIBITS D, and D-1, the same exhibit was
marked in evidence by the accused as EXHIBIT 1).
He identified pictures of a motorcycle and a sidecar. The pictures admittedly show the
motorcycle stolen and the sidecar that was detached.
2) ROMULO DE VERA, 38 years old, market vendor, married and a resident of San Nicolas,
Agoo, La Union, testified that on May 2, 1994, he saw accused ALEX HORA with
VIOLETA BAUTISTA talking with his uncle, Alfredo Gali. The latter informed him that
Alex Hora and Violeta Bautista were mortgaging to him a motorcycle, but he does not
have money. So Alex Hora and Violeta Bautista pleaded that he instead take the
mortgage. The two were badly in need of money. He agreed.
The motorcycle allegedly was first mortgaged to one Mariano Kuan, a resident of San
Nicolas Central, Agoo, La Union for P2,000.00. So what they did was to first pay
Mariano Kuan the mortgage obligation of P2,000.00. He gave ALEX HORA another
P2,000.00, as he was willing to give P4,000.00 only for the mortgage.
He and ALEX HORA executed a mortgage document notarized by Arturo dela Rosa. Alex
Hora signed for the registered owner Gilbert Eclera because the latter was allegedly
arrested at Dagupan City, precisely it was for this predicament that they needed the
money.
On May 22, 1994, police officers from Asingan, Pangasinan accompanied by a police officer
from Agoo, went to his place looking for a motorcycle which was allegedly lost. He
admitted that the motorcycle that they were looking for was in his possession. It was
brought to the police station of Agoo. Thereat, he signed a document known as
RECEIPT OF CONFISCATION.
3) ALFREDO GALI, 64 years old, married, retired government employee, and a resident of
San Nicolas Norte, Agoo, La Union, testified that on 02 May 1994, ALEX HORA and
Violeta Bautista went to his residence and offered to mortgage a motorcycle. Since he
did not have money at that time, when he saw his nephew Romulo de Vera passed by,
he called him and informed him of the purpose of Alex Hora and Violeta Bautista. He
asked if Romulo had money. The latter answered in the affirmative. So they went to a
notary public. At the office of the Notary Public, ALEX HORA and ROMULO DE VERA
signed a mortgage document. He was there to witness the mortgage. He saw the
parties signed the document. (Citations omitted)

The prosecution wanted to present Rocky Eclera[6] as witness also in the murder case, but he
could not be served with subpoena. Despite an order issued by the trial court for his arrest, the
prosecution was not able to present him as witness. [7] For this reason, the prosecution simply adopted
the testimony of Rocky Eclera in Criminal Case No. U-8202 (carnapping) as its evidence in the murder
case. The defense did not object.[8]The prosecution then presented two additional witnesses, whose
testimonies are set forth in the trial courts decision, thus: [9]
The other witness presented by the prosecution with respect to the carnapping case was SYLVIA
ECLERA, 38 years old, married and a resident of Poblacion, Asingan, Pangasinan. She testified that
she is the owner of a Suzuki motorcycle with Plate No. 2N-13220-92. The vehicle was registered in
the name of her husband Gilbert Eclera.
At about 10:00 P.M., on 11 April 1994, she received a report from Investigator Sonaco of the PNP
Asingan that her tricycle driver was missing. PNP Asingan was informed by PNP Urdaneta that a
sidecar was located at Macalong, Urdaneta. PNP Asingan sought the help of PNP Urdaneta. With the
help of the PNP Urdaneta, they were brought to Macalong, Urdaneta, where the sidecar of the tricycle
was located. The motorcycle was missing.
On the following day, they located the dead body of the driver of the tricycle at Lomboy, San Manuel,
Pangasinan. The cadaver of the driver was taken by Funeraria Mercado to Asingan Municipal
Cemetery. The name of the driver was ANDRES ILDEFONSO.
On 18 May 1994 she was informed by PNP Asingan that her motorcycle was in Agoo, La
Union. Together with some elements of PNP Asingan, they proceeded to Agoo, La Union. The
motorcycle was in the possession of one Romulo de Vera. The latter claimed that the motorcycle was
mortgaged to him by one Alex Hora, one of the accused in these cases. This Romulo de Vera showed
her a written mortgage contract or Salda in Ilocano, which was the same as Exh. A. For the
recovery of the motorcycle, she was asked to sign a receipt by Romulo de Vera.
In connection with the funeral and church services of her deceased driver, she spent about
P20,650.00. She also spent about P5,000.00 in connection with the recovery of the motorcycle. She
was deprived of the use of her tricycle for more than one year. She received a daily income from the
operation of the vehicles in the amount of P100.00. The motorcycle was bought for P43,000.00 and
the cost of the sidecar was P14,000.00.
DR. LEONARDO GUERRERO, the Rural Health Officer of the Municipality of Asingan was presented as
witness to testify on the Medico-Legal Autopsy Report relative to the autopsy he conducted on the
deceased ANDRES ILDEFONSO. The defense in respect to the offer of his testimony, admitted the
same. Accordingly, his testimony was dispensed with. (Citations omitted)
Thereafter, the prosecution offered its documentary exhibits to which the defense did not
interpose any objection.[10] Accordingly, all exhibits of the prosecution were admitted for the purpose
for which they were offered and as part of the testimonies of the witnesses who identified them.
[11]
Among the documentary evidence was Exhibit D which is a sworn statement given by Rocky
Eclera to the police of Asingan on May 20, 1994, in which he pointed to all of the accused-appellants
as the ones who killed the tricycle driver, Andres Ildefonso, and took his vehicle.
Accused-appellants Alex Panida and Ernesto Eclera testified in their defense. They likewise
presented Rocky Eclera who had previously testified for the prosecution. Their testimonies are
summarized in the trial courts decision as follows:[12]
ROCKY ECLERA substantially testified that on 11 April 1994 while he and the accused, namely, ALEX
PANIDA, ALEX HORA and ERNESTO ECLERA were at the Poblacion of Asingan to attend the town
fiesta, accused ALEX HORA invited them to go to San Manuel, Pangasinan to attend the birthday of

one of his friends. When he asked where in San Miguel, Alex Hora just responded, just come with
me and Ill take care of our ride.
They took a tricycle at the parking area in Poblacion, Asingan for their ride to San Manuel. He, Alex
Panida and Ernesto Eclera rode inside the cab, while Alex Hora sat at the rear of the tricycle driver.
On their way to San Manuel, they again asked Alex Hora where they were going, but the latter just
said they will go to the house of his friend who is celebrating his birthday.
After passing the town proper of San Manuel, and when they were near the slope of the mountain,
and while the tricycle was still running, Alex Hora suddenly stabbed the driver with the use of a
knife. When the tricycle stopped, the witness ran away. The other accused, Alex Panida and Ernesto
Eclera tried to pacify Alex Hora, but the latter faced them menacingly with his knife.
The tricycle driver uttered pleading words like no more sir (Saanen Apo in the Ilocano
dialect). Thereafter, Alex Hora pulled the prostrate body of the driver at the slope of the mountain.
Then he hit the head of the driver with a big stone. The stone was as big as a mans head.
All the time that the driver was being stabbed and then hit with a stone, the other accused, Alex
Panida and Ernesto Eclera were inside the tricycle. They did not inflict any blow to the driver. On the
other hand, the witness ran to the mountain and hid himself.
After the killing of the driver, Alex Hora called his companions to board the tricycle as they will
proceed to his best friend in Tarlac. Witness did not know the place.
They went to the irrigation dike site at Urdaneta, where Alex Hora detached the side car of the
tricycle. Alex Hora alone detached the side car as nobody helped him. Thereafter, all four of them
proceeded to Tarlac at the residence of Alex Horas friend.
They stayed there for three days. Then he asked Alex Panida to accompany him home, Alex Panida
accompanied him up to Urdaneta. They took a mini bus as ride to Urdaneta. At Urdaneta, he
proceeded home to Asingan, while Alex Panida told him that he will watch a movie in Urdaneta. Alex
Hora and Ernesto Eclera were left at Tarlac.
He was subsequently arrested at Sison, Pangasinan by police officers of Asingan Police Department,
he was investigated. His statement was taken, which he signed. His statement was written in
English, which he did not understand. The contents of his statement were not translated in Ilocano
dialect by the police investigator. He was never informed of his constitutional rights. His parents or
relatives were not informed when he was investigated and when his statement was taken. The
statement was marked as EXHIBIT 1.
He was confined for about eight (8) weeks at the municipal jail of Asingan.
He admitted having testified before the Court in Lingayen, Pangasinan in connection with the
carnapping case.

Accused ERNESTO ECLERA, 21 years old, single, student and resident of San Vicente West, Asingan,
Pangasinan testified that on 11 April 1994, he, Rocky Eclera and his co-accused Alex Hora and Alex
Panida were at the Poblacion of Asingan. They were there to attend the town fiesta. While there,
Alex Hora invited the group to proceed to San Manuel to attend a drinking spree at his friends
place. While they were in San Manuel, they asked Alex Hora where they were going and he just
said: Just keep quiet and I will tell you later.
They were not able to reach the place of Alex Horas friend because Alex Hora stabbed the tricycle
driver. They got off the tricycle to pacify Alex Hora but he faced them menacingly. They tried to grab
his hand, but Alex Hora shouted dont intervene if you dont want to be involved like this man I am
killing. They even told Alex Hora: Dont stab him, Have mercy on him, but Alex Hora told them
not to interfere.
Alex Hora used a FAN KNIFE, or a knife locally known as balisong, and one ice-pick in stabbing the
driver many times.
After the killing of the driver, they were invited by Alex Hora to go to Urdaneta. They rode on the
same tricycle. They reached Consolacion, Urdaneta, where Alex Hora detached the side car of the
tricycle. After detaching the side car, again Alex Hora told them to board the motorcycle and they
proceeded to Tarlac. The four of them went to Tarlac on board the detached motorcycle with Alex
Hora as the driver.
They stayed with an uncle of Alex Hora in San Miguel, Tarlac. They stayed there for three days and
three nights. On the third day, Rocky Eclera and Alex Panida returned to Urdaneta. While he
proceeded to Manila. Alex Hora was left at San Miguel, Tarlac with the motorcycle. Before parting for
Manila, he was warned by Alex Hora not to divulge that he killed the tricycle driver.
Accused ALEX PANIDA, 23 years old, single, farmer and resident of San Vicente West, Asingan,
Pangasinan testified that on 11 April 1994 at about 7:00 A.M., he was with Rocky Eclera and his coaccused Alex Hora and Ernesto Eclera at the town proper of Asingan to attend the town fiesta. While
they were there, accused Alex Hora invited them to go to San Manuel at the place of his friend. They
took a tricycle and proceeded to San Manuel. He, Ernesto Eclera and Rocky Eclera were seated
inside the cab, while Alex Hora rode at the rear of the tricycle driver. They were not able to reach the
place of Alex Horas friend in San Manuel because Alex Hora stabbed the tricycle driver many times
with the use of a knife about seven inches in length. While Alex Hora was stabbing the driver,
witness asked Alex Hora why was he stabbing the driver, but Hora told him to leave him
alone. Ernesto Eclera also told Alex Hora: Dont do that to him. Rocky Eclera on the other hand ran
near the slope of the mountain. When Alex Hora repeatedly stabbed the driver, the tricycle was still
running.
After the stabbing incident, Alex Hora ordered them to ride on the tricycle and they proceeded to the
irrigation dike at Urdaneta. At that place, Alex Hora detached the side car of the tricycle. He alone
did the detaching. After the side car was detached, they proceeded to sitio Balite at Tarlac,
Tarlac. They rode on the motorcycle that was detached. Alex Hora was the driver. They stayed there
for three days and three nights.
On the third day, he asked permission from Alex Hora that Rocky Eclera already wanted to go
home. Alex Hora warned them not to squeal on what happened, otherwise, he will kill them all. He
accompanied Rocky Eclera back to Urdaneta, where he parted ways with Rocky Eclera. He proceeded
to a friends house to borrow some money as fare in going to Baguio. Alex Hora and Ernesto Eclera
were left at Tarlac. He did not return anymore to Tarlac. He eventually saw them at the Provincial Jail
in Lingayen, Pangasinan. (Citations omitted)

For his part, accused-appellant Hora presented SPO2 Romeo Mababa and Vice Mayor Guillermo
Piso as his witnesses. He also testified in his behalf. Their testimonies are as follows:[13]
Accused ALEX HORA, 26 years old, construction worker, married and resident of San Vicente West,
Asingan, Pangasinan testifying for his defense stated that in the evening of 10 April 1994, he,
together with Alex Panida, Ernesto Eclera and Rocky Eclera were at the town proper of Asingan
strolling. They stayed there the whole night.
On the following day, 11 April 1994 at about 7:00 A.M., Alex Panida invited him to go with them,
referring to the other companions of Alex Panida, to Lomboy, San Manuel. They will go to Alex
Panidas aunt thereat. Alex Panida will hire the tricycle of his aunt, Sylvia Eclera. Alex Panida was
able to hire the tricycle of her aunt Sylvia Eclera which they used for ride in going to Lomboy, San
Manuel. They reached the residence of his auntie at Lomboy, San Manuel. Alex Panida and Ernesto
Eclera alighted and went to the house of Alex Panidas aunt. When Alex Panida returned, he
approached the tricycle driver and poked a knife against the latter. Suddenly he stabbed the driver.
After Alex Panida stabbed the driver, witness and the other two companions, Rocky Eclera and
Ernesto Eclera ran towards the slope of the mountain. Alex Panida yelled and shouted at them to
help him. He threatened them to help him. If they will not help him (PANIDA), he will kill
them. When they returned to the tricycle, they saw the driver face down and already dead.
When he saw that the driver was already dead, he was shocked and cannot move. He fainted and
lost consciousness. His companions boarded him on the tricycle. He was awakened by Alex Panida
when they reached the town proper of Binalonan, Pangasinan.
They proceeded to the irrigation dike at Urdaneta where they detached the side car of the tricycle. It
was Alex Panida who detached the side car. He and the others only helped the former. After the side
car was detached, they rode on the motorcycle and they proceeded to Balite, Tarlac at the residence
of Alex Panidas uncle. Alex Panida drove the motorcycle.
They stayed there for three days and three nights. While they were sleeping, Alex Panida told his
uncle that he and Rocky Eclera will just go out. When he inquired from Panidas uncle the latter told
them that Panida used the motorcycle in going back to PMA-Baguio.
Afterwards, he and Ernesto Eclera also parted ways. He returned home to Asingan, while Ernesto
Eclera went to Magalang, Pampanga to borrow money from his uncle there for his fare to Manila.
Four days after he returned from Tarlac, Alex Panida dropped by his residence and invited him to go
to Agoo, La Union so that they will mortgage the motorcycle as Alex Panida was badly in need of
money.
He was able to mortgage the motorcycle with one Romulo de Vera for P4,000.00. However, the
P2,000.00 was first given to Mariano Huan who was the first mortgagee of the motorcycle and the
balance of P2,000.00 was given to him.
....
SPO2 ROMEO MABABA, a member of the Philippine National Police of Asingan, Pangasinan testified
that he was the same SPO2 Romeo Mababa who took the statement of ROCKY ECLERA on May 20,
1994. When he took the statement of Rocky Eclera he informed him of his constitutional rights and
explained to him his rights. When his statement was taken his father and the vice mayor of the
municipality of Asingan were present.

After he took the statement of Rocky Eclera, he translated same in the Ilocano dialect which he fully
understood. Thereafter, he signed his statement. Then he brought him to Judge Suller of the
Municipal Circuit Court of Asingan, before whom Eclera took his oath in respect to his statement.

a) Finding the accused ALEX PANIDA, ERNESTO ECLERA and ALEX HORA GUILTY beyond reasonable
doubt of the crime of MURDER with the generic aggravating circumstance of cruelty, the Court
sentences them to suffer the penalty of DEATH;

GUILLERMO PISO, the vice-mayor of the municipality of Asingan, testified that together with police
elements of the municipality of Asingan, they arrested ROCKY ECLERA and ALEX PANIDA somewhere
in La Union in connection with the death of Andres Ildefonso, a relative.

b) Ordering the accused to pay jointly and severally the heirs of ANDRES ILDEFONSO P50,000.00 as
indemnity and the additional sum of P50,000.00 as moral damages and to pay the costs.
SO ORDERED.

After their arrest, they were brought to Asingan. At the Asingan Police Department, Rocky Eclera was
investigated and he voluntarily gave a sworn statement. During the taking of Rocky Ecleras sworn
statement, he was present. So also was Rocky Ecleras father. When he was informed of his
constitutional rights, Eclera said that he was not interested. He merely asked that his father be
present. So his father was fetched. His father advised him to tell the truth.
The police investigator translated his statement written in English to Ilocano. After his statement was
translated, he signed the same.
It was the parents of Alex Panida who informed the Asingan PNP of the whereabouts of ALEX PANIDA
and ROCKY ECLERA. (Citations omitted)

Hence, this appeal.

Accused-appellants Panida and Ernesto Eclera contend:[18]
I. THE TRIAL COURT ERRED IN CONVICTING ALEX PANIDA AND ERNESTO ECLERA,
INSTEAD OF ACQUITTING THEM IN BOTH CRIMES OF MURDER AND CARNAPPING, FOR
NON-COMPLICITY.
II. AT BEST, THE PROSECUTION EVIDENCE IS SHORT OF THE QUANTUM OF PROOF BEYOND
REASONABLE DOUBT.
III.

ASSUMING GUILT ARGUENDO, APPELLANTS PANIDA AND ECLERA ARE LIABLE

ONLY AS ACCESSORIES FOR CARNAPPING AND HOMICIDE, NOT MURDER.

After the defense finished presenting its evidence, the prosecution presented Dr. Leonardo
Guerrero, the rural health officer of Asingan, as rebuttal witness. He testified that[14]-

Accused-appellant Hora, on the other hand, contends:[19]

he was the one who conducted autopsy on the deceased ANDRES ILDEFONSO. He committed an
honest mistake in his Medico-Legal Autopsy Report. The lacerated wounds should be incised wounds.

I. THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
INCONSISTENT AND CONFLICTING TESTIMONIES OF ROCKY ECLERA IN HIS SWORN
STATEMENT AND THOSE TESTIFIED TO BY HIM DURING THE TRIAL.

There were about 44[15] stab wounds and several incised wounds inflicted on the deceased. These
could have been caused possibly by several persons, with the use of different weapons. (Citations
omitted)
On August 23, 1996, the trial court rendered its decision [16] finding all accused-appellants guilty
beyond reasonable doubt of carnapping and murder. The dispositive portion of its decisions reads:[17]
WHEREFORE, premises considered, judgment is hereby rendered as follows:
IN CRIMINAL CASE NO. U-8202
a) Finding the accused ALEX PANIDA, ERNESTO ECLERA and ALEX HORA GUILTY beyond reasonable
doubt of the crime of CARNAPPING under R.A. 6539, the Court sentences them to suffer
imprisonment of SEVENTEEN (17) YEARS;
b) Ordering the accused to pay jointly and severally spouses GILBERT and SYLVIA ECLERA the sum
of P20,650.00 representing burial and funeral expenses incurred by them in connection with the
death of their driver of the motorized tricycle; the sum of P5,000.00 representing expenses incurred
in the recovery of the motorcycle and side car; and to pay the costs.
IN CRIMINAL CASE NO. U-8203

II. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT ALEX HORA GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES OF CARNAPPING AND MURDER BASED SOLELY
ON THE CONFLICTING TESTIMONIES OF ROCKY ECLERA.

Participation of Accused-Appellants in the Commission of the Crimes

Accused-appellants Alex Panida and Ernesto Eclera cite the testimony of Rocky Eclera that Alex
Hora alone hired the tricycle to go to San Manuel, he alone stabbed its driver, and he alone detached
the sidecar from the motorcycle in Urdaneta. They make capital of the fact that Rocky categorically
stated that they did not have any part in detaching the sidecar and in killing the victim but, on the
contrary, even tried to stop Hora from committing the crimes. [20]
Accused-appellant Hora, on the other hand, questions the reliability of Rocky Ecleras
testimonies and sworn statement[21] which he claims are inconsistent and conflicting. [22] Hora points
out the following:[23]
(1) Rocky Eclera testified in his testimony in the carnapping case that Alex Hora asked the
driver to stop the tricycle, then he repeatedly stabbed the driver. (TSN, Nov. 15, 1994,
pp. 4, 10). While in his testimony for the defense of accused Alex Panida and Ernesto
Eclera, accused Alex Hora repeatedly stabbed the driver while the tricycle was still
running. (TSN, February 12, 1996, p. 13).
(2) In the carnapping case, accused-appellant Alex, with the help of Panida and Ernesto
Eclera, detached the side car of the motorcycle (TSN, Nov. 15, 1994, p. 5) while in his
testimony for the defense, it was only Alex Hora who detached the side car (TSN, Feb.
12, 1996, p. 23).

(3) In his testimony during the stabbing of the driver by Alex Hora, the other co-accused
alighted from the tricycle and tried to pacify Alex Hora (TSN, Nov. 15, 1994, p. 10)
while in his testimony for the defense, at the time that Alex Hora was stabbing the
driver, the two co-accused were inside the tricycle (TSN, 12 February 1994, pp. 17-19).
(4) In his testimony for the defense of accused Panida and Eclera, Rocky Eclera recanted
his implication of the said two co-accused in the killing of the tricycle driver in his
sworn statement given to the Asingan PNP and pointed to accused-appellant Alex Hora
as the only solely responsible for the crimes committed.
Moreover, he claims that his account of what happened on April 11, 1994 is more credible than that
of accused-appellants Panida and Ernesto Eclera and witness Rocky Eclera. [24]
Thus, put simply, accused-appellants Alex Panida and Ernesto Eclera, on the one hand, and
accused-appellant Alex Hora, on the other, accuse each other of the crimes. They do not claim that
other persons were involved. Neither is there any dispute as to the relevant facts. On the contrary,
all of them agree that
They were together in the morning of April 11, 1994, immediately prior to the commission of the
crimes.[25]
They all rode on the tricycle driven by the victim to go to San Manuel where the latter was killed. [26]

Nor does the claim of accused-appellants Panida and Ernesto Eclera that accused-appellant
Hora alone detached the sidecar[36] inspire belief. It is not easy to detach a sidecar alone. Moreover,
a specific tool is needed in order to unscrew the bolts holding the sidecar to the motorcycle, which
cannot be assumed that the victim Andres Ildefonso would normally carry around with him on a
normal day while plying his route.
It is apparent that the respective versions of accused-appellants have only one purpose, to
escape liability by laying the blame on the other. Considering the relevant facts, the ineluctable
conclusion is that all of accused-appellants are guilty of the two crimes. Indeed, in his statement
given earlier to the police, the eyewitness Rocky Eclera named all accused-appellants as the
perpetrators of the crimes. It is noteworthy that this statement was presented in evidence not only
by the prosecution (Exh. D) but also by all of the accused-appellants (Exh. 1). The statement, which
was made under oath, reads in full:
PRELIMINARY
:
Mr. Rocky Eclera, I would like to inform you that you were being
investigated for your involvement in a commission of a crime. I would like also to inform
you that under the New Constitution, you have the right to remain silent, the right of the
assistance of a counsel of your own choice and that all statement you give in this
investigation will be used in your favor and for against you in any Court of justice in the
Philippines. Is this clearly understood by you?
ANSWER

The victim was stabbed several times as the autopsy report states. [27]
They were all present when the victim was stabbed; no one else was with them.

stab wounds with the use of more than one weapon is more plausible than that only one person
inflicted such wounds with two different weapons.

[28]

After the sidecar had been detached, they all rode on the motorcycle to go to Tarlac where they
stayed together for three (3) more days. [30]
Not one of accused-appellants reported the matter to the police. [31]
Accused-appellant Hora tries to extricate himself by claiming that he did not know what the
others (Alex Panida and Ernesto Eclera) were planning to do and that he was so shocked he fainted at
the sight of Andres Ildefonso being killed. However, he could have escaped from the two. Instead,
he stayed with them for three more days after the commission of the crimes. Even more telling is
the fact that he was the one who mortgaged the very motorcycle taken from the victim, which he
admits.[32]
On the other hand, accused-appellants Panida and Ernesto Eclera claim it was accusedappellant Hora who alone killed the victim and detached the sidecar from the motorcycle.
[33]
However, when asked why they did not leave accused-appellant Hora if they did really not agree
with what he did despite opportunities to do so, the two merely claimed it was because they were
scared.[34] This is incredible as the two of them, with Rocky Eclera, could have easily overpowered
accused-appellant Hora. At the very least, they could have escaped from him. After all, there is no
showing that accused-appellant Hora guarded them every minute of the day. Accused-appellant
Panida in fact admitted they were free to go to any place during the time they were together after
the killing.[35]
Moreover, if Ernesto Eclera were to be believed, accused-appellant Hora used two kinds of
weapons in stabbing the victim 43 times. This is not, however, likely. That three men inflicted 43

Yes, sir.

QUESTION :
Mr. Rocky Eclera, after having been informed of your rights under the New
Constitution, do you still wish to be investigated?
ANSWER

After the stabbing, all of them rode on the tricycle to go to Urdaneta where the sidecar was
detached.[29]

Yes, sir.

QUESTION :

Do you still need the assistance of a counsel of your own choice?

ANSWER

No more, sir.

QUESTION :
Mr. Rocky Eclera, if you can not afford to have a counsel the government will
provide you a counsel?
ANSWER

No more, sir.

QUESTION :
Do you likewise need the presence of your relatives, your father, mother,
brother or any trusted relatives of yours to be present in this investigation?
ANSWER

Yes, sir, I want my father.

QUESTION :
Now that your father was here, are you now ready to give your statement
voluntarily in this investigation?
ANSWER

Yes, sir.

01. Q - If so, please state your name, age and other personal circumstances?
A

I am Rocky Eclera y Layos, 16 years old, single, jobless and a resident of Brgy San
Vicente, Asingan, Pangasinan, sir.

02. Q
Do you know why are you being investigated in this Investigation Office of the
Asingan Police Station, Asingan, Pangasinan this 20th day of May, 1994?
A

03. Q

Yes, sir.
-

What is the reason why you are being investigated by this office?

For being one of the four suspects in the carnapping of a motorized tricycle and the
death of the driver, sir.

04. Q
You have stated above that you are one of the four suspects of the incident,
can you state the names of the three?
A

Yes, sir.

05. Q

They are, Alex Panida, Alex Hora and Ernesto Eclera, sir.

06. Q
A

Who are they?

When and where did you carnapped the motorized tricycle killed the driver?

On April 11, 1994 at about 7:00 oclock in the morning at Poblacion West, Asingan,
Pangasinan and the driver was being brought to a certain barangay in San Manuel,
Pangasinan where he was being killed.

07. Q
You have stated a while ago that the incident was happened on 11 of April
1994, can [you] state briefly how it happened?
A

Yes, sir. This is the way. On April 11, 1994 at about 7:00 oclock in the morning, Alex
Panida, Alex Hora, Ernesto Eclera and I were at Poblacion West, Asingan, Pangasinan near
the Police Outpost waiting for a ride going home. A few minutes later a Suzuki motorized
tricycle arrived and we hired it and we proceeded at a certain barangay of San Manuel,
Pangasinan which I do not know. When we arrived at the place, Ernesto Eclera pointed out
his knife against the driver and stabbed the driver many times. Then Alex Panida and Alex
Hora alighted from the tricycle also both armed with a knife and the two stabbed the driver
for many times also until the driver fell on the ground and when they noticed that the driver
was still alive, Alex Hora took a big piece of stone and hit the head of the driver then Alex
Panida and Alex Hora [p]ulled the body of the driver and put it on the slope of the mountain.

08. Q

Yes, sir it was Andres Ildefonso.

Do you know the driver of the motorized tricycle?

09. Q

Yes, sir it was Mrs. Sylvia Eclera.

Do you also know the owner of the motorized tricycle?

10. Q
After knowing that the driver was already lifeless and was put on the slope of
the mountain, what did you do next?
A

We boarded on the tricycle and proceeded to Urdaneta at Brgy. Macalong wherein

Alex Panida, Alex Hora and Ernesto Eclera detached the sidecar and abandoned it near the
irrigation dike.

11. Q

We proceeded to Tarlac with the motorcycle, sir.

12. Q
A

Then where did you go?

When you were in Tarlac, what happen[ed] next if any?

Alex Panida drove the motorcycle and returned me at Brgy. San Vicente West,
Asingan, Pangasinan, sir.

13. Q

Yes, sir.

14. Q

So, Ernesto Eclera and Alex Hora left behind in Tarlac?

Now, do you know if Alex Panida return in Tarlac?

Yes, sir.

15. Q
Do you also know where Alex Panida, Alex Hora and Ernesto Eclera brought
the motorcycle?
A

I do not know anymore, sir.

16. Q

No more for the present time, sir.

I have no more questions to ask, can you say more?

17. Q

Yes, sir.[37]

Are you willing to sign your statement and also willing to testify in Court?

When he testified in court, first as witness for the prosecution and later as witness for accusedappellants Alex Panida and Ernesto Eclera, Rocky Eclera reiterated all the relevant points in this
sworn statement, to wit:
1. that all three accused-appellants and himself were together prior to the commission of
the crime[38]
2. that they were all present when the victim was stabbed and no one else was there [39]
3. that they all rode the tricycle again after the stabbing [40]
4. that all three accused-appellants took part in detaching the sidecar [41]
5. that they stayed together for three days after the crimes were committed going from
place to place.[42]
The only part of the statement which Rocky Eclera retracted was that naming all accusedappellants as the perpetrators of the crimes. In his testimony in court, he pointed to accusedappellant Hora alone as the one who committed the two crimes. However, there are reasons for
giving his sworn statement weight and believing that what he said in his sworn statement was the
truth not what he stated in court as to who were guilty of the crimes. The reasons are:
First. Rocky Eclera claims that his statement was actually made by SPO2 Mababa; that it was
not translated to him (Rocky Eclera) in Ilocano; and that he was not informed of his constitutional
rights. SPO2 Mababa, however, denied this and likewise pointed out that Rocky Eclera was actually
accompanied to the police station by his father and Vice Mayor Guillermo Piso of the Municipality of
Asingan.[43] Rockys father in fact urged Rocky to tell the truth according to Vice Mayor Piso. [44] Vice
Mayor Piso himself also debunked Rockys claims that he did not make the statement in question and
that he was simply asked to sign it without first having it explained to him in the Ilocano dialect. [45]
With respect to the claim that Ecleras statement was obtained by the police without giving him
the Miranda warnings,[46] suffice it to say that the statement, as quoted above, shows that he was
warned of his rights. At all events, the reliance on Art. III, 12 of the Constitution is baseless since
the statement is not being used against the person who made it. It is not in fact a confession of guilt
on Rockys part.
Indeed, there is nothing in the record to show that Rocky ever complained against policemen
who allegedly coerced him to give the sworn statement in question or in any way violated his
constitutional rights when he appeared before Judge Suller of the Municipal Circuit Trial Court of
Asingan to swear to his statement. Neither does Rocky claim that policemen had ill-motive to
implicate accused-appellants Panida and Ernesto Eclera.
Second. The sworn statement was in fact offered in evidence not just by the prosecution as its
Exhibit D, but also by all accused-appellants as their Exhibit 1. Moreover, the affiant, Rocky Eclera,
was presented as witness by both prosecution and the defense. [47] A sworn statement is hearsay only
when the affiant is not presented in court. [48] Both sides had opportunity to cross-examine Rocky

Eclera. The defense presented Rocky to dispute his own statement, but the trial court, in a wellreasoned decision, supported by evidence on record, [49] found Rockys retraction to be without
merit. The determination of the credibility of witnesses is a task best left to trial courts, given their
unparalled opportunity for observation of the deportment of witnesses on the stand. For this reason,
their findings are accorded great respect in the absence of any compelling reasons for concluding
otherwise.[50]
Third. Rocky Eclera tried to retract his statement naming all of accused-appellants as the
culprits by pointing to accused-appellant Hora alone as the guilty party, because accused-appellants
Alex Panida and Ernesto Eclera are his relatives. Rockys father and Ernestos father are cousins,
while Alex Panidas mother and Rockys father are likewise cousins. [51] Rocky Eclera also testified that
he is closer to accused-appellants Panida and Ernesto Eclera and that he only recently met accusedappellant Hora.[52]
This explains why Rocky Eclera refused to testify for the prosecution in the murder case after
once testifying in the carnapping case. As the trial court noted:[53]
The Court observes that when presented as witness for the accused ALEX PANIDA and ERNESTO
ECLERA, Rocky Eclera evinced hesitancy in his answers. He generalized his denials as to inculpatory
matters respecting accused ALEX PANIDA and ERNESTO ECLERA as due to his being confused and
frightened.
This witness comparatively, was the youngest of the group. He was only 16 years old when he
testified in Lingayen, Pangasinan before Branch 38. After more than one year, he was presented
anew not as witness for the prosecution, but as witness for the defense.
His recantation was not unexpected, considering his reticence and recalcitrance to testify for the
State. In fact, during the time that he testified recanting his testimony in Court as well as his
damaging and inculpatory declarations in his sworn statement against the other accused Alex Panida
and Ernesto Eclera, he oftenly stammered, pondering with difficulty his recantation.
In recanting having stated that accused Alex Panida and Ernesto Eclera helped detached the side car
of the motorcycle as declared in Court, he wants to ascribe falsification in court proceedings. He
claims that the testimony was never made.
The ease with which he ascribes falsification in so far as his cousins are concerned, but with
steadfastness in so far as accused ALEX HORA is concerned, reveals he is being manipulated to
pollute the truth inceptually disclosed by him in his Sworn Statement.
Fourth. A witness prior inconsistent statement can be used to impeach his credibility, but the
converse does not necessarily follow. Retractions are disfavored in law. As this Court held in People
v. Ubia:[54]
The theory of the defense that Franciscos previous testimony is false, as he subsequently declared it
to be so, is as illogical as it is dangerous. Merely because a witness says that what he had declared
is false and that what he now says is true, is not sufficient ground for concluding that the previous
testimony is false. No such reasoning has ever crystallized into a rule of credibility. The rule is that a
witness may be impeached by a previous contradictory statement; not that a previous statement is
presumed to be false merely because the witness now says that the same is not true. The
jurisprudence of this Court has always been otherwise, i.e. that contradictory testimony given
subsequently does not necessarily discredit the previous testimony if the contradictions are
satisfactorily explained. We have also held that if a previous confession of an accused were to be
rejected simply because the latter subsequently makes another confession, all that an accused would
do to acquit himself would be to make another confession out of harmony with the previous

one. Similarly, it would be a dangerous rule for courts to reject testimonies solemnly taken before
courts of justice simply because the witnesses who had given them later on change their mind for
one reason or another, for such rule would make solemn trials a mockery and place the investigation
of truth at the mercy of unscrupulous witnesses. If Francisco says that when he testified for the
prosecution he was paid P700, what can prevent the court from presuming that subsequently he
testified for the defense because the defendants also paid him to testify for them? The rule should
be that a testimony solely given in court should not be lightly set aside and that before this can be
done, both the previous testimony and the subsequent one be carefully compared, the circumstances
under which each given carefully scrutinized, the reasons or motives for the change carefully
scrutinized - in other words, all the expedients devised by man to determine the credibility of
witnesses should be utilized to determine which of the contradictory testimonies represents the
truth. (Citations omitted)
Fifth. Rocky Ecleras testimony is basically the same as his sworn statement. His testimony
that only accused-appellant Hora is guilty can be disregarded and his statement that actually all
three accused-appellants committed the crimes believed. For courts may believe one part of the
testimony of a witness and disbelieve another part because courts are not required to accept or
reject the whole testimony of a particular witness. [55]
In the present case, the particular circumstances enumerated above convince us that Rockys
claim that all three accused-appellants participated in the commission of the crimes as embodied in
his sworn statement is the truth and is the more credible. Coupled with admissions by accusedappellants themselves which corroborate and dovetail with Rockys sworn statement and testimony
in relevant aspects, including the elements of the crimes, they fully justify the trial court in giving
much weight to Rockys story in his sworn statement.

The Existence of Conspiracy

The evidence on record indeed indicates, as the trial court correctly found, that there was
conspiracy in the case at bar.
Conspiracy need not be proved by direct evidence and may be inferred from the conduct of all
the accused before, during, and after the commission of the crime. [56] In the present cases, the
totality of the evidence shows that: accused-appellants together took the tricycle driven by the
victim; they were all present at the time of the killing and the taking of the tricycle; the victim was
stabbed several times and they were all there when it happened; after the killing, all of the accusedappellants rode the tricycle to Urdaneta and then to Tarlac, and stayed together for three days; all of
them took part in detaching the sidecar from the motorcycle; all three accused-appellants stabbed
the victim; and the victim suffered 43 stab wounds suggesting they were inflicted by more than one
person. Clearly, the inevitable conclusion is that accused-appellants acted in concert.
Conspiracy being present, all of accused-appellants are liable for the crimes in these cases. For
where there is conspiracy, evidence as to who among the accused rendered the fatal blow is not
necessary. All conspirators are liable as co-principals regardless of the intent and the character of
their participation, because the act of one is the act of all. [57]
It remains to determine whether the prosecution has proven all the elements of both crimes in
order to justify conviction of accused-appellants.

Liability of Accused-Appellants for Murder

Art. 248 of the Revised Penal Code in part provides:

Any person who, not falling within the provisions of Art. 246 [parricide], shall kill another, shall be
guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.
...
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging
or scoffing at his person or corpse.
The trial court found all of accused-appellants guilty of murder. Indeed, there is no doubt that
the unlawful killing of the victim in the present case has been proven. The autopsy report shows that
the victim suffered 43 stab wounds and that as a result he died. Accused-appellants themselves and
witness Rocky Eclera admitted that the victim was stabbed several times and hit on the head with a
big stone to finish him off. They all admit that the body was pulled towards the mountain
immediately thereafter. They likewise admit that the victim was merely bringing them to their
destination and was caught by surprise when stabbed. There was no claim of self-defense or
accident. Thus, the only question to be determined is whether such killing can be considered
murder. Accused-appellants Panida and Ernesto Eclera contend that it is homicide, though without
specifying the reason why, while the trial court maintains it is murder in view of the qualifying
circumstance of treachery.
To appreciate treachery, two conditions must be present, to wit: (1) the employment of means
of execution that give the person attacked no opportunity to defend himself or to retaliate and (2) the
means of execution were deliberately or consciously adopted.[58]
In these cases, there is no question that the means of execution employed by accusedappellants was such that the victim had no opportunity to defend himself. The victim was
unsuspecting; as far as he was concerned, he was merely taking passengers from one place to
another. He was stabbed with suddenness and from behind, leaving him totally defenseless. All
these, coupled with the fact that the victim was unarmed and had no opportunity to defend himself,
indubitably demonstrate the treacherous nature of the attack.
As regards the second requisite, the following facts lead us to no other conclusion than that
accused-appellants consciously adopted a mode which would ensure the realization of their purpose
without danger to themselves: accused-appellants were already carrying weapons when they rode
the tricycle; the victim was first stabbed from behind while he was sitting on the tricycle and thus
already wounded and disoriented before he was attacked by all the rest; all three accused-appellants
attacked him; he was stabbed 43 times; they continued stabbing him even as he was defenseless
and begging for his life; lastly, the victim was stabbed on different parts of his body. Accusedappellants could not have inflicted so many wounds and on different parts of the victims body had
they not consciously adopted such manner of attack. The manner in which the victim was killed and
the aforementioned external manifestations of accused-appellants clearly show that they consciously
and deliberately adopted the particular method or form of attack to insure the accomplishment of
their purpose.[59]
However, we do not agree with the trial court that the killing was committed with cruelty. The
trial court considered the number of wounds and the final blow to the head as basis for its
finding. But the number of wounds is not a test for determining whether cruelty is present. The test
is whether the accused deliberately and sadistically augmented the victims suffering. Consequently,
there must be proof that the victim was made to agonize before he was killed. [60] Here, there is no
such proof of cruelty.

Accused-Appellants Liability for Carnapping

Under R.A. No. 6539, as amended, carnapping is defined as the taking, with intent to gain, of a
motor vehicle belonging to another without the latters consent, or by means of violence against or
intimidation of persons or by using force upon things.
In the case at bar, the prosecution has proven through the testimonies of Sylvia Eclera, Rocky
Eclera, and accused-appellants themselves that accused-appellants took the tricycle of Sylvia
Eclera. Although only accused-appellant Hora appears to have mortgaged the motorcycle, the intent
to gain on the part of all the accused-appellants can be inferred from the unlawful taking of tricycle
by them. Moreover, it has been held that it is enough that the other accused intended that any one
of them should benefit from the taking.[61]

Accused-Appellants Liability for Damages

In Criminal Case No. U-8202 for carnapping, the trial court ordered accused-appellants to pay
the spouses Eclera P20,650.00 representing burial and funeral expenses and P5,000.00 representing
expenses incurred in the recovery of the motorcycle and the sidecar.
The evidence in the record fully supports the award of damages concerning these items. [62]
In Criminal Case No. U-8203 for murder, the trial court correctly awarded the heirs of the victim
P50,000.00 as indemnity.[63] When death occurs as a result of a crime, the heirs of the deceased are
entitled to the amount of P50,000.00 as indemnity for the death of the victim without need of any
evidence or proof of damages. The trial court likewise appropriately awarded P50,000.00 as moral
damages to the heirs of the victim.[64]
In addition, the evidence in the record sufficiently establishes the basis for an award of
unearned income to the heirs of the victim. [65] The employer of the victim testified that the latters
monthly income is P3,000.00.[66] The autopsy report[67] shows that the victim was 43 years old at the
time of his death. The deceaseds unearned income is as follows: [68]
net
expenses
earning

gross

(x) = life expectancy

capacity

income

x =

2(80-43)
3

x [36,000-18,000]

= 24.67 x 18,000
= P444,060.00

The Appropriate Penalties

annual

living

less

(50% of gross
annual income)

In view of our finding that the aggravating circumstance of cruelty does not exist, the penalty
imposed by the trial court must be reduced to reclusion perpetua.[69] As for the penalty imposed on
the accused-appellants for the crime of carnapping, the trial court erred in imposing a straight
penalty of 17 years. Under the Indeterminate Sentence Law, if the offense is punished by a special
law, the court shall sentence the accused to an indeterminate penalty, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum term shall not be less than the
minimum prescribed by the same.[70] Thus, the penalty imposed must be a range.
The charge being simple carnapping, the imposable penalty is imprisonment for not less than
14 years and 8 months and not more than 17 years and 4 months. [71] There can be no suppletory
effect of the rules for the application of penalties under the Revised Penal Code or by other relevant
statutory provisions based on, or applicable only to, the rules for felonies under the Code. While it is
true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to
the duration of the medium period of reclusion temporal, such technical term under the Revised
Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping
attended by the qualifying circumstances stated in the law do not correspond to those in the
Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No.
6539 and special laws of the same formulation.[72] For this reason, we hold that the proper penalty to
be imposed on each of accused-appellants is an indeterminate sentence of 14 years and 8 months,
as minimum, to 17 years and 4 months, as maximum.
WHEREFORE, the decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 47 in
Criminal Case Nos. U-8202 and U-8203 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. U-8202, accused-appellants are sentenced to suffer an
indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4
months, as maximum.
2. In Criminal Case No. U-8203, accused-appellants sentence is reduced to reclusion
perpetua.
3. In Criminal Case No. U-8203, accused-appellants are ordered to pay the heirs of the
victim the amount of P444,060.00 as unearned income.
SO ORDERED.

[G.R. No. 127356. June 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVID SILVANO y HAYAG, accusedappellant.

DECISION

court and quoted by both the prosecution (with page reference) and the defense in their respective
Briefs, which are ably supported by evidence on record happened this wise: *
Sheryl Silvano is a beautiful mestiza (as may be shown in the pictures, Exhs. T to T-5), and
already 5'6 tall at her age of sixteen (16) years, having been born on January 20, 1980. (Exhs. F and
F-1) Her height have been inherited from her parents as her father is 6'2 tall and her mother is a
mestiza. She is the legitimate daughter of David Silvano y Hayag, the accused in this case, and
Shirley Ann G. Pedrosa, as evidenced by a marriage contract (Exhs. E & E-1). Sheryl is the eldest
and the only girl with two brothers, namely: John David, who was born on July 29, 1984 and Noel
William, who was born on April 16, 1986. (pp. 1-5, tsn, August 14, 1996)
On January 23, 1996 at 10:30 in the evening, while Sheryl was sleeping in her room at the second
floor of their house located at 134-C Scout Rallos Street, Barangay Sacred Heart, Quezon City, ** she
was awakened by her father, the accused in this case. The accused then started scolding Sheryl for
her coming late. (pp. 6-7, tsn, ibid.) The accused who appeared tipsy, started undressing Sheryl by
lifting her T-shirt, as a form of punishment for her coming home late, which punishment she has been
experiencing from the accused since she was 13 years old. After lifting Sheryl's T-shirt, as she was
not then wearing any bra, the accused started holding Sheryl's breast at the same time kissing it. As
Sheryl was practically leaning on the bed, the accused dragged Sheryl at the edge of the bed so that
she would be facing the accused a little bit. The accused then knelt down on the floor and continued
holding the breast of Sheryl with one hand while the other hand was holding the private organ of
Sheryl. Sheryl tried to prevent the accused from doing what he was doing but the accused told
Sheryl you did something wrong and I told you I would do that as a punishment to you (p. 7, tsn.
ibid.). Despite the pleas of Sheryl, the accused continued kissing her breasts. Afterwards, the
accused pulled Sheryl at the side of the bed and the accused removed her pair of short pants and
panty. After removing the pair of short pants and panty of Sheryl, the accused grasped the hips and
waist of Sheryl and pulled her towards him. Thereafter, when the accused was already in between
the thighs of Sheryl, the accused started kissing the private organ of Sheryl, the accused was at the
same time inserting his finger into Sheryl's vagina (p. 8, tsn, ibid.). Thereafter, the accused stood up
a bit, pulled down his short pants and knelt down at the side of the bed. The accused then got a hold
of Sheryl's two feet and placed them on top of his shoulders. The accused once again grasped the
hips of Sheryl and pulled her nearer to him. When Sheryl was pulled nearer to the accused, the
accused inserted his private organ into Sheryl's private organ. Although 'Sheryl tried to free herself
by pushing the shoulders of the accused with her two feet and telling the accused to stop what he
was doing to her, the accused, in order to have a full grip, got hold of the legs of Sheryl and placed
them in between the arms of the accused (pp. 8-9, tsn, ibid.). After inserting the accused's private
organ into the private organ of Sheryl, the accused performed a pumping motion. Subsequently, the
accused's private organ was removed from the private organ of Sheryl and the accused rubbed his
organ with the private organ of Sheryl. Thereafter, Sheryl felt something cold which was a sticky
liquid emitted from the private organ of the accused and which the accused scattered in between
Sheryl's private organ and on her stomach. Later on, the accused got a tissue paper and wiped the
liquid-like substance. The accused then put on his pair of pants and left the room (pp. 9-11, tsn,
ibid.). The following morning, Sheryl went to school at Jose Abad santos Memorial School (JASMS) in
Quezon City.

It is not for human to ravish what they produced. The rape committed by a father against his
own daughter regardless of whether it is done under the cloak of parental discipline has no place in
our society. That is why, it is considered as a heinous felony meted with the supreme penalty of
termination of the assailant's life. For indeed those who lust must not last.

On February 12, Sheryl who could no longer bear the punishment in the form of sexual abuse
she had been getting from her father as in fact she was first raped when she was thirteen (13) years
of age, left their house at Scout Rallos, Quezon City, and stayed at her maternal grandmother's
house at Scout Lozano, Quezon City. When she was asked to go back to her parents' house at and
settle her differences with the accused, Sheryl confided to her mother and grandmother the real
reason why she did not like to go back to their house. Thereupon, her mother and grandmother
immediately sought the assistance of General Hercules Catalua, Chief of the Central Police District
Command, who happens to be married to a cousin of the mother of Sheryl. [1]

Once again the Court is saddled with another nightmare of lustful and incestuous defloration
committed by one from whom the victim expects protection. The facts given credence by the trial

Consequently, appellant was charged with rape by his own daughter to which he pleaded not
guilty when arraigned. Prior to the presentation of evidence for the prosecution, the complaint was

PER CURIAM:

amended without objection from appellant, who when re-arraigned entered the same plea. The
amended complaint reads:
That on or about the 23rd day of January, 1996 in Quezon City, Philippines, the said accused who is
the father of the Complainant by means of force and intimidation, to wit: then and there wilfully,
unlawfully and feloniously, undressing the undersigned complainant who is under eighteen (18) years
of age and putting her legs on top of his shoulders, and thereafter have carnal knowledge with the
undersigned complainant against her will and without her consent. [2]
After the prosecution presented its case, appellant filed a motion for leave to file demurrer to
evidence on the ground that his guilt was not proven beyond reasonable doubt, which motion,
however, was denied by the lower court. Appellant thus presented evidence for his
defense. Thereafter, the lower court rendered judgment convicting appellant of the crime charged,
sentenced him to suffer the penalty of death, and ordered him to indemnify the victim. The
dispositive portion of the decision a quo states:
WHEREFORE, this court finds the accused David Silvano y Hayag guilty beyond reasonable doubt of
the crime of rape defined in and penalized by Article 335 of the Revised Penal Code, as amended,
and sentences him to suffer the penalty of death and to pay the costs. The accused is hereby
ordered to indemnify the victim, Sheryl P. Silvano, the amount of P50,000.00, as moral damages, and
P30,000.00 as exemplary damages.

2.) When the woman is deprived of reason or otherwise unconscious; and

3.) When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall
be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death.
The death penalty shall also be imposed if the crime of rape is committed with any the following
attendant circumstances:
1.) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim;
2.) When the victim is under the custody of the police or military authorities;

SO ORDERED.[3]
[4]

Upon automatic appeal to this Court, appellant assails his conviction by insisting on his
innocence. He denied the accusation arguing that the charge leveled against him was a mere ploy of
his wife and the latter's relatives for the purpose of severing their marital relationship.
In the review of death cases, foremost in the mind of the Court is the heavy penalty which an
accused faces. Aware that life once taken, is like virginity which once defiled, can never be restored,
[5]
a thorough scrutiny of the case is in order. Against the proffered excuses of appellant, however,
and guided by the three principles in the review of rape cases, to wit: [6]

3.) When the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity;
4.) When the victim is a religious or a child below seven (7) years old;
5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease;
6.) When committed by any member of the Armed Forces of the Philippines or Philippine
National Police or any law enforcement agency;

a.) An accusation for rape can be made with facility; it is difficult to prove but more
difficult for the person accused, though innocent, to disprove;

7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation. (emphasis supplied)[10]

b.) In view of the intrinsic nature of the crime of rape, where only two persons are usually
involved, the testimony of the complainant is scrutinized with extreme caution; and

In proving such felony, the prosecution must allege and prove the ordinary elements of 1.)
sexual congress 2.) with a woman 3.) by force and without consent, [11] and in order to warrant the
imposition of death penalty, the additional elements that 4.) the victim is under 18 years of age at
the time of the rape and 5.) the offender is a parent (whether legitimate, illegitimate or adopted) of
the victim should also be alleged and proven. All such elements are undisputedly present in this
case. The victim herein at the age of sixteen (16) years was subjected to forced sexual intercourse
by appellant, as duly shown in her testimony:

c.) The evidence of the prosecution stands or falls on its own merits and cannot be allowed
to draw strength from the weakness of the defense.
The fundamental presumption of innocence [7] enjoyed by appellant was overcome with the
requisite quantum of proof in criminal cases and his guilt sufficiently established by proof beyond
reasonable doubt.[8]

Q. While you were sleeping at 10:30 in the evening of January 23, 1996, what happen? ***

The qualified rape of an underaged relative for which appellant was charged is classified as a
heinous crime and penalized under Section 335 of the Revised Penal code (RPC), as amended by
Section 11, Republic Act (R.A.) 7659,[9] which provides:

ATTY. UMINGA:

When and how rape is committed - Rape is committed by having carnal knowledge of a woman
under any of the following circumstances.

COURT:

1.) By using force or intimidation;

Objection, your Honor, the question is misleading, while you were sleeping it does not mean
established that she was sleeping.

Witness may answer.

A. I was awakened by my father.

Q. When your father woke you up, what happened?

Q. And in relation to you, where was he located?

A. He was scolding me.

A. In between my thighs.

Q. What did he say?

Q. What did he do after that?

A. He was asking me why I came home late. That I knew that I had a punishment.

A. He started kissing my private organ.

Q. What else did your father do, if there was any aside from scolding you?

Q. When he was kissing your private organ, what else did he do?

A. He was trying to undress me, particularly my shirt.

A. He was putting his finger inside my vagina hole or opening and he continued kissing it.

Q. Was he able to undress you?

Q. After putting his finger inside your private organ, what else did he do?

A. Yes, he was able to lift up my shirt.

A. He stood up a bit, he removed or lowered down his pants and then he knelt down at the side of
the bed.

Q. And then what happen?

A. He was holding my breast and he was kissing my breast.

Q. After removing his pants, after lowering down his pants, and kneeling down a bit, what did your
father do?

Q. What else did he do?

A. He got my two feet and placed him on top of his shoulder.

A. I was leaning on the bed, he dragged me on the side ways, so that, I will be facing him a bit and
then he knelt down on the floor.

Q. After putting your two feet on top of his shoulder, what did he do?

Q. After he knelt down on the floor, what else did he do?

A. He continued kissing and holding my breast, while he was holding his other hand to my breast
and he was kissing it, he was holding my private organ his other hand.

A. He grasped me by my hips, he pulled me nearer to him and he placed his organ inside my organ.
Q. After the accused, your father, placed his organ inside your organ, what else happen?
COURT:

Q. And what were you wearing at that time?

Put on record that the witness is crying.

A. I was wearing t-shirt without bra.

ATTY. MENDOZA: (to the witness)

Q. And when he was holding your private organ, what happened?

Q. After your father put his organ inside your organ, what else did he do?

A. I was trying to tell him, not to do this to me, but he insisted and said that you did something
wrong, and I told you that I would do that punishment to you but I said that I did not agree.

A. He just put his organ inside my organ. He was almost on top of me.

Q. And then what did he do if any, after he was holding your private part and he was holding and
kissing your breast?
A. He told me and he insisted that, he would do that to me, but I said no, please don't.

COURT: (to the witness)

Q. What about you, what did you do, when your father, the accused in this case placed his organ
inside your organ?

Q. When you answered him stop, what did he do?

A. I was trying to remove my two feet on top of his shoulder, I was pushing him by his shoulder with
my two feet and I was telling him to stop doing it to me.

A. He still continued kissing my breast and kissing my private organ.

Q. And what was the response of your father?

Q. After than, what happened?

A. He kept on grasping my hips nearer to him.

A. He pulled me at the side of the bed.

COURT: (to Atty. Mendoza)

Q. When he pulled you at the side of the bed, what did your father do?

Go ahead.

A. He undressed my shorts and panty.

ATTY. MENDOZA: (to the witness)

Q. After your father removed your shorts and panty, what else did he do?
A. He grasped me by my hips, he grasped me by my waist, and he pulled me towards him.
Q. And where was his position when he pulled you towards him?
A. He was at the side of the bed.

Q. So, while you were trying to free yourself, and your father continued grasping your hips closer to
him, what else happen?
A. I was able to remove my feet a bit but in order for me not to break free, he placed my legs in
between his arms and both feet and then he gripped it.
Q. When you were able to free your legs from the shoulder of your father, he grabbed your legs and
grasped it with his arms, what happen?

A.

He placed his organ in my organ.

Q.

What was the lighting?

Q.

And was he able to put his organ inside your vagina?

A.

Flourescent light.

A.

Yes, then I felt pain.

Q.

And who put the lights on?

Q.

After that, what happen?

A.

He opened it.

A.

I tried again resisting him, moving again my two feet from his grasp. I tried to get far from
the edge of the bed, far from him.

Q.

After that, what did your father do?

A.

He stood up and wore his underpants.

Q.

And you were able to remove his arms from your legs?

A.

No, sir.

Q.

And where did he go?

A.

He went out of the room.

Q.

So, what happen?

A.

His organ removed from my organ, but he tried to put it but since he can't.

Q.

And what did you do?

A.

I wore my underpants too then I covered my face with the pillow. (italics supplied) [12]

Q.

Since he can't, what did he do?

A.

He placed his organ on top of my organ.

Q.

And then, what did he do?

The victim's claim that she was ravished is corroborated by the medical findings of the
physician who examined her, to wit:
GENERAL AND EXTRAGENITAL

Rubbing it on top of my organ.

Q. and what were you saying in tagalog?
A.

kinikiskis po.

Q.

And then, what did you do?

A.

And then, I still tried telling him stop doing to me.

Q.

You cannot free yourself from your father?

A.

No, sir.

Q.

And after that, he was rubbing his organ with your organ, what happen?

A.

I felt cold, liquid-like substance on top of my organ and somewhere in between my stomach.

Q.

And then, after that, what happen?

A.

He got his shoe (should be tissue) and then he wiped it.

Fairly developed, fairly nourished and coherent female subject. Breasts are hemispherical with
pinkish brown areola and nipples from which no secretions could be pressed out. Abdomen is flat
and soft.
GENITAL:
There is abundant growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish
brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy-type
hymen with deep healed lacerations at 3, 7 and 9 o'clock positions. External vaginal orifice offers
moderate resistance to the introduction of the examining index finger and the virgin-sized vaginal
speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and
consistency.
CONCLUSION:
Subject is in non-virgin state physically.

COURT: (to the witness)

Q.

Where did that fluid came from?

There are no external signs of recent application of any form of trauma at the time of examination.

A.

It came from his organ.

REMARKS:

Q.

Did you see?

A.

Yes, your Honor.

Vaginal and peri-urethral smears

spermatozoa. (emphasis supplied)[13]

are

negative

for

gram-negative

diplococci

and

for

ATTY. MENDOZA: (to the witness)

Q.

Will you please tell to the Honorable Court whether the place while your father was doing this
to you was lighted?

A.

Yes, sir.

It is settled that carnal knowledge is consummated by the mere touching of the woman's labia of the
pudendum by the male sex organ. [14] The briefest contact of penile invasion is as serious as full
penetration and thus, rapture of the hymen is not required. [15] In addition, the absence of fresh
lacerations does not disprove rape.[16] Appellant could have been held liable for instrument or object
rape under R.A. 8353 when he inserted his tongue and finger into her daughters vaginal

orifice. Luckily for him, at the time he committed such act, instrument or object rape was not yet
punishable.
For his defense, appellant claims among others, that the victim offered only a token resistance
when the alleged sexual acts were being done. Be that as it may, the failure to shout or offer
tenacious resistance cannot be construed as a voluntary submission to appellant's desires. [17] It is
enough if the prosecution had proven that force or intimidation concurred in the commission of the
crime as in this case. The law does not impose upon a rape victim the burden of proving resistance.
[18]
Moreover, physical resistance need not be established in rape when intimidation is exercised upon
the victim and she submits herself against her will to the rapist's lust because of fear for her life or
personal safety.[19] The force, violence or intimidation in rape is a relative term, depending not only on
the age, size, and strength of the parties but also on their relationship with each other. [20] Herein
victim is only 16 years old, about 5'6 and weighs 128 lbs. As compared to her father who is his
early 40's, about 6'2 weighs 210 lbs. [21] And a former driver/messenger in the Italian embassy.
[22]
Considering also that the assailant is no less than the victim's own father who wields parental
influence over her person, the crime undoubtedly was committed with facility. [23] The latter's moral
ascendancy over the former substitutes for violence or intimidation. [24] A woman at such young age
like the victim herein can only cower in fear and yield into submission. Rape is nothing more or less
than a conscious process of intimidation by which a man keeps a woman in a state of fear and
humiliation. Thus, it is not even impossible for a victim of rape not to make an outcry against an
unarmed assailant.[25]
Appelant's contention that he could not have possibly raped her own daughter in the room
where the latter was sleeping on the night of the incident considering that it was small, is not a
reason to exculpate him from his barbaric and prurient desires. There is also no merit in his assertion
that the victim's two younger brothers - one of whom is deaf - who were sleeping in the same room,
would have been awakened when she struggled against the advances of appellant. Suffice it to say,
however, that while the brutish sexual assault on the victim was being committed under the cloak of
the night and disguised as a form of parental sanction, it is not impossible nor incredible for the
members of the complainant's family to be in deep slumber and not to be awakened. [26] because
rape can be committed in the same room where other members of the family are also sleeping. [27] His
argument that it is unusual and improbable for the rape to occur at about 10:30 in the evening
since people are not yet soundly sleep[28] lacks merit. Evidence without argument is worth more
than argument without evidence. In their union they are inseparable.[29] In any case, as consistently
ruled by the Court, lust is no respecter of time and place [30] and also of kinship. Non-consensual acts
of sex can be done even in places where people congregate, in parks, along the roadsides, in school
premises, in a house where there are other occupants, [31] and even in places which to many, would
appear unlikely and high risk venues for its commission. [32] In any case, there is no rule that rape can
be committed only in seclusion.[33]
Appellant alludes as rather unusual for him to rape his own daughter by scolding her first, as
it would certainly cause some noise.[34] This is no excuse for a rapacious parent. Precisely, he scolded
her to make a good pretext that any noise created thereafter was nothing but part of the parental
sanction and discipline on an allegedly erring child and thus, distract, if not mislead, possible
assistance once he performs his evil instincts. Appellant likewise argues that the rape is implausible,
improbable if not impossible [35] considering that the series of acts allegedly lasted for about 40
minutes - 15 minutes for kissing and sucking her breast and nipples, 15 minutes for kissing her
private parts and about 15 to 20 minutes for doing the motion. This is a trivial matter which does not
go into the why's and wherefore's of the crime. [36] On the contrary, it strengthened rather than
diminished the victim's credibility[37] as they erased suspicion of a rehearsed testimony. [38] Lust may
be consummated in a matter of seconds or it could last for hours depending on the parties and the
circumstances. To the helpless victim, every second of the monstrous act is transformed into a long
period of agony. Besides, it is too much to demand from the rape victim to keep track of the exact
duration of every humiliating act done to her or to make an accurate account or her traumatic
experience.[39] Errorless testimony cannot be expected of her [40] for she may not be able to remember
and recount every ugly detail of the harrowing experience and appalling outrage, especially so since
she might in fact be trying not to remember them, [41] as they are painful to recall.[42] In any case, the

undisputed fact remains that the copulation was against the victims will. If somewhere along the
motion, she stopped resisting, it is not unreasonable to conclude that the fear is still there or that
fatigue had intervened in her tenacity to fight the rapacity. A victim who cries rape, more so if she is
a minor, almost always says all that is needed to signify that the crime has been committed. [43] The
intimate flow of revelations from a daughter to a mother of a fathers outrageous conduct impelled
them to seek assistance from their relatives including a police General. In turn, the latter ordered his
men to invite the appellant to the precinct without any warrant of arrest, an illegal act which would
render all evidence obtained in violation of his right against a warrantless arrest inadmissible. [44]
Under R.A. No. 7438, the so-called invitation of a person in connection with an offense he is
suspected to have committed is a prohibited act for which the inviting officer may be held liable.
[45]
Be that as it may, in accordance with settled jurisprudence, any objection, defect or irregularity
attending an arrest must be made before the accused enters his plea. [46] Appellant pleaded without
making such objection and the court has to call the attention to appellants counsel on whether he is
going to challenge the validity to the arrest. Despite his manifestation that he will do so, nothing was
filed nor initiated to that effect after probably realizing the futility to such action. In addition thereto,
appellants failure to quash the information, his participation in the trial and by presenting evidence
in his behalf, placed him in estoppel to make such challenge. [47] He has patently waived any objection
or irregularites and is deemed as having submitted himself to the jurisdiction to the court. [48] It should
be noted that the legality of arrest affects only the jurisdiction of court over the person of the
accused.[49]Consequently, if objection on such ground is waived the illegality of the arrest is not
sufficient reason for setting aside an otherwise valid judgment rendered after the trial, free from
error.[50] The technicality cannot render the subsequent proceedings void and deprive the State of its
right to convict the guilty when the facts on the record point to the culpability of the accused. [51] In
any case, appellant is not herein convicted on the basis of whatever was illegally obtained by the
police out of the invitation but by the admissible proof presented by the prosecution particularly,
the victims credible testimony.
When charged before the court, appellant denied the accusation and prefaced such denial with
the assertion that he is giving her financial, material and educational support. With respect to his
denial, it is inherently a weak defense which cannot prevail over positive identifications. [52] It must be
buttressed by strong evidence of non-culpability to merit credibility. [53] Otherwise, the same is selfserving and deserves no greater evidentiary value. [54] It should be noted that affirmative testimony,
like that of the victims, is stronger than a negative one.[55] His excuse regarding support is nonsequitur. The fact that he supports her does not give him the license to rape her. It is his obligation
to give support to her daughter as provided in Article 195(2,3) as well as his right and duty under
Article 220(1) of the Family Code which expressly provides: [56]
Article 195. Subject to the provisions of the succeeding Articles, the following are obliged to
support each other to the whole extent set forth in the preceding Article:
xxx xxx

xxx

(2). Legitimate ascendants and descendants;

(3). Parents and their legitimate children
Article 220. The parents x x x shall have with respect to their unemancipated children or wards the
following rights and duties:
(1). To x x x support (emphasis supplied).
The victim testified that appellant told her that she will be punished for coming home late at
night and the punishment is to have sex with him. This ratiocination is the product of a sick mind of

an equally sick parent who does not deserve to be such. It is clear from the provisions of Article 209
of the Family Code that from the mere status of being a parent flows ones natural right and duty
not only of the caring for and the rearing of their unemancipated children but above all the
development of their moral, mental, and physical character and well-being. Although the Family
Code recognizes the parents rights and duties to impose discipline on their unemancipated
children; Supervise their activities, recreation and association with others x x x; and prevent them
from acquiring habits detrimental to their x x x morals, [57] it does not authorize them to force their
offspring to copulate with them under the mask of discipline, or invade their honor and violate their
dignity nor does it give them the license to ravish the product of their marital union. Appellants
way of punishment comes not in the form of correction but of an insane sexual gratification. Sex with
ones own child is per se abhorrent and can never be justified as a form of parental punishment. The
practice of sexual exploitation of the youth in the guise of disciplinary action is not a solution to
juvenile curiosity which is part of growing up. His gratification instills an unnamed trauma in the
childs innocent mind when she still cannot understand the meaning of sexual behavior. [58]Moreover,
instead of instructing and educating his own daughter with the right precept and good example,
appellant provided her with perversed and distorted moral and spiritual guidance [59] to the extent
of brainwashing her that sex with ones father is nothing but a disciplinary sanction and part of sex
education[60] which the latter teaches her. Worse, the daughter herein even entertained doubts as to
the normality and abnormality of her fathers deplorable acts. [61] It is also appellants duty under the
Family Code to give her love and affection, advice and counsel, companionship and
understanding.[62] Yet what she got was the humiliation and the destruction of her life, good future
and the very essence of her existence.
Appellant further contends that her daughters acts after the alleged rape, such as going to
school the next day, leaving their home after more than two weeks had lapsed since the incident and
reporting the same only when confronted by her mother are inconsistent with the behavior of a rape
victim. The contention is without merit. The behavior and reaction of every person cannot be
predicted with accuracy. It is a time-honored precept that different people react differently to a
given situation or type of situation and there is no standard form of behavioral response when one is
confronted with a strange or startling or frightful experience. [63] Not every rape victim can be
expected to act conformably to the usual expectations of every one. [64] Some may shout; some may
faint; and some may be shocked into insensibility; while others may openly welcome the intrusion. [65]
The failure of the victim to immediately reveal his fathers incestuous acts is not indicative of
fabricated charges. It should be noted that:
Many victims of rape never complain or file criminal charges against their rapists. They prefer to
bear the ignominy and pain rather than reveal their shame to the world or risk rapists making good
their threats to kill or hurt their victims.[66]
The victim herein is in no case different. Her shame and genuine fear of what appellant might
do to her or her brothers had temporarily sealed her lips. This is why she left their home, the scene
of her defilement where her appellant father resides and went to her maternal grandmothers
place. Only when confronted why she would not come back to their house did she reveal the
avalanche of shame and degradation that had befallen her at that tender age of 16 years from her
very own father. It is not uncommon for a young girl at such age to be intimidated into silence and
conceal for sometime the violation of her honor, even by the mildest threat against her life. [67] Silence
is not an odd behavior of rape victims who do not always immediately go to the rooftop and
denounce their assailants.[68] This natural reticence or aversion of the victims to reveal the
humiliation attaching to the crime is a stigma they will have to bear indefinitely thereafter. [69] The
fear of these young victims of reprisals upon them or their families easily cows them into submission
and silence. Worse, in incestuous rape, that fear which compels non-revelation is further reinforced
by the moral ascendancy of the rapist over his ravished relative. [70] As the father of the victim,
appellant whom she called Daddy had assumed parental authority over her during her formative
years. Undisputedly, he exerts strong moral influence over complainant.[71]

The imputation by appellant of wrongful motive to his wife who allegedly used their daughter as
an instrument in concocting the rape just to sever their marital ties is too shallow. It is unnatural for
a parent to use her offspring as an engine of malice especially if it will subject her to embarrassment
and even stigma.[72] No mother in her right mind would subject her child to the humiliation, disgrace
and trauma attendant to a prosecution for rape, if she were not motivated solely by the desire to
incarcerate the person responsible for her childs defilement [73] or if the same is not true. [74] In the
same vein, a mother would not expose her daughter to such an ignominy merely to end her
relationship with her husband or to retaliate against him for his transgressions as a family man.
[75]
And it is unbelievable for a daughter to charge her own father with rape at the expense of being
ridiculed.[76] Accordingly, as the defense failed to prove that the principal witness was moved by
improper motive, the presumption is that she was not so moved and her testimony entitled to full
faith and credit.[77]
The contention that he cannot be convicted on the sole testimony of his daughter with respect
to the rape[78] easily crumbles in the light of the doctrine that only two people are privy to the crime
of rape and the evaluation of the evidence presented ultimately resolves around the credibility of
complainant.[79] The trial court, giving full faith and credence to the victims testimony found it to be
logical, straightforward and candid manner, without any artificialities or pretensions that would
tarnish the credibility of her testimony. [80] It even observed that she shamelessly cried as she was
narrating the tragic experience and her stern demeanor evinces the hatred she had for the
accused.[81] Notwithstanding that the victims testimony is uncorroborated, the accused may be
convicted solely on the basis thereof so long as it meets the test of credibility, [82] and the prosecution
is not bound to present witnesses other than the victim. [83]
It is highly unlikely that the victim, a 16-year old high school student, presumably a virgin, an
innocent and unsophisticated girl, unexposed to the ways of the world, would concoct a
reprehensible story of defloration, no less than against her own father, allow an examination of her
private parts and then subject herself to the rigors, trouble, inconvenience, ridicule and scandal of a
public trial, where she has to bare her harrowing and traumatic experience, and be subjected to
harassment, embarrassment and humiliation during cross-examination, unless she was in fact raped
and deeply motivated by her sincere desire to do so solely to seek justice and obtain redress for the
unforgivable and wicked acts committed upon her. [84] This Court has repeatedly ruled that no young
and decent Filipina would publicly admit that she was ravished unless that is the truth for it is her
natural instinct to protect her honor.[85]
Complainants tender age further lends to her credibility. [86] Thus:
Apparent from the Courts decisions in rape cases with the offended parties being young and
immature girls from the ages of twelve to sixteen, x x x is (the) considerable receptivity on the part
of this Tribunal to lend credence to their version of what transpired, considering not only their relative
vulnerability but also the shame and embarrassment to which such a grueling experience as a court
trial, where they are called upon to lay bare what perhaps should be shrouded in secrecy, did expose
them to. This is not to say that an uncritical acceptance should be the rule. It is only to emphasize
that skepticism should be kept under control. [87]
Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Jurisprudential
annals is replete with the rule that the findings of facts and assessment of credibility of witnesses is a
matter best left to the trial court because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses deportment on the stand while testifying, which
opportunity is denied to the appellate courts [88] subject to certain exceptions,[89] none of which,
however, is attendant in this case. Trial courts deal with live witnesses while appellate tribunals rely
on the cold pages of the written records.[90] In this case, the lower courts findings, conclusions and
evaluation of the testimony of witnesses is received on appeal with the highest respect, [91] the same
being supported by substantial evidence on record. No cogent reason was shown that the courta
quo had overlooked or disregarded material facts and circumstances which when considered would
have affected the result of this case[92] or justify a departure from its assessments and findings. [93]

Coming now to the award of damages. Under the latest jurisprudence, a victim of simple rape
is entitled to a civil indemnity of Fifty Thousand Pesos (P50,000.00) but if the commission of the
crime of rape is effectively qualified by any of the circumstances under which the death penalty may
be imposed, the civil indemnity for the victim shall be not less than Seventy-Five Thousand Pesos
(P75,000.00)[94] In addition to such indemnity, the victim or her heirs, as the case may be, can also
recover moral damages pursuant to Article 2219 of the Civil Code [95] in such amount as the court
deems just, without the necessity for pleading or proof of the basis thereof. [96] Civil indemnity is
different from the award of moral and exemplary damages. [97] The requirement of proof of mental and
physical suffering provided in Article 2217 of the Civil Code is dispensed with because it is
recognized that the victims injury is inherently concomitant with and necessarily resulting from the
odious crime of rape to warrant per se the award of moral damages. [98] Thus, it was held that a
conviction for rape carries with it the award of moral damages to the victim without need for
pleading or proof of the basis thereof[99] other than the fact of the commission of the offense. [100] Rape
victims whose age ranges between 13 to 19 years are entitled to moral damages. [101] Under the
circumstances of this case, appellant is liable to the victim for the amount of P75,000.00 as civil
indemnity and P50,000.00 as moral damages.
With respect to the penalty, the sentence imposed by the trial court is proper. Under Article
335 of the RPC, as amended by R.A. 7659, this kind of qualified rape when concurred in by any of the
[102]
7
qualifying circumstances enumerated in the law carries the penalty of death, provided that such
circumstance is alleged and proven.

relative[115] and such testimony constitute an assertion of family tradition. [116] It is not also
unreasonable to conclude that such was her age considering that her parents were married
sometime in July, 1979[117] and that their first offspring, the victim herein, would probably be born
within the next year.
Four justices of the Court, however, have continued to maintain the unconstitutionality of
Republic Act 7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of
the majority to the effect that this law is constitutional and that the death penalty can be lawfully
imposed in the case at bar.
WHEREFORE, the conviction of appellant is hereby AFFIRMED with the MODIFICATIONS that
appellant is ordered to pay his daughter P75,000.00 as civil indemnity, in addition to the moral
damages of P50,000.00 awarded by the trial court. The award of exemplary damages is deleted for
lack of legal basis.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised
Penal Code, upon finality of this decision, let certified true copies thereof, as well as the records of
this case be forwarded without delay to the Office of the President for possible exercise of the
clemency or pardoning power.
SO ORDERED.

In the case at bench, there is no dispute that appellant is the father of the victim, a fact which
he even admitted during his direct examination[103] and is further corroborated by the victims duly
certified Certificate of Live Birth which indicates appellant as her father. [104] Moreover, such admission
is sufficient to establish paternity without further proof. This is so because, acts and declarations
about pedigree which includes relationship is an admissible hearsay under the rules. [105] Besides,
appellant interposed no objection to the victims testimony when she positively identified the former
as the one who raped her on January 23, 1996. [106] Such relationship of father-daughter in rape cases
is considered an aggravating circumstance under Article 15 of the RPC. [107]

[G.R. No. 129692. September 15, 1999]

Death being a single indivisible penalty and the only penalty prescribed by law for the crime of
rape when the victim is under eighteen (18) years of age and the offender is a parent, the court
has no option but to apply the same regardless of any mitigating or aggravating circumstance that
may have attended the commission of the crime [108] in accordance with Article 63 of the RPC, as
amended.[109] In similar per curiam cases, involving the rape by a father of his minor daughter, the
Court had imposed the penalty of death.[110] The case at bench carries with it the penalty of death
which is mandatorily imposed by law [111] within the import of Article 47 of the RPC, as amended,
which provides:

MENDOZA, J.:

The death penalty shall be imposed in all cases in which it must be imposed under existing
laws, except when the guilty person is below eighteen (18) years of age at the time of the
commission of the crime or is more than seventy years of age or when upon appeal or automatic
review of the case by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall bereclusion perpetua.
In an apparent, but futile attempt to mislead this Court, appellant quoted the amended
complaint in its Brief underscoring the words eighteen (18) years of age [112] but omitted the word
under to show that the victim was already at least 18 years old at the time of the rape. And, it is
neither controverted nor contested that the victim was below 18 years of age when her father raped
her on January 23, 1996. It can be easily verified from the records that his daughter was born at
about 5:30 a.m. on January 20, 1980 as shown in the latters authenticated Certificate of Live Birth.
[113]
Simple arithmetic would show that on the day she was raped, only three days has just lapsed
since the victim celebrated her sixteenth (16) birthday. Besides, appellant did not object to the
victims testimony that she was 16 years old. [114] The testimony of a person as to her age is
admissible although another hearsay, though she can have no personal knowledge of the date of her
birth, as all knowledge as to ones age is acquired from whatever is told by the parents or

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABUBAKAR ANG-NGUHO, accusedappellant.

DECISION

This is an appeal from the decision,[1] dated March 19, 1997, of the Regional Trial Court, Branch
2, of Isabela, Basilan, finding accused-appellant guilty of murder with the aggravating circumstances
of treachery and band and sentencing him to death and to pay the heirs of the victim, Pianang Salih,
the sum of P3,000.00, as actual damages, and the further sums of P250,000.00, as moral damages,
and P500.00, as costs.
The information against accused-appellant Abubakar Ang-Nguho[2] and nine others alleged:
The undersigned, 2nd Assistant Provincial Prosecutor II of Basilan, accuses Nuruddin Muddalam alias
Not, Hasim Muddalam, Pungo Mandul, Kusain Hajibain, Ummal Maneh, Hassanul Lamsinul,
Abubakar Naggoho, Marid Hamsain, Oh Kusain and Lamsinul Hinting of the crime of Murder,
committed as follows:
That on or about the 1st day of May, 1995, and within the jurisdiction of this Honorable Court, viz., at
Amaloy Barangay, Municipality of Tipo-Tipo, Province of Basilan, Philippines, the above-named
accused, armed with assorted high-powered firearms, conspiring and confederating together, aiding
and assisting one with the other, with treachery and evident premeditation and with intent to kill, did
then and there willfully, unlawfully and feloniously assault, attack and shoot Pianang Salih with the
said firearms, thereby inflicting gunshot wound penetrating the abdomen of the latter, which caused
her death.

Contrary to law.[3]

Dep-Dep when his parents died because there was no one to work on their four hectares of land in
that place.

Of the 10 accused, only accused-appellant was arrested. He pleaded not guilty.[4]

The victim, Pianang Salih, 45 years old, was a resident of Barangay Amaloy, Tipo-Tipo,
Basilan. The certificate of death [5] stated that the cause of her death was Cardio-pulmonary arrest
due to Hypovolemic shock secondary to Gun shot wound penetrating the abdomen.
Her brother, Hadji Muin Salih, was at her bedside when she died on May 1, 1995 at 12:05 p.m.
(per her death certificate) at the Juan S. Alano Memorial Hospital. He testified[6] that at around 9:30
a.m. on said date, before she expired, Pianang Salih identified accused-appellant as her
assailant. Hadji Muin Salih also testified that he spent P3,000.00 for his sisters confinement in the
hospital, while their relatives spent for her burial. Earlier, on May 18, 1995, Hadji Muin Salih gave a
sworn statement[7] regarding what she had allegedly told him before she died.
Another witness for the prosecution was Sattar Sahi, also a resident of Amaloy, Tipo-Tipo,
Basilan, who claimed he had seen the shooting. He said that the incident took place at 6:00 in the
morning of May 1, 1995; that at that time Pianang Salih was at the artesian well taking a bath while
he was on his way to the artesian well to draw water; that at a distance of about 20 meters, he saw
seven armed men who fired indiscriminately at the houses in the village, but, one of them, accusedappellant, aimed his firearm at Pianang Salih; that the armed men belonged to the Lost Command;
that while accused-appellant fired at the victim several times, only one bullet actually hit her; that
although Pianang Salih was hit on the left side, she managed to run towards her house before she
fell; and that she was taken by her sister, Hadji Satra Salih, to the Juan S. Alano Memorial Hospital
where she died.[8] Sattar Sahi earlier executed an affidavit [9] on May 18, 1995 giving an account of
what he allegedly had witnessed.
Next to testify was SPO2 Alberto Polio, [10] who investigated the killing of Pianang Salih. In his
report,[11] dated May 22, 1995, he stated that there was a prima facie case for murder against
accused-appellant and Nuruddin Not Muddalam, Hasim Muddalam, Pungo Mandul, Kusain Hajibain,
Ummal Maneh, Hassanul Lamsinul, Marid Hamsain, Oh Kusain, and Lamsinul Hinting, all of whom
belonged to the Moro National Liberation Front (MNLF) Lost Command at Amaloy, Tipo-Tipo, Basilan
Province.
Dr. Pilardo Perez, who was the attending physician of Pianang Salih when she was brought to
the Juan S. Alano Memorial Hospital, testified that the victim was already unconcious when he
attended to her.[12]
Accused-appellant testified solely in his behalf. He denied he was in Barangay Amaloy at the
time of the shooting on May 1, 1995 because he was then in Lamitan with a certain Ombeng to
watch a movie of Andrew E, and alleged that he only learned about the shooting when he went home
to Dep-Dep. He said that the reason he was being implicated in the killing was because the residents
of Dep-Dep had a standing feud with the residents of Amaloy. Accused-appellant admitted that he
knew Nuruddin Muddalam, alias Not, the reputed leader of the Lost Command, but he said he
was afraid of him and the latters companions because they were killers. He denied knowing the
other accused Kusain Hajibain, Hassanul Lamsinul, Oh Kusain, Pungo Mandul, Ummal Maneh, Marid
Hamsain, and Lamsinul Hinting. He said that he worked in Sabah, but that he had to go home to

The RTC, relying mainly on the identification of Sattar Sahi and on the dying declaration of
Pianang Salih given to her brother Hadji Muin Salih, found accused-appellant guilty of murder. The
dispositive portion of its decision, dated March 19, 1997, reads: [13]
WHEREFORE, premises considered, this Court finds the accused, ABUBAKAR ANG-NGUHO, GUILTY
beyond reasonable doubt as principal, for committing the crime of MURDER as defined and penalized
under Art. 248 of the Revised Penal Code as amended by Republic Act No. 7659 wherein he
treacherously shot and killed Pianang Salih with a garand rifle on the 1st day of May, 1995 at
Barangay Amaloy, Tipo-Tipo, Basilan and taking into consideration the two (2) aggravating
circumstances of treachery and the crime was committed by a band, without any mitigating
circumstances to offset any one of them, hereby sentences said accused, ABUBAKAR ANG-NGUHO, to
suffer the extreme penalty of DEATH.
And to pay the heirs of Pianang Salih the sum of P3,000.00 as actual damages and the sum
of P250,000.00 as moral damages as well as the cost of this proceeding in the amount of P500.00.
The provincial Warden of the Province of Basilan is hereby directed to immediately transport the
person of Abubakar Ang-Nguho to the National Penitentiary at Bilibid Muntinlupa, Rizal, where he
shall be confined awaiting the review of [t]his decision by the Supreme Court.
The word immediately is mandatory in order to prevent the escape of this accused from detention
where he can join his co-accused band who are still roaming around in the Municipality of TipoTipo. And this is what happened to Jaham Dahas who has been sentenced by this Court to Reclusion
Perpetua but before he could be transferred to the Bilibid Prison at Muntinlupa, Rizal, he, together
with other inmates staged a jailbreak at the Provincial Jail, at Isabela, Basilan. And now he is out to
commit another heinous crime.
IT IS SO ORDERED.
The decision of the trial court was supplemented by the following order, dated April 7, 1997: [14]
Considering that in the decision of this case, the Court have failed to issue an order with respect to
the other accused who were at large, then the following is hereby ordered entered to become a part
of the decision, to wit:
l. That with respect to his co-accused, namely: Nuruddin Muddalam alias Not, Hasim Muddalam,
Pungo Mandul, Kusain Hajibain, Ummal Maneh, Hassanul Lamsinul, Marid Hamsain, Oh Kusain and
Lamsinul Hinting, who are still at large, the case against them is hereby held pending, due to nonarrest.
But considering the uncertainty as to when they or any one of them shall be arrested, then the record
of this case is hereby sent to the archives and the warrant for the arrest of all the afore-mentioned
accused is hereby issued.

SO ORDERED.
Hence, this appeal. Accused-appellant contends:[15]
I
THE COURT A QUO ERRED GRAVELY IN GIVING MUCH CREDENCE TO THE EVIDENCE PRESENTED BY
THE PROSECUTION TO THE DAMAGE AND PREJUDICE OF THE ACCUSED-APPELLANT.

In this case, while Pianang Salihs ante-mortem statement allegedly given to Hadji Muin Salih
may satisfy the requirements of Rule 130, 37 for admissibility, [26] it is doubtful whether the same
was actually made, in view of the fact that according to the prosecutions own evidence, Pianang
Salih was so seriously injured that she could not talk anymore. Thus, Sattar Sahi testified that, when
he tried to assist Pianang Salih after the assailants had left, she could no longer talk. [27] The attending
physician, Dr. Pilardo Perez, likewise testified that Pianang Salih was already unconscious when he
saw her and that he was not able to talk to her. He said:[28]
Q

The first time you saw her at the hospital was that there was so much blood on her stomach,
is that correct?

Yes.

And when you saw her bathe in blood your impression that entered your mind was the
woman was merciless?

Yes.

You had that impression of the seriousness of the wound because of the fact that she was
unconscious at that time already?

Yes.

When you attended to her she was unconscious?

Yes.

And the fact that she was unconscious she was not able to talk to you?

Yes.

She was moaning with pain and she would not talk?

Yes.

II
THE LOWER COURT HAS ERRED SERIOUSLY IN IMPOSING AND METING OUT THE DEATH PENALTY
UPON THE ACCUSED-APPELLANT NOTWITHSTANDING THE PRESENCE OF REASONABLE DOUBT
CALLING FOR HIS EVENTUAL EXCULPATION OF THE CRIME CHARGED HEREIN.
We find accused-appellants contentions well taken.
Sattar Sahis alleged eyewitness account is improbable and unworthy of credence. Sattar Sahi
claimed he saw the shooting from a distance of 20 meters and that when the shooting started, he
immediately dropped to the ground and sought cover. [16] He identified the armed men to be Hasim
Muddalam, Ummal Maneh, Hassanul Lamsinul, Marid Hamsain, Nuruddin Muddalam, Pungo Mandul,
and accused-appellant. According to him, the first four had a Garand, while Nuruddin Muddalam and
Pungo Mandul were both armed with M-16 Armalites. [17] As for accused-appellants weapon, Sahi at
first testified that accused-appellant had a Garand. [18]Later, he said that accused-appellants firearm
was an M-16 Armalite.[19] Despite considerable constraints, he was able to identify all seven men and
even their respective firearms. Yet he cited the same constraints in explaining why he could not tell
which of the armed men, if any, wore Muslim headgear. [20]
His claim that accused-appellant was armed with an M-16 Armalite makes even more
improbable his other testimony that while accused-appellant fired at Pianang Salih several times,
only one bullet pierced her body.[21] It is also a cause for wonder how Sattar Sahi could be so positive
that only one bullet hit Pianang Salih when there was a great commotion as the armed men,
according to this witness, went on a rampage, shooting wildly in all the directions at the houses of
the villagers.[22]
The suspicion cannot be helped that Sattar Sahi was a rehearsed witness. It is significant that
although the type of firearms carried by the men does not appear in Sattar Sahis affidavit [23] but in
that of Hadji Muin Salih,[24] it was only Sattar Sahi who testified regarding these details. Sattar Sahi
may have been present during the shooting, but it is more likely that he did not really see what he
claimed in his testimony because he was more concerned with his own safety.
As to Hadji Muin Salihs claim that before she died, Pianang Salih was able to identify the men
who fired at her, it must be stressed that the rule on the admissibility of dying declarations does not
determine their weight and credibility. These matters must be determined under the same rules
used in testing the weight and credibility of any other testimonial evidence. [25]

Hadji Muin Salihs testimony was also riddled with inconsistencies. He said that when he saw
his sister in the hospital she was already in the intensive care unit and was immediately attended to
by a doctor.[29] In the course of his testimony, however, he claimed he was able to talk with his sister
for an hour before she was treated by the doctor. [30] In his affidavit (Exh. B) he claimed that in that
one hour, Pianang Salihs mind was so lucid she could give the names of her assailants and the type
of weapons each one carried. This is indeed hard to believe because according to Sattar Sahi,
Pianang Salih was bathing herself when the shooting started.
There is also a serious inconsistency in the testimonies of Hadji Muin Salih and Sattar Sahi as to
who actually shot Pianang Salih. Hadji Muin Salih testified that according to his sister, all seven
armed men fired at her. [31] On the other hand, Sattar Sahi testified that only accused-appellant fired

at Pianang Salih, while the rest trained their firearms on the houses in the village. [32] This discrepancy
creates reasonable doubt as to the veracity of both testimonies.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO MOLINA y FLORES, accusedappellant.

More doubts as to the veracity of these testimonies stem from the fact that while they both
testified that seven armed men committed the shooting, in their affidavits and in the information in
this case, the number of armed men involved in the incident was ten. [33]

DECISION

Finally, it is noteworthy that both Hadji Muin Salih and Sattar Sahi gave their sworn statements
only on May 18, 1995, more than two weeks after the incident. The delay is hard to understand,
considering that both claimed they had knowledge of accused-appellants complicity. Hadji Muin
Salih is a brother of the victim and could not possibly have been fearful of reprisals as he did not
reside in the same municipality as the accused-appellant and the victim.

The present case is one for murder brought before us on automatic review, the capital
punishment of death having been imposed by the trial court. Accused-appellant, Romeo Molina, was
indicted for the crime of murder allegedly committed as follows:

To sum up, the prosecution has failed to make out a clear and convincing case for accusedappellants conviction. There are too many loose ends how many exactly were the men who
engaged in the shooting spree in Amaloy on May 1, 1995; whether it was accused-appellant alone
who shot the victim; whether it was a Garand rifle or an Armalite that he used; whether Pianang
Salihs condition after being shot was such as to allow her to identify those who shot her for the
Court to conclude that accused-appellants guilt has been established beyond reasonable doubt. It is
not sufficient for conviction that the evidence establishes a strong suspicion or even a probability of
guilt.[34] A moral certainty that the accused committed the crime is required. This was not
established by the prosecution in this case. The Court, therefore, has no other recourse but to acquit
accused-appellant.
We note that playing no small part in the conviction of accused-appellant in the eyes of the trial
court are perceived material inconsistencies in his testimony as to where he was at the time of the
commission of the crime. As the trial court noted, first, he testified that [at] the time of the incident
he was at Sabah, Malaysia as a construction worker, then he testified again that on May 1, 1995, he
was at Lamitan viewing a motion picture.[35]The inconsistencies pointed out, however, are more
apparent then real. What accused-appellant actually said was that he arrived from Sabah sometime
in April, less than a month before May 1, 1995, when the shooting occurred. [36] At all events, it is
immaterial where he was, considering, as previously stated, the prosecutors failure to establish
accused-appellants guilt beyond reasonable doubt. The defense of alibi does not have to be
inquired into as the prosecutions evidence did not satisfy the test of moral certainty. [37]
WHEREFORE, the decision of the Regional Trial Court, Branch 2, of Isabela, Basilan is
REVERSED and accused-appellant Abubakar Ang-Nguho is ACQUITTED on the ground of reasonable
doubt. He is, therefore, ordered immediately released from custody unless he is lawfully held in
custody for another cause.
The Director of the Bureau of Corrections is directed to implement this Decision and to report to
this Court the action taken hereon within five (5) days from receipt hereof.
SO ORDERED.
[G.R. No. 129051. July 28, 1999]

ROMERO, J.:

That on or about the 14th day of July, 1995 at barangay D Alarcio, municipality of Laoac, province
of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, with intent to kill
and with treachery, did then and there wilfully, unlawfully and feloniously attack, hit and stab
DOMINGO FLORES with the use of a stone and knife, inflicting to said victim the following injuries:
EXTERNAL FINDINGS:
- Contusion + lacerated wound 0.5 cm. over the left eyebrow
- Contusion + lacerated wound V-shape over the right parieto temporal area
- Contusion + lacerated wound over the occipital area
- Deep lacerated wound 2 cm. over the ant. neck area
- (+) Subcuteous emphysema base cervinal area
INTERNAL FINDINGS:
- Depressed Fracture over the occipital bone with minimal bleeding
- Linear fracture over the right parieto tempral bone
which injuries being mortal caused the death of said Domingo Flores to the damage and prejudice of
his heirs.
CONTRARY to Article 248, Revised Penal Code.[1]
On arraignment, accused-appellant with the assistance of counsel entered a plea of not guilty
and after trial, Judge Joven F. Costales of Branch 45 Regional Trial Court of Urdaneta, Pangasinan
rendered the decision[2]now under review, the decretal portion of which reads:
WHEREFORE, in view of all the foregoing, this Court finds the accused ROMEO MOLINA y Flores
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 circumstance of dwelling and hereby sentences him with the ultimum
supplicium of DEATH to be executed pursuant to Repbulic Act No. 8177 known as the Lethal Injection
Law and to pay the heirs of the victim DOMINGO FLORES in the amount of P50,000.00 as indemnity;
P40,000.00 as actual damages; P200,000.00 as moral damages; and to pay the costs.
Finally, it is said:
Dura lex, sed lex, translated as The law is harsh, but that is the law!

to July 14, 1995, there was no bad blood between him and the victim. In fact, he said, Domingo was
like a father to him and he saw no reason why the victims family would make any false accusations
against him.[7]
To corroborate the foregoing testimony of the accused-appellant, the defense presented Dr.
Noel Obedoza[8] and Alejandro Duyag, Sr.[9] Moreover, the policeman who prepared the investigation
report based on the police blotter entry regarding the killing of Domingo Flores and the investigating
officer assigned to the case were likewise called as witnesses to establish certain inconsistencies in
the initial statements of Melanie and Eufresinio.[10]
Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 states that:

SO ORDERED.[3]
The facts, as culled from the evidence of the prosecution are as follows:
On July 14, 1995, at around 10:00 oclock in the evening, Domingo Flores was asleep in his
house in DAlarcio, Laoac, Pangasinan. His daughter, Melanie, who was then listening to the radio,
was the only one in the household still awake at that time. Hearing a sound, she saw accusedappellant, her fathers cousin, barging in through the kitchen door and going straight to her fathers
room. She peeped through a curtain and saw accused-appellant hitting her sleeping father on the
head with a stone the size of a fist and afterwards stabbing him in the neck and eyebrow with a
knife. She was able to recognize her uncle as her fathers assailant because there was a lamp near
her fathers head at the time of the attack. Afraid that she too would be harmed, Melanie did not
immediately come to her fathers aid and instead watched as accused-appellant made good his
escape. It was only after Molina had left that she hastened to call her grandfather, Eufrosinio Flores,
who lived nearby.[4] Responding to Melanies cries, Eufrosinio found his son on the bed soaked in his
own blood. As Eufrosinio lifted his son onto his lap, Domingo, fatally wounded and bleeding, told his
father that it was his insan Romy who stabbed him. Hours later, Domingo died from his injuries
while being transferred to another hospital. [5] Post-mortem findings revealed that the cause of his
death was severe intracranial bleeding secondary to skull fracture and blood loss due to a stab
wound on the neck.[6]
On his part, Molina interposed the defense of alibi to exculpate himself from liability. According
to him, on July 14, 1995, he left his house in Cabilaoan, Laoac, Pangasinan at around three oclock in
the afternoon to borrow the plow of his uncle, Martin Molina, who lived in Manaoag,
Pangasinan. When he was returning home after getting the plow, he met the victim Domingo Flores
and Orlando Fernandez. Suddenly and without any provocation, the two who appeared drunk at the
time, took turns mauling him. Thereafter, he hailed a tricycle and told the driver to take him to the
Don Amadeo Perez, Sr. Memorial Hospital in Urdaneta, Pangasinan where his injuries were cleaned
and treated. The attending physician, Dr. Noel Obedoza, recommended that Molina be confined but
the latter refused, saying he had no money.
According to the accused-appellant, he stayed in the hospital waiting area up to eleven oclock
in the evening of July 14, 1995 until a nursing attendant in the said hospital, Alejandro Duyag, took
pity on him and brought him to the latters house where he spent the night. Molina claimed that he
has since stayed with Duyag for about a month as he did not want to go home for fear that his
attackers would harm him again. During his stay with Duyag, he worked for the latter as farm
helper. Accused-appellant further denied having had anything to do with the death of Domingo
Flores, claiming that he only learned of the killing more than a month later. He likewise said that prior

Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any
of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.
xxx.
In the case at bar, the identity of Domingo Flores killer is not unknown. The records show that
accused-appellant was positively identified as the assailant, not only by Domingos daughter Melanie,
who witnesses the stabbling, but also by the victim himself while the latter was in the throes of
death.
The requisites for the admissibility of dying declaration have already been established in a long
line of cases. Thus, in the case at bar, the victims ante-mortem statement is entitled to much
probative weight since it has been proven that: (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 the declarants death is the subject of the inquiry.
Indeed, a dying declaration is entitled to the highest credence because no person who knows of
his impending death would make a careless and false accusation. 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.[11]
Accused-appellant attempted to exculpate himself from liability by pointing out certain
inconsistencies between the sworn statements and the testimonies of Melanie and Eufrosinio. In
Melanies sworn statement, she said that she saw accused-appellant stab her father that fateful night
of July 14, 1995. However, she testified in court that she saw Molina hit her father twice in the head
with a stone before stabbing him on the left eyebrow and neck. Eufresinio, on the other hand,
averred in his sworn statement that Domingo, making his dying declaration, pointed to Molina as his
assailant, in the jeepney while the victim was being brought to the hospital; in his testimony,

however, Eufresinio clarified that the dying declaration was made while they were still in Domingos
house right after the latter was stabbed.
To our mind, these inconsistencies do not affect the credibility of the said witnesses. For one,
accused-appellant himself admitted in open court that prior to July 14, 1995, there was never any
bad blood between him and Domingo and that he saw no reason why the latters family would make
false accusations against him. Moreover, the alleged discrepancies may well be due to the fact that
at the time the sworn statements of the witnesses were taken, they were still in a state of grief and
shock, which explains why they were not able to relate accurately the events that transpired on the
night of the killing. Likewise, it should be noted that the sworn statements of the said witnesses were
prepared by police investigators and misapprehension by the latter of the facts related by the
witnesses cannot be discounted. In any case, the records bear out the fact that during the trial, both
Melanie and Eufresinio were able to clarify their averments in their respective sworn statements and
despite the gruelling cross-examination, they managed to consistently and credibly maintain their
version of what actually happened.
It should be reiterated that discrepancies between the affidavit of a witness and his testimony
in court do not necessarily discredit him because it is a matter of judicial experience that affidavits,
being taken ex-parte, are almost always incomplete and often inaccurate. [12] Besides, as the lower
court cited, the testimonial discrepancies could have been caused by the natural fickleness of
memory which tends to strengthen, rather than weaken credibility as they erase any suspicion of
rehearse testimony.[13] Furthermore, as this Court has time and again observed, it is when the
testimony appears totally flawless that a court may entertain misgivings on its veracity. In fact,
certain minor variances in the details of a witness account, more frequently than not, can be badges
of truth rather than indicia of falsehood, and they often bolster the probative value of the testimony.
[14]

Moreover, well entrenched is the rule that inconsistencies and discrepancies in the testimony of
witnesses, when referring only to minor details and collateral matters, do not affect either the
substance of their declaration, their veracity, or the weight of their testimony. Although there may
be inconsistencies on minor details, the same do not impair the credibility of the witness where there
is consistency in relating the principal occurrence and positive identification of the assailant, as in the
case at bar.[15]
With respect to the accused-appellants defense of alibi, suffice it to say that denials and alibis,
unsubstantiated by clear and convincing evidence, are negative and self-serving and deserve no
probative weight especially in light of the testimonies of credible witnesses who have positively
identified the accused as the assailant. In addition, it has been held that for an alibi to prevail, the
defense must establish by positive, clear and satisfactory proof that it was physically impossible for
the accused to have been at the scene of the crime at the time of its commission, and not merely
that the accused was somewhere else, [16] as Molina claimed in this case. Accused-appellant himself
admitted on the witness stand that from the hospital where he was treated for his injuries, he could
have easily taken a tricycle ride to get to the victim's house. [17]

As to the manner in which Molina killed the victim, the same was undoubtedly attended by
treachery since the accused attacked Domingo while the latter was asleep and unable to defend
himself. There is alevosiawhere the attack was sudden and unexpected, rendering the victim
defenseless and ensuring the accomplishment of the assailants evil purpose without risk to himself.
[19]

Likewise, the generic aggravating circumstance of dwelling was properly appreciated by the
trial court, considering that Molina purposely entered the victims abode with the intention to kill
him. Article 14 (5) of the Revised Penal Code provides that where the crime was committed in the
dwelling of the offended party and the latter has not given any provocation, the same is considered
an aggravating circumstance. As Viada puts it, The home is a sort of sacred place for its owner. He
who goes to anothers house to slander him, hurt him or do him wrong, is more guilty than he who
offends him elsewhere.[20]
It should be emphasized that for dwelling to be appreciated as an aggravating circumstance,
there must have been no provocation on the part of the victim. The provocation contemplated here
is one that is sufficient and immediate to the commission of the crime. In other words, the invasion
of the privacy of the offended partys house must have been the direct and immediate consequence
of the provocation given by the latter as where, for example, the accused and the victim quarelled in
front of the latters house and the accused, in a fit of rage entered the victims house and proceeded
to stab him.[21] Such is not the situation in the case at bar because the killing in the victims house
occurred at least six hours after the accuseds mauling.
There is, however, the mitigating circumstance of vindication of a grave offense to offset the
generic aggravating circumstance of dwelling. As the records show, accused-appellant was treated
for injuries he sustained when he was mauled in the afternoon of July 14, 1995 and the prosecution
did not offer anny rebuttal evidence to deny the allegation that Domingo was one of the men who
beat up Molina. Indeed, that accused-appellant was mauled for no apparent reason by someone who
looked up to as a father understandably engendered a strong feeling of vengeance on his
part. Sadly, however, he chose to take the law into his own hands to sate his thirst for revenge.
WHEREFORE, in view of the foregoing, the judgment of the trial court convicting the accused
for murder is hereby AFFIRMED with the MODIFICATION that the penalty is reduced from death
to reclusion perpetua, the generic aggravating circumstance of dwelling having been offset by the
mitigating circumstance of vindication of a grave offense.
No costs.
SO ORDERED.
[G.R. No. 111149. September 5, 1997]
PEOPLE

This Court has had occasion to rule that alibi is one of the weakest defenses an accused can
invoke, and the courts have always received it with caution, if not suspicion, not only because it is
inherently unreliable but likewise because it is rather easy to fabricate. [18]

OF THE PHILIPPINES, plaintiff-appellee,

HERNANDEZ, ARNOLD MENDOZA & JESS
appellants.

DECISION

vs. RENATO BAUTISTA, ARMAN

SABARIN (At large),defendants-

HERMOSISIMA, JR., J.:

Manila, June 1, 1993.[2]

Accused-appellant Renato Bautista, together with three (3) other co-accused namely, Arman
Hernandez, Arnold Mendoza, and Jess Sabarin, were charged with the crime of MURDER before
Branch V of the Regional Trial Court of Manila, National Capital Judicial Region, under an Information,
dated February 28, 1990, which reads:

The aggravating circumstance of abuse of superior strength was considered by the trial court
against accused-appellant to qualify the killing to murder. The court a quo also ruled that the killing
was attended by the generic aggravating circumstance of evident premeditation (not alleged in the
Information), but found that the same was offset by the mitigating circumstance of provocation.

The undersigned accuses RENATO BAUTISTA, ARMAN HERNANDEZ, ARNOLD MENDOZA and JESS
SABARIN of the crime of murder, committed as follows:
That on or about December 14, 1989, in the City of Manila, Philippines, the said accused, conspiring
and confederating together and helping one another, did then and there wilfully, unlawfully and
feloniously, with intent to kill and with abuse of their superior strength, attack, assault and use
personal violence upon RODEL YARZA Y LOPEZ, by then and there mauling and stabbing him with a
bladed weapon, hitting him on the left side of his body, thereby inflicting upon the said RODEL YARZA
Y LOPEZ mortal stab wound which was the direct and immediate cause of his death.
Contrary to law.
FELY CELESTIO E. TABANGAY

Maintaining his innocence, accused-appellant filed an appeal before this Court.

The Peoples version of how the killing occurs differs somewhat from that of the appellants.
Here is the peoples version.
On December 14, 1989, at around 8:30 in the evening, Rodel Yarza arrived at his home located
at 1325 Abad Santos Street Tondo, Manila, from Divisoria, where he had been selling pants, t-shirts
and bags. After dinner, he told his wife, Zenaida, that he would play a game of cards, locally called
pusoy, somewhere in their neighborhood.
At about 9:00 oclock that evening, his wife went out of their house to fetch her husband. She
saw him playing cards with accused Arman Hernandez, Jess Sabarin, Arnold Mendoza and appellant
Renato Bautista. When Rodel Yarza saw her, he told his wife to go home ahead and that he would
soon follow.

Asst. City Prosecutor[1]

The aforesaid case was docketed as Criminal Case No. 90-82463. On March 26, 1990, the trial
court issued warrants of arrest against the four (4) accused. Herein accused-appellant Renato
Bautista was arrested at his parents home located at 1337 Sevilla Street Tondo, Manila, while his
three (3) co-accused remained at large.
Upon arraignment, accused-appellant pleaded Not Guilty to the charge. Thereafter, trial
ensued against accused-appellant alone.
On June 1, 1993, the trial court rendered a judgment of conviction, the dispositive portion of
which states:
WHEREFORE, judgment is rendered finding the accused Renato Bautista guilty beyond reasonable
doubt of the crime murder, and hereby sentences him to serve the penalty of RECLUSION PERPETUA,
accessory penalties provided by law, and to indemnify the heirs of the victim in the amount of Fifty
Thousand (P50,000.00) Pesos and to pay the costs.
Let warrant of arrest be issued against accused Arman Hernandez, Arnold Mendoza and Jess Sabarin .
Atty. Viterbo Tagarda is awarded an honorarium of Six Hundred (P600.00) Pesos as attorneys fees
subject to the availability of funds.
SO ORDERED.

Shortly after she reached home, Zenaidas brother, Alex Tablizo, informed her that her husband
was seriously stabbed and that he was brought to the Mary Johnston Hospital.
Zenaida left immediately for the hospital where she saw her husband lying down, profusely
perspiring, pale and very weak.[3]
She went beside her husband and noticed a stab wound on the lower part of his armpit. She
asked him who it was who stabbed him. Rodel replied, Nette, my playmates and the one who
stabbed me was Rene.[4] Nette, he was the son of Efren Baculaw, the short-changer in Divisoria. [5]
About 10 to 15 minutes prior to Zeniadas arrival at the hospital, Efren Bautista, the father of
appellant, and his wife, Teresita, were already there obviously waiting for Zenaida. Efren Bautista
assured Zenaida that they will help defray part of the hospital expenses. And, in the course of his
conversation with Zenaida, Efren Bautista said that, before the stabbing incident, he saw appellant
enter their house, get a knife and then leave immediately. His sons unusual behavior moved Efren to
follow him.
Because Zenaida could not afford the fees at Mary Johnston Hospital, she was forced to transfer
her husband to the Jose Reyes Memorial Hospital at Avenida Rizal Tondo, Manila. At about 11:00
oclock that evening, Rodel was rushed to the emergency room of the Jose Reyes Memorial Hospital
where he was operated on. At around 2:30 oclock down , the following day, Rodel expired.
Accused-appellant Renato Bautista unraveled a different story:

At approximately 8:00 oclock in the evening of December 14, 1989, herein accused-appellant
Renato Bautista was playing cards with his friends along Abad Santos Street Tondo, Manila. During
the game, the deceased Rodel Yarza, for no apparent reason, hit accused-appellant with a bottle on
the left side of the head. Immediately after being hit by the victim, Renato Bautista, instead of
retaliating, went home to his parents house at Sevilla Street Tondo, Manila, in order to report the
incident to his father. On the way home. However, accused-appellant saw his co-accused Arman
Hernandez, Arnold Mendoza and Jess Sabarin, drinking in an alley. He told the three (3) co-accused
that the victim, Rodel Yarza, hit him on the head with a bottle. Upon hearing this, Hernandez,
Mendoza and Sabarin immediately proceeded to the place where the aforesaid incident took place,
while herein accuse-appellant went on his way home. Upon reaching his parents house, accusedappellant found out that only his mother, Teresita Bautista, was there. He waited for his father for
nearly thirty (30) minutes. Not meeting his father, he went back to Abad Santos Street, where the
victim Rodel Yarza had hit him on the head with a bottle, followed closely by his mother, Teresita
Bautista.
When accuse-appellant and Teresita Bautista reached the aforesaid place, there was already a
scuffle going on between the victim, Rodel Yarza, on the one hand, and Arman Hernandez, Arnold
Mendoza and Jess Sabarin, on the other. The defense maintains that Teresita Bautista was able to
hold herein accused-appellant, successfully preventing him from joining Hernandez, Mendoza and
Sabarin in assaulting Yarza.

Q: When you were there standing, could you still recall what unusual incident that
happened?
A:

Yes, sir.

Q: What was that unusual incident?

A:

Somebody was chasing my cousin, sir,

Q: Could you remember who are those chasing your cousin?

A:

Rene Bautista, Arnold Mendoza, Ricky Sabarin.and Arman Hernandez.

Q: While those persons you mentioned were chasing your cousin, what else, if any
happened?
A:

Those four were chasing my cousin, mauled him and even removed his eyeglasses.
My cousin was running when being chased by these four persons.

Q: Who is this cousin of yours?

We sustain the conviction of accused-appellant.

Direct evidence abound against accused-appellant. Take the following eyewitness testimony of
Charlie Yarza, witness for the prosecution:

A:

Rodel Yarza, sir.

Q: After that, what happened, if any, Mr. Witness?

xxx
xxx

xxx
A:

Q: Mr. Witness, on or before or about December 14, 1989 about 9:00 p.m., could you still
remember where you were?

Q: Who is that who stabbed him?

A:

A:

I saw him stabbed my cousin at Moriones Street.

Rene Bautista, sir.

Yes, sir.

Q: Tell the Honorable Court where were you on such time and date?

Q: What about the other three accused, what did they do, if any? More particularly Arman
Hernandez?

A:

A:

I was at the corner of Abad Santos Street and Cristobal.

He is helping him, sir.

Q: Where is that located?

Q: What was he doing?

A:

A:

Manila, sir.

Q: Would you kindly tell the court what were you doing there at that time and date at the
corner of Abad Santos?

Q: Would you tell the court what specifically this Arman Hernandez doing?
A:

A:

No, sir. I was just standing.

He was helping his three companions, sir.

They were chasing Rodel Yarza, sir, and killed him.

Q: About this Arnold Mendoza, what particular thing did he do?

A:

A:

Q: What is his condition?

He was also chasing Rodel Yarza, sir.

xxx
xxx

xxx

A:

Emergency room, sir.

He was profusely perspiring and very weak.

Q: Were you able to talk to your husband when you arrived in his bedside?
Q: What about Ricky Sabarin that (sic) you mentioned?
A:
A:

Yes, sir.

He was the one who hit Rodel Yarza, sir. He used a dust pan.
Q: What did you say to your husband?

xxx
xxx..[6]

xxx
A:

More importantly, the victim, Rodel Yarza, made a dying declaration before life was finally
snuffed out of him. Zenaida Yarza, wife of the victim, testified in open court as to what her husband
told her when asked who was responsible for the stabbing:
xxx
xxx

xxx

A:

A:

I went immediately to the hospital, maam.

Q: What time was that when you went, rather, when you were informed by your brother
that your husband was at the Mary Johnston Hospital?
A:

Q: Did you notice any stab wound?

Yes, sir.

Q: Where was his stab wound?

Q: What did you do after hearing that your husband was stabbed?
A:

I asked him, who did that to him, maam. I wanted to know from him who was(sic) his
enemies and who stabbed him.

Between 9:30 to 10:00 p.m., maam.

On his body lower part of his armpit because at the time because( sic) his shirt was
removed.

xxx
xxx

xxx

Q: When you asked that question to your husband, you(sic) who did that to him, what
happened after that?

Q: You said you immediately went to the hospital, what hospital did you go?

A:

A:

Q: What else did your husband tell you?

Mary Johnston Hospital, maam.

He said, Nette, my playmates and the one who stabbed me was Rene.

Q: Did you find your husband there?

A:

A:

Q: Aside from this Rene whom you mentioned stabbed him, did he mention the name of
his playmates?

Yes, sir.

He told me, Nette, he was the son of Efren Baculaw, the short changer in Divisoria.

Q: What is he doing when you saw your husband?

A:
A:

Yes, sir.

He was pale and in bed perspiring, sir.

Q: What names did he mention to you by your husband(sic)?

Q: What department of the hospital?

A:

Arnold Mendoza, Ricky Sabarin, Arman Hernandez.

xxx
xxx.[7]

xxx

This, we consider to be a dying declaration. The general rule is that [A] witness can testify only
to those facts which he knows of his personal knowledge; that is, which are derived from his own
perception xxx.[8] Any other testimonial evidence outside the witness personal knowledge is
hearsay and downright inadmissible. In fact, hearsay evidence, even if not objected to during trial
and thus admitted, should carry no probative value whatsoever. [9] Nevertheless, the Rules and
jurisprudence provide certain well- recognized exceptions to the hearsay rule among which is a dying
declaration found under Section 37, Rule 130:
Dying declaration--- The declaration of a dying person, made under the 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.
There are two (2) obvious reasons for the admissibility of a dying declaration: (a) necessity and
(b) trustworthiness. Necessity, because the declarants death renders impossible his taking the
witness stand. And trustworthiness, since the declaration is made in extremity, when the party is at
the point of death and every hope of this world is gone; when every motive to falsehood is silenced,
and the mind is induced by the most powerful consideration to speak the truth. A situation so solemn
and awful is considered by the law as creating an obligation equal to that which is imposed by an
oath administered in court,[10] There are four (4) requirements for the admissibility of a dying
declaration, to wit:
[1]

That death is imminent and the declarant is conscious of that fact;

[2]

That the declaration refers to the cause and surrounding circumstances of such death;

[3]

That the declaration relates to facts which the victim is competent to testify to; and

[4]
inquiry.[11]

That the declaration is offered in a case wherein the declarants death is the subject of

Accused-appellant maintains that the testimony of Zenaida Yarza to the effect that the victim
told her that it was accused-appellant who stabbed him should not be admitted as a dying
declaration simply because it was not made under a consciousness of impending death, which is
the most important and decisive requisite for a statement to qualify as a dying declaration.
We do not agree. While it is true that the victim, Rodel Yarza, did not explicitly mention that he
knows or feels that he is about to die, this does not negative the fact that the victim, who was
already pale, weak from a fatal wound, and perspiring profusely, was conscious of his impending
death at the time he declared to his wife who attacked and stabbed him. He in fact died a few hours
thereafter. The law does not require that the declarant explicitly state his perception [12] that he has
given up the hope of life.[13] It is enough if, from the circumstances, it can be inferred with certainty
that such must have been his state of mind.[14] Judged by the nature and extent of his wounds, there
can be no other conclusion than that the victim must have realized the seriousness of his condition.

Thus, it can safely be inferred that he made the declaration under the consciousness of impending
death.
Dr. Marcial G. Ceido, the Medico-Legal Officer who conducted the necropsy examination upon
the deceased, testified as to the degree and seriousness of the stab wound suffered by the
victim, viz.:
xxx

xxx

xxx

Q:
I will now call your attention Dr. to your post mortem finding in the first paragraph thereof,
external injuries and on no. 1 penetrating stab wound 45.5 inches measuring--- 1.5 centimeter by
10.5 centimeters in depth direct obliquely forward and downwards, etc., please tell the court where is
this penetrating stab wound?
A:

It is at the back, sir.

xxx

xxx

xxx

Q:

What do you mean by this penetrating wound?

A:

This pass(sic) thru the cavity of the left thorax cavity.

Q:
You said, you were the depth is (sic) measuring 1.5 cm.. by 10.5 cm. in depth, please
demonstrate to the court the exact or the extent of the depth of this penetrating stab wound?
A:

10.5 cm. to 3.69.

xxx

xxx

xxx

Q:
Because the depth has penetrating stab wound more or less 4 inches from the back of the
scapular, what internal organs were penetrated?
A:

Lower lobe of the left lung, sir.

Q:
What was the effect if any of this stab penetrating wound 4 inches in depth, that penetrated to
the lower lobe of the left lung?
A:

Hemorrhage and shock caused his death, sir.

Q:
You said there was a penetrating wound, what kind of a weapon could have cause this kind of
stab wound?
A:

Pointed bladed weapon.

Q:

Like a knife?

A:

Like a bolo, sir.

Q:

Would you consider this wound a mortal wound?

A:

Yes, sir.

Q:

Could it have been(sic) caused by(sic) instantaneous death?

A:

Immediate, sir.
xxx

xxx

xxx.[15]

Perforce, the stab wound, located at a sensitive part of his body, which punctured a vital organ
(the lower lobe of the left lung), coupled with the abrasions he suffered at the middle right arm and
at the bend of the right elbow, [16] are sufficient to have made Rodel Yarza realize that he will not
survive. This ante mortem statement by the victim is entitled to highest credence for scarcely would
a person who knows of his impending death make a careless, let alone false accusation. [17] At the
threshold of death, all thoughts of fabricating lies are stilled. [18] In this case, particularly, there is no
iota of evidence presented by the defense that would show that the declarant as well as his wife,
Zenaida Yarza, had any ill-motive to falsely implicate accused-appellant to the crime other than to
seek justice for the victims death.
Accused-appellant insists that had the victim believed his death was imminent, he would have
immediately given the details of the attack against him; instead, he acquiesced to his wifes
suggestion, while they were at the hospital, that they talk about it later after his condition be safe
first.[19] Thus, the defense argues, the victim Rodel Yarza, at the time he gave his so-called dying
declaration was confident that he would recover from his wounds.
We are unpersuaded. The hope to survive, as we know, springs eternal in the human heart, but
then the victim knew in this case that his life was, notwithstanding medical intervention, slowly
ebbing away. Contrary to the contention of the defense, Rodel Yarzas alleged acquiesence to his
wifes suggestion that they talk about the details of the incident later when his condition be safe
first bolsters the position that, indeed, the victim was only too aware of the seriousness of his
condition.
Moreover, the fact that Rodel Yarza did not expire right after his declaration to his wife at about
10:00 oclock in the evening of December 14, 1989, but survived until 2:30 oclock the following
morning, or about four (4) hours from the time he made the declaration, will not alter the probative
force of his dying declaration since it is not indispensable that a declarant expires immediately
thereafter. It is the belief in impending death and not the rapid succession of death, in point of fact,
that renders the dying declaration admissible. [20]
Added to the statement of the deceased, which deserves the highest credence, is the fact that
it was only Renato Bautista who had the motive to kill the victim considering that, according to the
defense, the victim hit accused-appellant with bottle on the left side of the head while the latter was
playing cards with his friends. This act of violence is more than sufficient to have impelled accusedappellant to get back at the victim.

Furthermore, Zenaida Yarzas testimony that Efren Bautista, father of Renato Bautista, told her
at the hospital that accused-appellant, on the night the crime was committed, went home, took a
knife and ran away from him, remains unrebutted by the defense. There is also the fact that Efren
Bautista offered to help defray the medical expenses of the victim. This does not at all support
accused-appellants claimed innocence. The relevant portions of Zenaida Yarzas testimony on these
points follow:
xxx
xxx

xxx

Q: Was there any conversation that took place between you and the parents of Efren
Bautista, his wife, and the parents of Renato Bautista?
xxx
xxx
A:

xxx

Yes, sir.

Q: What did the paremts of Renato Bautista tell you?

A:

He told me, he was wondering why the boy went home and took a knife and ran
away, sir, and what he did was to follow his son.

xxx
xxx
A:

xxx

And then he told me I will help for whatever expense you incurred.

Fiscal:
Q: Who told you these statements?
A:
xxx

Efren Bautista, the father of Rene Bautista, sir.

xxx

xxx.

[21]

The defense could have easily impeached the foregoing testimony by presenting Efren Bautista
on the stand but, suprisingly, it did not. In any case, Zenaida Yarzas testimony on her conversation
with accused-appellants father at the hospital cannot be challenged on the ground of being hearsay
for they constitute independently relevant statements. Zenaida Yarza merely testified as to what
Efren Bautista told her at the hospital. Cetainly, this is within Zenaidas personal knowledge for she
actually saw and heard the things that Efren Bautista told her. The statements attributed to Efren
Bautista were offered not to prove the truth of the facts stated therein but only to prove that those
statements were actually made.

While we sustain the conviction of accused-appellant, the trial court, however, erroneously
considered the aggravating circumstance of evident premeditation against accused-appellant. For
there to be evident premeditation, the prosecution must prove: (1) the time when the offender
determined to commit the crime; (2) an act manifestly indicating that the culprit has 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.[22] The essence of premeditation is 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. [23] In this case, there is simply an entire
absence of evidence to prove that Renato Bautista had deliberately planned to commit the crime,
and had persistently and continuously followed such plan. The interval between the initial altercation
between the victim and accused-appellant up to the time that accused-appellant allegedly
committed the crime,[24] is definitely not a sufficient lapse of time to give the defendant an
opportunity to coolly and serenely deliberate on the meaning and consequences of what he planned
to do. The absence of the aggravating circumstance of evident premeditation, however, will not alter
the penalty imposed by the lower court in light of the presence of abuse of superior strength alleged
in the information, which qualifies the killing to murder. The victim, who was alone and unarmed,
clearly, was no match against his four (4) assailants, two (2) of whom were armed, one, accusedappellant Renato Bautista, with a knife, and the other, Ricky Sabarin, with a dust pan. It is evident,
therefore, that the culprits took advantage of their collective strength to overpower their lone and
helpless victim.

did then and there willfully, unlawfully and feloniously attack, assault, stone, and stab several times
one, PERLITO JARMIN y Bayron, hitting him in different vital parts of his body which caused his
instantaneous death. That as a result of the criminal acts of the accused, the heirs of the deceased
suffered the following damages, to wit:
1.

Loss of earning capacity

2.

Moral damages

3.

Death Indemnity

P12,000.00
10,000.00
30,000.00

TOTAL

P52,000.00

CONTRARY TO LAW, with the aggravating circumstances [sic] of recidivism, accused having been
previously convicted by final judgment before the City Court of Dapitan (now MTCC) on the following
crimes, to wit:
1.

Criminal Case No. 13087, for Slight Physical Injuries, convicted on June 6, 1973;

2.

Criminal Case No. 13223, for Resistance; and

3.

Criminal Case No. 13224, for Disturbance of Public Order, convicted on March 12, 1975;

4.

Criminal Case No. 13536, for Slight Physical Injuries, convicted on January 31, 1978.

WHEREFORE, the Decision of the court a quo dated June 1, 1993 is hereby AFFIRMED in toto.
SO ORDERED.
[G.R. No. 104400. January 28, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANTIAGO PADAO Y ELCAMEL alias
"Sunny", accused-appellant.
DECISION

City of Dapitan, February 29, 1988."

[2]

Upon arraignment, accused-appellant pleaded not guilty. Trial on the merits ensued which
found the accused guilty of the crime charged. The trial court's summary of the facts is as follows:

TORRES, JR., J.:

Assailed in this appeal is the decision of the Regional Trial Court, Branch 7, Dipolog City,
Zamboanga del Norte, dated January 30, 1992, convicting the accused-appellant Santiago Padao
alias "Sunny" of the crime of murder, and sentencing him to suffer the penalty
of Reclusion Perpetua and to indemnify the heirs of the deceased in the sum of P50,000.[1]
On February 29, 1988, accused-appellant was indicted for the crime of murder qualified by
treachery and evident premeditation, with the aggravating circumstance of recidivism, for the killing
of Perlito Jarmin in an information, viz.:
"That in the evening, on or about the 4th day of February, 1988, in Sitio Mantutugas, Barangay
Sulangon, City of Dapitan, within the jurisdiction of this Honorable Court, the above-named accused,
armed with a bolo and stones, with intent to kill by means of treachery and evident premeditation,

"Arnulfo Lacay, 51 years of age, and a resident of Mantutugas, Sulangon, testified that at about 8:00
o'clock on the night of February 4, 1988, while lying down for a rest, waiting for supper that his wife
was then preparing, he heard somebody calling for help about thirty meters away from his house.
For four times he heard the call sounding, "Noy Nulfo, Tabangi ko" (Noy Nulfo, help me), and it kept
on nearing. His wife and children got scared, and scampered away. He too was scared, but he got a
kerosene lamp, proceeded to the door only to meet the man whom he recognized as- Perlito
Jarmin. The man was weak, his face bruised, and his body was soaked with blood. He helped him lay
his body on the ground near the rock, as the former fell off from his position. When asked what
happened to him, Perlito answered that he was stabbed by Sunny (referring to Santiago Padao,
accused). Hearing other voices of two persons coming nearer them (t.s.n., Lago,. May 30, 1988, p.
3), he decided to leave Perlito and proceeded to the house of the barangay captain to report the
incident. Along the way, he notified some of his neighbors that "Perlito is in their house that he might
be dead already."

It took him time to see the barangay captain, as the wife informed him that the latter was not in their
house but in the Sulangon market. Having met the barangay captain in the market, the two then
proceeded to the Dapitan Police Station to report the incident.
Reacting to the report that same. evening, a team of policemen was dispatched to the scene of the
crime. The investigation was conducted. Meanwhile, people were already gathered in the area,
bringing with them torches and lamps thus illuminating the same. Perlito Jarmin was already
dead. There were multiple stab wounds on his body, spurts of blood were found by the walls of the
house, a bolo stained with blood was found near the house post, while the kerosene lamp was broken
and found about 1.5 meters from the deceased. (Exh. B.)
After the probe, the police team brought the dead body to the house of the deceased, in turn
notifying the wife about it. From there, they proceeded to the house of Sunny, called for him of which
the wife appeared informing them that Sunny was sleeping inside. Having found nothing from
Sunny, they proceeded to the house of Alonzo Elumbaring, and then to the house of Adam Esmade,
where the Lacay family took refuge. The time was then eleven in the evening, and the group
returned to the Police Station. Arnulfo Lacay passed the night at Adam Esmade's house, his cousin,
together with his family.
xxx

xxx

"2.
Stab wound, horizontal, about 4 cm. long, directed backwards and upwards at an angle of 30
degrees from the horizontal plane, located at the 6th intercostal space, mammary line.
"3.
Stab wound, diagonal with the lower left tip about 10 degrees below the horizontal plane, 4
cm. long, located about 5 cm. below the xiphoid process at the midline, with a portion of the
perforated stomach sticking out.
"4.
Stab wound, vertical, about 4 cm. long, located about 1 cm. below wound # 2, and about 2
cm. from the midline, with a portion of the transverse colon sticking out.
"5.
Stab wound, horizontal, 4 cm. long, located 2 cm. below wound #3 and 1 cm. left of the
midline with a portion of the momentum and small intestines sticking out.
"6.
Stab wound, slanting inwards, through and through about 3 cm. long located on the medial
aspect of the right forearm, about 2 cm. from the wrist. The cut ends of the tissues were directed
towards the tip of the wound.
"7.
Stab wound, horizontal, 1 cm. long, located at the level of the 6th rib, midscapularline,
hitting the left scapula.

xxx
The widow of the deceased, Irene Ramoga, also testified for the prosecution. For one thing she
claimed that Sunny and Perlito were not in good terms.

"8.
Stab wound, 1 cm. long, located about 1 cm. below wound #6 and hitting the scapula. "Cause
of death: cardiac arrest due to multiple stab wounds." (Exh. C, p. 73)
xxx

On May 18, 1989, Ronald Lacay testified. He is 13 years of age and the son of Arnulfo Lacay. He
revealed that like his mother and the rest of the Lacay household, he heard Perlito's call for help, that
all of them scampered away, except him, as he jump out of the window, and hid himself downstairs
under the house. Though scared he peeped through the killing incident. He saw his father help
Perlito get a better position near the rock on the ground. He heard his father ask about what
happened but he couldn't figure out the answer. Why he could identify Perlito, he reasoned out that
he is familiar with the man because he is their friend and neighbor, and he was then illuminated by
the kerosene lamp and the shining moon. He was only about 5 meters away from the two, and when
his father left Perlito, he could still hear him cry for help. "Tabang, Noy Nulfo, tabang Nang Sayo."
(Help Noy Nulfo, Help Nang Sayo!) Suddenly, Sunny came to the picture, saying "Unsay Tabang, Noy
Nulfo" (What help, Noy Nulfo!), threw the kerosene lamp right away, and crushed something many
times to Perlito's body, until no sound could be heard anymore from the former. He claimed that he
could identify Sunny for the same reasons that he could identify Perlito. He was so frightened that he
went to the house of Adam Esmade, his father's cousin. In his affidavit (dated February 11, 1988), he
swore to the details of what he saw. It was then followed by another affidavit (dated February 15,
1988) where he singled out Sunny, and this he maintained during the direct and cross-examination.
On February 5, 1988, Dr. Artemio Nielo, City Health Officer of Dapitan City, conducted the Post
Mortem Examination [3] on the victim's body, the result revealed the following:
"1.

Rigor mortis was present and complete.

xxx
xxx

The accused's main defense was alibi. His wife Wenifreda Padao corroborated his testimony
and testified that accused was already asleep on the night the crime took place.
On January 30, 1992, the court a quo rendered the assailed decision, thus:
"WHEREFORE, this Court finds accused Santiago Padao y Elcamel guilty of murder, within the bounds
of moral certainty. He is hereby sentenced to reclusion perpetua, including the accessory penalties,
with credit to his detention, to such extent as determined, and to indemnify the heirs of the deceased
the sum of P50,000.00 and costs.
IT IS SO ORDERED."

[4]

On appeal, accused-appellant interposes six (6) assignment of errors, to wit :

1. IN FAILING TO APPRECIATE, CONSIDER OR OTHERWISE HOLD AGAINST THE PROSECUTION
ITS FAILURE OR OMISSION TO PRESENT IN EVIDENCE THE BOLO, STONE AND BROKEN
PIECES OF BOTTLE THE ACCUSED IS CHARGED WITH HAVING ARMED HIMSELF WITH IN
ATTACKING, ASSAULTING, STONING AND STABBING THE VICTIM, THUS MAKING THE RULE
OPERATIVE THAT EVIDENCED SUPPRESSED IS ADVERSE TO THE PROSECUTION IF
PRESENTED;

2. IN FINDING THAT THE ACCUSED IS THE "UNIDENTIFIED ASSAILANT" RESPONSIBLE FOR THE
DEATH OF THE VICTIM;

Q.

What did Perlito Jarmin do at this juncture when you were already out in the house
bringing a lamp?

3. IN HOLDING THAT TREACHERY ATTENDED THE COMMISSION OF THE OFFENSE AND

QUALIFIED THE KILLING FROM PLAIN HOMICIDE TO MURDER, AGGRAVATED BY RECIDIVISM;

A.

When he recognized me, he seated and lay down.

Q.

You mean he lay on the ground?

A.

Yes, sir.

Q.

When he was already on the ground, what did you do?

A.

I approached and went near him, and elevated himself and asked what happened to
you?

Q:

Did Perlito Jarmin answer you?

A:

Yes, sir.

Q:

What did he answer you?

A:

That he was stabbed by Sunny."

4. IN GIVING CREDENCE TO THE TESTIMONY OF RONALD LACAY, WHO NOT PLACED UNDER
OATH WHEN HE TESTIFIED, EXPRESSLY ADMITTED IN OPEN COURT THAT HIS AFFIDAVIT OF
FEBRUARY 11, 1988, WAS NOT TRUE, AS IT WAS HIS SECOND AFFIDAVIT DATED FEBRUARY
15, 1988 THAT CONTAINS THE TRUTH;
5. IN NOT FINDING THAT ACCUSED IS BEING FRAMED-UP BY ARNULFO LACAY, WHO TO
EXCULPATE HIMSELF FROM CRIMINAL RESPONSIBILITY, HAD TO IMPUTE THE CRIMINAL ACT
TO THE ACCUSED, A POLICE CHARACTER IN THE COMMUNITY WITH A STRING OF CRIMINAL
CONVICTIONS FOR VERY SLIGHT OFFENSES; AND
6. IN FINDING THE ACCUSED GUILTY OF THE CRIME CHARGE WITHIN THE BOUNDS OF MORAL
CERTAINTY DESPITE LACK OF PROOF BEYOND REASONABLE DOUBT.
Appellant contends that the prosecution failed to overcome the constitutional presumption of
innocence in the absence of positive evidence, direct or circumstantial that would warrant his
conviction. Appellant alleged that the prosecution's witnesses presented inconsistent affidavits and
the delay in revealing the identity of the accused would indicate that they were merely
concocted. Appellant likewise argued that the testimony of the eyewitness Ronald Lacay was not
under oath and that treachery is absent to qualify the crime as murder.
We find the appeal bereft of merit.
It appears on record that the evidence for the prosecution hinges on the testimony of two
witnesses, Arnulfo Lacay and his son, Ronald Lacay. Both witnesses testified that they heard the
victim asking for help, to wit:
"Q. Were you able to recognize this person?
A.

Yes, sir.

Q.

Who was this person?

A.

Perlito Jarmin.

Q.

What did you notice of the body of Perlito Jarmin at the time you saw him near your
house?

A.

He was soaked of his blood and there was bruise on his face.

[5]

Concededly, the statement of the victim Perlito Jarmin is admissible in evidence as a dying
declaration. The Court in a number of cases [6] had consistently upheld the admissibility of a dying
declaration, the requisites of which are present in the case at bar:
1.

That death is imminent and the declarant is conscious of that fact;

2.

That the declaration refers to the cause and surrounding circumstances of such death;

3.

That the declaration relates to facts which the victim is competent to testify to;

4.

That the declarant thereafter dies; and

5.
That the declaration is offered in a criminal case wherein the declarant's death is the subject of
inquiry.
Appellant was clearly identified by the victim himself in his dying declaration given to Arnulfo
Lacay. On this, the trial court stated that
"Subsequently, the Court also considers the instance when Perlito told Arnulfo that he was stabbed
by Sunny. Under Rule 130, Sec. 31, of the Rules of Court, as an exception to the hearsay rule, that
evidence can be admitted as a dying declaration. It appears that Perlito, in great pain suffering from
the multiple wounds inflicted on his body, bleeding and weakening, probably apprehensive all the
way that his injuries might prove fatal, identified the accused as his assailant (People vs. Mision, 194

SCRA 432). The Court believes that Perlito's statement as declared by him to Arnulfo, is entitled to
credence and constitutes sufficient basis that he had positively identified his assailant. On the basis
of the serious nature of Perlito's wounds, as would engender a belief on his part that he would not
survive therefrom, especially were he died an hour thereafter, his declaration will be deemed as
having been made under the consciousness of imminent death. (People vs. Arajo, L-24789, June 29,
1981 and other cases cited in Regalado, F., Remedial Law Compendium, 1985 edition, p. 826). [7]
Secondly, prosecution eyewitness Ronald Lacay, testifying under oath

[8]

declared:

"Q: When your father left to the house of Samuel Bayron, what did you notice?
A:

Perlito Jarmin again shouted for help.

Q:

How did he shout?

A:

'Tabang Manoy Nulfo', which means help Manong Nulfo. 'Help Nang Sayo."

Q:

Who is this Nulfo?

A:

My father.

Q:

Who is this Sanyo? [sic]

A:

She is my mother.

Q:

When Perlito Jarmin shouted for help, what did you observe?

A:

Somebody approached and said saying: "Unsay Tabang Manoy Nulfo."

Q:

Did you recognize who was that person who remarked "Unsay tabang Manoy Nulfo"?

A:

Yes, sir.

Q:

Who was that man?

A:

Santiago Padao.

Q:

Why were you able to recognize him?

A:

Because he was illuminated by the lamparilla.

Q:

How far was he from the kerosene lamp when you recognized him?

A:

More or less one meter.

Q:

Now, when Santiago Padao was about one meter from Perlito Jarmin, after saying
"Unsay tabang Noy Nulfo", what did Santiago Padao do?

A:

He crushed the kerosene lamp to the stone.

Q:

What happened to the kerosene lamp?

A:

It was broken.

Q:

And what did you observe after he got nearer to the body of Perlito Jarmin?

A:

He crushed something many times to the body.

Q:

Who crushed many times to the body of Perlito Jarmin?

A:

Sunny Padao.

Q:

Why were you able to observe when the kerosene lamp was crushed or broken?

A:

He was illuminated by the moonlight.

Q:

Are you familiar with Santiago Padao?

A:

Yes, sir.

Q:

Why?

A:

Because we are neighbors."

[9]

Appellant further avers that the failure of the prosecution to present the bolo, stone and broken
pieces of bottles which the accused is charged of having armed himself with in attacking, assaulting,
stoning and stabbing the victim, would lead to the conclusion that evidence suppressed is adverse to
the prosecution if presented. We do not agree. The non-presentation of these items by the
prosecution is not fatal because of the positive identification of the eyewitness Ronald Lacay. This is
further corroborated by the dying declaration of the victim as testified to by Arnulfo Lacay. These are
not essential, and need not be presented, as they are not indispensable evidence to prove
murder. The absence thereof, does not negate the occurrence of the murder nor lessen the
credibility of the witnesses. The trial court's findings were based on the direct positive and
categorical assertions made by the witnesses as regards the material occurrences. [10] In case of
murder or homicide, it is not necessary to recover the body of the victim or show where it can be
found. It is enough that the death and the criminal agency causing death is proven. [11]
Anent the inconsistent affidavits executed by the eyewitnesses, the same deserves scant
consideration. It has been held that discrepancies between the statements of the affiant and those
made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are

generally incomplete. [12] Affidavits are generally subordinated in importance to open court
declarations because the former are often executed when an affiant's mental faculties are not in such
a state as to afford him a fair opportunity of narrating in full the incident which has transpired.
[13]
Moreover, testimonial evidence carries more weight than affidavits. [14]
Further, appellant argues that there is delay in revealing the identity of the accused which
destroys the case of the prosecution. This is improbable. The belated disclosure of the identity of
the accused was satisfactorily explained by the testimony of the eyewitness Ronald Lacay, viz.:
"xxx
Q:

Why were you investigated again?

A:

Because I told them the truth.

Q:

How about in the first affidavit, did you tell them the truth?

A:

I did not. Because I was afraid of the reprisal of Santiago Padao."

Sunny strike something on the victim. The trial court gave weight to Ronald Lacay's positive
identification, and arrived at an inference that it was Sunny who inflicted the last blow which took
away the last sound of life from Perlito. [26] Considering the prosecution's evidence on record, we find
on balance that it was able to establish beyond reasonable doubt the culpability of accused-appellant
for having committed the crime of murder. In People vs. Asoy, [27] we stated,viz:
"It is a fundamental legal aphorism that the conclusions of the trial judge on the credibility of
witnesses command great respect and consideration especially when the conclusions are supported
by the evidence on record, and will not ordinarily be disturbed or interfered with. The only exception
to the rule is when the trial court plainly overlooked certain facts and circumstances of weight and
influence which, if considered, will materially alter the result. Such exception does not exist in the
case at bench."
ACCORDINGLY, the decision appealed from dated January 30, 1992, is hereby AFFIRMED in
toto and the appeal is hereby DISMISSED.
SO ORDERED.

[15]

Delay of witness in reporting to police authorities the crime he had witnessed, when adequately
explained, does not impair the witness' credibility, neither will it render his testimony biased, nor will
it destroy its probative value. [16] The initial reluctance of witnesses to volunteer information about a
criminal case and their unwillingness to be involved in criminal investigations due to fear of reprisal
are common and judicially declared not to affect credibility. [17] Fear of reprisal not only from the
accused but from the members of his family as well is a valid excuse for the momentary reticence of
the victim and prosecution witnesses. [18] In the same way, the belated disclosure of minor Ronald
Lacay as to the identity of the accused was adequately explained as his fear was overwhelming at
that time.

[G.R. No. 124914. July 2, 1997]

JESUS

UGADDAN, petitioner,
vs.
PHILIPPINES, respondents.

COURT

of

APPEALS

and

PEOPLE

OF

THE

DECISION
FRANCISCO, J.:

More importantly, appellant's defense of denial, "framed-up" and alibi are all inherently or most
frequently, weak defenses commonly rejected by trial courts. [19] Settled is the rule that the defenses
of alibi and frame-up are easily fabricated but hard to prove. [20] Denial is a self-serving negative
evidence that cannot be given greater weight than the declaration of credible witnesses who testified
on affirmative matters. [21] Suffice it to state, appellant utterly failed to prove by convincing evidence
that he was framed-up and that it was physically impossible for him to be at the scene of the crime
at the time it was perpetuated. The records show that the house of Arnulfo Lacay (crime scene) was
only about 30 to 50 meters from that of Sunny Padao's, more or less the same distance from that of
Alonso Elumbaring's [22], a distance that a mature man in reasonable health can traverse in
minutes. [23] The trial court was correct in not giving credence to the defense.
Appellant alleged that treachery is absent because there is no proof as to how the killing started
and the assailant's use of means to ensure the commission of the crime. We are not
persuaded. Treachery is apparent in the case at bar. All indications show, the mode of attack was
consciously and deliberately adopted by the accused to ensure the accomplishment of his criminal
objective. [24] The Post-Mortem report disproved the absence of treachery. The deceased, soaked in
his own blood, defenseless, and calling for help, weakened and dying, was still attacked, thus
employing means to insure or afford impunity. [25] Eyewitness Ronald Lacay testified that he saw

For the death of fellow policeman Paulino Baquiran, petitioner Jesus Ugaddan was charged with
homicide before the Regional Trial Court (RTC) of Isabela in following information:
That on or about the 27th day of January, 1991, in the municipality of Tumauini, Province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there,
willfully, unlawfully and feloniously, with intent to kill and without any just motive, assault, attack and
shoot with a firearm one Paulino Baquiran, who as a result thereof, suffered a gunshot wound at the
neck which directly caused this death.
CONTRARY TO LAW.[1]
After pleading not guilty, petitioner was tried and convicted in a decision, the dispositive portion of
which reads:
WHEREFORE, the Court finds the accused GUILTY beyond reasonable doubt of the crime of
HOMICIDE as charged in the Information, penalized under Article 249 of the Revised Penal Code. The
prescribed penalty for Homicide is reclusion temporal which is from twelve (12) years and one (1)
day to twenty years. Applying the indeterminate Sentence Law, the minimum penalty should be

taken from the penalty one (1) degree lower than the imposable penalty which is Prision Mayor in its
full extent, the range of which is from six (6) years and one (1) day to twelve (12)
years. Appreciating no mitigating circumstances in favor of the accused, the accused is accordingly
sentenced from EIGHT (8) YEARS and ONE (1) DAY of PRISION CORRECTIONAL,, as minimum, to
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY OF RECLUSION TEMPORAL as maximum;
to pay the Heirs of the victim the sum of P60,000.00 as full settlement of the civil damages as
stipulated upon on March 10, 1992, and contained in an Order of the Court dated March 10, 1992;
and to pay the costs.
SO ORDERED[2]
Dissatisfied, petitioner appealed to the Court of Appeals which affirmed the decision with slight
modification, the pertinent portion of its ruling states:
The Court a quo imposed on the Appellant an intermediate penalty of from Eight (8) Years and One
(1) Day of Prision Correctional, as Minimum to Fourteen (14) Years Eight (8) Months and One (1) Day
of Reclusion Temporal, as Maximum. As aptly observed by the Solicitor General, the minimum of the
penalty imposed should be dominated as Prision Mayor not Prision Correctional. Except as
hereinabove modified, the assailed Decision is in accord with the evidence on record and the law.
IN THE LIGHT OF THE FOREGOING, the assailed Decision if AFFIRMED except as hereinabove
modified. With costs against the Appellant.[3]
Failing to get an acquittal from his appeal, petitioner comes to this court via Rule 45 and
imputes error to the appellate court in affirming the court a quo's findings of fact and in giving
credence to the testimony of the prosecutions witnesses. In particular, petitioner contends (a) that
he is innocent of the charge insisting for his defense that the victim grabbed the formers service
pistol. Both of them were allegedly grappling for possession of the gun when suddenly two shots
were heard. Petitioner admits that one of the shots was fired from his gun while it was pointed
upwards due to the struggle[4] but alleges that the other shot was fired from outside the canteens
window. It was the latter shot according to petitioner, that hit the victim on the neck. He likewise
assails the (b) credibility of the prosecution witness in that the proffered dying declaration of the
victim as testified to by said witness was only fabricated by the latter. [5]
The antecedents as narrated by respondent court, essentially jibing with the trial courts finding
and ably supported by the evidence on record, are as follows: [6]
On January 27, 1991, at about 9:00 oclock in the evening, Pat. Paulino Baquiran of the Police Station
in Tamauini, Isabela was at the Geraldine Canteen, in Barangay Lingaling, of the same town, seated
beside table No. 4 (Exhibit C). The Appellant Police Corporal Jesus Ugaddan, of the same police
station, was also in the same canteen, seated beside table No. 1, about five (5) meters from where
Pat. Baquiran was seated (Exhibit C). Orlando Tagacay, a driver, was seated beside the third table,
near where Baquiran was seated (Exhibit C). In the meantime, Police Sergeant Romeo Tumolva
arrived, followed by Pfc. Antonio Manuel and Pat. Juan Anapi, all of the same police
station. Meanwhile, Emy,[7] an entertainer complained to the appellant that Baquiran poked a gun at
her. The latter forthwith stood up from his table and approached Baquiran from behind, drew his .38
caliber service gun from its holster, positioned himself in front of the right of Baquiran and fired his
gun at once at Baquiran, hitting the latter on the upper portion of the right side of his neck. The
bullet exited from the left lateral aspect of the victims neck. The Appellant then hurriedly left the
canteen and rode in a tricycle with a companion. Baquiran, on the other hand, fell to the cemented
floor of the canteen. Pat. Juan Anapi, Pfc. Antonio Manuel and Sgt. Romeo Tumolva rushed to where
Baquiran was and with the help of Anapi and Manuel brought him on board the police panel to the
Tamauini District Hospital. However, Baquiran was transferred to the Cagayan Regional Hospital
under escort of Pat. Juan Anapi. On January 28, 1991 at about 12:15 oclock, at dawn, Pat. Juan
Anapi, in the presence of Dr. Brainard Vagay posed queries to Baquiran and the latter replied to

Anapis question. The latter wrote his questions and the answers thereto of Baquiran on a piece of
paper (Exhibit D). Baquiran affixed his thumbmark on the said piece of paper with his own
blood. Baquiran could not use his hand to affix his signature because dextrose was administered to
him. However, Baquiran died on January 29, 1991 at about 3:30 oclock in the morning. Dr. Brainard
C. Vagay issued a Medico-Legal Certificate containing his findings on his examination of Baquiran:
SPINAL CORD INJURY PROBABLY CERVICAL 2ndary to GSW NECK
P.O.E. 0.5-1 cm. anterior aspect midline upper portion of neck w/ contusion collar
P.O. EX. circular wound about 1-2 cms. base of neck lateral aspect (L). (Exhibit G)
and issued a Certificate of Death attesting the demise of Baquiran and the cause of the latters
death as cardio-respiratory arrest secondary to gunshot wound xxx. (Exhibit H) Orlando
Tayag, Pfc. Antonio Manuel and Pat. Juan Anapi later executed their respective affidavits.
(Exhibits D, F& E).
The petition ought to fail.
By his own admission, petitioners defenses, which neccessitate the determination of who is
telling the truth, raises questions of fact and credibility. On such issues, applicable herein, is the
hornbook precept that factual findings of the trial court, specially when affirmed by the Court of
Appeals, are deemed final and conclusive by this Court when supported by substantial
evidence. Such findings should not be disturbed absent any significant facts and circumstances that
were overlooked, ignored or disregarded by the trial court which if considered would affect the
outcome of the case.[8]
Upon scrutiny of the records, the Court can neither accede to nor accept petitioners
unbelievable proposition that there was a grappling incident and that while said grappling was in
progress, the victim was hit by a shot from outside the canteen. Such contention was correctly
rejected by the trial court which is in the best position to weigh conflicting testimonies. [9] Moreover,
evidence to be believed must not only proceed from the mouth of a credible witness but must also be
credible itself.[10] Petitioners version can not be approved as probable under the circumstances by
the common experience and observation of mankind.[11] First, the grappling incident is not true and
did not occur for as properly explained by the responding court:
If Baquiran was himself armed, it was incomprehensible why he would still grab the gun of the
Appellant from its holster when he could have used his gun. And then again, the Appellant wanted
the court a quo to believe that Baquiran was already so inebriated such that he was, already
stopping (sic) stance beside his table. On the other hand, the Appellant claimed that he was not yet
inebriated at the time. It defies credulity that Baquiran still had the presence of mind and the
physical strength to grapple with the Appellant for the possession of the gun. As can easily be
gleaned from his pictures attached to his bond (page 3, Record) the Appellant is stocky and broad
shouldered. He could have overpowered Baquiran with facility.[12]
Second, in conformity with the trial court, the following disquisition of respondent court is fatal to
petitioners contention that the victim was hit by a shot from outside the canteens window:
If, as claimed by the Appellant, a person fired a gun from the right side and outside the canteen and
said person was standing as the Appellant and Baquiran, who were standing, were grappling for the
gun and shot Baquiran on the anterior aspect, midline upper portion of his neck, then the bullet must
have exited from the left midline upper portion, left lateral aspect of the neck of the
victim. However, as shown by the Medico-Legal Certificate of Dr. Brainard Vagay, Exhibit G the
bullet exited from the base left lateral aspect of the neck of the victim. The trajectory of the bullet

must have been downward instead of in a straight direction. On the other hand, the trajectory of the
bullet, as shown in Exhibit G is consistent with the testimony of Orlando Tagacay that the Appellant
was standing while Baquiran was still seated when the Appellant shot Baquiran on the Neck. [13]
Third, the two-shot theory was a product of wild imagination merely concocted by petitioner in his
vain attempt to exculpate himself from his wrongful deed. It cannot stand against the positive
declaration of a credible eyewitness who testified that he heard only one shot which was fired from
petitioners gun.[14] This single shot theory was affirmed and corroborated on the stand by the
prosecutions rebuttal witness who is also a police officer present in the scene of the crime. [15] Again,
the Court agrees with the trial courts well-explained rejection of the proffered two-shot theory
story. Thus,
"x x x (I)n the Counter-Affidavit presented and signed by the accused marked as Exhibit 3 for the
defense, executed on April 2, 1991, by the accused before Raymundo L. Aumentado, Public Attorney
III, the claim of the accused that there were two (2) gun reports was not surprisingly not stated which
fact he could have easily stated without being asked by his lawyer because this is a vital fact which if
true would casts serious doubt as to whether or not the victim was hit by the gun which they
grappled for the possession of or it was the gun allegedly fired outside the canteen through the
window. To the mind of the Court, the defense that two (2) gun reports were fired was merely an
afterthought which was conceived only during the presentation of the evidence for the defense. It
was utmost a self-serving assertion of the accused as against the positive and categorical testimony
of the prosecution witnesses.[16]

elusive and incommunicable evidence of the witness deportment on the stand, which opportunity is
denied to the reviewing court.[18] No cogent reasons or any substantial facts or circumstances were
overlooked, ignored or disregarded by the trial and appellate courts which if considered might alter
the outcome of the case. [19] The absence of the declarants signature in the written declaration was
adequately explained in that at the time it was taken, evidence on record shows that a dextrose was
attached to the victims hands. Moreover, no ill motive can be attributed to the police officer who
took the declaration. In fact, said police officer and petitioner are childhood friends. In addition, as
public officer, he has in his favor the presumption that official duty has been regularly
performed[20] which cannot be overcome by suspicions or conjectures. [21]Specially when no evidence
to the contrary was shown that he was wrongfully motivated or was biased or had a grudge against a
comrade-in-arms (petitioner).[22] It was the officer's duty to investigate crimes and make inquiries
from the victim as to what had happened. The defense simply failed to offer any piece of evidence
attributing to said prosecution witness any foul motive to falsely accused and incriminate a fellow
officer in so grave a crime. [23] Absence of evidence as to improper motive actuating said witness of
the prosecution strongly tends to sustain that no such motive existed and, thus, his credibility is
strengthened[24] and his testimony is worthy of full faith and credit.[25]
Dying declaration though generally hearsay are admissible in evidence as an exception to the
hearsay rule pursuant to Section 37 of Rule 130.[26] The above declaration under the factual milieu of
this case, has the vestiges of the accepted elements for the admissibility of a dying declaration which
are:

Petitioner next questions the credibility of the police officer (Pat. Anapi) who testified on the
victims alleged dying declaration prior to his death. The declaration taken by said police officer was
merely thumbmarked by the victim. Petitioner, thus, posits that declaration was merely fabricated
by said witness. The declaration contains the following:
Q:

Do you believe in GOD?

A:

Yes.

Q:

What is your name?

A:

Paulino Baquiran, Jr.

Q:

What happen (sic) to you:

A:

I was shot.

Q:

Who shot you?

A:

Cpl. Tuting Ugaddan.

Q:

When?

A:

At about 9:00 oclock, January 27, 1991.

Q:

Where?

A:

At the Geraldine (sic) Canteen, Lingaling, Tumauini, Isabela.

Q:

How do you feel?

A:

So painful.[17]

As mentioned, the issue raised is one of credibility of witnesses for which the Court adheres to
the settled ruling that the trial courts assessment and evaluation thereof are generally dealt with
great weight and respect on appeal due to the latter courts unique position of having observed that

--

the declaration must concern the crime and surrounding circumstances of the
declarants death;

--

it was made at a time when the declarant was under the consciousness of an
impending death;

--

the declarant would be competent to testify;

--

the declaration is offered in any case in which the decedent is the victim. [27]

Said declaration pertains to the identity of the declarants assailant and the instances that transpired
concerning what happened to him. At the time that declaration was made, the declarant was
hospitalized, wounded on the throat, and was very weak. [28] Combining these circumstances with the
victim-declarants aversion of pain creates upon the latter impression that his death is imminent and
immediate. The enigma of contemplating of a death-at-hand produces the most powerful
consideration that impels and induces the mind to speak the truth a situation so solemn and awful
as to be considered by law as creating an obligation equal to that which is imposed by an oath
administered in court.[29]
On his competency to testify, there is no allegation nor evidence on record which would support
the slightest impression that the declarant would have been incompetent to testify had he
survived. At the time of his death he was a member of the police force and is presumably capable of
perceiving, retaining what has been perceived and expressing what has been retained. These
circumstances suffice to sustain the presumption of his competency to testify at the material time.
Even assuming that the proffered dying declaration is inadmissible, it would in no wise affect
the overwhelming weight of evidence pointing to petitioners guilt considering the testimony of
several eyewitnesses who positively identified petitioner as having pointed his gun and later shot the
victim pointblank.[30]
Under Article 249 of the Revised Penal Code, homicide is punished by reclusion temporal. There
being neither mitigating nor aggravating circumstance, the imposable penalty is the medium period
pursuant to Article 64(1) of the said Code. Applying the Indeterminate Sentence Law, petitioner
could be held to suffer an indeterminate penalty from six (6) years and one (1) day - twelve (12)

years of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day seventeen (17) years and 4 months of reclusion temporal medium, as maximum.
WHEREFORE, finding no reversible error, the assailed decision of the Court of Appeals is
AFFIRMED in toto. Costs against petitioner.
SO ORDERED.

Dr. Wilfredo P. Santelices testified on the medico-legal certificate (Exh. A) and the certificate of death
(Exh. B). In the certification issued, the deceased suffered: (a). A gunshot wound 1 cm x 1 cm
paravertebral area at the level of T-T (1) point of entry and (b). gunshot wound 2 cm x 2 cm mid
clavicular line 1st intercostal space (L) point of exit. He was admitted (at) 8:15 P.M. on November 10,
1991 and expired at 9:10 P.M. on the same date. No powder burns at the point of entrance of the
wound were found and the wound of exit was about four inches above the wound of entrance. The
victim was shot from behind.

[G.R. No. 112687. June 19, 1997]

PEOPLE

OF THE PHILIPPINES, plaintiff-appellee, vs. ABNER

accused-appellant.

EUBRA

y BARTOLOME,

DECISION
REGALADO, J.:
Accused-appellant beseeches us to reverse the judgment of the Regional Trial Court of Virac,
Catanduanes, Branch 43, in Criminal Case No. 1863, declaring him guilty of murder [1] which,
according to the information filed therefor on January 9, 1992, was committed as follows:
That on or about the 10th day of November 1991, at Barangay Bagawang, Municipality of Pandan,
Province of Catanduanes, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused with intent to kill and with treachery and evident premeditation, did then and there,
willfully, unlawfully and feloniously shoot, one Abel Angeles with an unlicensed firearm, hitting him
mortally at the back of his body which resulted to the victims death to the damage and prejudice of
his heirs.
That this offense is aggravated by nighttime and use of an unlicensed firearm, as provided by Section
1, par. 2, P.D. No. 1866.[2]
On February 13, 1992, appellant, duly assisted by counsel, pleaded not guilty to the
information. On June 21, 1993, the trial court rendered its decision finding appellant guilty beyond
reasonable doubt of murder, and with the following decretal portion:
WHEREFORE, finding the accused GUILTY beyond reasonable doubt of the crime of MURDER defined
and penalized under Article 248 of the Revised Penal Code, he is hereby sentenced to suffer the
penalty ofreclusion perpetua.
The accused is likewise adjudged to pay the heirs of the victim the amount of FIFTY THOUSAND
(P50,000.00) PESOS, by way of indemnity, and FIFTY THOUSAND (P50,000.00) PESOS, by way of
actual and compensatory damages, and to pay the costs. [3]
The court a quo has made a commendably well-written presentation of the contending evidence
of the parties, and we have decided to sequentially reproduce the pertinent portions thereof,firstly,
so that the significant details thereof may not be lost in the synthesizing process, and, secondly, such
evidence recited in extenso will readily distinguish this case from other decisions involving unlawful
killings with the use of supposed illegally possessed firearms, as hereafter discussed.

Antonio Angeles testified that at more o(r) less 8:00 P.M., while on his way home to Paric, he noticed
that he was being followed. With the aid of his flashlight, he saw the accused point a gun at him. He
ran away and hid in the forest behind the church of Bagawang, then proceeded to the house of
Rodulfo Eubra where Roberto Olesco informed him of the death of his brother, Abel Angeles. On his
way to Pandan District Hospital, he dropped by the police station so that a statement could be taken
from his brother Abel. While in the hospital he asked the already serious Abel who shot him and was
told that it was the accused.
PO3 Jaime del Valle, the policeman on duty, proceeded to Pandan District Hospital and asked the
victim as to the identity of his assailant. The victim pointed to Eubra. Inasmuch as the victim was no
longer in a position to write, he just affixed his thumbmark on the written interrogation
(Exh. D) in
the presence of Dolores Evangelista and Julie Salazar.
Sulpicio Trinidad was fetching water from the faucet near his house in Bagawang, Pandan,
Catanduanes, when he saw the accused walking alone on November 10, 1991 at around 7:30 P.M.
towards the direction of the house of Teodorico Trinidad which was fifteen (15) meters away from
Trinidads place. The distance between him and the accused when the latter passed by was about
three meters. A few minutes later, he heard a gunshot followed by a cry for help from Lilia, the wife
of Teodorico. On his way to the said house, he saw the accused walking towards the east with a gun
in his hand. It was only a matter of seconds from the time he saw the accused running away from
the time when he saw the victim with a wound on his breast being helped by Mauricio Angeles and
Roberto Olesco. Trinidad claimed he had known the accused ever since he was a small boy, they
being barriomates.
Teodorico Trinidad was the owner of the house where the shooting incident happened. On November
10, 1991, they had a drinking spree in his place with Mauricio Angeles, Roberto Olesco, Crisanto
Angeles and the victim. They were facing each other around the table in the kitchen. The victim was
sitting on a stool at the end of the table with his back towards the wall (Exh. G). At around 7:30 P.M.,
he heard a gunshot outside the kitchen. He rose from his seat and opened the kitchen door. About
two meters away, he saw the accused holding a revolver, walking towards the east. Afraid that he
might be shot next, he closed the door. He informed his companions that he saw the accused. They
brought the victim to the hospital. On the witness stand, he identified several photographs,
particularly his house (Exh. H); the encircled hole where the bullet entered (Exh. H-1); the hole where
the bullet exited (Exh. H-2); the rattan line showing the projection of the bullet (Exh. H-3 and Exh. H3-A) and the stool where the victim was seated. When the victim was hit, he was sitting with both his
elbows on the table and his body bent a little forward. Witness admitted that he executed his
affidavit only on December 4, 1991 for fear of the accused who previously hacked the screen of his
store sometime in February 1991.

Zoe Angeles (sic, Santileces), the barangay captain of Bagawang, Pandan, Catanduanes, testified
that the hole where the bullet passed through smelled of gun powder. In the presence of two
members of the barangay council, he found the slug (Exh. I) which he turned over to the police
authorities. He was also present when photographs of the scene of the incident were taken. With
the use of a rattan, one end of which he placed through the hole where the bullet entered and the
other end, through the hole where the bullet exited, they were able to determine the trajectory of the
bullet. By re-enacting the position of the victim at the time he was shot, the rattan touched the
portion of his left arm. Again, standing near the wall, his nipple was on level with the hole of
entrance. He was 54 in height and about one inch shorter than the accused.

a rest. They later transferred to the house of Sylvia Trinidad across the street and consumed four
bottles of Beer Grande. At around 7:00 P.M. she saw Antonio Angeles pass by carrying a kerosene
lamp. He refused the offer of drink saying he was already drunk and was on his way home to
Paric. A little later, Zoe Angeles (sic, Santileces) came looking for his grandchild Norman. After the
barangay captain left, two policemen looked for her husband to accompany them to the house of
Willy Eubra. At around 9:00 P.M. two policemen picked up the accused. It was she and the wife of
the accused who met and talked with the policemen. The accused just stayed inside the house and
refused to go with the police officers until prevailed upon by the barangay captain (TSN, August 14,
1992, pp. 13-15).

Venerando Sanchez was the Deputy Station Commander who saw the accused wiping his hands with
a face towel soaked in vinegar while inside his detention cell on November 13, 1991, when the
accused learned that the relatives of the victim were requesting that a paraffin test be conducted on
him (accused).

She testified on cross-examination that the distance of her house to the house of Teodorico Trinidad
was about 100 meters and the normal time to reach it was less than thirty minutes when walking
slowly (Id., pp. 22-23). She emphatically declared that from 3:00 P.M. to 9:00 P.M., she never left him
out of her sight, not even when he urinated. When the accused left her residence to urinate, he just
went near an avocado three (Id., p. 26). The accused was not drunk on that particular date and
time (Id., p. 27).

The last prosecution witness was Elizabeth Angeles, the widow of the victim. She testified that the
accused had an axe to grind against her husband. Sometime in 1987, her husband filed a case
against the accused for threats to kill. This was amicably settled, however. In February 1991, the
accused threatened again the victims life when he testified against the accused for hacking the
screen of the window of Teodorico Trinidad. The accused was imprisoned for fifteen days. In the
morning of November 10, 1991 while the victim and his wife were taking breakfast, she was informed
by him that the accused threatened him again when they were buying meat in the house of the
victims brother. Although the incident was not reported to the police authorities, she, however,
advised her husband to be careful. She claimed that her husband was the sole breadwinner in the
family with three children to support. Her husband earned P200.00 to P500.00 a week by repairing
watches and radios. On account of his death, she spent P23,000.00.[4]
It will be observed that although the information alleged that appellant used an unlicensed
firearm, the entirety of the prosecutions evidence made no mention of any evidence on such fact
nor was there any attempt to prove the same, despite the vital role and significance thereof under
Presidential Decree No. 1866. The foregoing, therefore, constitutes the totality of the case for the
prosecution.
We now turn to the evidence for the defense consisting of the testimonies of Dr. Wilfredo P.
Santelices, Gracia Bartolome, William Eubra, Lydia Eubra, the appellant himself and some exhibits,
the trial courts recapitulation whereof we shall quote in equal measure.

William Eubra, the brother of the accused, was in his house on the night of November 10, 1991 when
two policemen picked him up. The police officers informed him that he was pointed to by Arnold
Angeles as having shot the victim. He meekly went with the two policemen (TSN, November 16,
1992, p. 6). In front of the house of Teodorico Trinidad, he was told to go home, so he went home.
Lydia Eubra, the wife of the accused testified on the conversation between the defense counsel, Atty.
Juan Atencia, and Jose Trinidad last May 29, 1992 in the house of her father-in-law.
The accused, when placed on the witness stand, impugned the credibility of prosecution witnesses
Antonio Angeles, Sulpicio Trinidad, Teodorico Trinidad and policeman Venerando Sanchez. He averred
that from 3:00 P.M. until 9:00 P.M. of November 10, 1991, he never left the group he was drinking
with. He urinated once in the place of Leonita Fernandez, but he never left the house (TSN,
December 14, 1992, p. 30).[5]
Finally, the lower court reports that, on rebuttal, Zoe Santelices denied that he went to the
house of Sylvia Trinidad, as claimed by Gracia Bartolome. He averred that on that particular date and
time, his grandson was employed with the Manila Knitting Company in Manila. The only time he went
there was when he accompanied the police officers to pick up appellant although he did not go up
the house with them.[6]

Dr. Santelices testified that based on the testimony of Teodorico Trinidad regarding the distance of
the hole of entrance of the bullet and the hole where the bullet exited, the trajectory of the bullet
was downwards. On a photocopy of a human body, he drew a line showing the upward trajectory of
the bullet as it entered the body of the deceased.

Before us, appellant now assigns, as errors committed the court below, its findings that (1) the
accused is guilty beyond reasonable doubt of the crime of murder, and (2) that treachery attended
the killing of Abel Angeles.[7] We find such imputations to be baseless and without merit.

Gracia Bartolome, the aunt of the accused, testified that from 3:00 P.M. until more or less 9:00 P.M.
on November 10, 1991, the accused and his wife and some other persons were together in a drinking
spree. When she and her husband attended the baptismal party in the house of Mr. and Mrs.
Felizardo Fernandez at 3:00 P.M., the accused and his wife were already there with three other
guests. They were able to consume six bottles of gin. The baptismal party ended at 6:00 P.M. and
thereafter, the accused, Lydia, Leonito Fernandez, she and her husband went to their place and took

The issues in this case principally rest on credibility. In this respect, the time-honored rule
virtually calcified by repetition is that when the issue is one of credibility of witnesses, appellate
courts will generally not disturb the findings of the trial court unless it has plainly overlooked certain
facts of substance and value that, if considered, might affect the result of the case. [8] This is obviously
so since the judge below is in a better position to pass judgment on the issue because it is he who
personally heard the witnesses testify and observed their deportment and manner of
testifying. Thus, his evaluation deserves no less than the highest respect of the appellate court. [9]

In the case at bar, there was no eyewitness to the actual shooting of the deceased. However,
the prosecutions evidence, although circumstantial in nature, is of a sufficient quantum to establish
the guilt of appellant beyond peradventure of a doubt. It is not only by direct evidence upon which
guilt may be predicated. The accused may be convicted on circumstantial evidence. [10]Circumstantial
evidence may be sufficiently cogent to satisfy the judicial conscience, and may be as potent as direct
testimony in tending to connect the accused with the commission of the offense. [11]
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for
conviction if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. [12] As jurisprudentially formulated, a judgment of conviction
based on circumstantial evidence can be upheld if the circumstances proven constitute an unbroken
chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of
all others, as the guilty person, i.e., the circumstances proven must be consistent with each other,
consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the
hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. [13]

gun, fleeing posthaste towards the east. [21] The gunshot also caught the attention of Sulpicio Trinidad,
who likewise saw appellant holding a gun and hastily proceeding east.[22]
Two days after his arrest, the Deputy Station Commander noticed appellant wiping his hands
with a face towel soaked in vinegar evidently in an attempt to erase traces of gunpowder burns as he
had learned that the victims relatives were requesting that a paraffin test be conducted on him.
[23]
The truth of that fact was reluctantly and indirectly affirmed by appellant when he testified to this
effect:
Q: By the way, policeman Venerando Sanchez said that on November 13, while you were
under detention at the municipal jail of Pandan, he saw you wiping your hands with a
face towel with vinegar, what do you say to that?
A:

That is not true, sir.

Q: But, did you have vinegar in that jail on November 13, 1991?
Undoubtedly, the requirements for circumstantial evidence to sustain a conviction are present
in this case. The sequence of events hereunder individually summarized constitutes sufficient
circumstantial evidence on the bases of which the guilt of appellant may be logically predicated and
validly concluded.
In the morning of November 10, 1991, the victim related to his wife that while he was buying
meat at the house of his brother, appellant threatened to kill him. [14] Appellant significantly admitted
that he was in that place in the morning of November 10, 1991, although he denied that he saw the
victim.[15]
Later in the evening, the victims brother, Antonio Angeles, while on his way home, noticed that
he was being followed. He focused his flashlight and saw appellant pointing a gun at him. He
immediately ran away and hid in the forest behind the church.[16] This fact was again confirmed by
appellant himself and his witness who testified that they saw Antonio on the night of November 10,
1991.[17]
Moments thereafter, Sulpicio Trinidad saw appellant pass by him proceeding towards the back
of the house of Teodorico Trinidad. Sulpicio was certain that appellant was the person who passed
by, because the place was sufficiently illuminated by the light coming from the nearby houses and he
has known appellant since he was still a small boy.[18]
At that precise time, the victim was having a drinking spree with Teodorico Trinidad and some
other friends in the kitchen of Teodoricos house. The victim was sitting on the stool at one end of
the table with his back facing the kitchen wall. [19]
Shortly thereafter, the victim was shot from behind, the bullet coming through a hole in the
kitchens wall, entering the back of the victim, and exiting from his chest. [20]
After hearing the shot, Teodorico Trinidad, the owner of the house, immediately rose from his
seat and opened the kitchen door. From a distance of about two meters, he saw appellant with a

A:

Yes, sir. I have vinegar during that time because I dipped the tinapa which I was
eating in that vinegar.[24]

x
x

COURT
Venerando Sanchez mentioned he saw the accused washing himself with a hand towel
soaked in vinegar.
Q: Do you know of any reason why Venerando Sanchez would testify for the prosecution in this
case?
A:

I dont know, sir.[25]

Moreover, in addition to the aforementioned circumstances, appellants motive for the

commission of the crime was satisfactorily established by the prosecution. Sometime in 1989, as
earlier narrated, the victim stabbed appellant, prompting the latter to charge him criminally. The
case, however, was amicably settled. Then, in February, 1991, appellant threatened to kill the victim
because the latter reported to the police that appellant hacked the screen window of Teodorico
Trinidad. The victim charged appellant with grave threats, which resulted in the latters
imprisonment for fifteen days sometime in September, 1991.[26]
Contrary to the denial of appellant, he did have the opportunity to commit the crime. The
estimated distance between the scene of the crime and the place where appellant was present at the
time the incident took place was between 70 and 250 meters. Defense witness Gracia Bartolome
testified without contradiction that to reach the house of Teodorico Trinidad from their place would
take less than thirty minutes even when one is walking slowly. [27]

We have endlessly stressed that for the defense of alibi to prosper, the accused must prove that
he was at another place for such a period of time that it was physically impossible for him to have
been at the locus delicti when the offense was committed.[28] It has been ruled that a distance of 1 to
2 kilometers from the scene of the crime is a weak alibi. It does not exclude the accused from the
possibility of committing it.[29] This is the present quandary of appellant from which he has not
managed to extricate himself.

This is the present doctrinal rule on the matter, following the unbroken reiteration of
the Pajenado dictum in subsequent cases as catalogued in People vs. Macagaling.[36] In view of the
abject failure of the prosecution to present any evidence on its allegation in the information that the
subject firearm was illegally possessed, the same cannot be considered as a component or an
element in the present concept of aggravated illegal possession of firearm nor, for that matter, as an
aggravating circumstance.

Appellant tries to cast doubt on the veracity of the testimonies of the prosecutions
eyewitnesses on the ground that they are relatives of the victim. This argument per se carries no
weight whatsoever. We have consistently held that mere relationship of a witness to the victim does
not impair his credibility as to render his testimony unworthy of credence where no improper motive
can be ascribed to him for so testifying. [30] There being no ill motives which can be attributed to the
prosecution witnesses in the present case, their positive and categorical declarations under the
solemnity of an oath on the witness stand deserve full faith and credence.

There being no aggravating or mitigating circumstances attendant to the crime, the trial court
correctly imposed the penalty of reclusion perpetua, representing the medium period of the penalty
of reclusion temporal in its maximum period to death, and which was the penalty imposable for the
simple crime of murder in this case at the time of its commission. [37]

On the matter of the supposed dying declaration of the victim, we agree with appellant that the
same cannot here be given weight, even assuming that the requisites for its admission are
present. Admissibility is one thing, and weight is another. A dying declaration of the victim
identifying his assailant will not be given probative value if the victim was not in a position to identify
his assailant as he was shot from behind.[31] However, even without that extrajudicial confession, the
circumstantial evidence presented by the prosecution unerringly points to appellant as the author of
the crime charged.
With respect to the second assignment of error, the trial court correctly appreciated treachery
to qualify the killing to murder. The victim was deliberately shot from behind, leaving him with no
opportunity to evade or put up a defense against such an unexpected and fatal assault on his
person. Where a victim was totally unprepared for the unexpected attack from behind and had no
weapon to resist it, the shooting cannot but be considered as treacherous. [32]
As hereinbefore stated, we have taken pains to set out in full the evidence adduced by the
prosecution in order to make it clear that this case does not belong to the genre illustrated by People
vs. Tac-an[33] and People vs. Caling,[34] et seq., regarding the Courts present categorization of the
aggravated form of illegal possession of firearms.
It is true that the victim in the case at bar was allegedly killed by the use of an unlicensed
firearm, as provided by Sec. 1, par. 2, P.D. No. 1866; but the difference lies in the fact that appellant
was not charged with illegal possession thereof as a concomitant element of the murder. In fact,
such unlicensed firearm was alleged in the indictment merely as a generic aggravating circumstance
which, of course, it is not.
More importantly, however, the summation of the Peoples evidence shows that there was no
proof whatsoever that the firearm involved was illegally possessed. In People vs. Pajenado,[35]after
reviewing previous conflicting rulings, we eventually held that (i)t cannot be denied that the lack or
absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The
information filed against appellant x x x specifically alleged that he had no license or permit to
possess the .45 caliber pistol mentioned therein. Thus, it seems clear that it was the prosecutions
duty not merely to allege that negative fact but to prove it.

WHEREFORE, the assailed judgment of the court a quo is hereby AFFIRMED, with costs against
accused-appellant Abner Eubra y Bartolome.
SO ORDERED.
[G.R. No. 94545. April 4, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO SANTOS y BAINGAN @
PRAN and VILLAMOR ASUNCION, accused, FRANCISCO SANTOS y BAINGAN @
PRAN, accused-appellant.
DECISION
PANGANIBAN, J.:
The threshold issue here is whether the antemortem statement of the deceased identifying the
accused constitutes a dying declaration sufficient to sustain the conviction of appellant.
This is an appeal from the Decision[1] of the Regional Trial Court of Cabarroguis, Quirino, Branch
31, promulgated on June 28, 1990, in Criminal Case No. 615, finding Appellant Francisco
Santos y Baingan guilty beyond reasonable doubt of murder. The dispositive portion[2] thereof reads:
IN VIEW OF ALL THE FOREGOING, the guilt of the accused having been proven beyond reasonable
doubt, the accused is hereby sentenced to reclusion perpetua and to indemnify the heirs of the
victim in the amount of Thirty Thousand (P30,000.00) Pesos plus all the accessory penalties provided
for by law. The detention of the accused shall be fully credited in his favor.
Cost against the accused.
SO ORDERED.
Appellant was charged with murder by Provincial Fiscal Anthony A. Foz in an Information [3] dated
November 18, 1987 which reads:

That on or about 7:30 oclock in the evening of September 18, 1987 in Barangay Ponggo,
Municipality of Nagtipunana, Province of Quirino, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one
another and armed with a long firearm of undetermined caliber, did then and there, with intent to kill
and with evident premeditation and treachery, shot one David Ambre which caused his instant death.

Lolita, the widow, 34, housekeeper, gave a sworn statement [7] to Pfc. Domingo D. Cuntapay on
September 25, 1987 implicating only Asuncion. The following day, during the preliminary
investigation, she executed an affidavit before Judge Felipe Castaneta, disclosing that her husbands
assailant was Francisco Santos.[8] On October 5, 1987, she executed another sworn statement before
Pfc. Cuntapay reiterating her previous statement to Judge Castaneda. [9]

That the following aggravating circumstances attended the commission of the crime:

Pedro Dayao Jr., 29, the Ambre spouses driver, testified that he was inside the Ambres house
that evening, rolling a rope, when he heard five (5) gun bursts. It was followed by the cry of Lolita
bellowing, Jun, they have shot your Manong![10] He rushed outside and then escorted Lolita and his
wife Corazon back to the house.

1. That the crime was committed during nighttime to insure impunity of the accused;
2. That the accused used unlicensed firearms in the commission of the crime.
CONTRARY TO LAW.
Upon arraignment, appellant, assisted by his counsel de parte, Atty. Ernesto S. Salunat, pleaded
not guilty. Trial proceeded against appellant only. Accused Villamor Asuncion remained at
large. Thereafter, the trial court rendered the assailed Decision. Hence, this appeal.

Dr. Teodomiro Hufana Jr., 58, married, municipal health officer of Maddela, Quirino, conducted
an autopsy on the victims cadaver. In his report,[11] the following postmortem findings appear:
Gunshot wound (entrance) roughly oval in shape about-7 mm. in dia. surrounded by contussoabraded colar located at the postero-lateral aspect of the left side of the body and about 7 cm. below
the angle of the axillary fossa, directed inward to the thoracic cavity injuring the left lung and
bisecting the lower ventricle of the heart and injuring the right lobe of the lungs making an exit at the
right hypochondriac region about 2 cm. in dia. and about 9 cm. below the nipple.

The Facts
Version of the Prosecution

Gunshot wound thru and thru at the latero-medical aspect of the distal third of forearm (entrance)
about 6 mm. in dia. medial aspect making an exit at the lateral aspect of the forearm with a distance
between the entrance and exit about 1.3 cm.

The prosecution presented witnesses Corazon and Pedro Dayao and Lolita Ambre to testify on
the circumstances of the crime; and Dr. Teodomiro Hufana Jr., on the results of the autopsy he
conducted.

Cause of Death: Severe internal hemorrhage secondary to gunshot wound.

Corazon Dayao, 25, married, was visiting at the Ambre residence to see her husband Pedro,
who was the driver of Mr. & Mrs. David Ambre. That evening of September 18, 1987 at about 7:30
oclock, she was in the terrace of the victims house sorting dirty clothing. The night was dark and it
was raining, but a Coleman lamp was placed atop the cement railing (pasamano) of the terrace,
lighting an area of about seven (7) meters. Only a terrace rail separated her from David, who was
around half a meter away from her. She noticed Lolita beside her husband. Just then, she heard five
(5) successive gunshots, and she saw David fall prostrate to the ground. Seeing that David wanted
to say something, she called Lolitas attention and said, Manang, adda kayat nga ibaga ni Manong
kenka. (Ate, it looks like Kuya has something to tell you.)[4] She pulled Lolita towards the
victim. Lolita asked her husband who had shot him and the latter answered, It wasPare Pran.[5] She
heard Davids words because, like Lolita, she had also placed her head near David who was still alive
at the time.
Lolita Ambre, the widow, testified that she and her husband had just come out of their
canteen. She washed her feet while her husband, facing north, looked at the drivers side of their
jeep. Then she heard a gunshot and her husband cried, Apo! Startled, Lolita jumped up and down
until she was told by Corazon that her husband wanted to tell her something. When she went near
him, he said, Pare Pran.[6] She knew that her husband was referring to Francisco Santos, the
godfather of their youngest child. She held her husband, but their driver took her inside the house.

He further clarified that, although the Certificate of Death he issued indicated that the Interval
Between Onset and Death was instant, he was sure the victim still had a few seconds or minute
before he actually died.[12] He opined that during those few seconds or minute, it was possible for a
victim to utter about two or three words, which could be audible and intelligible. Death due to
bullet wounds in the heart or lungs is not as instantaneous as that due to a bullet in the head.
Version of the Defense
Testifying in his own behalf, appellant, 41, married, declared that he and the deceased had
treated each other like brothers. Interposing alibi, he swore that when the crime was committed, he
was at his house waiting for his sick sisters arrival from Baguio. He did not leave his house until the
following day when he learned of the victims death. He and his wife even went to visit the wake of
the deceased.[13] He further denied that his alias was Pran. It was Frank.[14]
He also testified that a certain Mrs. Zeny Bayaua, a close friend of the widow, approached and
admitted to him, I know that you are not the one who killed, but you tell us those persons who
killed. He told her that he did not know the identity of the victims killer. [15]
To buttress this, the defense counsel, Atty. Ernesto Salunat, 44, married, testified that on one
occasion, Mrs. Bayaua asked him to, (p)lease convince your client Mr. Santos to tell who really killed
Mr. Ambre. He retorted that he was concerned only with appellant; to which Lolita and Mrs. Bayaua

responded, Kung sabihin lang ni pare Frank kung sino ang pumatay sa asawa ko hindi namin siya
ididiin..[16]
The defense also presented Mariano Pimentel, 49, married, Governor of Quirino, who testified
that his cousin-in-law Zeny Bayaua told him, "Manong adda gayam kenka ni Francisco
Santos. Manong awan met ket ti basol na ngem pinabasol mi laeng isuna tapno ipudno na no asinno
ti talaga nga pimmatay. (Kuya, Francisco Santos is staying with you; actually, Kuya, he is not the real
assailant but we just put the blame on him to pressure him to say who the real culprit is.) [17] He
summoned appellant who used to work as a janitor in the capitol during weekends. He was told by
appellant that he (appellant) did not know who killed the victim. Hence, he told appellant to tell his
lawyer what he had heard from Mrs. Bayaua.
Dr. David Longid, 42, a physician-surgeon and a former municipal health officer in Tabuk, was
called as an expert witness to establish that the death of the victim was instantaneous. However, Dr.
Longid admitted that the interval between onset and death of a person who had sustained wounds
in the heart and lungs depended on the caliber of the gun used and on his physical makeup. If he
was of strong build, his heart would still pump blood for a while and it would take more than ten
seconds before he would die. He declined to state whether it was impossible for the victim to speak
during those few seconds preceding death.[18]

The court a quo erred in totally believing prosecution witnesses Lolita Vda. De Ambre and Corazon
Dayao as regards their having allegedly heard the deceased impute the crime to appellant, although
the circumstances then obtaining negate such testimonies.
IV
The lower court erred in convicting appellant of the crime charged, instead of acquitting him
therefor.
The threshold issue is whether the last words of the deceased qualify as a dying declaration
sufficient to sustain appellants conviction.
Appellant contends that the victim had no chance to make a dying declaration, let alone make
any utterance, in view of his instantaneous death; that assuming arguendo that he was able to do so,
the uttered words failed to impute the crime to him; and that, under the circumstances, it was
incredible for the prosecution witnesses to have heard the deceased say anything. These
contentions are not persuasive. We shall discuss the issues in seriatim.
First Issue: The Instantaneous Death

The Trial Courts Ruling

The trial court considered the words of the victim as a dying declaration and a positive
identification of appellant against which the latters defense of alibi, the weakest defense in criminal
cases, cannot prevail.
Issues

The evidence on record does not at all support appellants contention that the victim died
instantaneously as to render a dying declaration physically impossible. Despite the statement in the
victims Certificate of Death that the interval between onset and death was instant, the
undisputed fact as positively and categorically testified to by Corazon and Lolita is that the victim
remained alive for a few seconds during which he was able to say Pare Pran. This view is bolstered
by the expert witnesses, Dr. Hufana and Dr. Longid himself who was presented by the defense, who
both testified that a bullet that had hit the heart and lungs did not necessarily result in instantaneous
death.

In his brief,[19] appellant assigns the following alleged errors of the trial court:
I

The testimony of the two doctors is bolstered by experts on the matter. Thus Pedro Solis, in his
treatise on legal medicine, states:

The lower court erred in believing that the victim David Ambre made an alleged dying declaration,
despite evidence that death was instantaneous and that he could not have uttered imputing words
after he was shot.

The heart may fail and cause death due to an existing disease independent of trauma. Coronary
insufficiency, myorcardial fibrosis, valvular lesion or tamponade due to the rupture of the ventricle
are common lesions.

II

Wounds of the heart are produced by sharp instruments, bullets or the sharp ends of the fractured
ribs. Contusion of the heart is easily produced on slight trauma on account of its vascularity. Wounds
of the ventricle if small and oblique are less dangerous than those of the auricle because of the
thickness of its wall. The right ventricle is the most common site of the wounds due to external
violence, because it is the most exposed part of the heart.

Assuming that the deceased could have made a dying declaration, the trial court nonetheless erred
in finding appellant to be the culprit although what was supposedly uttered by the deceased were
merely the words Pare Pran.
III

Foreign bodies like bullets, shrapnels, fragments of a shell may be embedded in the myocardium
without any cardiac embarrassment. The person may live for a long time and may die of some other
causes.[20] (Underscoring supplied.)

Solis opines further that a victim who has sustained injury to the heart may still be capable of a
volitional act like speaking, thus:

Q - Now, this is very important which I would like you to state, at that short period of time
in your estimation, how many minutes?

Sometimes it is necessary to determine whether a victim of a fatal wound is still capable of

speaking, walking or performing any other volitional acts. A dying declaration may be presented by
the prosecutor mentioning the accused as the assailant; the offender may allege that the physical
injuries inflicted by him while the victim was inside his house and that he walked for some distance
where he fell, or that the victim after the fatal injury made an attempt to inflict injuries to the
accused which justified the latter to give another fatal blow. The determination of the victims
capacity to perform volitional acts rests upon the medical witness.

A - I could not estimate, sir.

Q - Not even calculate for how long?
A - It was shorter than when I was seated here, sir.
Q - Now?

x x x Wounds of the big blood vessels, like the carotid, jugular or even the aorta, do not prevent a
person from exercising voluntary acts or even from running a certain distance. Penetrating wound of
the heart is often considered to be instantaneously fatal but experience shows that the victim may
still be capable of locomotion. Rupture of the organs is not always followed by death. The victim has
for sometime still retains (sic) the capacity to move and speak.[21] (Underscoring supplied.)
In People vs. Obngayan,[22] the Court resolved a similar issue of whether the victim could have
been conscious, notwithstanding the serious nature of his injuries, when his antemortemstatement
was taken. The Court observed:
x x x()The question as to whether a certain act could have been done after receiving a given
wound,() according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), is always one that
must be decided upon the merits of a particular case. They cited a case from Viberts Precis de Med.
Leg., 4th ed., p. 286, where a man after being shot in the chest threw a lamp at his adversary. The
lamp started a fire; and to extinguish the fire, the wounded man fetched a pail of water from the
court yard. When the fire was extinguished, the man lay down on bed and died. Vibert performed
the autopsy, and found that the left ventricle of the heart had been perforated by the revolvers
bullet. It is evident from the foregoing that Dr. Acostas assertion that the victim of a gunshot wound
immediately loses consciousness, after infliction of the wound, may not be true in all cases. x x x

A - Yes, sir.
Q - You mean coming from the place where you were or at the place where you were there
and take at your seat? (sic)
A - The moment I seated here, sir.
Second Issue: Dying Declaration
We affirm the ruling of the trial courts decision to consider the victims revelation to Lolita and
Corazon as a dying declaration and as a part of res gestae.

[25]

That the last words were uttered by the deceased is established by the testimony of Corazon,
thus:
"Q -What did you do when you saw David Ambre laid flat from (sic) the ground?
A - I called for his wife because he wanted to tell something, sir.

In the case at bar, it is therefore not amazing that the victim, despite his wounds, did not
immediately lose consciousness and was still able to recognize his assailant and relay the latters
identity to his wife.
Furthermore, the interval between the shooting and the utterance of appellants name did not
preclude the possibility of a dying declaration. Corazon testified that all these took place for a short
time only.[23] Lolita described the same period in this wise:[24]

Q -Who wanted to tell something?

A -David Ambre, sir.
Q -Do you mean to tell that David Ambre still alive when you saw him? (sic)

Q - And what did you do immediately after having heard the gun report?

A -Yes, sir.

A - I was jumping and jumping, sir.

Q -And what did you do when you saw David Ambre wanting to say something?

Q - For how long more or less?

A -I pulled his wife and we put our ear(s) near the mouth of David Ambre, sir.

A - A short time when the wife of the driver called me to attend (sic) my husband, sir.

Q -And what happened next when you went near the body of David Ambre?

A -The wife asked from David Ambre who shot him, sir.

ANSWER When my husband was shot, he told me that it was Francisco Santos who shot
him.

Q -And what did David Ambre tell his wife?

A -He told it was Pare Pran, sir.

Q -Will you describe to the court how he told you that it was Francisco Santos who shot
him?

Q -Do you know this Pare Pran being referred to by David Ambre?

A -When he was shot, he shouted Apo!

A -Yes, sir.

Q -And after that, what happened next?

Q - If he is in Court today, can you point at him?

A -And Corazon Dayao called for me.

A -Yes, sir.

Q -And why did Corazon Dayao call(ed) for you?

Q -Will you point at the Pare Pran you mentioned who is now in Court today?

A -Because my husband as if he wanted to say something from his look.

A There, sir.

Q -Now, when you were called by Corazon Dayao that your husband David Ambre wanted
to say something to you, what did you do?

(Witness stood up and pointed a man in a blue t-shirt and identified himself to be
Francisco Santos.)"

ANSWER I went near my husband, sir.

The victims wife, Lolita,[26] corroborated Corazons testimony as follows:

COURT

Put on record that witness is crying.

COURT

FISCAL ANTHONY FOZ And what did your husband tell you?

What was the cause of the death of your husband?

ANSWER - They shot him, sir.

ANSWER He uttered Pare Pran.

COURT - When you say they shot him, whom are you referring?

QUESTION
And do you know this Pare Pran' that your husband is telling?

ANSWER - Francisco Santos, sir (Witness pointing to Francisco Santos, the accused in this
case).

ANSWER I know him, sir. (Emphasis supplied.)

FISCAL ANTHONY FOZ
Why do you say that it was Francisco Santos who shot him?
ANSWER - My husband told me.
QUESTION

A dying declaration is entitled to the highest credence because no person who knows of his
impending death would make a careless and false accusation. [27] As an exception to the hearsay rule,
the requisites for its admissibility are as follows: (1) the declaration is made by the deceased under
the consciousness of his impending death; (2) the deceased was at the time competent as a witness;
(3) the declaration concerns the cause and surrounding circumstances of the declarants death; and
(4) the declaration is offered in a criminal case wherein the declarants death is the subject of inquiry.
[28]

How did he tell you that it was Francisco Santos who shot him?

It must be shown that a dying declaration was made under a realization by the decedent that
his demise or at least, its imminence -- not so much the rapid eventuation of death -- is at hand.

[29]

This may be proven by the statement of the deceased himself or it may be inferred from the
nature and extent of the decedents wounds, or other relevant circumstances. [30]
In the case at bar, the victims declaration consisted of the words Pare Pran. Under the
circumstances, however, he could not have been expected to articulate his awareness of something
so obvious -- the inevitability of his demise -- or to have the energy to do so. The nature and extent
of said injuries underscored the seriousness of his condition and they later proved by themselves that
the utterances of the deceased were made under a consciousness of an impending death. [31] That his
demise thereafter came swiftly, although not instantaneously, further emphasized the victims
realization of the hopelessness of his recovery. [32]
We stress that when a person is at the point of death, every motive for falsehood is silenced
and the mind is induced by the most powerful consideration to speak the truth. It was the height of
jocularity for appellant to have suggested that it was highly possible that the deceased mentioned
his name to Lolita so that she would tell him to come to decedents succor, or for another
reason. Such conjecture finds no basis on record. On the other hand, this speculation is belied by the
clear, straightforward testimonies of Lolita and Corazon. Despite several attempts, counsel for the
defense failed to make Lolita admit that the victim mentioned appellants name for a vague and
undefined purpose, other than to identify his assailant. [33] Lolita adamantly stuck to her testimony
that her husband told her that he was shot by Pare Pran.[34] The unrebutted testimony of Corazon
further clarified that the victim said those words in answer to his wifes question as to who shot him.

Appellant assails the credibility of the witness Lolita Ambre because of her delay in reporting
the antemortem declaration. We do not agree. Well-settled is the rule that delay in reporting
theantemortem declaration does not automatically render the testimony doubtful. Failure to reveal
or disclose the assailants identity at once does not necessarily affect, much less impair, the
credibility of said witness. The initial reluctance to volunteer information about a criminal case
and/or the unwillingness to be involved in criminal investigation due to fear of reprisal are common
and have been judicially declared to have no effect on credibility. [38]
Lolitas reason has been sufficiently explained in her testimony. While she did not intimate to
the police that her husband had identified the assailant when she was interviewed on the night of the
killing, she did reveal her husbands antemortem statement a week later. Such delay, however, was
not without reason. Lolita testified:
"QUESTION - According to you, your husband told you that it was the accused Pare Pran
who allegedly kill(ed) your husband, is it not?
ANSWER - Yes, sir.
Q - You were investigated by the Police on September 25, 1987, is that correct?

[35]

ANSWER - Yes, sir.

The deceaseds condemnatory antemortem statement naming appellant as his assailant

deserves full faith and credit and is admissible in evidence as a dying declaration.

ATTY. SALUNAT - Did you mention to the Police that it was accused Pare Pran who killed
your husband?

Furthermore, the same declaration was also properly admitted in evidence by the trial court as
part of res gestae, and rightly so. A declaration made spontaneously after a startling occurrence is
deemed as such 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. [36] The utterance of
the victim satisfies these three requisites. Clearly, it is admissible as part of theres gestae.

ANSWER - No, sir.

The propriety and the signifacance of admitting the dying declaration of the victim under the
rule on res gestae is explained by Mr. Justice Florenz D. Regalado, thus:
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. (Citing People vs. Gueron, et al., L-29365, March 25, 1983, 121
SCRA 115; People vs. Baltao, L-47686, June 24, 1983, 122 SCRA 859) While the admissibility thereof
would naturally not be affected whether viewed under either or both consideration 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 that declaration of the victim.[37] (Underscoring supplied.)

QUESTION - In other words, when you were investigated, you never mentioned that it was
Francisco Santos who allegedly killed your husband?
ANSWER - Not yet sir because I was still afraid at that time because the accused was not
yet apprehended that time.
Q - You were afraid to tell the Police that Francisco Santos was the villain because he was
not yet arrested?
A - Yes, sir.
Q - Is it not a fact that when you identified Francisco Santos, the Police will arrest him?
A - Yes sir, it was Villamor Asuncion who told the Police that they have to arrest Francisco
Santos.
Q - You love your husband?

Third Issue: Credibility of Witness

A - Yes, sir.
Q - In fact you are crying because you love him so much?
A - Yes, sir.
ATTY. SALUNAT - So, why did you not tell the Police who killed him?
ANSWER - Because I was afraid that I would be the next victim because he was not yet
arrested."[39]
Fear was therefore the compelling reason why Lolita did not divulge the identity of appellant
when the police first investigated her. Self-preservation is, after all, the most fundamental of human
instincts.[40] The following day, she lost no time in executing a sworn statement on the matter. She
repeated the information before the municipal judge who conducted the preliminary investigation
and thereafter to the fiscal. On the witness stand, she remained steadfast on the matter
notwithstanding a grueling cross-examination.
Moreover, Corazon also heard the victims antemortem declaration. She executed a statement
to the police also on September 26, 1987. Even at the trial of the case, she adhered to her earlier
account of what she heard the victim say.
Furthermore, the trial court found the testimonies of Lolita and Corazon to be credible. Because
a trial court has the opportunity to observe the witnesses firsthand and to note their conduct and
demeanor at the witness stand, its findings on their credibility deserve great weight and respect. In
the absence of any showing that the trial court has overlooked, misapprehended or misinterpreted
such facts or circumstances that materially affect the disposition of the case, its conclusions on the
credibility of witnesses should not be disturbed. [41] We have examined the records of this case and we
have been unable to find any reason -- and the appellant has not shown any -- to depart from this
rule.

On the other hand, treachery qualifies the killing as murder. This qualifying circumstance
of alevosia is present when an offender employs means and methods or forms in the execution
thereof which tend directly and especially to insure its execution without risk to himself arising from
the defense which the offended party might make. [45] Under the cover of darkness, appellant shot an
unarmed and unsuspecting victim. The shooting was swift and without warning. The wounds
sustained by the victim bespeak of the futility of any defense he could have mounted under these
circumstances. Means, method or form was obviously employed in the execution of the felony which
insured its commission without risk to assailant coming from any defense which the victim might
have taken.[46]
The allegation in the Information on the use of an unlicensed firearm in this case has alerted the
Court to appellants possible separate criminal liability under Section 1, Presidential Decree No. 1866,
following the ruling in People vs. Quijada.[47] However, a thorough review of the records reveals that
the prosecution abandoned its case against appellant for illegal possession of an unlicensed
firearm. No gun was ever recovered nor presented in evidence, much less proven to be
unlicensed. Thus, the Quijada ruling finds no application in the case at bar.
All things considered, appellant has been proven guilty beyond reasonable doubt of the murder
of David Ambre.
WHEREFORE, the appeal is hereby DENIED. The assailed decision is AFFIRMED, except that
the indemnification to the heirs is INCREASED to P50,000.00 in line with prevailing jurisprudence.
SO ORDERED.
[G.R. No. 113685. June 19, 1997]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. THEODORE BERNAL, JOHN DOE
and PETER DOE, accused-appellants.
DECISION

Fourth Issue: Alibi vs. Dying Declaration

ROMERO, J.:
Alibi is one of the weakest defenses that can be resorted to by an accused, not only because it
is inherently weak and unreliable, but also because it is easy to fabricate without much opportunity
to check or rebut it. To establish alibi as a valid defense, an accused must show that he was at some
other place for such a period of time and that it was physically impossible for him to have been at the
place of the crime during its commission. [42] In the present case, appellant failed to establish the
physically impossibility of his presence at the scene of the crime at the time of its commission. He
anchored his defense on the fact that at that time, he was in his house which was only about 500
meters from the Ambre residence.[43]
Furthermore, alibi is unavailing as a defense where there is positive identification of the accused
as the perpetrator of the offense, or when there is an antemortem declaration received in evidence
either as a dying declaration or as part of res gestae,[44] or both.
Treachery

Accused-appellant Theodore Bernal, together with two other persons whose identities and
whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No.
26658-92 of the Regional Trial Court of Davao City, Branch 10, under an information [1] dated July 13,
1992, which reads as follows:
That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, armed with hand guns, conspiring, confederating
and cooperating together and helping one another, and by means of force, violence, intimidation and
threat, wilfully, unlawfully, and feloniously grabbed and kidnapped one Bienvenido Openda, Jr., while
the latter was drinking liquor with his friends at Bolton Isla, this City and was brought, handcuffed
and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving the
said Bienvenido Openda, Jr. of his liberty against his will.

CONTRARY TO LAW.
A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The
prosecution presented four witnesses.[2] On the other hand, Theodore Bernal testified for his defense.
The material facts and events as found by the court a quo are:

Any private individual who shall kidnap or detain another, or in any other manner deprive him of his
liberty, shall suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and
Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them.

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

After a few minutes, Bernal decided to leave both men, apparently because he was going to
fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was
Payat.[3] When he said yes, one of them suddenly pulled out a handgun while the other handcuffed
him and told him not to run because they were policemen and because he had an atraso or a
score to settle with them. They then hastily took him away. Racasa immediately went to the house of
Openda, Jr. and informed the latters mother of the abduction.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to
establish that Openda, Jr. had an illicit affair with Bernals wife Naty and this was the motive behind
the formers kidnapping. Until now, Openda, Jr. is still missing.
On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the
police on August 5, 1991, and hence, was never kidnapped.[4]
On December 10, 1993, the court a quo rendered judgment[5] finding Bernal guilty beyond
reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido
Openda, Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion
perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental
anguish and moral suffering.[6]
Bernal assails the lower court for giving weight and credence to the prosecution witnesses
allegedly illusory testimonies and for convicting him when his guilt was not proved beyond
reasonable doubt.
We find no compelling reason to overturn the decision of the lower court.
The Court notes that up to this day, neither the victim nor his body has been found. This,
however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what is
important is to determine and prove the fact of seizure, and the subsequent disappearance of the
victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily
avoid punishment by the simple expedient of disposing of their victims bodies.
Article 267 of the Revised Penal Code provides thus:
ART. 267. - Kidnapping and serious illegal detention. -

The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense.
For the charge of kidnapping to prosper, the deprivation of the victims liberty, which is the
essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted
in conspiracy with the two other unknown individuals as shown by their concerted acts evidentiary
of a unity of thought and community of purpose. [7] Proof of conspiracy is perhaps most frequently
made by evidence of a chain of circumstances only. [8] The circumstances present in this case
sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.
The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with
his two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood
friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m.
with his two companions and overheard him dispatching one of them to Tarsings Store to check if
a certain person was still there. This person later turned out to be Openda, Jr. He added that after
the latters presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr.,
already handcuffed, passed by the billiard hall with Bernals companions.
Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who
knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that he
and the victim were drinking at Tarsings Store on that fateful day when Bernal passed by and had
a drink with them. After a few minutes, Bernal decided to leave, after which, two men came to the
store and asked for Payat. When Openda, Jr. confirmed that he was indeed Payat, he was
handcuffed and taken away by the unidentified men.
Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime
in January 1991, Openda, Jr. confided to him that he and Bernals wife Naty were having an
affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He
advised Naty not to do it again because she (was) a married woman.[9] Undoubtedly, his wifes
infidelity was ample reason for Bernal to contemplate revenge.
Motive is generally irrelevant, unless it is utilized in establishing the identity of the
perpetrator. Coupled with enough circumstantial evidence or facts from which it may be reasonably
inferred that the accused was the malefactor, motive may be sufficient to support a conviction.

[10]

Openda, Jr.s revelation to Enriquez regarding his illicit relationship with Bernals wife is admissible
in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:
Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it
was made so far contrary to declarants own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true, may be received in evidence against
himself or his successors-in-interest and against third persons.
With the deletion of the phrase pecuniary or moral interest from the present provision, it is
safe to assume that declaration against interest has been expanded to include all kinds of interest,
that is, pecuniary, proprietary, moral or even penal.[11]
A statement may be admissible when it complies with the following requisites, to wit: (1) that
the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the
declarant; (3) that at the time he made said declaration the declarant was aware that the same was
contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed
such declaration to be true.[12]
Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His
confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty
Bernal was a crime, is admissible in evidence [13] because no sane person will be presumed to tell a
falsehood to his own detriment.[14]
In his brief, Bernal highlights supposed inconsistencies in Sagarinos testimony. He alleges that
the latter could not have seen the actual handcuffing because Tarsings Store could not be seen
from the billiard hall. Sagarinos testimony shows that after Bernal and two others left the billiard
hall, the latter came back with Openda, Jr., already handcuffed.

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr.
arrested. The lower court correctly rejected this argument by holding that:
But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing
store. On the contrary, he says that he had not known who the person was that Bernal referred to
when he requested one of this two companions to go see if that person was still there at the store,
and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard
hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to
the main road.[16]
If one had a direct view of Tarsings Store from the billiard hall, Bernal would not have
requested his companion to check if Openda, Jr. were still there drinking with Racasa. Another
discrepancy pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on
cross-examination, stated:
"Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that
correct?
A

Yes, sir.

And what about you, where did you stay?

I just stayed in the billiard hall.

While you stay (sic) in the billiard hall, after a while, what did you see next?

The two came back.

Who were these two whom you said who (sic) came back?

The companions of Bernal.

And what did these two men do?

Yes, sir, because I was still in the store.[17]

On the other hand, Sagarino averred that:

"Q When Theodore Bernal left the place, how long (sic) were you able to see him
again?
A

Quite a time, sir, because when they left, his two companions came back
and proceeded to Tarcing Store and arrested Jun-jun Openda. When these two men
brought out Jun-jun Openda, fifteen minutes later, Bernal came.

Do you know where this Bernal from? (sic)

He was coming from outside.

He has with him his son?

He was with nobody, sir.

Are you sure of that?

Yes, sir.

He was alone?

"Q The three of them together?

A

They apprehended Jun-jun Openda.[15]

Yes, sir.[18]

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be
irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that
when Racasa saw Bernal with his son at the store, the latter could have already brought home his
son before proceeding alone to the billiard hall where he was seen by Sagarino. [19]
Bernal would like the Court to dismiss Sagarinos testimony by imputing revenge as his motive
for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five
policemen arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph
Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and
staying at the billiard hall and mahjong house. The policemen departed and went to the places he
mentioned.
"Q - Minutes later do you know what happened?
"A - They came back.
"Q - What did you do after they came back?
"A - I asked these police officers if they found these (sic) persons they were looking (for)?
"Q - What was their answer?
"A - They answered in the negative.
"Q - Since the answer is in the negative, what did you do?

kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a
credible witness, but must be credible in itself. [21] This Court once again finds occasion to reiterate the
established rule that the findings of fact of a trial court carry great weight and are entitled to respect
on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to
decide the question of credibility of witnesses.[22]
We note that after a lapse of a considerable length of time, the victim has yet to
resurface. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead.
Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to
this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion
perpetua, as maximum. The maximum penalty must be determined in accordance with rules and
provisions of the Revised Penal Code. With respect to the minimum penalty, however , " it is left
entirely within the discretion of the court to fix it anywhere within the range of the penalty next lower
without reference to the periods in to which it may be subdivided." [23] Consistent with this ruling, this
court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion
perpetua, as maximum.
WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed
decision dated November 18, 1993, is AFFIRMED in toto.
Costs against accused-appellant Theodore Bernal.
SO ORDERED.
[G.R. No. 121027. July 31, 1997]
CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners, vs. COURT OF APPEALS
and TEODORA DOMINGO, respondents.

"A - I asked the police officers why they were looking for these persons.(?)
DECISION
"Q - What was the answer of the policemen?
REGALADO, J.:
"A - The police officer said that those people were wanted by them because accordingly
(sic) they were marijuana pushers.[20]
Bernals position is that no abduction or kidnapping ever took place but that an arrest was made by
pursuing policemen. This contention is quite improbable, if not highly preposterous.
The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive
against Bernal. If the latters allegations were true, then Sagarino should have been arrested by the
police at the time he gave his testimony in court. No such arrest was, however, made.
The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino
sufficient to convict Bernal. The court said that Sagarinos forthright answers to the questions of the
prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or

The present appeal by certiorari seeks the reversal of the judgment rendered by respondent
Court of Appeals on June 30, 1995[1] which affirmed the Order of December 3, 1992 issued by the
Regional Trial Court of Quezon City, Branch 98, granting herein private respondents Demurrer
to Plaintiffs Evidence filed in Civil Case No. Q-88-1054 pending therein.
The present appellate review involves an action for reconveyance filed by herein petitioners
against herein private respondent before the Regional Trial Court of Quezon City, Branch 98,
docketed as the aforesaid Civil Case No. Q-88-1054, over a parcel of land with a house and
apartment thereon located at San Francisco del Monte, Quezon City and which was originally owned
by the spouses Martin Guerrero and Teodora Dezoller Guerrero. It appears that petitioners Corazon
Tison and Rene Dezoller are the niece and nephew, respectively, of the deceased Teodora Dezoller
Guerrero who is the sister of petitioners father, Hermogenes Dezoller. Teodora Dezoller Guerrero
died on March 5, 1983 without any ascendant or descendant, and was survived only by her husband,

Martin Guerrero, and herein petitioners. Petitioners father, Hermogenes, died on October 3, 1973,
hence they seek to inherit from Teodora Dezoller Guerrero by right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse,
Martin, executed on September 15, 1986 an Affidavit of Extrajudicial Settlement [2] adjudicating unto
himself, allegedly as sole heir, the land in dispute which is covered by Transfer Certificate of Title No.
66886, as a consequence of which Transfer Certificate of Title No. 358074 was issued in the name of
Martin Guerrero. On January 2, 1988, Martin Guerrero sold the lot to herein private respondent
Teodora Domingo and thereafter, Transfer Certificate of Title No. 374012 was issued in the latters
name.
Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed an action for
reconveyance on November 2, 1988, claiming that they are entitled to inherit one-half of the
property in question by right of representation.
At the pre-trial conference, the following issues were presented by both parties for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and niece of the late
Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of representation from the
estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must reconvey the reserved
participation of the plaintiffs to the estate of the late Teodora Dezoller under Section 4,
Rule 74 of the Rules of Court which was duly annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and exemplary, plus
attorneys fees for the willful and malicious refusal of defendant to reconvey the
participation of plaintiffs in the estate of Teodora Dezoller, despite demands and
knowing fully well that plaintiffs are the niece and nephew of said deceased; and
(5) whether or not the subject property now in litigation can be considered as conjugal
property of the spouses Martin Guerrero and Teodora Dezoller Guerrero. [3]
During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with
the following documentary evidence offered to prove petitioners filiation to their father and their
aunt, to wit: a family picture; baptismal certificates of Teodora and Hermogenes Dezoller; certificates
of destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death certificates of
Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of destroyed records of live birth of
Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the
parents, date and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and
Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora Dezoller; and
the marriage certificate of Martin and Teodora Guerrero. [4] Petitioners thereafter rested their case and
submitted a written offer of these exhibits to which a Comment[5] was filed by herein private
respondent.

Subsequently, private respondent filed a Demurrer to Plaintiffs Evidence on the ground that
petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero in accordance
with Article 172 of the Family Code. It is further averred that the testimony of petitioner Corazon
Dezoller Tison regarding her relationship with her alleged father and aunt is self-serving,
uncorroborated and incompetent, and that it falls short of the quantum of proof required under
Article 172 of the Family Code to establish filiation. Also, the certification issued by the Office of the
Local Civil Registrar of Himamaylan, Negros Occidental is merely proof of the alleged destruction of
the records referred to therein, and the joint affidavit executed by Pablo Verzosa and Meliton Sitjar
certifying to the date, place of birth and parentage of herein petitioners is inadmissible for being
hearsay since the affiants were never presented for cross-examination. [6]
On December 3, 1992, the trial court issued an order granting the demurrer to evidence and
dismissing the complaint for reconveyance . [7]
In upholding the dismissal, respondent Court of Appeals declared that the documentary
evidence presented by herein petitioners, such as the baptismal certificates, family picture, and joint
affidavits are all inadmissible and insufficient to prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondents demurrer to evidence is whether or not herein
petitioners failed to meet the quantum of proof required by Article 172 of the Family Code to
establish legitimacy and filiation. There are two points for consideration before us: first is the issue
on petitioners legitimacy, and second is the question regarding their filiation with Teodora Dezoller
Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners, taken separately
and independently of each other, are not per se sufficient proof of legitimacy nor even of pedigree. It
is important to note, however, that the rulings of both lower courts in the case are basically premised
on the erroneous assumption that, in the first place, the issue of legitimacy may be validly
controverted in an action for reconveyance, and, in the second place, that herein petitioners have
the onus probandi to prove their legitimacy and, corollarily, their filiation. We disagree on both
counts.
It seems that both the court a quo and respondent appellate court have regrettably overlooked
the universally recognized presumption on legitimacy. There is no presumption of the law more
firmly established and founded on sounder morality and more convincing reason than the
presumption that children born in wedlock are legitimate. [8] And well settled is the rule that the issue
of legitimacy cannot be attacked collaterally.
The rationale for these rules has been explained in this wise:
The presumption of legitimacy in the Family Code x x x actually fixes a civil status for the child born
in wedlock, and that civil status cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper parties, and within the
period limited by law.

The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another
action for a different purpose. The necessity of an independent action directly impugning the
legitimacy is more clearly expressed in the Mexican Code (Article 335) which provides: The contest
of the legitimacy of a child by the husband or his heirs must be made by proper complaint before the
competent court; any contest made in any other way is void. This principle applies under our Family
Code. Articles 170 and 171 of the code confirm this view, because they refer to the action to
impugn the legitimacy. This action can be brought only by the husband or his heirs and within the
periods fixed in the present articles.

theory that a presumption is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it must stand as proved. [15]

Upon the expiration of the periods provided in Article 170, the action to impugn the legitimacy of a
child can no longer be brought. The status conferred by the presumption, therefore, becomes fixed,
and can no longer be questioned. The obvious intention of the law is to prevent the status of a child
born in wedlock from being in a state of uncertainty for a long time. It also aims to force early action
to settle any doubt as to the paternity of such child, so that the evidence material to the matter,
which must necessarily be facts occurring during the period of the conception of the child, may still
be easily available.

II. The weight and sufficiency of the evidence regarding petitioners relationship with Teodora
Dezoller Guerrero, whose estate is the subject of the present controversy, requires a more intensive
and extensive examination.

x x x
Only the husband can contest the legitimacy of a child born to his wife. He is the one directly
confronted with the scandal and ridicule which the infidelity of his wife produces; and he should
decide whether to conceal that infidelity or expose it, in view of the moral and economic interest
involved. It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside
of these cases, none - even his heirs - can impugn legitimacy; that would amount to an insult to his
memory.[9]
The issue, therefore, as to whether petitioners are the legitimate children of Hermogenes
Dezoller cannot be properly controverted in the present action for reconveyance. This is aside, of
course, from the further consideration that private respondent is not the proper party to impugn the
legitimacy of herein petitioners. The presumption consequently continues to operate in favor of
petitioners unless and until it is rebutted.
Even assuming that the issue is allowed to be resolved in this case, the burden of proof rests
not on herein petitioners who have the benefit of the presumption in their favor, but on private
respondent who is disputing the same. This fact alone should have been sufficient cause for the trial
court to exercise appropriate caution before acting, as it did, on the demurrer to evidence. It would
have delimited the issues for resolution, as well as the time and effort necessitated thereby.
Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption
exists does not have to introduce evidence to establish that fact, and in any litigation where that fact
is put in issue, the party denying it must bear the burden of proof to overthrow the presumption.
[10]
The presumption of legitimacy is so strong that it is clear that its effect is to shift the burden of
persuasion to the party claiming illegitimacy. [11] And in order to destroy the presumption, the party
against whom it operates must adduce substantial and credible evidence to the contrary. [12]
Where there is an entire lack of competent evidence to the contrary, [13] and unless or until it is
rebutted, it has been held that a presumption may stand in lieu of evidence and support a finding or
decision.[14] Perforce, a presumption must be followed if it is uncontroverted. This is based on the

Indubitably, when private respondent opted not to present countervailing evidence to overcome
the presumption, by merely filing a demurrer to evidence instead, she in effect impliedly admitted
the truth of such fact. Indeed, she overlooked or disregarded the evidential rule that presumptions
like judicial notice and admissions, relieve the proponent from presenting evidence on the facts he
alleged and such facts are thereby considered as duly proved.

Petitioners evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller
Tison, the baptismal, death and marriage certificates, the various certifications from the civil
registrar, a family picture, and several joint affidavits executed by third persons all of which she
identified and explained in the course and as part of her testimony.
The primary proof to be considered in ascertaining the relationship between the parties
concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in
her lifetime, or sometime in 1946, categorically declared that the former is Teodoras niece. [16] Such a
statement is considered a declaration about pedigree which is admissible, as an exception to the
hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1)
that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose
pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the
declaration; and (4) that the declaration was made ante litem motam, that is, not only before the
commencement of the suit involving the subject matter of the declaration, but before any
controversy has arisen thereon.
There is no dispute with respect to the first, second and fourth elements. What remains for
analysis is the third element, that is, whether or not the other documents offered in evidence
sufficiently corroborate the declaration made by Teodora Dezoller Guerrero in her lifetime regarding
the pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to present evidence other
than such declaration.
American jurisprudence has it that a distinction must be made as to when the relationship of
the declarant may be proved by the very declaration itself, or by other declarations of said declarant,
and when it must be supported by evidence aliunde. The rule is stated thus:
One situation to be noted is that where one seeks to set up a claim through, but not from, the
declarant and to establish the admissibility of a declaration regarding claimants pedigree, he may
not do so by declarants own statements as to declarants relationship to the particular family. The
reason is that declarants declaration of his own relationship is of a self-serving nature. Accordingly
there must be precedent proof from other sources that declarant is what he claimed to be, namely, a
member of the particular family; otherwise the requirement to admissibility that declarants
relationship to the common family must appear is not met. But when the party claiming seeks to
establish relationship in order to claim directly from the declarant or the declarants estate, the
situation and the policy of the law applicable are quite different. In such case the declaration of the

decedent, whose estate is in controversy, that he was related to the one who claims his estate, is
admissible without other proof of the fact of relationship. While the nature of the declaration is then
disserving, that is not the real ground for its admission. Such declarations do not derive their
evidential value from that consideration, although it is a useful, if not an artificial, aid in determining
the class to which the declarations belong. The distinction we have noted is sufficiently apparent; in
the one case the declarations are self-serving, in the other they are competent from reasons of
necessity.[17] (Italics ours.)
The general rule, therefore, is that where the party claiming seeks recovery against a relative
common to both claimant and declarant, but not from the declarant himself or the declarants estate,
the relationship of the declarant to the common relative may not be proved by the declaration
itself. There must be some independent proof of this fact. [18] As an exception, the requirement that
there be other proof than the declarations of the declarant as to the relationship, does not apply
where it is sought to reach the estate of the declarant himself and not merely to establish a right
through his declarations to the property of some other member of the family. [19]
We are sufficiently convinced, and so hold, that the present case is one instance where the
general requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part of
the estate of the declarant herself. Conformably, the declaration made by Teodora Dezoller Guerrero
that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship,
notwithstanding the fact that there was no other preliminary evidence thereof, the reason being that
such declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid
a failure of justice. [20] More importantly, there is in the present case an absolute failure by all and
sundry to refute that declaration made by the decedent.
From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the
decedents declaration and without need for further proof thereof, that petitioners are the niece and
nephew of Teodora Dezoller Guerrero. As held in one case, [21] where the subject of the declaration is
the declarants own relationship to another person, it seems absurd to require, as a foundation for
the admission of the declaration, proof of the very fact which the declaration is offered to
establish. The preliminary proof would render the main evidence unnecessary.
Applying the general rule in the present case would nonetheless produce the same result. For
while the documentary evidence submitted by petitioners do not strictly conform to the rules on their
admissibility, we are however of the considered opinion that the same may be admitted by reason of
private respondents failure to interpose any timely objection thereto at the time they were being
offered in evidence.[22] It is elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence, [23] otherwise, the objection shall be treated as waived,
[24]
since the right to object is merely a privilege which the party may waive. [25]
As explained in Abrenica vs. Gonda, et al., [26] it has been repeatedly laid down as a rule of
evidence that a protest or objection against the admission of any evidence must be made at the
proper time, otherwise it will be deemed to have been waived. The proper time is when from the
question addressed to the witness, or from the answer thereto, or from the presentation of the proof,
the inadmissibility of the evidence is, or may be inferred.
Thus, a failure to except to the evidence because it does not conform with the statute is a
waiver of the provisions of the law. That objection to a question put to a witness must be made at

the time the question is asked. An objection to the admission of evidence on the ground of
incompetency, taken after the testimony has been given, is too late. [27] Thus, for instance, failure to
object to parol evidence given on the stand, where the party is in a position to object, is a waiver of
any objections thereto.[28]
The situation is aggravated by the fact that counsel for private respondent unreservedly crossexamined petitioners, as the lone witness, on the documentary evidence that were offered. At no
time was the issue of the supposed inadmissibility thereof, or the possible basis for objection thereto,
ever raised. Instead, private respondents counsel elicited answers from the witness on the
circumstances and regularity of her obtention of said documents: The observations later made by
private respondent in her comment to petitioners offer of exhibits, although the grounds therefor
were already apparent at the time these documents were being adduced in evidence during the
testimony of Corazon Dezoller Tison but which objections were not timely raised therein, may no
longer serve to rectify the legal consequences which resulted therefrom. Hence, even assuming ex
gratia argumenti that these documents are inadmissible for being hearsay, but on account of herein
private respondents failure to object thereto, the same may be admitted and considered as sufficient
to prove the facts therein asserted.[29]
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of
Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism of
Teodora Dezoller[30] (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the names of
their parents as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the brother
of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller (Exhibit K) the
entries wherein were made by petitioner Corazon Dezoller Tison as his daughter, together with the
Joint Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners
are the children of Hermogenes Dezoller -- these can be deemed to have sufficiently established the
relationship between the declarant and herein petitioners. This is in consonance with the rule that
a prima facie showing is sufficient and that only slight proof of the relationship is required. [31] Finally,
it may not be amiss to consider as in the nature of circumstantial evidence the fact that both the
declarant and the claimants, who are the subject of the declaration, bear the surname Dezoller. [32]
III. The following provisions of the Civil Code provide for the manner by which the estate of the
decedent shall be divided in this case, to wit:
Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit
from the latter by representation, if they survive with their uncles or aunts. But if they alone survive,
they shall inherit in equal portions.
Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and
their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be
any, under Article 1001.
Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter
shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the
other half.

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was automatically
reserved to the surviving spouse, Martin Guerrero, as his share in the conjugal partnership. Applying
the aforequoted statutory provisions, the remaining half shall be equally divided between the
widower and herein petitioners who are entitled to jointly inherit in their own right. Hence, Martin
Guerrero could only validly alienate his total undivided three-fourths (3/4) share in the entire property
to herein private respondent. Resultantly, petitioners and private respondent are deemed co-owners
of the property covered by Transfer Certificate of Title No. 374012 in the proportion of an undivided
one-fourth (1/4) and three-fourths (3/4) share thereof, respectively.
All told, on the basis of the foregoing considerations, the demurrer to plaintiffs evidence should
have been, as it is hereby, denied. Nonetheless, private respondent may no longer be allowed to
present evidence by reason of the mandate under Section 1 of revised Rule 3 of the Rules of Court

which provides that if the motion is granted but on appeal the order of dismissal is reversed he shall
be deemed to have waived the right to present evidence. [33]
WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby REVERSED
and SET ASIDE, and herein petitioners and private respondent are declared co-owners of the subject
property with an undivided one-fourth (1/4) and three-fourths (3/4) share therein, respectively.
SO ORDERED.